PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICAN ROLL-ON ROLL-OFF 

CARRIER, LLC; AMERICAN AUTO

LOGISTICS, INCORPORATED; WALLENIUS

WILHELMSEN LINES AMERICAS, LLC,

Plaintiffs-Appellants,

v.

P&O PORTS BALTIMORE,

 No. 06-1058 INCORPORATED,

Defendant-Appellee,

and

I.T.O. CORPORATION OF BALTIMORE, a

wholly owned subsidiary of P&O

PORTS NORTH AMERICA INC.,

Defendant. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William D. Quarles, Jr., District Judge.

(CA-03-3462-WDQ)

Argued: October 24, 2006

Decided: February 26, 2007

Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.

Reversed and remanded by published opinion. Judge Traxler wrote

the opinion, in which Judge Niemeyer and Judge Motz joined. 
COUNSEL

ARGUED: Chester D. Hooper, HOLLAND & KNIGHT, L.L.P.,

New York, New York, for Appellants. JoAnne Zawitoski, SEMMES,

BOWEN & SEMMES, Baltimore, Maryland, for Appellee. ON

BRIEF: James H. Power, HOLLAND & KNIGHT, L.L.P., New

York, New York, for Appellants. Alexander M. Giles, SEMMES,

BOWEN & SEMMES, Baltimore, Maryland, for Appellee. 

OPINION

TRAXLER, Circuit Judge: 

American Roll-On Roll-Off Carrier ("ARC") filed suit against

P&O Ports Baltimore, Inc. ("P&O"), a stevedoring company, after a

piece of equipment loaded on an ARC-operated ship broke free of its

lashings and damaged the ship and other cargo.1 ARC’s complaint

included a claim alleging negligence on the part of P&O and a claim

seeking indemnification for the amounts ARC paid to the owners of

the damaged cargo. The district court granted summary judgment in

favor of P&O, concluding that a one-year statute of limitations period

that would have applied to a suit by the cargo interests against ARC

also barred ARC’s action against P&O. ARC appeals, and we reverse

and remand for further proceedings.

1ARC is a wholly-owned subsidiary of Wallenius Lines AB, a Swedish

shipping company. Two other Wallenius subsidiaries, Wallenius

Wilhelmsen Lines Americas, LLC ("WWL"), and American Auto Logistics, Inc. ("AAL"), were involved in various aspects of the commercial

transactions that ultimately gave rise to this case. Plaintiffs WWL and

AAL have assigned their rights against P&O to ARC, and ARC is proceeding as a plaintiff in its own right and as assignee of WWL and AAL.

Unless there is a reason to distinguish between the individual companies,

this opinion will refer to the carrier as "ARC." 

2 AMERICAN ROLL-ON v. P&O PORTS BALTIMORE
I.

A.

The Carriage of Goods By Sea Act ("COGSA"), 46 U.S.C.A. app.

§ 1300 - 1315 (West 1975 & Supp. 2006), governs "every bill of lading . . . which is evidence of a contract for the carriage of goods by

sea to or from ports of the United States, in foreign trade." 46

U.S.C.A. app. § 1300. COGSA limits a carrier’s liability for damage

to cargo to $500 per package (or customary freight unit) "unless the

nature and value of [the cargo has] been declared by the shipper

before shipment and inserted in the bill of lading," id. app. § 1304(5),

and establishes a one-year statute of limitation for the filing of actions

seeking recovery for lost or damaged cargo, see id. § 1303(6)(c).

While these COGSA defenses protect the carrier, not its agents, the

benefits of the statute can be extended to stevedores or other agents

of the carrier if the bill of lading so provides. A clause extending

COGSA defenses to a carrier’s agent is called a "Himalaya clause."2

Since 1997, P&O (and its predecessor in interest I.T.O. Corporation of Baltimore, Inc.) has provided stevedoring services to ARC

vessels calling at the Port of Baltimore. The stevedoring contract

between ARC and P&O requires all bills of lading issued by ARC to

include a Himalaya clause, and the agreement further provides that

P&O is entitled to all defenses available to the carrier under the bill

of lading against claims for cargo damage brought by the shipper,

consignee, or cargo owner. The agreement states that if in a contract

with a customer ARC chooses to waive its right to limit liability,

ARC must give prior notice to P&O. If ARC waives its liability limit

without prior notice, ARC must indemnify P&O for any damages

assessed against P&O that exceed the liability cap that otherwise

would have applied under the bill of lading. 

