UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 1999
(Argued: June 7, 2000 Decided: October
27, 2000 )
Docket No. 99-9502
Hartford Fire Insurance Co.,
a/s/o Trek Bicycle Corp.,
Orient Overseas Containers Lines
OOCL (Europe) Ltd., Orient Overseas
and OOCL (USA) Inc.,
Before: Walker and Cabranes, Circuit
Judges,and Hodges, District Judge.*
Appeal from a judgment of the United
States District Court for the Southern District of New York (Douglas
F. Eaton, Magistrate Judge) granting summary judgment
in favor of plaintiff and awarding damages for stolen cargo.
The District Court held that the Carriage of Goods by Sea Act
("COGSA"), 46 U.S.C. §§ 1300 et seq.,
governed the entire intermodal carriage of goods and, therefore,
the limitation-of-liability provision in COGSA applied to defendants'
liability for cargo lost during transport by truck following
discharge from vessel.
Vacated and remanded.
David L. Mazaroli, New York, NY,
Thomas L. Tisdale, Tisdale &
Lennon, LLC, New York, NY, for Defendants- Appellants.
José A. Cabranes, Circuit
We are asked to decide the law to
be applied to the loss of cargo during an "intermodal"
shipment of goods-that is, a shipment carried by water and land
transportation on a single bill of lading. Defendants Orient
Overseas Containers Lines (UK) Ltd., OOCL (Europe) Ltd., Orient
Overseas Container Line, and OOCL (USA) Inc. appeal from a November
24, 1999 judgment of the United States District Court for the
Southern District of New York (Douglas F. Eaton, Magistrate
Judge). That Court granted summary judgment in favor of plaintiff
Hartford Fire Insurance Co. ("Hartford") and awarded
damages for cargo shipped originally from Wisconsin and stolen
in Belgium during the final land segment of a shipment to The
Netherlands under a bill of lading issued by defendants to Hartford's
insured and subrogor, Trek Bicycles Corp. ("Trek").
The District Court concluded that the Carriage of Goods by Sea
Act ("COGSA"), 46 U.S.C. §§ 1300 et seq.,
governed the entire intermodal carriage from Wisconsin to The
Netherlands and, therefore, that COGSA's limitation-of-liability
provision applied even though the cargo was lost while being
transported by truck in Europe after discharge from the vessel.
For the reasons stated below, we vacate the judgment of the District
Court and remand for further proceedings consistent with this
In August 1996, defendant OOCL (USA)
Inc., as agent for defendant OOCL (UK) Ltd.,1 entered into a one-year service
agreement with Trek to move certain cargo containers from Wisconsin
to various destinations in Europe. Two months later, OOCL (UK)
issued to Trek a "through bill of lading"2 for
the shipment of a container of 301 packages of bicycles and bicycle
framesets from Oconomowoc, Wisconsin to Spijkenisse, The Netherlands.
The bill of lading indicated that OOCL (UK) would serve as the
"Carrier" for the water segment of the carriage, while
other unnamed "Participating Carriers" would transport
the container for the land portions of the carriage.
Pursuant to this arrangement, the
container was picked up at Trek's facility in Oconomowoc and
transported by truck to Chicago. From Chicago, the container
was moved by rail to Montreal, Canada, where it was loaded onto
defendants' vessel, the M/V OOCL Bravery. Defendants transported
the container by sea from Montreal to Antwerp, Belgium, and then
discharged it to a participating carrier who was supposed to
transport it by truck to the consignee's premises in Spijkenisse.
Defendants had selected DeBrock
Gebr. Transport, N.V. ("DeBrock") as their trucker
between Antwerp and inland destinations in Europe, but DeBrock
subcontracted with N.V. Groeninghe ("Groeninghe") to
transport Trek's container from Antwerp to Spijkenisse. On October
29, 1996, a Groeninghe truck picked up the container from defendants'
ship at Antwerp. Later that evening, thieves stole the truck,
together with the container of Trek's bicycles, after the truck
had been left on a public road without any supervision or guard
near the driver's domicile in Deurne, Belgium. The police
were able to track down approximately 30 of Trek's 301 stolen
packages, but the remainder were never recovered.
