### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30668

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

(2:09-CV-7490)

Before DeMOSS, DENNIS, and PRADO, Circuit Judges. PER CURIAM: * The panel issued the original opinion in this case on J u l y 2 4 , 2013. Rafinasi v. C

oastal Cargo Co. , 2013 U.S. App. LEXIS 1 5046 ( 5th Cir. July 24, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February19, 2014 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30668 Document: 00512537080 Page: 1 Date Filed: 02/19/2014No. 12-30668

2013) (unpublished). We GRANT the petition for panel rehearing, withdraw our previous opinion, and substitute the following. This dispute focuses on damage t o a boiler that occurred while the boiler

was being l o a d e d o n to a s hip. Before trial, the parties resolved all i ssues of liability and damages

. T h e y stipulated that only two issues remained for the district court to consider: (1) w h ether th e stevedore company that negligently damaged the b oiler could limit its liab i lity under the Carriage of Goods at Sea Act (“COGSA”); and ( 2 ) w h e t h er the boiler’s manufacturer was liable in whole

or in part for the b oile r ’ s d amage. The district court d etermined that the stevedore company was solely liable for d am a gi n g the boiler and that the stevedore company could not limit its li ability. O nly the limi t a t ion of liability issue was appealed. For the reasons that follow, we affirm the district court. I

. In November 2008, a boiler unit was m anufactured for Plaintiff–Appellee Pt. Jawamanis Rafinasi (“Rafinasi”), an I ndonesian company. T h e b o iler was shipped to Defendant–Third P arty Plaintiff–Appellant Coastal C argo Company, Inc. (“Coastal”) in New Orleans, Louisiana, where C oastal would load it onto a

v essel owned by Rickmers-Linie (“Rickmers”) and ship it to Rafina s i i n Indonesia. Coastal had two specific roles with respect to the b oiler. First, Rafinasi’s agent, ATS I n t e rnational, r etained Coastal to u nload the boiler from the manufacturer’s railcar, store the boiler until Rickmers’s vessel arrived, a nd then

move the boiler shipside for loading. Second, Coastal also had a n existing contract with Rickmers to serve as its exclusive stevedore in New Orleans. The boiler itself was extremely large and unwiel d y . It weighed approximately 143,300 pounds and was heavier on one side than the other. Due to its s ize a nd asymmetrical distribution of weigh t , transporting the boiler

neces s i t a t e d the use of large cement counterweights. When the boiler arrived

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at Coastal’s facilities, Coastal employees immediately realize d t h at the boiler

was heavier on one side than the other because of the presence of counterweights and the location of the lifting lugs. I n l i g h t o f t h e b o i l e r ’ s s i z e a n d w e i g h t distribution, Coastal e mployees us e d t h e largest trailer they h ad. They positioned the trailer so that it could be driven in a straight line to the storage location because Coastal’s employees, including its o p e r ati o n s m a n a ge r , b e li ev e d that the boiler m ight fall off the trailer if the truck had to make any turns. The boiler was successfully offloaded from the m anufacturer’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 (“Rose ” ) w a s the vessel’s port c aptain that day. He was charged with planning how to load t h e boiler, working w ith Coastal to ensure they understood the plan, a nd acting as th e liai s o n b e t w e en Coastal and the vessel’s crew to e n sure the boiler was l oaded in a safe and c orrect manner. After Rose indicated that he was ready to l oad the boiler, Coasta l ’ s employee successfully drove the trailer in a straight l i n e u n t i l it was alongside the ship. However, Rose did not b elieve that the boiler could be loaded onto his ship from i t s current position because the boiler’s lifting points were too far away. Ro s e testified that he instructed C oastal’s employees to bring the boiler t o a point

w h e r e h e could reach it because otherwise he could not lift it. Rose furt h e r testified that he did not instruct them how to achieve that r e sult. C onversely, Coastal’s ship superintendent, Gabe Swenson (“Swenson”), t estified th a t Rose instructed him to have the b oiler t u r n e d a r o und. In either event, Coastal’s driver turned the truck away from the vessel and, in doing so, the boiler fell from the trailer and sustained significant damage. Rafinasi and its i nsurance company, XL Specialty Insurance Company, (collectively “Plaintiffs”) filed suit against Coastal on December 1 , 2 009, alleging that Coastal’s negligence c aused the boiler’s damage, and that Coastal w a s li ab l e
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for breach of warranty and contract. Plaintiffs s ought $ 284,415 in damages, as

w ell as fees, i nterest, and costs. On December 1 6, 2010, Coastal filed a third

