     Case: 12-30668       Document: 00512319920         Page: 1     Date Filed: 07/24/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 24, 2013

                                       No. 12-30668                        Lyle W. Cayce
                                                                                Clerk

PT. JAWAMANIS RAFINASI; XL SPECIALTY INSURANCE COMPANY,

                                                  Plaintiffs–Appellees,
v.

COASTAL CARGO COMPANY, INCORPORATED,

                                    Defendant–Third-Party Plaintiff–Appellant,
v.

BABCOCK & WILCOX POWER GENERATION GROUP, INCORPORATED,
formerly known as Babcock & Wilcox Company,

                                                  Third-Party Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-7490


Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PRADO, Circuit Judge:1
       This dispute focuses on damage to a boiler that occurred while the boiler
was being loaded onto a ship. Before trial, the parties resolved all issues of
liability and damages. They stipulated that only two issues remained for the

       1
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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district court to consider: (1) whether the stevedore company that negligently
damaged the boiler could limit its liability under the Carriage of Goods at Sea
Act (“COGSA”); and (2) whether the boiler’s manufacturer was liable in whole
or in part for the boiler’s damage. The district court determined that the
stevedore company was solely liable for damaging the boiler and that the
stevedore company could not limit its liability. Only the limitation of liability
issue was appealed. For the reasons that follow, we reverse the district court.
                                         I
      In November 2008, a boiler unit was manufactured for Plaintiff Pt.
Jawamanis Rafinasi (“Rafinasi”), an Indonesian company. The boiler was
shipped to defendant Coastal Cargo Company, Inc. (“Coastal”) in New Orleans,
Louisiana. There, the boiler would be loaded onto a vessel owned by Rickmers-
Linie (“Rickmers”) and shipped to Rafinasi in Indonesia.
      Coastal was hired to serve two specific roles with respect to the boiler.
First, Coastal was retained by Rafinasi’s agent, ATS International, to unload the
boiler from the manufacturer’s railcar, store the boiler until Rickmers’s ship
arrived, and then move the boiler shipside for loading. Second, Coastal also had
an existing contract with Rickmers to serve as its exclusive stevedore in New
Orleans.
      The boiler itself was extremely large and unwieldy.             It weighed
approximately 143,300 pounds and—due to its size and construction—was
heavier on one side than the other, causing an asymmetrical distribution of
weight, which necessitated the use of large cement counterweights. When the
boiler arrived at Coastal’s facilities, Coastal employees immediately realized that
the boiler was heavier on one side than the other because of the presence of
counterweights and the location of the lifting lugs.
      Due to the boiler’s size and weight distribution, Coastal employees used
the largest trailer they had, and positioned it so that the trailer could be driven

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in a straight line to the storage location. Coastal’s employees believed that the
boiler might fall off the trailer if the truck had to make any turns. The boiler
was successfully offloaded from the manufacturer’s railcar and driven to its
storage location to await the arrival of Rickmers’s vessel.
      On December 1, 2008, Rickmers’s vessel arrived at the wharf to receive the
boiler. Ronald Rose was the vessel’s port captain that day. Rose was charged
with planning how to load the boiler, working with Coastal to ensure they
understood the plan, and acting as the liaison between Coastal and the vessel’s
crew to ensure the boiler was loaded in a safe and correct manner. After Rose
indicated that he was ready to load the boiler, Coastal’s employee successfully
drove the trailer in a straight line until it was alongside the ship. However, Rose
did not believe that the boiler could be loaded onto his ship from its current
position because the boiler’s lifting points were too far away. He thus instructed
Coastal’s employees to move the boiler closer to the ship. In attempting to
reposition the boiler, Coastal’s driver turned the truck away from the vessel. In
so doing, the boiler fell from the trailer and sustained significant damage.
      Rafinasi and its insurance company (“Plaintiffs”) filed suit against Coastal
on December 1, 2009, alleging that Coastal’s negligence caused the boiler’s
damage, and that Coastal was liable for breach of warranty and contract.
Plaintiffs sought $284,415 in damages, as well as fees, interest, and costs. On
December 16, 2010, Coastal filed a third-party complaint, claiming that the
manufacturer’s conduct contributed to the boiler’s damage.           At a pretrial
conference, the parties indicated that they had resolved all outstanding issues
except for two specific disputes: (1) whether COGSA limits Coastal’s liability to
Plaintiffs, and (2) whether the manufacturer was liable for negligently causing
or contributing to the boiler’s damage. They submitted briefs, evidence, and
joint deposition testimony so that the district court could resolve these claims
without a full bench trial. The district court held that Coastal’s liability was not

