FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 7, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-14988

________________________

 D. C. Docket No. 04-00331-CV-J-25-HTS

ALTADIS USA, INC., for the 

use and benefit of FIREMAN'S 

FUND INSURANCE COMPANY, its 

subrogee, 

Plaintiff-CrossDefendant-Appellant, 

versus 

SEA STAR LINE, LLC, 

Defendant-Cross

Defendant-CrossClaimant-Appellee 

Cross-Appellant, 

AMERICAN TRANS-FREIGHT (ATF), INC., 

Defendant-CrossClaimant-CrossDefendant-AppelleeCross-Appellee. 
Honorable Judge Eugene Edward Siler, Jr., United States Court of Appeals for the *

Sixth Circuit. 

2

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 7, 2006)

Before ANDERSON, FAY and SILER, Circuit Judges. *

ANDERSON, Circuit Judge:

In this case involving a maritime contract, we review the appellant’s claim

that the district court erred when it found appellant’s claim time barred. Appellant

argues that the district court erred in holding that the Carmack Amendment, and its

two-year statute of limitations, was inapplicable to this case. We also review the

district court’s denial of summary judgment in two cross-claims brought by one

appellee against the other appellee. After careful consideration, we affirm the

district court’s order with regard to appellant’s Carmack Amendment claim, affirm

the district court’s denial of summary judgment on one cross-claim, and vacate and

remand the remaining cross-claim for reconsideration by the district court.

I. FACTS
In April of 2002, Altadis and Sea Star entered into a Transportation Service 1

Agreement (“TSA”) which required Sea Star to pay Altadis for any damages for a lost container. 

The General Rules of the TSA also state that Sea Star will issue a transportation bill of lading

and export declaration for each shipment, and that the “terms and conditions printed upon the

Bill of Lading shall govern all such shipments.” The TSA stated that the Bill of Lading would

govern the relationship between the carrier and shipper and would be subject to the provision of

the Carriage of Goods by Sea Act (“COGSA”). It also included “inland carriers” as part of the

definition of “Carrier” in the agreement, and extended the benefits of the TSA to “all parties

performing services for or on behalf of Carrier or the Vessel as employees, servants, agents or

contractors, including without limitation . . . inland carriers.” 

3

In March of 2003, Plaintiff-Appellant Altadis (“Altadis”) purchased a

shipment of cigars and cigar bands from Congar International, a company located

in Cayey, Puerto Rico. The shipment, containing 2478 cartons of cigars and 20

cartons of bands, was placed in a container and booked with Defendant-Appellee

Sea Star Line (“Sea Star”) for shipment to Altadis in Tampa, Florida. The cigars 1

and cigar bands were to be shipped from Puerto Rico to the port in Jacksonville,

Florida. From there, they were to be transported overland to Tampa, Florida where

Altadis would receive them. A single through bill of lading was issued in Puerto

Rico and covered the entire shipment including the ocean voyage to Jacksonville

and the overland transportation from Jacksonville to Tampa.

On March 17, 2003, the ship arrived in Jacksonville and Defendant-Appellee

American Trans-Freight (“ATF”) took possession of the cargo as the inland carrier

responsible for delivering the shipment to Altadis in Tampa. According to the

Transportation Service Agreement (TSA) between Altadis and Sea Star, ATF was
Sea Star and ATF had also signed an agreement–a Uniform Intermodal 2

Interchange and Facilities Access Agreement (“UIIA”). The UIIA stated that Sea Star would,

from time to time, hire ATF to transport to various locations containers that Sea Star had

transported to Jacksonville by ocean carrier under an intermodal through bill of lading. The UIIA

governed the terms of the agreement between Sea Star and ATF, including ATF’s agreement to

indemnify and hold harmless Sea Star in the event of damage or loss caused by ATF. 

ATF also filed a cross-claim against Sea Star, but the district court dismissed it 3

and ATF does not appeal.

4

engaged to continue the carriage under the same multimodal bill of lading. At 2

some point after receiving the container, ATF’s driver parked the truck which

contained the cigar container in the front driveway of a closed gas station. He left

the vehicle overnight. When he returned the next day, March 18, to continue the

trip to Tampa, the container was gone. It was found empty on March 25, 2003, in

South Dade County, Florida. 