party complaint, claiming that the manufa c t u r er’s conduct contributed to the boiler’s d a m a ge. At a pretrial conference, the parties indicated that they had resolved all outstand i n g i ssues except for two specific disputes: (1) whether COGSA limited Coastal’s liability t o Plaintiffs, a n d ( 2 ) whether the manufacturer was liable for n egligentl y c a u s i ng or contributing to the boiler’s damage. They submitted briefs, evidence, and joint deposition testimony so that the district c ourt could resolve these claims without a full bench t r i al. The district court determined t h a t COGSA did not limit Coastal’s liability because Coastal was not an agent of Rickmers when t he boiler was damaged. The district court also f

ound that Coastal was solely liable for damaging the boiler. Coastal timely a ppealed and challenges the district court’s COGSA determination on two separate grounds. II

. As this is a direct appeal from the final decisi o n of the district c ourt, we have jurisdiction pursuant to 28 U.S.C. § 1291. I II. A. A district court’s factual findings are r eviewed for clear error, while its legal conclusions a r e reviewed de novo. Thyssen, Inc. v. N O BILITY MV

, 421 F.3d 2 95, 299 (5th Cir. 2005). “A f inding is c learly erroneous when the a ppellate court, viewing the evidence in its entirety, is left w i t h t h e d efinite a nd f irm conviction that a mistake has been made.” M anderson v. Chet Morrison Contractors, Inc. , 666 F.3d 373, 376 (5th Cir. 20 1 2 ) (citation a nd internal quotat i o n marks o mitted). Put differently, the district c ourt’s finding is not clearly erroneous where the finding is “plausible in light o f the record as a whole,

e v e n if this court would have weighed the evidence differently.” Id. at 376–7 7

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(citation and internal quotation m a r k s omitted). The e xistence of a n agency relationship is a question of fact which we review for clear error. Lake Charles Stevedores, Inc. v. Professor Vladimir Popo v MV , 1 99 F.3d 2 20, 226 (5th Cir. 1999) (citing Equilease v. M/ V Sampson , 756 F.2d 357, 363 (5th Cir. 1985) (en banc)). B

. Coastal’s first ground for appeal concerns the application of COGSA with respect to Rickmers’s bill of l a d ing. “A bill of lading records that a c arrier has received goods from the part y that wishes to ship them, s tates the terms of carriage, and s erves as evidence of the contract for carriage.” Norfolk S. Ry. Co.

v. James N. Kirby, Pty Ltd. , 543 U

. S

. 1 4 , 1 8

– 1 9 (2004). C OGSA governs a bill of lading for the carriage of goods from the time the goods are l o a d e d o n t o the ship to the time the goods are discha r g e d f r o m t h e ship. Id. at 29 (citation omitted). Rickmers’s bill o f lading extended the COGSA governing time period to “before the Goods are loaded on or after they are discharged from the vessel”

so long as the “Goods at s aid time are in the actual custody of the Carrier or any Servant o r Agent.” R elevant here, COGSA contains a “package limitation” that limi t s t h e l i ability of carriers for loss of or damage to goods being shipped

overseas. See Tradearbed Inc. v. W. Bulk C arriers K/ S , 374 F. App’x 464, 472–73 ( 5 t h C i r . 2 010) (per c uriam) (unpublished). Rickmers’s b ill o f lading extended the package limitation to “agents a nd servants” of Rickmers. Pursuant to Rickmers’s bill of lading, “ Servants or Agents” i n c lude, inter alia , “stevedores

. . . a nd any independent c ontractors employed by the Carrier in the performance of the Carriage.” Below, Coastal had the burden to demonstrate that the COGSA package limitation relieved it from liability. See Servicios–Expoarma, C.A. v. Indus. Mar. Carriers , 135 F .3d 984, 994 (5th Cir. 1998) (“[T]he burden rests u pon the carrier of goods by sea t o bring hims e l f w i t h i n any exception relieving him f rom the
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liability which the law otherwise imposes o n him.” ( a l teration in original) (citation and inter n al quotation marks omitted)). Coastal therefore had to demonstrate that it was an agent o f R i c k m e r s ’ s at the time the boiler was damaged in order to avail itself of the package limitation in Rick m e r s ’ s b i l l of lading. To determine whether a negligent stevedore was acting as the agent of the shipper or carrier, “we loo k t o g eneral principles of agency law

