225 F.3d 587 | 5th Cir. | 2000
Before SMITH and DENNIS, Circuit called a “through bill of lading.” [3] Because the
Judges, and HARMON, District Judge. [*] bill obligated the carrier to transport the cargo “through” the port to its ultimate destination, JERRY E. SMITH, Circuit Judge: it is referred to as a “through bill.” When the goods arrived at the Port of Baltimore, Mannesman Demag Corporation (“Mannes- Atlantic hired Trism to transport them to Terre man”) appeals the amount of a summary judg- Haute. ment award in its favor, and Trism Specialized Carriers, Inc. (“Trism”), appeals an adverse A. summary judgment in favor of Atlantic This case presents an issue of first Container Line, Inc. (“Atlantic”). We reverse impression regarding the applicability of and remand. federal maritime statutes to inland transport
under a through bill of lading. The following I. excerpt describes the origin of this issue. This case arises from damage sustained to an oxygen compressor and instrument rack owned by Mannesman, which were Until the advent of the containeriza- transported from Bremerhaven, Germany, to tion of cargo, the cargo owner typically Terre Haute, Indiana. Atlantic carried the would enter into a new shipment goods from Bremerhaven to the Port of contract with a new carrier each time Baltimore, Maryland, aboard the M/V the mode of transport changed. An CONCERT EXPRESS. Trism carried the inland carrier SS a railroad, trucker or, in goods from Baltimore to Terre Haute. While some cases, an inland barge operat- or SS would carry the goods to a seaport en route from Baltimore to Terre Haute, the goods were damaged when Trism’s trailer under one contract of carriage. There overturned. [1] someone, usually a “freight forwarder”
acting on behalf of the cargo owner, There was only one bill of lading for the would arrange to place the goods in the entire transportation, issued by Atlantic, re- hands of a steamship line. Frequently it flecting an agreement to transport the goods would be necessary to repack the goods from Bremerhaven, Germany, to the for ocean shipment. The ocean carrier midwestern United States. [2] The bill is what is
would transport them to a foreign COGSA. One of COGSA’s most seaport and release them there to the important provisions limits a carrier’s consignee or someone acting on the liability to five hundred dollars consignee’s behalf. ($500US) per package unless a higher
value is declared by the shipper. Different legal regimes arose to COGSA also contains a one-year govern the parties’ rights and liabilities, limitation for cargo claims. depending upon the mode of shipment. . . . If the railroad did the damage, then * * * the rules of liability governing railroads By its terms, COGSA applies would apply. If the steamship line was “tackle-to-tackle” only; it does not liable, then maritime law would govern. extend to losses which occur prior to
loading or subsequent to discharge from Along came intermodal shipping a vessel. [4] A Period of Responsibility containers and everything changed. clause can be used to extend COGSA’s Now, the same steel cargo container can application to the entire time the goods move freely between different modes of are within the carrier’s custody. transport. Ocean carriers began to offer “door to door” service. Rail carriers, Charles S. Donovan & Jill M. Haley, supra truckers or other transporters now note 3, at 415-17. contract, not with the owner of the goods, but as a subcontractor to the B. steamship line who has offered a The parties agree that the controlling complete transport package. contractual document is the single bill of
lading issued by Atlantic, which provides: Under United States law, a shipper or consignee may recover against 3. CARRIER’S RESPONSIBILITY non-ocean carriers for the loss of or damage to cargo subject to a “through (1) . . . If and to the extent that the bill of lading.” The bill of lading may, if provisions of the Harter Act . . . would properly drafted, limit both the amount otherwise be compulsorily applicable to an owner may seek as well as the time in regulate the Carrier’s responsibility for which recovery may be sought. the goods . . . the Carrier’s responsibility
shall instead be subject to COGSA, but * * * where COGSA is found not to be applicable such responsibility shall be The U.S. Carriage of Goods by Sea determined by the provisions of 3(2) Act (COGSA) governs the liability of an below . . . . ocean carrier on an international through bill of lading. . . . COGSA contains * * * important benefits to the carrier. Inland carriers frequently attempt to take advantage of the benefits afforded by [4] The Harter Act applies after discharge but be-
fore “proper delivery.” See part IV, infra . damage to or in connection with the (2) Save as is otherwise provided in goods in an amount per package or unit this Bill of Lading, the Carrier shall be in excess of the package or unit liable for loss of or damage to the goods limitation as laid down by such Rules or occurring from the time that the goods legislation. Such limitation amount are taken into his charge until the time according to . . . COGSA is US $500 . of delivery to the extent set out below. . . .