Altadis sued Sea Star and ATF in Florida state court under various theories

of liability. The case was removed to federal court soon afterward. Both Sea Star

and ATF filed affirmative defenses (based on the statute of limitations). Sea Star

filed a cross-claim against ATF asserting common law contribution and indemnity

and also breach of contract. Sea Star then filed a series of motions for summary 3

judgment, all of which claimed that Altadis had failed to timely file its suit within

one year after the date the container should have been delivered. This one-year

statute of limitations was provided for both in the bill of lading and in the Carriage
5

of Goods by Sea Act (COGSA). The bill of lading also stated that “the relationship

between Carrier [Sea Star and ATF] and Shipper [Altadis] . . . shall have effect

subject to the provisions of the United States Carriage of Goods by Sea Act.” ATF

filed a similar motion for summary judgment. 

The district court granted summary judgment for ATF as to the claims by

Altadis but it did not initially rule on Altadis’ claims against Sea Star or the crossclaims by Sea Star against ATF. Later, the court granted Sea Star’s motion for

summary judgment as to the claims by Altadis and denied Sea Star’s motion for

summary judgment on its cross-claims against ATF (effectively ruling that Sea

Star’s cross-claims were without merit). The district court then ordered the clerk

to close the case.

Altadis appeals from the district court order of summary judgment for Sea

Star and ATF. Altadis’ appeal is based on the Carmack Amendment, which states

that a carrier cannot provide, by rule or contract, for a statute of limitations of less

than two years for bringing a civil action. Altadis argues that the Carmack

Amendment, with its two-year minimum statute of limitations, governs the case,

and that the one-year statute of limitations relied upon by Sea Star and ATF, and

used by the court to grant summary judgment, is inapplicable. Sea Star seeks

review of the district court’s denial of its motion for summary judgment on its two
Altadis does not challenge the district court’s finding that more than one year has 4

passed. Altadis argues only that the applicable statute of limitations is the Carmack

Amendment’s minimum two-year statute, not the one-year statute provided for in the bill of

lading and COGSA.

6

cross-claims brought against ATF: one under a common law theory of contribution

and indemnity, and another alleging breach of contract. 

II. DISCUSSION

The district court granted summary judgment to ATF and Sea Star on

Altadis’s complaint based on the language contained in the bill of lading issued by

Sea Star. The district court relied upon two grounds: (1) the bill of lading issued

was a “through” bill of lading – or one issued to the final destination – and

therefore all carriers, including land carriers, are subject to its terms and (2) the bill

of lading specifically incorporated COGSA into the agreement, and therefore

COGSA and its one-year statute of limitations, not the Carmack Amendment,

applies to the case.

Using the date of the second amended complaint filed by Altadis and the

date of the alleged theft or loss of the cigar container, the district court agreed with

ATF and Sea Star that more than one year had passed between the loss to Altadis

and the service of process on ATF and Sea Star. The court then quoted from the 4

language of the bill of lading, which said that suits for loss or damage to cargo
The district court’s detailed order, which included its legal analysis regarding the 5

statute of limitations, was applicable only to ATF’s motion for summary judgment. Docket 86. 

In a second, subsequent order, the court made a similar ruling on Sea Star’s motion for summary

judgment “[b]ased upon [the] Court’s prior Order . . . and the analysis contained therein.” 

Docket 87. 

49 U.S.C. § 13501(1)(C) indicates that the Secretary and Board have jurisdiction 6

over transportation by motor carrier between a place in “the United States and a place in a

territory or possession of the United States to the extent the transportation is in the United

States.”

49 U.S.C. § 14706(e) provides for the minimum two-year statute of limitations.

7

7

must be brought “within one (1) year after delivery of the Goods or the date the

Goods should have been delivered,” and that no suit will be deemed to have been

brought unless “service of process on Carrier or the Vessel has been effected.”