In November 1996, Trek filed a claim
with its insurer, Hartford, for the value of the missing packages.
Hartford reimbursed Trek on the claim and then, as subrogated
insurer, commenced the instant action for recovery of the value
of the missing cargo plus incidental expenses. Defendants responded
by setting forth two reasons for why their liability should be
limited under Clause 4 of the bill of lading.3 First, they maintained that,
as the "Carrier" under the bill of lading, they were
exonerated from liability under Clause 4 because the cargo was
lost while in the custody of a "Participating Carrier."
Second, they contended that, even if they were liable under the
bill, Clause 4 subjected their liability to the limits established
by the law governing the particular transport stage during which
the goods were stolen-namely, the Convention on the Contract
for the International Carriage of Goods by Road, May 19, 1956,
399 U.N.T.S. 189 et seq. ("CMR").
In its Memorandum and Order dated
November 19, 1999, the District Court rejected both of these
arguments and granted summary judgment in favor of Hartford.
Holding that COGSA "applies to the entire intermodal
carriage, including the period of time when the goods were in
the trucker's custody," the Court concluded that defendants
could not avail themselves of either the exoneration provision
in the bill of lading (Clause 4) or CMR's limitation-of-liability
provision, because both provisions are inconsistent with COGSA.4 Section
3(8) of COGSA provides that:
[a]ny clause . . . in a contract of carriage relieving the carrier
or the ship from liability . . . arising from negligence, fault,
or failure in the duties and obligations provided in this section,
or lessening such liability otherwise than as provided in this
Chapter, shall be null and void and of no effect.
46 U.S.C. § 1303(8). COGSA, therefore, prohibits a carrier
from reducing its liability by inserting an exculpatory clause
in its shipping contract. The District Court found that defendants'
invocation of the exoneration provision in the bill of lading
and CMR's limitation-of-liability provision was an attempt to
circumvent this prohibition. Accordingly, it declined to apply
The District Court also found that
the application of CMR's limitation-of- liability provision would
violate the "fair opportunity" doctrine, which is a
federal common law doctrine developed in admiralty. Under the
"fair opportunity" doctrine, a shipper must have had
a "fair opportunity" to declare a higher liability
value for its cargo in order for a carrier to limit its liability
under COGSA. See General Elec. Co. v. MV Nedlloyd, 817
F.2d 1022, 1028 (2d Cir. 1987). Applying this doctrine, the District
Court found that defendants had failed to provide the shipper,
Trek, with an opportunity to declare a cargo value higher than
CMR's limit. Accordingly, the Court refused to limit Hartford's
recovery under CMR and granted summary judgment in Hartford's
favor for the full market value of the unrecovered cargo plus
incidental costs. Defendants filed a Notice of Appeal on December
17, 1999, and an Amended Notice of Appeal on February 1, 2000.
We consider at the outset Hartford's
claim that we lack appellate jurisdiction as to defendants OOCL
(USA) Inc. and OOCL (Europe) Ltd. because they failed to file
a timely appeal. Rule 4(a)(1)(A) of the Federal Rules of Appellate
Procedure requires a party to file an appeal within 30 days of
entry of judgment.5
Hartford maintains that OOCL (UK) was the only defendant identified
in the initial Notice of Appeal, and that 45 days had elapsed
before other defendants were specifically designated as appealing
parties in the Amended Notice of Appeal. Hartford contends that
we must therefore dismiss this appeal with respect to defendants
OOCL (USA) and OOCL (Europe).
Hartford is correct that the Amended
Notice of Appeal is untimely, but dismissal is not warranted
in the circumstances presented here because the initial Notice
of Appeal provided adequate notice of the intent of all defendants
to appeal. The Rules provide that "[a]n appeal must not
be dismissed for informality of form . . . or for failure to
name a party whose intent to appeal is otherwise clear from the
notice." Fed. R. App. P. 3(c)(4). The test for determining
whether a Notice of Appeal is adequate "is whether it is
objectively clear that a party intended to appeal." Fed.