* * * * * * (B) Where the stage of carriage 7. TIME-BAR where the loss or damage occurred can be proved. . . . All liability whatsoever of the
Carrier shall cease unless suit is brought * * * within 12 months after delivery of the goods or the date when the goods (ii) With respect to the should have been delivered. transportation in the United States . . . from the Port of Discharge, the C. responsibility of the Carrier shall be to Before filing the instant matter, Mannesman procure transportation by carriers (one sued Trism (the “previous lawsuit”). [5] Trism or more) and such transportation shall argued that the suit was barred by the bill’s be subject to the inland carrier’s one-year time-bar, while Mannesman contend- contracts of carriage and tariffs and any ed that the suit was governed by limitations in law compulsorily applicable. The Trism’s contracts of carriage and tariffs. As a Carrier guarantees the fulfillment of matter of contractual interpretation, the court such inland carriers’ obligations under held that the “TIME-BAR” provision of the their contracts and tariffs. Bill unambiguously applied to all aspects of the
through bill, and therefore granted summary * * * judgment in favor of Trism. Mannesman did not appeal.
6. PACKAGE/UNIT LIMITATION
AND DECLARED VALUE Mannesman then filed the instant suit
against Atlantic, which brought a third-party (1) Package or Unit Limitation claim against Trism for contribution and indemnity. Mannesman moved for summary Where the Hague Rules or any judgment against Atlantic, which filed a cross- legislation making such Rules motion for summary judgment against compulsorily applicable (such as COGSA or COGWA) to this Bill of Lading apply, the Carrier shall not, [5] Apparently to avoid being a party to the unless a declared value has been noted . previous lawsuit, Atlantic signed an agreement . . be or become liable for any loss or with Mannesman extending the contractual limitations period. Mannesman. The court granted summary terpretation of, inter alia, the Harter Act. judgment, without opinion, in favor of Mannesman against Atlantic in the amount of The district court’s opinion in the previous $1000 plus post-judgment interest, and in lawsuit recognizes this distinction (emphasis in favor of Atlantic against Trism in the same original): amount, arriving at the $1000 figure via the bill’s $500 per package limitation. Section 3 of the [Atlantic] Bill of
L a d i n g , e n t i t l e d “ C a r r i e r ’ s Mannesman appeals the amount of the Responsibility,” addresses the Carrier’s award, and Trism cross-appeals, contesting liability, and section 3(2) states the liability. Atlantic does not appeal and thus different measures of liability depending does not contest the finding of liability. upon where the loss or damage to the
goods occurred . . . . Specifically, II. section 3(2)(B)(ii) sets forth the Atlantic contends that Mannesman is measure of liability for inland carriage of attempting to relitigate issues that were goods in the United States or Canada. necessarily decided in the previous lawsuit and For inland carriage of goods, liability is is barred from doing so by the doctrine of to be measured by reference to the collateral estoppel. Although Mannesman inland carrier’s contracts of carriage and does not so argue, it appears that neither At- tariffs and any law compulsorily lantic nor Trism raised collateral estoppel in applicable. There is no mention in sec- the district court, in which case we will not tion 3(2)(B)(ii), or in the entirety of apply the doctrine on appeal. See American section 3 for that matter, of a specific Cas. Co. v. United S. Bank , 950 F.2d 250, 253 limitations period for the bringing of suit (5th Cir. 1992). for recovery of the damage or loss of
goods during the inland portion of the It is, however, unnecessary to resolve carriage. Section 7, however, of the waiver, because Atlantic’s contention of governing [Atlantic] Bill of Lading is collateral estoppel is without merit SS the issue specifically entitled, “Time Bar,” and is not identical to that litigated in the previous sets forth an all-inclusive time bar pro- lawsuit. [6] In that suit, the court merely had to vision . . . . Mannesman has not decide that the express one-year limitations bar directed the Court to any case law, and was applicable to all aspects of the through bill the Court can find none, that would read of lading. That limitation is not relevant here, a conflicting limitations period into the because Atlantic has contractually agreed to liability provision contained in section extend that period. Instead, we must decide 3(2)(B)(ii) in the face of, and contrary which of the two contractual limitations of to, a separate section of the Bill of liability is applicable, which requires in- Lading that sets forth a specific and all