2

"The term Himalaya Clause is derived from the case of Adler v. Dickson, [1955] 1 Q.B. 158 (C.A.), involving the vessel Himalaya, and is

used to describe contractual provisions that extend maritime liability limitations." American Home Assurance Co. v. Hapag Lloyd Container

Linie, GMBH, 446 F.3d 313, 317 n.2 (2d Cir. 2006). 

AMERICAN ROLL-ON v. P&O PORTS BALTIMORE 3
B.

Plaintiff AAL had a long-standing contract with the United States

government’s Military Traffic Management Command ("MTMC") to

transport the privately-owned vehicles ("POVs") of government

employees to foreign destinations. During the period relevant to this

case, MTMC was AAL’s only customer, and MTMC was also ARC’s

largest customer. 

In February 2000, ARC entered into a service agreement with

MTMC under which it agreed to transport POVs and other military

cargo overseas. Under the contract, ARC waived COGSA’s one-year

limitation period for the filing of actions seeking recovery for damaged cargo, and ARC waived COGSA’s $500 per package liability

limitation, ultimately agreeing to a liability cap of $20,000 per POV.3

ARC did not give P&O prior notice of these waivers.

Pursuant to the contracts previously entered into with MTMC,

ARC in October 2000 prepared to transport on the M/V FAUST 166

POVs and other military cargo from the United States to various overseas military bases. The cargo included a 25-ton aircraft tow tractor,

which P&O loaded and stowed "athwartships" — across the width of

the ship. The POVs were loaded on decks below the tow tractor. 

About a week after the M/V FAUST left Baltimore, the ship

encountered very rough seas. The ship rolled 32 degrees, and the tow

tractor broke free of its lashings. The tractor rolled across the deck

and punctured one of the ship’s fuel tanks. Ten to fifteen tons of

marine diesel fuel spilled onto the deck and eventually leaked down

into the lower decks and onto the 166 POVs. 

3The contract between AAL and MTMC capped the shipper’s liability

at $20,000 per POV. Although the contract between ARC and MTMC

set a lower liability cap, AAL and ARC entered into a separate contract

under which ARC agreed that should any need arise to settle a claim

involving a damaged POV, ARC would resolve the claim without regard

to the liability cap established in its contract, and AAL would assume

responsibility for payment of the claim. 

4 AMERICAN ROLL-ON v. P&O PORTS BALTIMORE
An initial examination of the POVs indicated that all but five of

them were contaminated to some degree by the diesel fuel, and more

than one hundred were severely contaminated. Because diesel fuel

causes rubber and plastic to degrade, the diesel contamination of the

POVs could eventually cause brakes and other systems to fail. ARC

had concerns about the long-term safety of the cars after the contamination, and ARC did not want to release the cars to the individual service members. In December 2000, ARC and MTMC met to discuss

the incident. They entered into a settlement agreement whereby ARC

agreed that all 166 POVs were totaled, and ARC agreed to waive the

$20,000 liability cap established by AAL-MTMC contracts. ARC

agreed to pay the owners of the POVs the full "blue book" value for

each car, plus any additional amount necessary to satisfy any lien on

the car, plus the cost of a rental car. ARC took title to the cars, sent

them back to the United States, and had them destroyed. According

to its complaint, ARC ultimately paid approximately $2,700,000 to

settle the claims of the POV owners. ARC did not notify P&O of the

settlement. 

On December 5, 2003 (more than three years after the POVs were

damaged), ARC, through its insurance carrier, brought this action

against P&O. ARC asserted a negligence claim, alleging that its vessel was damaged because of P&O’s negligence in stowing the tow

tractor. ARC also asserted a claim for contractual indemnification,

seeking recovery of the amounts paid in settlement of the POV owners’ claims. 

