### 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 USDC No. 2:09-CV-7490

Before DeMOSS, DENNIS, and PRADO, Circuit Judges. PRADO, Circuit Judge: 1 This dispute focuses on damage t o a boiler that occurred while the boiler

was being loaded onto a ship. Before trial, t he parties resol v e d a l l i ssues of liability and dam a g e s . They stipulated that only two issues remained for the 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 J uly24, 2013 Ly l e W . Cay ce Clerk

1 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: 00512319920 Page: 1 Date Filed: 07/24/2013No. 12-30668

d i s trict court to c onsider: (1) whether the stevedore company that negligently damaged the b oiler c ould limit its liability under the Carriage of Goods at Sea Act (“COGSA”); and ( 2) whether the boiler ’ s m a n u f acturer was liable in whole

or in part for the b oiler’s dam a g e . The district court d etermined that the stevedore co m p a n y was s olely liable for damaging the boiler and that the

s tevedore c ompany could not limit its l iability. Only the limitation of liabil i t y issue was appealed. For the reasons that follow, we reverse the district court. I In November 2 008, a boiler u nit was m anufactured for Plaintiff Pt. Jawamanis Rafi n a s i (“Rafinasi”), a n Indonesian company. The boiler was shipped to defendant Coastal Cargo Company, Inc. (“Coastal”) in New Orleans, Louisiana. T here, the boiler would b e loaded onto a vessel owned by RickmersLinie (“Rickmers”) and shipped to Rafinasi in Indonesia. Coastal was hired to serve two s pecific roles w i t h r espect to the boiler. First, Coastal w as retained by Rafinasi’s agent, ATS International , t o unload the boiler from the m a n ufacturer’s r ailcar, store the boiler until R ickmers’s ship arrived, and then m ove the boiler shipside for loading. Second, C oastal also had

a n e x isting contract with Rickmers to serve as its exclusive stevedore i n N e w Orleans. The boiler itself was ext r e m ely large and unwieldy. It weighed approximately 143,300 p o u n ds and—due to i ts size a nd construction—was heavier on o ne side than the other, causing an asymmetrical dist r ib u t i o n of weight, which necessitated the use of large cement counterweights. When the b o il e r a rriv e d a t Coastal’s f acilities, Coastal e m p l o y e e s i m m e di a t e ly r e a l i z e d th a t the boiler was heavier on o ne side than th e o ther because o f the presence of counterweights and the location of the lifting lugs. Due to the boiler’s s i z e a n d weight distribution, Coastal employees used the l a rgest trailer they had, and positioned it so that the t railer could b e driven

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in a straight line to the storage location. C oastal’s employees b elieved that the boiler might fall off the trailer if the truck had to make any turns. T he boiler

was successfully offloaded from the manuf a c t u r e r ’s r ailcar a nd driven to its storage location to await the arrival of Rickmers’s vessel. On December 1, 2008, Rickmers’s v essel arrived at the wharf t o receive the boiler. Ronald Rose was the ve s s e l ’ s p o rt captain that day. Rose was charged with planning how to load the boiler, working with Coastal to ensure they understood t he plan, and acting as the liaison between Coastal and the vessel’s

crew to ensure the boiler w a s loaded in a safe and correct m anner. After Rose indicated that h e was ready to load the boiler, Coastal’s employee s uccessfully drove the trailer in a straight line until it was alongside the ship. However, Rose did not believe that t h e boiler could be loaded onto his ship from its current position because the boiler’s l ifting points were too far away. H e thus instructed Coastal’s employees to m o v e the boiler cl o s e r t o t h e ship. In attempting to reposition the boiler, C oastal’s driver turned the truck away from the vessel. In so doing, the boiler fell from the trailer and sustained significant damage. Rafinasi and i t s i n s u r a n ce company (“Plaintiffs”) filed suit against Coastal

on December 1, 2009, alleging that Coastal’s negligence caused the boiler’s damage, and that Coastal was liable for breach o f warrant y a n d contract. Plaintiffs sought $284,415 in damages, as well as fees, interest, and c osts. On December 16, 2 010, Co a s t a l f iled a third-party c o mplaint, claiming that the manufacturer’s conduct c ontributed to the boiler’s damage. At a pretrial conference, the parties indicated that they had resolved all outstanding issues except for two specific disputes: ( 1) whether COGSA limits Coastal’s liability to Plaintiffs, and (2) whether the manufacturer w as l iable f or negligently causing

or c ontributing to the boiler’s damage. They s ubmitted briefs, e vidence, and joint deposition testimony so that th e district court could resolve these claims without a full bench trial. The district court held t hat Coastal’s liability was not