R. App. P. 3(c) advisory committee note (1993 amendment); see
also Maerki v. Wilson, 128 F.3d 1005, 1007 (2d Cir. 1997)
("[W]hat constitutes compliance with [Rule 3(c)] has clearly
been 'liberalized.'"). In this case, the initial Notice
of Appeal refers in a parenthetical phrase to every defendant.6 The
caption of the Notice also lists each defendant as a party to
the case. Such references demonstrate a clear intention by all
defendants to appeal the District Court's judgment. Cf. Agee
v. Paramount Communications, Inc.,114 F.3d 395, 399-400 (2d
Cir. 1997) (finding no appellate jurisdiction over an attorney's
appeal where the attorney failed to list himself as a party to
the appeal in the caption or body of the Notice of Appeal). Accordingly,
we conclude that we have appellate jurisdiction over every defendant
and proceed to the merits of the appeal.
Our primary task is to determine
the appropriate law that governs the final overland portion of
the carriage. To complete this task, we must first address the
issue of subject matter jurisdiction.
In its complaint, Hartford alleges
that this case falls within both our admiralty and diversity
jurisdictions. Defendants argue, in response, that no admiralty
jurisdiction exists. Rather than resolve this issue, the District
Court proceeded to analyze the case under its diversity jurisdiction,
which is undisputed. We must address the question of whether
this case falls under our admiralty jurisdiction because both
the District Court's opinion and Hartford's arguments are based,
in part, on the application of federal common law principles
developed in admiralty. In the District Court's view, defendants
cannot avail themselves of CMR's limitation-of-liability provision
because they failed to provide Trek with a "fair opportunity"
to declare a higher cargo value, in contravention of federal
common law. Hartford similarly relies on federal common law when
it claims that the exoneration provision in the bill of lading
violates the common law principle that holds carriers contractually
liable for the acts of their subcontractors. See Leather's
Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 811-12 (2d Cir.
1971) (holding, as a matter of federal common law, that a carrier
is responsible for the loss of cargo due to a subcontractor's
negligence). Because "federal common law developed in admiralty
[is] not freely transferable to the diversity setting,"
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 28 (1988)
(citing Texas Industries, Inc. v. Radcliff Materials, Inc.,
451 U.S. 630, 641-42 (1981)), we must answer the question that
the District Court avoided and determine whether there is admiralty
The general rule for exercising
admiralty jurisdiction in a contract case is that "jurisdiction
arises only when the subject-matter of the contract is 'purely'
or 'wholly' maritime in nature." Transatlantic Marine
Claims Agency, Inc., v. Ace Shipping Corp.,109 F.3d 105,
109 (2d Cir. 1997) (citing Rea v. The Eclipse,135 U.S.
599, 608 (1890)). "Mixed" contracts, which involve
obligations for both sea and land carriage, generally do not
fall within a federal court's admiralty jurisdiction. See
id.; see also, e.g., Berkshire Fashions, Inc. v. M.V.
Hakusan II, 954 F.2d 874, 881 (3d Cir. 1992) (holding
that a bill of lading providing for "partial sea and partial
land transport" would not give rise to admiralty jurisdiction).
The bill of lading in the case at bar qualifies as a "mixed
contract," as Trek's container was to travel by land from
Oconomowoc to Montreal, by sea from Montreal to Antwerp, and
again by land from Antwerp to Spijkenisse. Accordingly, the bill
ordinarily would not fall within our admiralty jurisdiction.
Notwithstanding this general rule,
we have held that a federal court can exercise admiralty jurisdiction
over a "mixed" contract if: (1) the claim arises from
a breach of maritime obligations that are severable from the
non-maritime obligations of the contract; or (2) the land-based
portion of the contract is "merely incidental" to the
sea-based portion. See Transatlantic Marine, 109
F.3d at 109. Neither of these exceptions, however, applies
in this case.
The first exception does not apply
because, even if the maritime obligations were severable, the
loss of Trek's container did not arise from a breach of such
obligations; rather, the loss occurred while the cargo was being
transported on land in Belgium. See id. (explaining that
the first exception is not available where the loss at issue
arises from non-maritime activity).
The second exception also fails
to provide a ground for admiralty jurisdiction in this case.