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limited by COGSA because Coastal was not an agent of Rickmers when the
boiler was damaged. The district court also found that Coastal was solely liable
for damaging the boiler. Coastal filed this appeal, challenging—on two separate
grounds—the district court’s COGSA determination.
                                        II
      As this is a direct appeal from the final decision of the district court, we
have jurisdiction pursuant to 28 U.S.C. § 1291.
                                       III
                                        A
      As an initial matter, a dispute exists as to which standard of review
applies to this case. The parties agree that factual findings are reviewed for
clear error, while conclusions of law and mixed questions of law and fact are both
reviewed de novo. See St. Joseph Abbey v. Castille, 700 F.3d 154, 159 (5th Cir.
2012); Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009).            They
disagree, however, about whether finding an agency relationship constitutes a
finding of fact, a conclusion of law, or a mixed question of fact and law. As
explained below, this dispute has no bearing on the outcome of the case since the
Court need not conduct traditional agency analysis in order to dispose of the
issues presented. The terms of the bill of lading unambiguously resolve the
question of limiting Coastal’s liability. Therefore, all that remains is a question
of contract interpretation, which is reviewed de novo. Gonzalez v. Denning, 394
F.3d 388, 392 (5th Cir. 2004).
                                        B
      COGSA contains a “package limitation” that limits the liability of carriers
for loss of or damage to goods being shipped overseas. See Tradearbed Inc. v. W.
Bulk Carriers K/S, 374 F. App’x 464, 472–73 (5th Cir. 2010) (per curiam)
(unpublished). However, the package limitation only applies from the time
goods are loaded onto the ship to the time the goods are discharged from the

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ship. Norfolk S. Ry. Co. v. James N. Kirby Pty Ltd., 543 U.S. 14, 29 (2004). The
parties do not dispute that the boiler had not been loaded onto the vessel when
the damage occurred. Coastal thus cannot directly limit its liability through the
COGSA package limitation. Instead, Coastal seeks to take advantage of the
package limitation through its contract with Rickmers.
       While the COGSA package limitation does not, by its terms, apply to goods
before loading or after unloading, parties can extend the package limitation’s
coverage to include these periods. COGSA § 7, ch. 229, 49 Stat. 1207 (1936),
reprinted in 46 U.S.C. § 30701 (2006) (previously codified at 46 U.S.C. § 1304(5)
(2000)) (“Nothing contained in this chapter shall prevent a carrier or a shipper
from entering into any agreement . . . for the loss or damage to or in connection
with the custody and care and handling of goods prior to the loading on and
subsequent to the discharge from the ship on which the goods are carried by
sea.”). Here, it is undisputed that Rickmers’s bill of lading2 extends the COGSA
package limitation to “before the Goods are loaded on or after they are
discharged from the vessel” so long as the “Goods at said time are in the actual
custody of the Carrier or any Servant or Agent.” Moreover, Rickmers’s bill of
lading defines “Servants or Agents” as including, inter alia, “stevedores . . . and
any independent contractors employed by the Carrier in the performance of the
Carriage.”
       The district court, relying on nine considerations of fact, ultimately
concluded that Coastal was not acting as Rickmers’s agent and thus could not
avail itself of the COGSA extension contained in Rickmers’s bill of lading.3


       2
         “A bill of lading records that a carrier has received goods from the party that wishes
to ship them, states the terms of carriage, and serves as evidence of the contract for carriage.”
Norfolk, 543 U.S. at 18–19.
       3
        The district court listed the following considerations: (1) Under Rafinasi’s contract
with the manufacturer, Rafinasi was responsible for the boiler once it was delivered to New
Orleans; (2) Rafinasi retained ATS for terminal handing and port labor regarding the boiler;

