Phoenix Engineering & Supply, Inc., Plaintiff-appellant, v. American President Lines, Ltd., et al., Defendant-appellee, 12 F.3d 1108 (9th Cir. 1993)

MEMORANDUM^* 

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).

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

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).

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

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).

AFFIRMED.