. . . and consider the roles of the parties in the transactions.” Lake Charles Stevedores , 199 F.3d at 226 (citations and internal quotation marks omitted). In this regard, the “main inquiry to determine liability is which party controlled the negligent stevedore that caused the damage.” Thyssen , 421 F.3d at 307. In finding whether an y a g e n c y relationship existed at the time of the accident, the district court relied upon nine considerations of fact: (1) Under Rafinasi’s c ontract with the manufacturer, Rafinasi was responsible f

or the l oading and transhipment of the bo i l e r o n ce it was delivered to New Orleans; (2) Rafina s i retained ATS for terminal handling a nd port labor regarding the boiler; (3) Coastal invoiced ATS for terminal handling of the boiler; (4) Coasta l a n d Rickmers entered into a contract whereby Coastal served as Rickmers’s exclusive stevedore for all of Rickmers’s New Orleans operations; (5) Rickmers’s booking note s tated that Rickmers’s boiler-related responsibilities were “ FLT H/H (hook to hook)” (i.e. restricted to th e time at which the boiler was hooked and loaded t o t h e time th e boiler was unloaded); (6) Rafinasi w as required to p rovide special lifting devices if needed for loading and discharge of the boiler; (7) Rickmers’s vessel captain instructed Coastal that he needed th e boiler clo s e r t o t h e vessel crane to l oad the boiler, but he did n ot direct Coastal how to move the boiler; (8) the boiler was nev e r hooked up to the vessel c ranes nor loaded onto the vessel; and

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(9) C o a s t a l’s e mployees should not have moved th e b oiler in th e manner they did without first consulting supervisors, and doing so was in violation of Coastal’s instructions. Based upon these facts, the district c o urt found th at Coastal w as not under the control o f Rickmers at the time the boiler was damaged. Rather, Coasta l was fulfilling its obligation t o ATS and Rafinasi to handle the boiler at the terminal, prior t o loading the boiler onto the vessel and before it was subject to its stevedoring obligations to Rickmers. Therefore, according to the district court, Coastal was not acting as an agent of Rickmers and could n ot avail it self of the COGSA extension contained in Rickmers’s bill of lading. We a ddress e ach of Coastal’s arguments on appeal in turn. First, Coastal argues th at Rickmers c ontrolled Coastal’s actions at the time of the a ccident. Relying u pon the testimony of Swenson, Coastal contends that Rickmers’ port captain, Rose, “instructed Swenson to have the b oiler turned around, or it could not be l oaded.” Coastal further contends that Swenson did not argue with Rose because Ros e w a s Coastal’s customer and because, in Swenson’s experience, “Rose was not s ome o ne to argue with.” According to Coastal, this t estimony

“ w as unimpeached, uncontradicted and completely consistent among a l l witnesses.” Our review of the record reveals otherwise. Rose t e s t i f i e d t h a t he told Coastal t o “either b ring it alongside w [h]ere I can reach it or I can’t lift it.” He did not, however, “tell them t o go down the dock, turn around, and c ome back.” In other words, R ose testified that he told the stevedore the “result I need”—having the lift p o i n t s closer t o the vessel—but not “how to accomplish [it].” Moreover, he testified that he did n ot “get involved i n i nstructing Coastal

as the stevedore on its o perations on th e d o c k”—including “how to move the boiler unit from the railcar to the MAFI trailer,” “how to position the boiler unit

on the MAFI trailer,” o r “how to line up the b oiler unit on the MAFI trailer so

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that it can be driven to a position

. . . alongside the vessel”—because that is “not [his] purview.” In light of Rose’s testimony and the record as a whole, the district court’s fi n d i n g

