UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TIPOSAN HARF VE MATBAA GERECLERI
A.S.,
Plaintiff-Appellant,

v.

MASONITE CORPORATION,
Defendant-Appellee,

and

AYERS MARITIME SERVICE,
                                                                    No. 97-2082
INCORPORATED,
Defendant,

v.

B.D.P. INTERNATIONAL,
INCORPORATED; EVANS MARITIME
SERVICES, INCORPORATED; JET
COMPANIA NAVIERA S.A.,
Third Party Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-94-885-BO)

Argued: May 7, 1998

Decided: August 10, 1998

Before ERVIN and HAMILTON, Circuit Judges, and
BLAKE, United States District Judge for the District of Maryland,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Keith Edward Hope, KEITH E. HOPE, P.A., Tallahassee,
Florida, for Appellant. David Alan Nash, HOGUE, HILL, JONES,
NASH & LYNCH, L.L.P., Wilmington, North Carolina, for Appellee.
ON BRIEF: Robert B. White, Jr., SOBERING, WHITE &
LUCZAK, P.A., Orlando, Florida, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff-appellant Tiposan Harf ve Matbaa Gerecleri ("Tiposan")
appeals the district court's grant of summary judgment to defendant-
appellee Masonite Corporation on its breach of contract claims. Find-
ing no error, we affirm.

I.

Tiposan, a Turkish company, contracted with Masonite to purchase
a quantity of medium density fiberboard ("MDF") manufactured by
Masonite in North Carolina. The terms of the sale were "CF Istanbul."
"CF" (also called "C&F") means that the price includes cost and
freight. See N.C. Gen. Stat. § 25-2-320 (1995). Under this type of
contract, the risk of subsequent loss or damage to the goods passes to
the buyer upon delivery to the carrier, as long as the seller has prop-
erly performed all its obligations with respect to the goods. See id.
cmt. 1.

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The carrier selected to transport the fiberboard was Jet Compania
Naviera ("Jet"). Tiposan claims, and for summary judgment purposes
we accept its contention as true, that Masonite's product manager,
Mike Hopkins, booked the shipment himself rather than going
through Masonite's usual freight broker, B.D.P. International Inc., or
having Tiposan book it.

Masonite delivered the MDF to the carrier, Jet, and was issued a
clean bill of lading. According to industry practice, such a "clean" bill
of lading indicates that the goods to be shipped were stored "on
board" (i.e. below deck) and not "on deck." See, e.g., Ingersoll Mill-
ing Mach. Co. v. M/V Bodena, 829 F.2d 293, 303-04 (2d Cir. 1987)
("It has long been recognized in admiralty custom and practice that
a "clean" bill of lading refers also to the place on a ship where cargo
is to be stowed. `[A] clean bill of lading imports that the goods are
to be safely and properly stowed under deck.'" (quoting The
Delaware, 81 U.S. (14 Wall.) 579, 602 (1871)) (footnote omitted)).
Nonetheless, because of overbooking Jet stored a portion of the MDF
on the deck of the ship and, as a result, this portion sustained water
damage as it was being shipped from the port in Wilmington, North
Carolina to Istanbul, Turkey. Both parties agree that the MDF should
have been stowed below deck in order to avoid water damage. Jet, the
entity responsible for stowing the MDF below deck, is in bankruptcy.

Tiposan brought suit against Masonite alleging Masonite was neg-
ligent and in breach of the sales agreement by failing to make reason-
able and adequate shipping arrangements, and negligent and in breach
of the terms of the letter of credit by allowing a clean bill of lading
to be issued by Jet at the time the MDF was loaded onto the ship in
Wilmington. Masonite responded by filing a motion for summary
judgment against Tiposan.

The district court granted Masonite's summary judgment motion,
noting in its order that under the terms of the CF contract, once
Masonite had "(1) put the MDF into the possession of the carrier at
the port for shipment and procured a reasonable contract of carriage
for the MDF, (2) received a clean bill of lading, and (3) forwarded
and tendered an invoice for the goods and the bill of lad[ing] to Tipo-
san and notified Tiposan of the shipment, Masonite[had] fully and
satisfactorily performed its duties under the contract with Tiposan."

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J.A. at 106. The district court went on to observe that "[t]here [was]
no indication from the contract or the statutes which govern[ed] the
contract that Masonite should be held accountable for the fact that the
MDF was stowed on deck and was damages [sic] as a result thereof."
Id. (citation omitted). Therefore, because there was "no question as to
what Masonite's duties were" and "no question that Masonite fulfilled
those duties," Tiposan had failed to establish a genuine issue of mate-
rial fact as required to survive summary judgment. Id.

II.

After reviewing the parties' briefs and the applicable law, and hav-
ing had the benefit of oral argument, we conclude that the district
court's order of summary judgment for Masonite was correct.
Accordingly, we affirm on the reasoning of the district court.

AFFIRMED

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