inclusive time bar proviso. Atlantic argues that, to determine when the [6] See Winters v. Diamond Shamrock Chem. limitations period began running, the previous Co. , 149 F.3d 387, 391 (5th Cir. 1998) (stating the lawsuit necessarily resolved when and where four required collateral estoppel factors), cert. denied , 526 U.S. 1034 (1999). delivery occurred. That determination, those cases had the goods begun inland however, is not equivalent to determining transport. [8] when delivery occurred under the Harter Act. Because the bill’s liability limitation is ex- Atlantic’s bill references two statutes, the plicitly partitioned based on the limits of Carriage of Goods by Sea Act (“COGSA”), 46 Harter Act compulsory applicability, U.S.C. app. §§ 1300-1315, and the Harter interpretation of the Harter Act remains for us Act, 46 U.S.C. app. §§ 190-196. Under in this appeal. COGSA, a carrier of goods in international
commerce must “properly and carefully load, III. handle, stow, carry, keep, care for, and Atlantic contends that Mannesman waived discharge the goods carried.” 46 U.S.C. app. argument regarding the Harter Act by failing § 1303(2). The Harter Act imposes a duty of to raise the issue in the district court. Mannes- “proper loading, stowage, custody, care, [and] man moved for summary judgment, arguing proper delivery.” 46 U.S.C. app. § 190. that the inland carrier’s tariff, not the COGSA Although the Harter Act’s applicability to in- $500 per package limitation, provided the ternational commerce was partially superseded applicable limitation of liability. Atlantic by COGSA, [9] COGSA is applicable only from cross-moved for summary judgment, arguing the time goods are loaded onto the ship until that the limitation is the COGSA $500 per the time the cargo is released from the ship’s package amount and specifically averring that tackle at port. See 46 U.S.C. app. § 1301(e); the Harter Act is compulsory applicabile. Tapco, 702 F.2d at 1255. Therefore, the Har-
ter Act applies to the period between the dis- By granting Atlantic’s cross-motion as to charge of the cargo from the vessel and “prop- amount of liability, the court necessarily er delivery.” See Tapco , 702 F.2d at 1255. determined that the Harter Act was compulsorily applicable to the inland portion Because the Harter Act does not define of carriage. This issue was therefore raised “proper delivery,” courts have defined proper and considered by the district court and is properly before us. [7] delivery as discharge of cargo “upon a fit and Atlantic’s bill of lading provides that, to the customary wharf.” Id. [10] Proper delivery also extent the Harter Act is compulsorily includes the general maritime law requirement applicable, the Carrier’s “responsibility shall that a carrier “unload the cargo onto a dock, . . . be subject to COGSA.” ¶ 3(1). It further segregate it by bill of lading and count, put it states that “[w]here . . . [COGSA] appl[ies], in a place of rest on t he pier so that it is the Carrier shall not . . . be or become liable accessible to the consignee, and afford the for any loss or damage . . . in an amount per consignee a reasonable opportunity to come package or unit in excess of . . . $500.” and get it.” Tapco , 702 F.2d at 1255. [11] These ¶ 6(1). Therefore, if the Harter Act is requirements of “proper delivery” are modified compulsorily applicable to Trism’s inland by “the custom, regulations, [and] law of the transport, the court correctly limited Atlantic’s port.” Tapco , 702 F.2d at 1255. [12] Thus, the liability to $500 per package. critical question is “whether delivery was to persons charged by the law and the usage of The same contractual provision extending the port with the duty to receive cargo and COGSA to the limits of the Harter Act also distribute it to the consignee.” Tapco , 702 states: “[B]ut where COGSA is found not to F.2d at 1257 (internal quotation marks be applicable [the Carrier’s] responsibility shall omitted). be determined by the provisions of 3(2)