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Specifically, the district court held that Coastal was not under Rickmers’s
control when the boiler was damaged.                 Rather, Coastal was fulfilling its
obligation to ATS and Rafinasi. Therefore, according to the district court, the
COGSA package limitation did not apply to Coastal.
       The district court and the parties exclusively dedicate their argumentative
resources to considerations of agency law. However, Rickmers’s bill of lading
defines the term “Servants or Agents.” That is, the district court’s opinion and
the parties’ briefs on appeal focus on whether Coastal was acting as Rickmers’s
agent when the boiler was being loaded using common-law agency analysis
without confronting the fact that the bill of lading provides its own definition for
“Servant or Agent” that clearly encompasses Coastal, Rickmers’s stevedore.4
The Supreme Court has clearly stated that bills of lading are contracts subject
to ordinary rules of contract interpretation. Norfolk, 543 U.S. at 31 (“[C]ontracts
for carriage of goods by sea must be construed like any other contracts: by their
terms and consistent with the intent of the parties.”). Where, as here, a bill of
lading specifically lists stevedores as agents included within the COGSA
package limitation, the limitation necessarily applies. Cf. Robert C. Herd & Co.
v. Krawill Mach. Corp., 359 U.S. 297, 302 (1959) (holding that COGSA liability



(3) Coastal invoiced ATS for terminal handling of the boiler; (4) Coastal and Rickmers entered
into a contract whereby Coastal would serve as Rickmers’s exclusive stevedore in New
Orleans; (5) Rickmers’s booking note stated that Rickmers’s boiler-related responsibilities
were restricted to the time at which the boiler was hooked and loaded to the time the boiler
was unloaded; (6) Rafinasi was required to provide special lifting devices for the boiler, if
necessary; (7) Rickmers’s vessel captain instructed Coastal to move the boiler for loading, but
did not specify how to do so; (8) the boiler was never hooked up to or loaded onto the vessel;
and (9) Coastal’s employees should not have moved the boiler without consulting supervisors.
       4
        It is possible that the district court and Plaintiffs do not believe the bill of lading’s
terms apply to this case because the bill of lading was never formally issued, given that the
boiler was damaged before it could be loaded on Rickmers’s ship. To the extent this is a
substantive objection to limiting Coastal’s liability under the bill of lading, it is addressed
later. However, the district court and the parties nevertheless appear to treat the bill of
lading as binding.

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limitation did not apply to a stevedore when the bill of lading merely limited “the
Carrier’s liability” because, “[i]f [including the stevedore] had been a purpose of
the contracting parties it must be presumed that they would in some way have
expressed it in the contract”).
      Based on the clear language of Rickmers’s bill of lading, Coastal should
benefit from the COGSA limitation contained therein.           The bill of lading
specifically extends COGSA’s limitations to pre-loading conduct, so long as goods
are in the custody of Rickmers’s “Agent.” For purposes of the bill of lading,
“Agent” includes stevedores. The parties do not dispute that Coastal was
Rickmers’s exclusive stevedore in New Orleans; nor do they dispute that the
boiler was in Coastal’s custody prior to loading it on the vessel. Therefore,
Coastal qualifies for COGSA’s limitation on liability per the unambiguous terms
of Rickmers’s bill of lading.
                                        C
      Plaintiffs also argue that the COGSA extension does not apply because
Rafinasi was not aware of the bill of lading’s terms. They claim that there is no
evidence that the bill of lading proffered as evidence is the one that Rickmers
was using at the time and that the law requires the shipper’s affirmative
knowledge of a bill of lading’s terms. The district court did not reach these
claims since it determined that Coastal’s conduct did not fall within the auspices
of the bill of lading. For the reasons that follow, we reject Plaintiffs’ claims.
      Plaintiffs’ first argument is that there is no evidence demonstrating that
the bill of lading offered as evidence is the bill of lading that Rickmers would
have in fact issued had the boiler been successfully loaded on the vessel. This
argument is somewhat problematic insofar as Plaintiffs want Coastal to prove
a negative by affirmatively showing that no other bill of lading would have
issued had the boiler been loaded without incident. It is not clear how Coastal
would carry such a burden. By submitting a copy of Rickmers’s bill of lading, it