Transport by land under a bill of lading is not "incidental"
to transport by sea if the land segment involves great and substantial
distances. Berkshire, 954 F.2d at 881 (holding
that extensive cross-United States transport is not an incidental
aspect of a shipping contract); see also Kuehne & Nagel
(AG & Co.) v. Geosource, Inc., 874 F.2d 283, 290 (5th
Cir. 1989) (deciding that a carriage of goods of up to 1000 miles
was more than incidental to the maritime portion of the contract);
Coleman Co. v. Compagnie Generale Maritime, 903 F. Supp.
45, 48 (S.D. Ga. 1995) (describing the transport by rail from
Kansas to Georgia as "far more than merely 'incidental'").
Although the record in the instant case does not reveal the exact
mileage that the cargo would travel by land or sea under the
bill of lading, the land segment of the carriage is clearly more
than "incidental" to the water segment. The bill involves
land shipment from: (1) Oconomowoc to Chicago by truck; (2) Chicago
to Montreal by rail; and (3) Antwerp to Spijkenisse by truck.
We take judicial notice that the sum of these segments of overland
transportation is at least 850 miles. See The New International
Atlas 52, 176-77, 216-17 (Rand McNally & Co. ed., 1980) (providing
scaled maps that show the sum of distances between these cities);
cf. Deutch v. United States, 367 U.S. 456, 470 (1961)
(taking judicial notice of the fact that Ithaca is more than
one hundred and sixty-five miles from Albany); Boyce Motor
Lines v. United States, 342 U.S. 337, 344 (1952) ("We
may, of course, take judicial notice of geography."). Furthermore,
the bill requires carriage by land through four countries using
two different modes of transportation (truck and rail) and several
different "participating carriers." Cf. Alaska Barge
and Transp., Inc. v. United States, 373 F.2d 967, 971 (Ct.
Cl. 1967) (examining the "overall subject matter of the
contracts and the nature and importance of the overland services"
rather than relying strictly on "mathematical computations"
to determine whether carriage of cargo by land is incidental).
We therefore conclude that the bill of lading in this case involves
land carriage that is more than "incidental" to sea
carriage, thus placing this dispute outside of our admiralty
In the absence of admiralty jurisdiction,
this case is governed, under diversity jurisdiction, by applicable
state choice-of-law rules. See Klaxon Co. v. Stentor Electric
Mfg. Co., 313 U.S. 487, 497 (1941). Specifically, we are
required to apply the choice-of-law rules of the state in which
the trial court sits, which in this case is New York. See
id. New York law is clear in cases involving a contract with
an express choice-of-law provision: Absent fraud or violation
of public policy, a court is to apply the law selected in the
contract as long as the state selected has sufficient contacts
with the transaction. SeeInternational Minerals and Resources,
S.A. v. Pappas, 96 F.3d 586, 592 (2d Cir. 1996). We therefore
turn to the choice-of-law provisions in the contract at issue
here-the bill of lading-to determine the law that governs this
As is often true in disputes regarding
contracts for transportation, the bill of lading in this case
is not a model of careful draftsmanship. Amazingly, there are
two applicable choice-of-law provisions in the bill. The
first, Clause 4, provides that "[e]ach stage of the transport
shall be governed according to any law and tariffs applicable
to such stage." See supra note 3. The second, Clause
23, states in relevant part that
[a]ll carriage under this Bill of Lading to or from the United
States of America shall have effect subject to the provisions
of COGSA (or if this Bill of Lading governs carriage to or from
Canada, it shall have effect subject to COGWA) which shall be
deemed to be incorporated herein. . . . Except as otherwise
provided herein, COGSA [or] COGWA . . . shall govern the
Goods before loading on board and after discharge from the Vessel
and while subject to this Bill of Lading.
The resulting confusion over the governing law is unsurprising,
for Clause 23 seems to indicate that COGSA governs that portion
of the trip after Trek's container left defendants' ship at Antwerp,
while Clause 4 suggests that the laws of Belgium, which has ratified
control this stage of the carriage.