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limited by COGSA because C oastal was not an agent of Rickmers when t h e boiler was damaged. T he district court also found that Coastal was solely liable for damaging the boiler. Coastal filed this appeal, challenging—on two separate grounds—the district court’s COGSA determination. II As this is a d irect appeal from the final decision of t he district c ourt, we have jurisdiction pursuant to 28 U.S.C. § 1291. III A As an initial matter, a dispute exists as to which standard of review applies to this case. T h e p arties agree that f actual findings are reviewed for clear e rror, while conclusions of law and mixed questions of law and f act are both reviewed de novo. See St. Joseph Abbey v. Castille , 700 F.3d 1 54, 1 59 (5th Cir. 2012); Ric h ards v. Quarterman , 566 F.3d 553, 561 ( 5th Cir. 2009). They disagree, however, about whether finding an a gency relationship constitutes a finding of fact, a c o n c l u s i o n of law, o r a mixed question of fact and law. As explained below, t h is dispute has no bearing on the outcome of the case since the Court n eed not conduct traditional agency a nalysis i n order to dispose of the issues p r esented. The t erms of the bill of l ading unambiguously resolve the question of limiting C oastal’s liability. Therefore, all that remains is a question of c ontract interpretation, which is reviewed de novo. Gonzalez v. Denning , 394 F.3d 388, 392 (5th Cir. 2004). B COGSA contains a “package limitation” that limits t he l iability of carriers for loss o f or damage to goods being shipped overseas. See Tradearbed Inc. v. W. Bulk Carriers K/ S , 3 74 F

. App’x 464, 4 72–73 (5th C i r . 2010) (per curiam) ( unpublished). However, the package limitation only applies from t he time goods are loaded o nto t he ship t o the time the goods are discharged from the

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ship. N orfolk S. Ry. Co. v . James N. Kirby Pty Ltd. , 543 U.S. 14, 29 ( 2004). The parties do not dispute that the boiler had not b een loaded onto the v essel when the damage occurred. Coastal thus cannot directly limit its liability through the COGSA package limitation. Instead, Coastal seeks t o take advantage of the package limitation through its contract with Rickmers. While the COGSA package limitation does not, by its terms, apply to goods before loading o r after unloading, parties c an extend the package limi t a t i o n ’ s coverage to include these periods. COGSA § 7, ch. 229, 49 Stat. 1 2 0 7 ( 1936), reprinted in 46 U.S.C. § 30701 (2006) (previously codified at 46 U.S.C. § 1304(5) (2000)) (“Nothing contained in this chapter shall prevent a carrier o r a shipper from entering into any agreement

. . . for the l oss o r damage to or i n connection with t h e c u stody and care and handling of goods prior to the loading on and subsequent to the discharge from t he ship o n which the goods are carried by sea.”). Here, it i s undisputed that Rickmers’s bill of lading 2 extends the COGSA package limitation to “before the Goods are loaded o n or a fter t hey are discharged from the vessel” so long as the “Goods at said time are in the actual custody o f the C arrier or any Servant or Agent.” Moreo v e r , Rickmers’s bill of lading defines “Servants or Agents” as including, inter alia , “stevedores

. . . and
any independent contractors employed by the Carrier in the performance of the Carriage.” The district court, r e l y i ng on n ine c onsiderations of fact, u ltimately

c o n c l u ded that Coastal was not acting a s Rickmers’s a gent and thus could n o t avail itself of t he COGSA extension co n t ained in Rickmers’s bill of lading. 3

2 “A bill of lad ing record s that a carrier has received good s f rom the p arty that w is hes to s hip them , s tates the term s of carriage, and s erves as evid ence of the contract f or carriage. ” N orf ol k , 543 U

. S. at 18–19.

3 The d is trict court lis ted the f ollow ing c o n s id erations : ( 1) Und er R af inas i’s contract w ith the m anuf

acturer, Raf

inas i w as res p ons ible for the boiler once it w as d elivered to N ew O rleans ; ( 2) Raf

inas i retained ATS f

or term inal hand ing and p ort labor regard ing the boiler; 5 Case: 12-30668 Document: 00512319920 Page: 5 Date Filed: 07/24/201312-30668