below.” ¶ 3(1). Paragraph 3(2)(B)(ii) COGSA also refers to “delivery,” which provides that, where the occurrence of damage commences the running of a one-year can be proved to occur during transportation limitations period. See 46 U.S.C. app. “in the United States,” “the responsibility of § 1303(6). In Servicios-Expoarma, C.A. v. the Carrier shall be to procure transportation Industrial Maritime Carriers, Inc. , 135 F.3d by carriers (one or more) and such 984, 993 (5th Cir. 1998), we determined that transportation shall be subject to the inland when such “delivery” occurs varies according carrier’s contracts of carriage and tariffs and to the custom and laws of a port but that any law compulsorily applicable. The Carrier “delivery” is not equivalent to receipt by the guarantees the fulfillment of such inland consignee. Thus, when an ocean carrier carrier’s obligations under their contracts and transferred its cargo to an authorized customs tariffs.” warehouse in the Venezuelan port of destination, delivery was completed regardless Mannesman argues that Harter Act “proper of the fact that the consignee had not yet delivery” occurred when Trism acquired received the goods. See id. control over the goods and began inland
transportation. If this is correct, then at the time the goods were damaged, the Harter Act was not compulsorily applicable, in which case the Bill provides that Atlantic’s liability is [10] See also Metropolitan , 12 F.3d at 61; F.J. governed by Trism’s contracts and tariffs. [13] Walker , 561 F.2d at 1142, 1143-44. Atlantic counters that the through bill of lading [T]he contract was intermodal, meaning provided for carriage from Germany to Terre that [Atlantic] contracted with Jagen- Haute, inclusive, and therefore that Harter Act berg to transport the goods over sea proper delivery had not yet occurred at the from The Netherlands, and then over time the goods were damaged. land to . . . Macon, Georgia . . . .
Macon was the place at which a There is no precedent by any circuit court consignee or its “agent” . . . first of appeals interpreting Harter Act proper de- encountered the cargo. Consequently, livery with respect to the inland portion of a the Court must either extend the reach through bill of lading. There is, however, a of the Harter Act SS a maritime law SS to thorough and persuasive district court opinion, the point of delivery in Macon, Georgia, from another circuit, that has been followed by or it must find some principled manner other district courts. of deciding when a proper delivery
occurred beforehand, despite the fact In Jagenberg, Inc. v. Georgia Ports Auth. , that, technically, no agent of Jagenberg 882 F. Supp. 1065 (S.D. Ga. 1995), the court had a reasonable opportunity to take the considered an Atlantic bill of lading apparently goods into “proper care and custody” identical to the one here. The court first cited before they reached Macon. a traditional definition of “proper delivery” found in Wemhoener Pressen v. Ceres Marine Id. at 1077. Terminals, Inc. , 5 F.3d 734, 741-42 (4th Cir. 1993) as Based on the maritime nature of the Harter
Act, the court held that inland transportation either actual or constructive delivery. under a through bill occurs after Harter Act Actual delivery consists of completely proper delivery: transferring the possession and control of the goods from the vessel to the [T]he Harter Act is at its core a consignee or his agent. Constructive maritime law; the Court is unwilling to delivery occurs where the goods are rule that simply because private parties discharged from the ship upon a fit enter an intermodal agreement federal wharf and the consignee receives due maritime legislation is thus extended far and reasonable notice that the goods beyond its congressionally intended have been discharged and has a bounds. The Harter Act is designed reasonable opportunity to remove the solely to regulate the liability of sea- goods or put them under proper care going carriers. That said, the Court and custody. finds that the Harter Act does reach to
the point at which goods are loaded Jagenberg , 882 F. Supp. at 1076-77. The onto the vehicles of an inland trucker, court then noted the complication raised by a whether hired by the shipper or the through bill: carrier.