In resolving this conflict, the
District Court gave undue weight to some fragments of Clause
23 and essentially ignored Clause 4. The Court held that COGSA
applies to the entire intermodal carriage, including the period
of time when the goods were in the trucker's custody in Belgium.
It based this holding on a determination that COGSA imposes responsibility
on a carrier for the acts of its agents regardless of conflicting
contractual provisions such as Clause 4. It therefore refused
to enforce provisions in the bill of lading that, in seeming
contravention of this federal statute, reduced defendants' liability.
We conclude that this was error.
The District Court's reasoning rests on the incorrect assumption
that COGSA applies here by its own force, or in the quaint and
famous Latin aphorism of the law, ex proprio vigore. COGSA
only applies by its own force, however, during "the period
from the time when the goods are loaded on to the time when they
are discharged from the ship." 46 U.S.C. § 1301(e).
A carrier and a shipper can extend COGSA so that it applies prior
to loading and subsequent to discharge of goods from a ship,
see 46 U.S.C. § 1307,8 but the extent of any application
beyond the scope of the statute is a matter of contract. See
Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313,
315 (2d Cir. 1983) ("Parties may contractually extend COGSA's
application beyond its normal parameters. When they do so, however,
COGSA does not apply of its own force, but merely as a contractual
term."). In this case, the parties agree that the bill of
lading extended COGSA beyond its normal statutory reach.9 Consequently,
if COGSA applied to the instant case, it would do so only by
virtue of contract and not ex proprio vigore.10
As a rule adopted by and in a contract, COGSA is modifiable by
other language contained in the bill of lading. See Pannell
v. United States Lines Co., 263 F.2d 497, 498 (2d Cir. 1959)
(Swan, J.) (explaining that terms of a contract can prevail over
the provisions of COGSA when COGSA does not apply ex proprio
vigore). The bill of lading explicitly recognizes this possibility,
as Clause 23 provides that COGSA applies "[e]xcept as otherwise
provided herein." This language envisages the possibility
that other provisions of the very same bill of lading will provide
for a law other than COGSA for certain portions of the shipment.
Clause 4 provides the exception
contemplated by Clause 23 when it states that "[e]ach stage
of the transport shall be governed according to any law and tariffs
applicable to such stage." Under Clause 4, the governing
law may change as the cargo moves through different stages of
transport, thereby indicating that COGSA may not apply throughout
the entire intermodal carriage. We believe that the most reasonable
way to read Clause 23 in conjunction with Clause 4 is to interpret
them as providing for the application of the law embodied in
COGSA at all stages of shipment, unless there exists a
different law directly applicable to that stage of shipment.
If there exists a law other than COGSA that would otherwise directly
apply to the stage of transport, that law would control. In other
words, COGSA applies by contract to the overland portion of the
carriage only to the extent that no other law is directed specifically
at this portion of the carriage.11
Other interpretations of these provisions
would render either Clause 4 or Clause 23 superfluous. If we
were to agree with the District Court that COGSA applied throughout
the entire intermodal carriage, the language in Clause 4 that
"[e]ach stage of the transport shall be governed according
to any law . . . applicable to such stage" would become
meaningless. Likewise, if we were to hold that the governing
law is any generally applicable law (rather than a
law specifically directed at the stage of transport),
the language in Clause 23 that COGSA "shall govern . . .
after discharge from the Vessel" would be rendered ineffective.
In a situation of potential contract
ambiguity, an interpretation that gives a reasonable and effective
meaning to all terms of a contract is preferable to one that
leaves a portion of the writing useless or inexplicable. See
Garza v. Marine Transp. Lines, Inc., 861 F.2d 23, 27 (2d
Cir. 1988); Rothenberg v. Lincoln Farm Camp, Inc., 755
F.2d 1017, 1019 (2d Cir. 1985). We conclude, therefore, that
the most reasonable interpretation of the interplay of the two
choice-of-law provisions at issue here is that they provide for
the application of COGSA unless there is a different law specifically
directed at the particular stage of transport, in which case
the latter governs.