—t h at Rose instructed Coastal of his need to have the boiler clo s e r t o the vessel, but that he did not direct Coastal how to move the boiler—is plausible and thus not clearly erroneous. Next, Coastal also argues that there are “undeniable” parallels t o Koppers Co. v. S/ S DEFIANCE, 704 F.2d 1309 (4th Cir. 1983), where the Fourth Circuit found that a negligent stevedore was acting as the carrier’s agent. Specifically, Coastal asserts that, much like the stevedore–carrier relationship in K o p pers , Coastal: (1) was performing services for Rickmers pursuant to their stevedoring contract, including terminal services; (2) i nvoiced Rickmers f or movement of the b o iler t o the ship; (3) was subject to the general c ontrol and supervis i o n o f Rickmers; and (4) received from Rickmers all i nstructions relative to the handling of the boiler in conjunction its loading, including instructions to turn the boiler around. Again, o ur review of the record demonstrates otherwise. As to Coastal’s first and third point, the b oiler was being shipped “FLT H/H (FLT Hook/Hook).” Therefore, Rickmers’s responsibilities began once the c argo w a s o n the hook. Bec a u s e t he boiler was not yet on the hook, Coastal was not yet performing services for Rickmers and, consequently, Coastal was not yet subject to the general control a nd supervision of Rickmers. While Coastal argues that the FLT H/H term should not d etermine whether Coastal was Rickmers’s agent, the FLT H/H term helps define the roles of the parties involved, a relevant inquiry. See Lake Charles Stevedores , 199 F.3d at 226; see a lso Akiyama Corp. of Am. v. M.V. Hanjin Marseilles , 162 F.3d 571, 573 (9th Cir. 1998) (finding relevant “the nature of the services performed [by the s tevedore] compared t o the carriers [sic] responsibilities u nder th e c arriage contract” (citation and internal quotation marks omitted)). Additionally, in contradiction to Coastal’s second point,
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Coastal’s GM testified that the invoice to Rickmers d oes not i n c l ude the boiler unit “because it was never loaded on the vessel.” And a s t o C o a stal’s fourth point, Rose testified that he did not instruct Coastal to t urn the boiler around. Nor did Rickmers give “all instructions” because Coastal’s operation manager also instructed his general m anager that the loaded trailer should b e moved in a straight line. Finally, Coastal argues that Plaintiffs failed to establish that Coastal was acting as the shipper’s agent rather than as Rickmers’s a g e n t. The burden, h o w e ver, i s upon Coastal to demonstrate that it is e ntitled to the C O G S A package limitation. See Servicios–Expoarma, C.A. , 135 F.3d at 99 4

. At best, Coastal h as shown that the evidence in the record could weigh in its favor, but this Court cannot re-weigh evidence on appeal. See M a n d e rson , 6 66 F.3d at 376–77. Based upon our review of the evidence in the record as a whole, the district court’s finding that Coastal was not u nder the control of Ri c k m e r s a t the time of the accident is well within the realm o f plausibility. Specifically, the district court p lausibly f

o u n d that Rose did n ot instruct Coastal on how to bring the lifting points closer to the vessel and that Rickmers’s re s ponsibilities did not begin until the cargo was on the hook, w h i c h n ever occurred. I ndeed, because the boiler was never hooked and loaded, Coastal did not i nvoice R i c k m e rs for those s ervices. Accordingly, the district court did not commit clear error in its factual f inding that Coastal was not acting a s a n agent of Rickmers at the time of the accident. C

. Coastal argues i n the alternative that its liability should b e l i m i ted by virtue o f its terminal tariff, which also i n cludes the C OGSA package limitation. Its t erminal tariff i s a publically available document filed with the Federal Maritime Commissi o n . Al though the terminal tariff is not a n actual contract
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between Coastal and Rafinasi, Coastal posits that the terminal tariff forms an implied contract under 4 6 U.S.C. § 40501(f) and 46 C.F.R. § 525, and should thus limit its liability. The distric t c ourt held that Coastal could not rely on its terminal tariff a s a n implied c ontract because C o astal had actual contracts with b o t h R a f

inasi and Rickmers. See 46 C.F.R. § 525.2 (“If the marine t erminal operator has an actual contract with a party covering the services rendered by the ma r i n e t e rminal operator t o that party, a n existing terminal s chedule covering those same services shall not b e enforceable as an implied contract.”). Coastal argues that the district court c learly erred in finding that Coastal had a n actual contract with Rafinasi. In support, C oastal contends that “[t]his Court can scour the r ecord and find nothing even r emotely resembling a n actual contract between Costal a nd [Rafinasi or ATS].” C oast al i s p arti ally c orrect—the record contains no actual contract between Coastal and either Rafinasi or ATS. Nevertheless, the district court’s finding that a contract existed between Coastal a nd Rafinasi, through AT S , i s p l a usible. The record contains, as the district court found, a dock receipt that Coastal issued t o ATS for the b oiler. The receipt c ontained the following p rovision: “Received th e ab ove described goods

or packages subj e c t t o all the terms of the undersigned’s regular form of dock receipt a nd bill [of] lading which shall constitute the contract under which the goods are received, copies of which a r e a v a i lable from the c arrier on request

. . . .” Based on this provision, a contract between C oastal and R afinasi, through ATS, plausibly existed even though the record d oes not c o n t a in an actual contract. Accordingly, we r ej e c t Coastal’s alternative argument and affirm the district court’s judgment. IV

. For the foregoing reasons, we AFFIRM the district court’s judgment.

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