Specifically, t he district c ourt held that Coastal was not under Rickmers’s control w h e n t he boiler was damaged. Rather, C oastal w a s fulfilling its obligation to ATS and R afinasi. T h e r e f o r e , according to the district c o urt, the COGSA package limitation did not apply to Coastal. Th e di s t ri c t c o u rt a nd t he parties exclusively d edicate their argumentative

resources to considerations of agency law. However, Rickmers’s b ill of lading defines the term “Servants or Agents.” That is, the district c ourt’s opinion and the p arties’ briefs o n a ppeal focus on whether Coastal was acting as Rickmers’s agent when t he boiler was being lo a d e d using common-law agency analysis without confronting the fact that the bill of l ading provides its own definition for “Servant or Agent” that clearly encompasses Coastal, Rickmers’s steve d o re. 4 The Supreme Court h as clearly stated that bills of lading are contracts subject to o rdinary rules o f contract interpretation. N orfolk , 543 U

. S. a t 31 (“[C]ontracts for carriage of goods by sea must be construed like any other contracts: by their terms and consistent with the intent of the parties.”). Where, as here, a bill of lading specifically lists s tevedores as a gents include d within the COGSA package limitation, the l imitation necessarily applies. Cf. Robert C

. Herd & Co.

v. K rawill Mach. Corp. , 359 U.S. 297, 302 (1959) (holding t hat COGSA liability

( 3) Coas tal invoiced ATS f or term inal hand ling of the boiler; ( 4) Coas tal and Rick m ers entered into a contract w hereby Coas tal w ould s erve as Rick m ers ’s e x c l u s i v e steved ore in N ew O rleans ; ( 5) Ri c k mers ’s book ing note s tated that Rick m ers ’s boiler- related res pons ibilities
w ere res tricted to the tim e at which the boiler w as hook ed and load ed to the tim e the boiler
w as unload ed ; ( 6) Raf inas i w a s required to p rovid e s p ecial lif ting d evices f

or the boiler, if
neces s ary; ( 7) Rick m ers ’s ves s el cap tain ins tructed Coas tal to m ove the boiler f or load ing, but d id not s p ecif

y how to d o s o; ( 8) the boiler w as never hook edup to or load ed onto the ves s el; and ( 9) Coas tal’s em p loyees s hould not have m oved the boiler w ithout cons ulting s up ervis ors .

4 It is p os s ible that the d is trict court and Plaintif f s d o not believe the bill of lad ing’s term s ap ply to this cas e becaus e the bill of lad ing w as never f orm ally is s ued , given that the boiler w as d am aged bef ore it could be load ed on Ric k m e r s ’ s s h ip

. To the extent this is a s ubs tantive objection to li m i t i n g C oas tal’s liability und er the bill of lad ing, it is ad d res s ed later. H ow ever, the d is trict court and the p arties nevertheles s ap pear to treat the bill of lad ing as bind ing. 6 Case: 12-30668 Document: 00512319920 Page: 6 Date Filed: 07/24/201312-30668

limitation did not apply to a stevedore w hen t he bill of lading merely limited “the Carrier’s liability” because, “[i]f [including the stevedore] had been a purpose of the contracting parties it must be presumed that they would in some way have expressed it in the contract”). Based on the clear language o f R ickmers’s bill o f lading, C oastal should benefit from the COGSA limitation contained therein. The bil l o f lading specifically extends COGSA’s limitations to pre-loading c o n du c t , s o l o ng as goods

are in the custody of Rickme r s ’ s “A gent.” For purposes of the bill of lading, “Agent” includes stevedores

. The parties do n ot dispute that Coastal was Rickmers’s exclusive stevedore in New Orleans; nor do they dispute t h a t t h e boiler was in Coastal’s custody prior t o loading it on the vess e l

. Therefore, Coastal qualifies for COGSA’s limitation on liability per the unambiguous terms of Rickmers’s bill of lading. C Plaintiffs also a rgue that the COGSA e xtension does not apply because Rafinasi was n ot aware of the bill of lading’s terms. They claim that t here is no

e v i d e nce that the bill of lading proffered as evidence i s t he one that Rickme r s

was u sing at the t i m e a n d that the law requires t he shipper’s affirmative knowledge of a bill of lading’s terms. The distric t court did not r each these claims since it determined that Coastal’s conduct did not f all within the auspices of the bill of lading. For the reasons that follow, we reject Plaintiffs’ claims. Plaintiffs’ f

irst argument is that there is no evidence d e monstrating that the bill of lading offered as evidence is the bill of lading th a t Rickmers would have in fact iss u e d had the boiler been successfully loaded on the vessel. This argument is somewhat problematic insofar as Plaintiffs want Coastal to prove

a negative by a f

f i r m atively showing that no other bill of lading would have issued h ad the b oiler been loaded without incident. It is not clear how Coastal would c arry such a burden. By submitting a copy of R ickmers’s bill of lading, it