P&O moved for summary judgment. P&O contended that because

ARC obtained title to the POVs after it settled the claims of the POV

owner, ARC was the cargo owner. Because the bill of lading required

the cargo owner to commence a claim for cargo damage within a year

after the cargo was delivered, P&O argued that ARC’s negligence

claim was time barred under the terms of the bill of lading. P&O also

contended that ARC’s indemnification claim was barred by the oneyear limitations period. The bill of lading issued by ARC gave P&O

the benefit of all defenses available to ARC in an action by the cargo

owner. When ARC commenced this action, the one-year limitation

period on cargo claims had run, and P&O argued that ARC’s indemnification claim was subject to the same limitations defense that could

be raised against a cargo damage claim. 

AMERICAN ROLL-ON v. P&O PORTS BALTIMORE 5
The district court granted summary judgment in favor of P&O,

concluding that both the negligence claim and the indemnification

claim were barred by the one-year limitation period contained in the

bill of lading issued by ARC to MTMC. This appeal followed. 

At oral argument, ARC expressly abandoned its negligence claim.

We therefore consider only the question of whether ARC’s indemnity

claim was timely filed. 

II.

It is well established that a maritime claim for indemnity "does not

accrue until the indemnitee’s liability is fixed by a judgment against

or payment by the indemnitee." United New York Sandy Hook Pilots

Ass’n v. Rodermond Indus., Inc., 394 F.2d 65, 75 (3d Cir. 1968);

accord Hercules, Inc. v. Stevens Shipping Co., 698 F.2d 726, 733 (5th

Cir. 1983) (en banc); Federal Commerce & Navigation Co. v. Calumet Harbor Terminals, Inc., 542 F.2d 437, 441 (7th Cir. 1976).

ARC’s claim for indemnification thus accrued on December 21, 2000,

when it paid the first of the claims of the POV owners. This action

was commenced on December 5, 2003, within the three-year limitation period established under the stevedoring agreement with P&O.4

Because its indemnification claim was filed within the period

required under the terms of the stevedoring agreement, ARC contends

that the district court erred by applying the one-year limitation period

contained in the bill of lading. ARC contends that the bill of lading

governs the relationship between it and the POV owners, but does not

govern the relationship between it and P&O. That relationship is governed by the stevedoring agreement, and the indemnification claim

was timely under the law that the parties selected to govern that contract. 

4The stevedoring agreement states that it is to be governed by Maryland law. Under Maryland law, an indemnification claim accrues "when

the would-be indemnitee pays the judgment arising from the underlying

transaction." Hanscome v. Perry, 542 A.2d 421, 425 (Md. Ct. Spec. App.

1988). Contractual indemnification claims must be commenced within

three years after the cause of action accrues. See Md. Code Ann. Cts. &

Jud. Proc. § 5-101 (2002); Jones v. Hyatt Ins. Agency, Inc., 741 A.2d

1099, 1103 & n.5 (Md. 1999). 

6 AMERICAN ROLL-ON v. P&O PORTS BALTIMORE
P&O does not contend that ARC’s claim was untimely under the

general rules governing indemnification claims. Instead, P&O contends that the stevedoring agreement incorporated the bill of lading’s

one-year limitation period and that ARC’s indemnification claim was

therefore untimely. 

In support of this argument, P&O points to section 7(d) of the

stevedoring agreement. Section 7(d) obligates ARC and its related

corporate entities to include a Himalaya clause in their bills of lading

and to state in the bill of lading that P&O will not be liable to the

shipper or cargo owner. Section 7(d) goes on to state that

without prejudice to the generality of the foregoing provisions . . . , every exemption, limitation, condition and liberty

herein contained and every right, exemption from liability,

defense and immunity of whatsoever nature applicable to

[ARC], or to which [ARC] is entitled under the terms of [its]

Bill of Lading shall also be available and shall extend to

protect [P&O] acting [in the course of its employment under

the stevedoring agreement]. 

J.A. 118. P&O argues that, by virtue of the Himalaya clause in the bill

of lading, it already receives the benefit of all COGSA defenses available to the carrier. For the portion of section 7(d) quoted above to

have independent meaning, P&O contends that the quoted language

must do something other than restate that P&O is entitled to all

defenses available to ARC with regard to a claim for cargo damage.