Id. at 1077-78 (internal citations omitted). that inland transport. See id. at 1077. The of a single case extending the Harter Act to all court concluded: stages of a through bill of lading. See id. at
*15 n.3; Jagenberg , 882 F. Supp. at 1077 In this age of “containerized” cargoes n.13. The parties in the case sub judice cite no contrary authority. [16] subject to “multimodal” bills of lading, it is often difficult to locate precisely the points of legal delivery. Increasing We find these decisions persuasive and efficiency and integration in cargo therefore conclude that the Harter Act was not transport continues to blur the lines compulsorily applicable at the time Mannes- separating sea carrier responsibilities man’s goods were damaged. This analysis not from those of others. The Court finds it only avoids compulsory application of federal advisable to keep sea carriers to the maritime law to non-maritime transportation, standards imposed by the Harter Act but has the benefit of not rendering until goods are in the hands of land superfluous the alternative liability provisions carriers and actually leaving the found at paragraph 3(2) of Atlantic’s bill of maritime arena. With COGSA covering lading. [17] carriers’ legal responsibilities through discharge, Harter fills a potential gap Our ruling is also consistent with Servici- between discharge and inland transit in os ’s interpretation of COGSA “delivery.” As those situations where goods, though on with COGSA, Congress could have, but chose the dock, are still within the control and not to, use “receipt” instead of “delivery.” See responsibility of the sea carrier. Servicios , 135 F.3d at 989. Thus, Harter Act
“delivery,” like COGSA “delivery,” is inter- Id. at 1078-79. [14] Jagenberg was adopted in Colgate Palmol- [16] Jagenberg has been adopted by other courts, ive Co. v. M/V ATLANTIC CONVEYOR , 1997 as well. See Abbott Chem., Inc. v. Molinos de A.M.C. 1478, 1996 U.S. Dist. LEXIS 19247, Puerto Rico, Inc. , 62 F. Supp. 2d 441, 448 at *14 (S.D.N.Y. Dec. 31, 1996), which again (D.P.R. 1999) (“[T]he Harter Act is applicable to concerned an Atlantic through bill of lading: a carrier’s liability pursuant to an intermodal con- “Proper delivery occurs when the cargo is tract . . . only to the extent that the obligations ready for inland transport.” [15] The Jagenberg claimed to be violated are maritime.”); Standard Multiwall Bag Mfg. Co. v. Marine Terminals and Colgate Palmolive courts were not aware
Corp. , 961 F. Supp. 240, 242 (D. Or. 1996); M.C. Machinery Sys., Inc. v. Maher Terminals, Inc. , [14] The damage in Jagenberg occurred at port 164 N.J. 192, 212 (2000). before loading onto inland-bound trucks, and there- [17] See Transitional Learning Community, Inc. fore the court found proper delivery had not yet oc- v. United States Office of Personnel Management , curred. See Jagenberg , 882 F. Supp. at 1069,
2000 U.S. App. LEXIS 19008, at *10 (5th Cir. 1077. Aug. 9, 2000) (“[A] contract should be interpreted [15] See also Colgate Palmolive , 1996 U.S. Dist. as to give meaning to all of its terms SS presuming LEXIS 19247, at *15 (“Like the Jagenberg Court, that every provision was intended to accomplish I decline to hold that the Harter Act covers inland some purpose, and that none are deemed su- transportation of cargo.”). perfluous.”). preted according to the “common law gloss” against Atlantic, and Atlantic filed a cross- that “[d]elivery [is] not defined by receipt by motion for summary judgment against the consignee, but rather occur[s] when the Mannesman. Although neither party moved carrier ha[s] properly surrendered the goods in for summary judgment against Trism, the court accordance with its contractual duties.” See nevertheless granted judgment in favor of id. at 991. Servicios did not interpret Atlantic against Trism. “delivery” in the context of a through bill of lading but made clear that delivery is governed This was error. A court may grant by general maritime law obligations as summary judgment sua sponte but must modified by specific contractual provisions, provide adequate notice and an opportunity to not by receipt of the goods. See id. at 992-93. respond akin to that required by F ED . R. C IV .