Since Altadis did not serve process on ATF until April 13, 2004 (and the loss

occurred on March 25, 2003), the district court found that ATF was entitled to

summary judgment.5

On appeal, Altadis argues that the Carmack Amendment, and its minimum

two-year statute of limitations, applies, and not the one-year statute of limitations

provided for in the bill of lading and COGSA. Altadis suggests that the Secretary

of Transportation and Surface Transportation Board have jurisdiction of ATF’s

carriage on the overland (Jacksonville to Tampa) leg, and that the Carmack 6

Amendment’s minimum two-year statute of limitations is applicable.7
46 U.S.C. § 1303(6) provides that the carrier “shall be discharged from all liability 8

in respect of loss or damage unless suit is brought within one year.” The bill of lading contains a

similar provision.

8

On the other hand, Sea Star and ATF argue that the instant carriage is

maritime commerce governed by a maritime contract. They argue that the

governing law is the bill of lading and COGSA, both of which provide for a oneyear statute of limitations.8

The question with which we are faced is straightforward: where a single bill

of lading covers a shipment from Puerto Rico to Tampa (including the ocean leg to

Jacksonville and the overland leg from Jacksonville to Tampa), does the Carmack

Amendment and its two-year minimum statute of limitations apply to a loss

occurring on the overland leg, or does the one-year statute of limitations provided

for in the bill of lading and COGSA apply? 

The case law has established that the Carmack Amendment does not apply to

a shipment from a foreign country to the United States (including an ocean leg and

overland leg to the final destination in the United States) unless the domestic,

overland leg is covered by a separate bill of lading. The Sixth Circuit so held in

American Road Service Co. v. Consolidated Rail, 348 F.3d 565, 568 ( 6th Cir.

2003) (holding that the Carmack Amendment and its two-year minimum statute of

limitations does not apply to a shipment from a foreign country governed by a
Only the Ninth Circuit has reached a different result. See Neptune Orient Lines v. 9

Burlington N. and Santa Fe, 213 F.3d 1118, 1119 (9th Cir. 2000) (“in the past we have held that

[the Carmack Amendment] applies to separate inland bills of lading for shipments to or from

overseas ports .... The language of the statute also encompasses the inland leg of an overseas

shipment conducted under a single, ‘through’ bill of lading ... to the extent that the shipment runs

beyond the dominion of the Carriage of Goods by Sea Act.”). The Ninth Circuit’s holding and

discussion is limited to a single sentence, cites no authority for its position, and does not discuss

the opposing case law. 

9

through bill of lading, “unless a domestic segment of the shipment is covered by a

separate domestic bill of lading.” ). In Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d

700, 703 (4th Cir. 1993), the court held that the Carmack Amendment does not

apply to shipments from a foreign country to the United States “unless a domestic

segment of the shipment is covered by a separate bill of lading.” The Seventh

Circuit is in accord; see Capital Converting Equipment v. LEP Transport, 965 F.2d

391, 394 ( 7th Cir. 1992) (holding that the Carmack Amendment does not apply to

a shipment from a foreign country to the United States covered by a through bill of

lading, “unless a domestic segment of the shipment is covered by a separate

domestic bill of lading.”). Dicta in our own circuit is consistent with the Fourth, 9

Sixth and Seventh Circuits. In Swift Textiles, Inc. v. Watkins Motor Lines, Inc.,

799 F.2d 697 (11th Cir. 1986), we held that the Carmack Amendment was

applicable to a shipment from a foreign country where the loss occurred during the

domestic, overland portion of the shipment (between the United States port and the

final destination in the United States), and where the domestic overland portion of
10

the shipment was covered by a separate, domestic bill of lading. We held “that

when a shipment of foreign goods is sent to the United States with the intention

that it come to final rest at a specific designation beyond its port of discharge, then

the domestic leg of the journey (from the port of discharge to the intended

destination) will be subject to the Carmack Amendment as long as the domestic leg

is covered by a separate bill or bills of lading.” Id. at 701. 

The notion that a separate, inland bill of lading is a prerequisite to the

application of the Carmack Amendment originated from a discussion in an earlier

case before the Supreme Court. In Reider v. Thompson, 339 U.S. 113, 70 S.Ct.

