Phoenix Engineering & Supply, Inc. v. American President Lines, Ltd. , 12 F.3d 1108 ( 1993 )

12 F.3d 1108

1994 A.M.C. 1216

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
PHOENIX ENGINEERING & SUPPLY, INC., Plaintiff-Appellant,
v.
AMERICAN PRESIDENT LINES, LTD., et al., Defendant-Appellee.

No. 92-15829.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 1993.
Decided Dec. 8, 1993.

Before: HUG, FARRIS, and BRUNETTI, Circuit Judges.

1

MEMORANDUM*

2

Appellant Phoenix Engineering & Supply, Inc. ("Phoenix") appeals the district court's grant of partial summary judgment in favor of appellees American President Lines, Ltd. ("APL") and Eagle Marine Services, Ltd. We review grants of summary judgment de novo. Jones v. Union Pacific R.R., 968 F.2d 937, 940 (9th Cir.1992).

3

At oral argument, counsel for Phoenix conceded Phoenix's claims with respect to the specific form of APL's bill of lading.

4

Turning to Phoenix's claims as to notice and fair opportunity to opt out of APL-imposed liability limitations, we hold that the district court did not err in holding that Phoenix failed to establish a genuine issue of material fact on this point, and that the course of dealing between the parties reflects notice and fair opportunity. See Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 901 (9th Cir.1989).

5

Phoenix's implicit suggestion that APL issued a false bill of lading has no merit.

6

Finally, we hold that the district court did not err in finding that Eagle Marine was acting as APL's stevedore when the damage occurred, and that Eagle Marine's stevedoring services were covered by the Himalaya clause in the bill of lading. See Taisho Marine & Fire Ins. Co. v. Vessel "Gladiolus", 762 F.2d 1364, 1367 (9th Cir.1985).

7

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3