P. 56(c). See Leatherman v. Tarrant County We do not preclude parties from Narcotics Intelligence and Coordination Unit , contractually limiting liability during the entire 28 F.3d 1388, 1397-98 (5th Cir. 1994). If the time in which the carrier has custody or court fails to provide such notice, we will control over the cargo. [18] We merely hold that reverse the grant unless the error is harmless. where parties contractually tie such limitation See id. at 1398. to the extent that the Harter Act is compulsorily applicable, the limitation does There is harm here, because Trism has a not apply to inland transportation in through potentially valid defense that it was not on bills of lading. A contrary result extends the notice to raise. Atlantic claims the right compulsory applicability of the Harter Act to unilaterally to create liability on the part of transportation that Congress almost certainly Trism by agreeing to extend the existing did not intend to include within that act. contractual limitations bar. Trism is entitled to
an opportunity to refute this contention, and For all of the foregoing reasons, Harter Act we therefore reverse the judgment of liability proper delivery preceded the damage at issue, against Trism. so we vacate the awards in favor of Mannes- man and Atlantic. [19] Because the record lacks REVERSED and REMANDED. evidence of, inter alia , the applicable tariff limitation and the extent of damage to the goods, we remand for further proceedings.
V.
Mannesman moved for summary judgment
NOTES
[3] “A through bill of lading is one by which an ocean carrier agrees to transport goods to their fi- nal destination. Someone else (e.g. railroad, truck- er, or air carrier) performs a portion of the con-
[*] District Judge of the Southern District of tracted carriage.” Charles S. Donovan & Jill M. Texas, sitting by designation. Haley, Who Done It and Who’s Gonna Pay? SS Rights of Shippers and Consignees
[1] Mannesman claims that the reasonable and Against Non-Ocean Carriers Performing Part of necessary costs of repair amount to over $145,000. a Contract of Carriage Covered by a Through Bill
[2] Apparently, the original agreement had a final of Lading , 7 J. I NT ’ L L. & P RAC . 415, 416 (1998). destination of Chicago, Illinois, but the parties See Jagenberg, Inc. v. Georgia Ports Auth. , 882 agreed to final delivery in Terre Haute, Indiana. F. Supp. 1065, 1068 (S.D. Ga. 1995).
[8] See, e.g. , Metropolitan Wholesale Supply, IV. Inc. v. M/V ROYAL RAINBOW , 12 F.3d 58 (5th We must determine, as a matter of first im- Cir. 1994) (damage from salvage sale when goods not picked up at wharf); Tapco Nigeria, Ltd. v. pression, whether the Harter Act is M/V WESTWIND , 702 F.2d 1252 (5th Cir. 1983) compulsorily applicable to the inland portion (damage during stevedoring); F.J. Walker, Ltd. v. of carriage pursuant to a through bill of lading. M/V LEMONCORE , 561 F.2d 1138 (5th Cir. We have decided a number of cases 1977) (damage during stevedoring and port interpreting similar bills of lading and their delivery). reference to the Harter Act, but in none of
[9] COGSA is not applicable to contracts of car- riage between ports of the United States and inland
[7] See Gilley v. Protective Life Ins. Co. , 17 F.3d water carriage under bills of lading, and therefore 775, 781 (5th Cir. 1994) (rejecting the contention such domestic transport is still governed by the that an argument first raised in response to a mo- Harter Act. See 8 B ENEDICT ON A DMIRALTY tion for summary judgment is waived on appeal). § 21.03[1][a], at 21-7 through 21-8 (7th ed. 1998).
[11] See also Metropolitan , 12 F.3d at 61; F.J.
[13] Mannesman contends that Trism’s tariff lim- Walker , 561 F.2d at 1142. its liability to $2.50 per pound, but apparently he
[12] See also F.J. Walker , 561 F.2d at 1144. (continued...)
[13] (...continued) Harter Act proper delivery, however, precedes has produced no evidence in this regard.
[18] See, e.g. , Jagenberg , 882 F. Supp. at 1070 n.1 (citing Brown & Root, Inc. v. M/V PEISAN- DER , 648 F.2d 415, 420 (5th Cir. June 1981)).
[19] We therefore do not reach Mannesman’s claim that the court erred by failing to award pre- judgment interest.