499 (1950), a shipment of goods originating in Buenos Aires was sent over water

to New Orleans. In New Orleans, a new and separate bill of lading was issued

pursuant to which the goods were carried to Boston, where they arrived in damaged

condition. The plaintiff sued, claiming the Carmack Amendment applied, and the

Supreme Court accepted the plaintiff’s argument. Reider, 399 U.S. at 118-19, 70

S.Ct. at 502-03. The Court explained:

The test is not where the shipment originated, but where the obligation of the

carrier as receiving carrier originated. Thus it is not significant that the

shipment in this case originated in a foreign country, since the foreign

portion of the journey terminated at the border of the United States. The

obligation as receiving carrier originated when respondent issued its original

through bill of lading at New Orleans. That contract of carriage was squarely

within the provisions of the statute.
Appellant’s brief on appeal says, “Upon taking delivery of [the cigar] container. . .

10

the Appellee, Sea Star Line, LLC, loaded it on board its vessel El Yunque, issued its Bill of

Lading. . . and proceeded with the loaded container to Jacksonville, Florida for further

transportation overland by truck to the Appellant in Tampa, Florida. . . That said Bill of Lading is

a Multimodal Bill of Lading covering the entire transportation from [Puerto Rico] to the Plaintiff

in Tampa, Florida.” 

The several provisions of the bill of lading clearly set forth: that COGSA provides 11

the governing law (paragraph 1); that a one-year statute of limitations shall apply (paragraph 27);

and that the same shall apply not only to Sea Star but also to ATF (paragraphs 2(a) and 22). 

Altadis not dispute these provisions of the bill of lading.

11

Id. at 117, 70 S.Ct. at 502 (citations omitted). As noted above, subsequent cases,

citing Reider, have held that a separate bill of lading for the domestic leg of an

international shipment must be issued in order for the Carmack Amendment to

apply. 

Altadis does not dispute that it agreed to the Transportation Service

Agreement (TSA) with Sea Star, or that the TSA specifically explains that the

terms and conditions provided in the bill of lading will govern any dispute. Altadis

also does not dispute that this was a “through” bill of lading, which was intended to

cover the entire voyage from Puerto Rico to Tampa, Florida. Finally, Altadis 10

does not dispute that the bill of lading for the cigar shipment incorporates COGSA

and its one-year statute of limitations. Rather, Altadis acknowledges that the one- 11

year statute of limitations included in the bill of lading applies to Sea Star as the

ocean carrier, but argues that the inland, domestic leg of the trip during which ATF

took control of the containers is subject to the Carmack Amendment, which bars
12

statutes of limitations less than two years. Because the Carmack Amendment is a

federal statute, Altadis argues that it “preempts and supercedes all other laws and

contracts having less than statutory rank including the Sea Star Bill of Lading

which is governed by Common Law.”

In support of its argument Altadis attempts to distinguish the above-cited

cases. Altadis argues that the cases do not require a separate bill of lading, but

require only a domestic bill of lading. Altadis also points out that the cases all

involved foreign shipments, whereas the instant case involves an ocean shipment

from a possession of the United States, Puerto Rico. 

We reject Altadis’ attempt to distinguish the case law. Contrary to its

argument, the cases do in fact require a separate bill of lading. See American Road

Service Co. v. Consolidated Rail, 348 F.3d 565, 568 (6th Cir. 2003) (the Carmack

Amendment does not apply “to a shipment under a through bill of lading unless a

domestic segment of the shipment is covered by a separate domestic bill of

lading.”) (emphasis added); Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 703

(4th Cir. 1993) (same); Capital Converting Equipment v. LEP Transport, 965 F.2d

391, 394 (7th Cir. 1992) (same); Swift Textiles Inc. v. Watkins Motor Lines, 799

F.2d 697, 701 (11th Cir. 1986) (“The domestic leg of the journey ... will be subject
Although it is true that Puerto Rico is a possession of the United States, that fact 12

does not serve to distinguish the cited cases involving shipments from foreign ports. The

language which Altadis suggests supports the applicability of the Carmack Amendment to

shipments to the United States from United States possessions – 49 U.S.C. § 13501(1)(C) – is

identical to the language relating to shipments from foreign countries to the United States – 49

U.S.C. § 13501(1)(D).