We recognize that our interpretation
of Clauses 4 and 23 may create uncertainty for shippers who choose
to transport goods under a through bill of lading similar to
the one at issue here. Nevertheless, we have explained that "[s]uch
uncertainty . . . is inherent to international shipping, and
it in fact explains the longstanding efforts, embodied in the
various multilateral conventions . . . to create greater uniformity
in liability limits and other rules relating to bills of lading."
Nippon Fire & Marine Ins. Co. v. M.V. Tourcoing, 167
F.3d 99, 102 (2d Cir. 1999). In any event, contracting parties
are able to reduce this uncertainty by drafting a bill of lading
that provides for the application of a single law during all
stages of transport; but the parties in this case did not do
The loss at issue in the case at
hand arose from a truck shipment of bicycles stolen in Belgium,
a country which has ratified CMR. Article 1 of CMR states that
CMR "shall apply to every contract for the
carriage of goods by road in vehicles for reward" between
two countries, one of which has ratified CMR. CMR, art. 1, sec.
1, 399 U.N.T.S. 189 (emphasis added). Because CMR applies by
force of law, it specifically relates to the stage of transport
in Belgium and qualifies as a "law applicable to [the relevant
stage of transport.]" Accordingly, we conclude that defendants'
liability must be assessed using the relevant portions of this
body of law.12
The District Court did not enforce
the exoneration provision in Clause 4 or apply CMR's limitation-of-liability
provision because it erroneously believed that COGSA applied
to all stages of the carriage of goods in the instant case. Because
we conclude that CMR, not COGSA, governs in the circumstances
presented here, the judgment of the District Court is vacated
and the cause is remanded for further proceedings. On remand,
the District Court should determine whether CMR enables defendants
to avail themselves of the exoneration provision in Clause 4
of the bill of lading. If CMR does, the District Court should
hold defendants liable only for the loss that can be attributable
to their acts, not those of "Participating Carriers."
If CMR does not, the District Court should then decide whether
defendants qualify for limitation of liability under CMR. Specifically,
the Court must evaluate Hartford's contention that, even if CMR
applied, defendants cannot avail themselves of its limitation-of-liability
provision because they engaged in willful misconduct in contravention
of CMR. See supra note 12. If the Court completes this
analysis and determines that defendants qualify for CMR's limitation-of-liability
provision, it should limit Hartford's recovery to the amount
provided for by these provisions.
To summarize, we hold that:
(1) each defendant filed a timely
appeal within the time required by Rule 4(a)(1)(A) of the Federal
Rules of Appellate Procedure;
(2) the proper subject matter jurisdiction
of this case is diversity, not admiralty, and, therefore, the
federal common law developed in admiralty is not applicable;
(3) the appropriate law to apply
under the bill of lading with respect to the loss of goods in
Belgium is CMR, not COGSA;
(4)the District Court must determine
on remand the validity of the exoneration provision in the bill
of lading (Clause 4) under CMR; and
(5)the District Court must decide
on remand whether, given the parties' conduct, defendants qualify
for CMR's limitation-of-liability provision.
Accordingly, the judgment of the
District Court is vacated and the cause is remanded for further
proceedings consistent with this opinion.
The Honorable William Terrell Hodges, of the United States
District Court for the Middle District of Florida, sitting by
Defendants maintain that OOCL (Europe) Ltd. and OOCL (USA)
Inc. were agents acting on behalf of OOCL (UK) Ltd. In addition,
they assert that the named defendant Orient Overseas Container
Line is merely a trade name for transportation provided by, among
others, OOCL (UK). We refer to them collectively as "defendants."
A "bill of lading" is a "document evidencing
the receipt of goods for shipment issued by a person
engaged in the business of transporting or forwarding goods."
U.C.C. § 1-201(6). A "through bill of lading"
is one by which a carrier agrees to transport goods from origin
to destination, even though different carriers (such as a railroad,
trucker, or air carrier) may perform a portion of the contracted
shipment. See Mannesman Demag Corp. v. M/V Concert
Express, 225 F.3d 587, 588 n.3 (5th Cir. 2000).
Clause 4 provides in relevant
Each stage of the transport shall be governed according to any
law and tariffs applicable to such stage. The care, custody and
carriage of the Goods during any period in which a Participating
Carrier or its contractor or agent is in possession of the Goods
shall be the sole responsibility of the Participating Carrier
and not the Carrier.