According to P&O, the quoted language effectively transforms the

one-year limitation period set forth in the bill of lading for claims by

cargo interests into a limitation period governing indemnification

claims by the carrier. 

We agree with P&O that maritime contracts, like other contracts,

should be interpreted as so to give effect to each provision of the contract. See, e.g., Chembulk Trading LLC v. Chemex Ltd., 393 F.3d 550,

555 (5th Cir. 2004) ("A basic principle of contract interpretation in

admiralty law is to interpret, to the extent possible, all the terms in a

contract without rendering any of them meaningless or superfluous.").

We do not agree, however, that the language of section 7(d) is mere

surplusage unless we accept the meaning urged by P&O. 

AMERICAN ROLL-ON v. P&O PORTS BALTIMORE 7
The bill of lading is a contract between the carrier and the shipper,

and the Himalaya clause is the vehicle through which the carrier’s

COGSA defenses to cargo claims are extended to the stevedore. Thus,

if a cargo owner sues the stevedore for cargo damage, the stevedore

will be entitled to raise COGSA defenses that without the Himalaya

clause would not be available to it. The stevedoring contract, however, is a contract between the stevedore and the carrier. The section

7(d) language quoted above allows the stevedore to raise in an indemnification action by the carrier any defenses to the underlying transaction that could have been asserted by the carrier. If, for example, ARC

were to have paid an untimely cargo damage claim (that is, a claim

that was brought beyond the one-year period established in the bill of

lading) and then sought indemnification from P&O, the section 7(d)

language would permit P&O to assert the bill of lading’s time bar as

a defense to the indemnification claim. 

The Himalaya clause and the section 7(d) language thus serve

related but nonetheless separate purposes: The Himalaya clause provides the stevedore with defenses to a cargo damage claim asserted

by cargo interests, while the section 7(d) language provides the stevedore with defenses to an indemnification claim asserted by the carrier. Accordingly, P&O’s contention that the section 7(d) language

would be mere surplusage unless we accept its understanding of the

language is without merit. 

Moreover, the section 7(d) language simply cannot support the

construction urged by P&O. As noted above, that portion of the stevedoring agreement gives P&O the benefit of the defenses available to

the carrier under the bill of lading. Because the bill of lading governs

the relationship between a carrier and a shipper or cargo owner, the

one-year time bar under the bill of lading applies to claims that arise

in the context of that relationship—claims for cargo loss or damage.

We find no language in section 7(d) that can be understood to somehow convert a limitation on the cargo owner’s right to file a cargo

damage claim into a limitation on a carrier’s right to file an indemnity

claim. Instead, the language simply gives P&O the right to assert

against ARC any defense that ARC could have asserted against the

cargo owners in the underlying transaction. Because the POV owners

made their claims and ARC paid those claims well within the time

frame established by the bill of lading, the bill of lading’s one-year

8 AMERICAN ROLL-ON v. P&O PORTS BALTIMORE
limitation period poses no obstacle to ARC’s indemnity claim against

P&O. 

P&O, however, also argues that ARC’s action is time-barred under

the analysis accepted by the district court when granting summary

judgment in favor of P&O. P&O contends that ARC became the

cargo owner when it obtained title to the POVs. The bill of lading

governs claims for cargo damage asserted by the shipper or cargo

owner, and it requires all such claims to be brought within a year. The

Himalaya clause, of course, gives P&O the right to assert such

defenses against claims by cargo owners, and P&O thus argues that

ARC’s claim is time-barred, because ARC is now the cargo owner.

We disagree. 

We will assume for purposes of this opinion that, by taking title to

the POVs for the purpose of destroying them, ARC is now a cargo

owner within the meaning of the bill of lading. ARC, however, is not

suing P&O in its capacity as cargo owner. That is, ARC is not asserting against P&O a negligence-based claim seeking recovery for damage to the cargo. Instead, ARC, in its capacity as the carrier, is

pursuing an indemnification claim. It seeks to recover from P&O the

amount it paid to satisfy the claims of the owners of the POVs that

were damaged as a result of what ARC claims was negligence on the

part of P&O. Such an indemnification claim, of course, is expressly

authorized by the stevedoring agreement, and, as discussed above,

was timely filed by ARC. Because ARC is not asserting a claim for

damage to the cargo, we fail to see how ARC’s acquisition of the

POVs as part of the settlement of the damage claims can somehow

deprive ARC as the carrier of its contractual right to seek indemnity.

