IN THE UNITED STATES COURT OF APPEALS

         FOR THE FIFTH CIRCUIT
                    _______________

                      m 98-20877
                    _______________



        MANNESMAN DEMAG CORPORATION,

                                        Plaintiff-Appellant-
                                        Appellee,

                        VERSUS

       M/V CONCERT EXPRESS, ETC., ET AL.,

                                        Defendants.


          ATLANTIC CONTAINER LINE, INC.,

                                        Defendant-
                                        Third Party Plaintiff-
                                        Appellee,

                        VERSUS

        TRISM SPECIALIZED CARRIERS, INC.,

                                        Third Party Defendant-
                                        Appellee-
                                        Appellant.

              _________________________

       Appeals from the United States District Court
            for the Southern District of Texas
             _________________________

                    September 8, 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 carrierSSa railroad, trucker or, in
goods from Baltimore to Terre Haute. While                   some cases, an inland barge operat-
en route from Baltimore to Terre Haute, the                  orSSwould carry the goods to a seaport
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
                                                             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-
   *
    District Judge of the Southern District of            er, or air carrier) performs a portion of the con-
Texas, sitting by designation.                            tracted carriage.” Charles S. Donovan & Jill M.
                                                          Haley, Who Done It and Who’s Gonna
   1
     Mannesman claims that the reasonable and             Pay?SSRights of Shippers and Consignees
necessary costs of repair amount to over $145,000.        Against Non-Ocean Carriers Performing Part of
                                                          a Contract of Carriage Covered by a Through Bill
   2
     Apparently, the original agreement had a final       of Lading, 7 J. INT’L L. & PRAC. 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).

                                                      2
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.

                                              3
                                                   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.

                                            4
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
                                                             Lading, entitled “Carrier’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 meritSSthe 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.

   6
     See Winters v. Diamond Shamrock Chem.                   Atlantic argues that, to determine when the
Co., 149 F.3d 387, 391 (5th Cir. 1998) (stating the       limitations period began running, the previous
four required collateral estoppel factors), cert.         lawsuit necessarily resolved when and where
denied, 526 U.S. 1034 (1999).

                                                      5
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
                                                              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
pression, whether the Harter Act is                        not picked up at wharf); Tapco Nigeria, Ltd. v.
compulsorily applicable to the inland portion              M/V WESTWIND, 702 F.2d 1252 (5th Cir. 1983)
of carriage pursuant to a through bill of lading.          (damage during stevedoring); F.J. Walker, Ltd. v.
We have decided a number of cases                          M/V LEMONCORE, 561 F.2d 1138 (5th Cir.
interpreting similar bills of lading and their             1977) (damage during stevedoring and port
                                                           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 BENEDICT ON ADMIRALTY
tion for summary judgment is waived on appeal).            § 21.03[1][a], at 21-7 through 21-8 (7th ed. 1998).

                                                       6
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
   10
                                                       the Bill provides that Atlantic’s liability is
    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.
   11
    See also Metropolitan, 12 F.3d at 61; F.J.
                                                          13
Walker, 561 F.2d at 1142.                                     Mannesman contends that Trism’s tariff lim-
                                                       its liability to $2.50 per pound, but apparently he
   12
        See also F.J. Walker, 561 F.2d at 1144.                                              (continued...)

                                                   7
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 ActSSa maritime lawSSto
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).
   13
     (...continued)                                     Harter Act proper delivery, however, precedes
has produced no evidence in this regard.

                                                    8
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
   subject to “multimodal” bills of lading, it             contrary authority.16
   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
and Colgate Palmolive courts were not aware                Multiwall Bag Mfg. Co. v. Marine Terminals
                                                           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
fore the court found proper delivery had not yet oc-             See Transitional Learning Community, Inc.
curred. See Jagenberg, 882 F. Supp. at 1069,               v. United States Office of Personnel Management,
1077.                                                      2000 U.S. App. LEXIS 19008, at *10 (5th Cir.
                                                           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 termsSSpresuming
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.”).

                                                       9
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 FED. R. CIV.
                                                           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


   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.

                                                      10