Both COGSA and CMR limit a carrier's liability to a pre-determined
amount unless the shipper declares a higher cargo value and pays
the carrier's ad valorem freight charge. COGSA limits
the carrier's liability to $500 per package. See 46 U.S.C.
§ 1304(5). CMR, on the other hand, limits liability to an
amount based on the weight of the shipment. See Art. 23,
399 U.N.T.S. 189. The District Court determined that the maximum
amount plaintiff could recover under COGSA is $137,331.67, and
under CMR is $52,418.56.
Federal Rule of Appellate
Procedure 4(a)(1)(A) states:
In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4),
and 4(c), the notice of appeal required by Rule 3 must be filed
with the district clerk within 30 days after the judgment or
order appealed from is entered.
The Notice of Appeal states:
Notice is hereby given that Orient Overseas Container Line (UK),
sued herein as Orient Overseas Container (UK) Ltd., OOCL (Europe)
Ltd., Orient Overseas Container Line and OOCL (USA), Inc.,
the above-named Defendant, hereby appeals to the United States
Court of Appeals for the Second Circuit from the Opinion and
Order issued in this action on November 11, 1999 and the Judgment
entered on November 30, 1990. (emphasis added)
Article 1 of CMR states:
This Convention shall apply to every contract for the carriage
of goods by road in vehicles for reward, when the place of taking
over of the goods [here, Belgium] and the place designated for
delivery [here, The Netherlands], as specified in the contract,
are situated in two different countries, of which at least one
is a Contracting country, irrespective of the place of residence
and the nationality of the parties.
CMR, art. 1, sec. 1, 399 U.N.T.S. 189. The parties agree
that both Belgium and The Netherlands have ratified CMR.
Section 1307 states:
Nothing contained in this chapter shall prevent a carrier or
a shipper from entering into any agreement, stipulation, condition,
reservation, or exemption as to the responsibility and liability
of the carrier or the ship 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.
Defendants argue in their reply brief, apparently for the
first time, that the Canadian Carriage of Goods by Water Act,
R.S.C. ch. C-27 ("COGWA"), and not COGSA, governs the
ocean transport portion of the carriage. As defendants' counsel
acknowledged at oral argument, however, an answer to the question
of whether COGWA or COGSA applies to the carriage by ocean does
not affect this appeal because either law would apply by contract
(and not ex proprio vigore) and, in our view, must be
interpreted in light of the clearly conflicting language of Clause
If this dispute had involved the sea-going portion of the
transport, COGSA would apply ex proprio vigore, and the
applicable law would not be governed by the choice-of- law provisions
in the bill of lading.
By laws "directed specifically" at a stage of
transport, we mean laws drafted with the specific intent to govern
a stage of transport, as opposed to general laws of liability
that would govern in the absence of a contract or statute. An
example of a law that would be directly applicable to a particular
stage of transport is COGSA, which was drafted specifically to
govern the liability of carriers during shipment of cargo by
sea to and from ports of the United States. Another example is
CMR, which was drafted specifically to govern the liability of
carriers that ship cargo by road between two countries, one of
which has ratified CMR.
Hartford contends that, even if CMR applies, the parties'
prior dealings invalidate the exoneration provision in Clause
4 because defendants had previously accepted liability and paid
for Trek cargo lost or damages during transport. Hartford therefore
suggests that, regardless of whether CMR applies, the parties'
prior conduct has modified the terms of the contract.
This is a factual issue to be explored by the District Court
Hartford also notes that Article 29(1) of CMR bars the carrier
from limiting its liability if the loss is "caused by his
wilful misconduct or by such default on his part as, in accordance
with the law of the court or tribunal seized of the case, is
considered as equivalent to wilful misconduct." CMR, art.
29, sec. 1, 399 U.N.T.S. 189. Because it maintains that
defendants' conduct rose to the level of "willful misconduct,"
Hartford argues that CMR's limitation-of-liability provision
would not govern this case even if CMR applied. This claim also
presents a question of fact that must be addressed on remand
in the event that the District Court finds the exoneration provision