Accordingly, we conclude that ARC’s post-settlement status as

cargo owner does not affect ARC’s right to seek indemnity from P&O

for the amount that ARC paid to satisfy the claims of the POV owners. Because this is an indemnity action, the bill of lading’s one-year

limitations period for the commencement of cargo-damage claims is

inapplicable. ARC’s indemnification claim was timely filed, and the

district court therefore erred by dismissing the claim. 

III.

We briefly address one final matter. P&O contends that if we find

ARC’s claim to be timely filed, we should rule on an issue not

AMERICAN ROLL-ON v. P&O PORTS BALTIMORE 9
addressed by the district court—whether ARC’s recovery must be

limited to $500 per POV, as provided for in the bill of lading and the

stevedoring agreement. 

As noted above, ARC in its service agreement with MTMC waived

COGSA’s $500 per package liability limitation. ARC failed to give

P&O prior notice of this waiver, as required by the stevedoring agreement, and ARC ultimately settled the claims of the POV owners by

paying sums greatly in excess of $500 per POV. P&O contends that

it cannot be required to indemnify ARC for the full amount that ARC

voluntarily paid in order to keep its biggest customer happy, and that

under the terms of the bill of lading and stevedoring agreement,

P&O’s liabilty on ARC’s indemnity claim must be limited to $500

per POV. For its part, ARC contends that the settlement was reasonable because it foreclosed the possibility that the damaged POVs

would be returned to the roads, where they could perhaps cause injury

to a third party who would then seek compensation from ARC. ARC

also contends that if the COGSA liablity cap is applicable, then its

recovery would be capped at $500 per measurement ton of cargo

rather than $500 per POV. 

We decline to consider these issues at this juncture. The district

court addressed only the question of the timeliness of ARC’s complaint. Concluding that the action was not timely filed, the court

entered judgment in favor of P&O. P&O did not file a cross-appeal.

While we may affirm a district court’s decision for any reason appearing in the record, accepting P&O’s arguments on these points would

require us to modify the district court’s judgment, an action that cannot be taken in the absence of a cross-appeal. See El Paso Natural

Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999) ("Absent a crossappeal, an appellee may urge in support of a decree any matter

appearing in the record, although his argument may involve an attack

upon the reasoning of the lower court, but may not attack the decree

with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary." (internal quotation marks omitted));

JH v. Henrico County Sch. Bd., 326 F.3d 560, 567 n.5 (4th Cir. 2003)

("The general rule is that without taking a cross-appeal, the prevailing

party may present any argument that supports the judgment in its

favor as long as the acceptance of the argument would not lead to a

10 AMERICAN ROLL-ON v. P&O PORTS BALTIMORE
reversal or modification of the judgment rather than an affirmance."

(internal quotation marks and alteration omitted)). 

This circuit views the cross-appeal requirement as one of practice,

rather than as a strict jurisdictional requirement. See Tug Raven v.

Trexler, 419 F.2d 536, 548 (4th Cir. 1969). But see, e.g., Rollins v.

Metropolitan Life Ins. Co., 912 F.2d 911, 917 (7th Cir. 1990) (concluding that the cross-appeal requirement is jurisdictional). Nevertheless, we see no reason in this case to make an exception to the crossappeal requirement, as we believe it is proper for the district court to

consider these questions in the first instance on remand. 

IV.

For the reasons discussed above, we conclude that ARC’s indemnification claim was timely filed, and the district court therefore erred

by granting summary judgment in favor of P&O. Accordingly, we

reverse the judgment of the district court and remand for further proceedings. 

REVERSED AND REMANDED

AMERICAN ROLL-ON v. P&O PORTS BALTIMORE 11