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would appear that Coastal has made a prima facie showing and that, absent
specific evidence to the contrary, Plaintiffs’ claim lacks merit.                    Moreover,
Plaintiffs had the option to view Rickmers’s bill of lading prior to the failed
loading incident. They concede that the booking note and dock receipt explicitly
incorporate the bill of lading. Since the booking note states that “[t]he terms [of
the bill of lading] are available on request,” Plaintiffs cannot now claim
ignorance as to the bill of lading applicable at that time. Therefore, we reject
Plaintiffs’ claim that the bill of lading proffered may not be identical to the
version applicable when the boiler was damaged.5
       We also reject Plaintiffs’ second assertion, that Rafinasi lacked affirmative
knowledge of the unissued bill of lading’s terms, because this position is
foreclosed by precedent. Case law in the Fifth Circuit demonstrates that an
unissued bill of lading nevertheless binds the parties. In Baker Oil Tools, Inc.
v. Delta S.S. Lines, Inc., 562 F.2d 938 (5th Cir. 1977), the court stated that
parties to a shipping arrangement were bound by the terms of the bill of lading,
even though the bill of lading was never actually issued. 562 F.2d at 940. In
Baker Oil, the bill of lading’s terms were abrogated only to the extent that the
defendant, Delta Steamship Lines, had unilaterally cancelled a part of the
parties’ agreement. Id.




       5
           Plaintiffs rely heavily on Scott & Williams, Inc. v. Pittston Stevedoring Corp., 422 F.
Supp. 40 (S.D.N.Y. 1976), to claim that stevedores face a high evidentiary burden when
proffering bills of lading incorporated into other documents. However, Scott & Williams is not
binding as precedent and is also readily distinguishable since the court there was faced with
a situation where more than one version of the bill of lading had been used, and in fact, a new
bill of lading was introduced into use at some point during the transaction giving rise to the
parties’ dispute. 422 F. Supp. at 42. No such evidence has been put forth here, and Plaintiffs
have not offered evidence suggesting that more than one version of the bill of lading was being
used around the time the boiler was being shipped. Instead, absent evidence to the contrary,
it seems that Rickmers had only a single version of the bill of lading in use at the time and
that the bill of lading in the record is the correct version.

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      The court also found that the parties were bound by the terms of an
unissued bill of lading in Luckenbach S.S. Co. v. Am. Mills Co., 24 F.2d 704 (5th
Cir. 1928), because the shipper was “presumed to know the law, and therefore
must have known that the terms and conditions on which its goods were received
and would be transported would be contained in a bill of lading to be issued
later.” 24 F.2d at 705. On this basis alone, Fifth Circuit precedent clearly
establishes that parties to a shipping arrangement are bound by the terms of a
bill of lading, even if circumstances intervene, preventing the bill of lading from
issuing. District courts in the Fifth Circuit, relying on this precedent, have held
similarly. See, e.g., Noble Drilling, Inc. v. M/V OSC VLISTDIEP, No. 10–2865,
2011 WL 1399243, at *6 (E.D. La. Apr. 12, 2011) (“At rock bottom, there is Fifth
Circuit jurisprudence which clearly holds that a bill of lading is not required for
a meeting of the minds to have occurred between a cargo owner (shipper), and
a vessel owner (carrier) and that even provisions of an unissued bill of lading can
be contractually enforced when the shipper’s goods are damaged after the carrier
has taken possession of them.”); Am. Augers, Inc. v. M/V Cal. Jupiter, No.
H-07-1904, 2007 WL 4260926, at *1 (S.D. Tex. Dec. 3, 2007) (“Under Fifth
Circuit precedent, the terms of an unissued bill of lading are binding where the
cargo was damaged prior to issuance.”). Therefore, we reject Plaintiffs’ claim
that their ignorance of the bill of lading’s terms precludes its effect.
                                        IV
      For the foregoing reasons, we REVERSE the district court’s judgment and
REMAND for further proceedings consistent with this opinion.




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