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would appear t h a t C o a stal h as made a prima facie s howing and that, absent

s p e cific evidence to t h e contrary, Plaintiffs’ claim lacks merit. Moreover, Plaintiffs had the o ption to view Rickmers’s bill of la d i n g p r ior t o the failed loading incident. They concede that the b ooking n ote and dock receipt e xplicitly incorporate the bill o f lading. Since the booking n o te states that “[t]he terms [of t h e b i l l of lading] a re available on request,” Plaintiffs cannot n ow claim ignorance as t o the bill of lading applicable at that time

. T h e r e fore, we reject P l a i n tiffs’ claim that t he bill of lading proffered may not be i d entical to t h e version applicable when the boiler was damaged. 5 W e a l so r eject Plaintiffs’ second assertion, that Rafinasi lacked af f i r m a t iv e knowle d g e o f t h e unissued bill of lading’s terms, because this position is foreclosed by p recedent. Case law i n t he F ifth Circuit demonstrates that an unissued bill of lading nevertheless binds the parties. In Baker Oil Tools, Inc.

v. Delta S.S. Lines, In c . , 5 6 2 F

. 2 d 938 (5th Cir. 1977), the court stated that parties to a shipping arrangement were b ound by the terms o f the b ill of lading,

even though the bill of lading was never actua l l y i s s u e d

. 562 F.2d at 940. In Baker Oil , the bill of lading’s terms were abrogated only to the extent that the defendant, Delta Steamship Lines, h a d unilaterally cancelled a part of the parties’ agreement. Id.

5 Plaintif

f s rely heavily on Scott & Wi l l i a ms, Inc. v . Pi ttston Stev edori ng Corp

. , 422 F. Sup p . 40 ( S. D

. N

. Y

. 1976) , t o c l a im that s teved ores f ace a high evid entiary burd en w hen p rof f ering bills of lad ing incorp orated into other d ocum ents

. H ow ever, Scott & Wi l l i am s is not bind ing as p reced ent and is als o read ily d is tinguis hable s ince the court there w as f aced w ith a situation w here m ore than one vers ion of the bill of lad ing had been us ed , and in f act, a new bill of lad ing w as introd uced into us e at s om e point d uring the trans action giving ris e to the p arties ’ dis p ute. 422 F. Sup p . at 42. N o s uch evid ence has been p ut forth here, and Plaintif f s have not of

f ered evid ence s ugges ting that m ore than one vers ion of the bill of lad ing w as being
us ed around the tim e the boiler w as being s hip p ed

. Ins tead , abs ent evid ence to the contrary, it s eem s that Rick m ers had only a s ingle vers ion of the bill of lad ing in us e at the t i m e and that the bill of lad ing in the record is the correct v ers ion. 8 Case: 12-30668 Document: 00512319920 Page: 8 Date Filed: 07/24/201312-30668

The court also found that the parties were bound by t he terms of an unissued bill of lading in Luckenbach S.S. Co. v . Am. Mills Co. , 24 F.2d 704 (5th Cir. 1928), because the shipper was “presumed to know the law, and therefore must have known that t he t e rms and c onditions on which its goods w ere received and would be transported w ould be contained in a b i l l o f l a d ing to be issued later.” 24 F .2d a t 7 05. On this b a s i s a l o n e , Fifth Circuit precedent clearly establishes that parties to a s hipping arrangement are bound by the t erms of a bill of lading, even if circumstances intervene, p reventing the b ill of lading from issuing. District courts in the Fifth Circuit, relying on this p recedent, have held similarly. See, e.g. , Noble Drilling, Inc. v. M/ V OSC VLISTDIEP, N o. 10–2865, 2011 WL 1399243, a t *6 (E.D. La. Apr. 1 2, 2 011) ( “At rock b ottom, t here is Fifth Circuit jurisprudence which clearly holds that a b ill of l ading is not required for

a meeting of the m inds to have occurred between a cargo o wner ( shipper), and

a vessel owner (carrier) and that even provisions of an unissued bill of lading can be contractually enforced when the s h ip p e r ’ s go ods are damaged after t he carrier has t a ken posses s i o n o f t h em.”); Am. Augers, Inc. v. M/ V Cal. J upiter , No. H-07-1904, 2007 WL 4260926, at *1 ( S

. D

. T e x . Dec. 3, 2007) (“Under Fifth Circuit precedent, the terms o f an unissued bill of lading are binding where the cargo was damaged prior to issuance.”). Therefore, we r eject P laintiffs’ c l a im that their ignorance of the bill of lading’s terms precludes its effect. IV For the f oregoing reasons, we REVERSE the district c ourt’s judgment and REMAND for further proceedings consistent with this opinion.

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