13

to the Carmack Amendment as long as the domestic leg is covered by a separate

bill or bills of lading.”).12

We also believe that Altadis’ position is in tension with the opinion of the

Supreme Court in Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, 125 S.Ct.

385 (2004). The case was “a maritime case about a train wreck.” Id. at 18, 125

S.Ct. at 390. There was a shipment of machinery from Australia to Huntsville,

Alabama, pursuant to a through bill of lading. Id. at 19, 125 S.Ct. at 390. The

Court held that the bill of lading was a maritime contract, holding: “so long as a

bill of lading requires a substantial carriage of goods by sea, its purpose is to

effectuate maritime commerce – and thus it is a maritime contract.” Id. at 27, 125

S.Ct. at 395. The Court emphasized the importance of the uniformity of the general

maritime law, and accordingly the need to reinforce the liability regime Congress

established in COGSA, and the apparent purpose of COGSA to facilitate efficient

contracting in contracts for carriage by sea. Id. at 28-29, 125 S.Ct. at 395-96. The

Court also noted that a “single Himalaya Clause can cover both sea and land
A Himalaya Clause operates to extend the contractual limitations on liability 13

beyond the initial contracting carrier (e.g., the ocean carrier) to include also downsteam carriers

(e.g., the land carrier, Norfolk Southern in the Supreme Court case). The bill of lading in this

case also includes such a clause.

14

carriers downstream.” Id. at 29, 125 S.Ct. at 396. Finally, the Court pointed out 13

that COGSA explicitly authorizes such clauses. Id (citing 46 U.S.C. § 1307). 

Thus, the Court held that Norfolk Southern, the rail carrier having custody of the

machinery at the time of its damage, was entitled to the protection of the liability

limitations in the through bill of lading. 

Altadis’ position in this case is in tension with Norfolk Southern in that it

would introduce uncertainty and lack of uniformity into the process of contracting

for carriage by sea, upsetting contractual expectations expressed in through bills of

lading. Given the holding Norfolk Southern, which recognizes that a rail carrier on

the inland leg of a maritime contract is protected by the limitations in a through bill

of lading, Altadis’ position would introduce a different result if the inland carrier

were a motor carrier. The purpose of COGSA to “facilitate efficient contracting in

contracts for carriage by sea” would be undermined. Norfolk Southern, 543 U.S. at

29, 125 S.Ct. at 396. 

In light of the Supreme Court’s opinion in Norfolk Southern, the almost

uniform case law, and dicta in our own Swift decision, we hold that – in the
15

absence of a separate domestic bill of lading covering the inland leg – the Carmack

Amendment, and its two-year minimum statute of limitations, does not apply to this

maritime contract covering a shipment pursuant to a single through bill of lading

which governs the ocean voyage from Puerto Rico to Jacksonville and also the

inland transportation to Tampa. Accordingly, the district court correctly concluded

that the one-year statute of limitations provided for in the bill of lading and in

COGSA was applicable. 

Finally, we turn to Sea Star’s appeal of the district court’s denial of its two

cross-claims against ATF. Sea Star filed two cross-claims against ATF, asserting a

common law claim (for contribution and indemnity), and a breach of contract claim

(seeking attorneys fees). With respect to the common law claim, we affirm the

district court’s denial of summary judgment for Sea Star. Because there is no

liability on the part of Sea Star to Altadis, there is nothing for it to receive from

ATF by way of contribution or indemnity. With respect to the breach of contract

claim, it is unclear from the record whether the district court directly addressed this

issue. Having found Sea Star was unable to prove the first requirement for

common law indemnification – proving liability to a third party– the district court

denied its motion for summary judgment on both cross-claims and closed the case

without directly referring to the contract claim or the language of the relevant
16

contract. We decline to address Sea Star’s breach of contract cross-claim,

preferring for the district court to address it in the first instance. Accordingly, we

vacate the district court’s implicit denial of Sea Star’s breach of contract crossclaim against ATF and remand that individual claim for consideration by the

district court. As to all other claims raised on appeal, the judgment of the district

court is affirmed.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.