## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 98-20877

_______________



### M ANNESMAN 

### D EMAG 

### C ORPORATION



### ,

Plaintiff-AppellantAppellee,

VERSUS



### M/V C ONCERT 

### E XPRESS



### , ETC



### ., ET AL



### .,

Defendants.



### A TLANTIC 

### C ONTAINER 

### L INE



### , I NC



### .,

DefendantThird Party PlaintiffAppellee,

VERSUS



### T RISM 

### S PECIALIZED 

### C ARRIERS



### , I NC



### .,

Third Party DefendantAppelleeAppellant.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________

September 8, 20002

Before SMITH and DENNIS, Circuit

Judges, and HARMON, District Judge. *

JERRY E. SMITH, Circuit Judge:

Mannesman Demag C orporation (“Mannesman”) appeals the amount of a summary judgment award in its favor, and Trism Specialized

Carriers, Inc. (“Tr ism”), appeals an adverse

summary judgment in favor of At lantic

Container Line, Inc. (“Atlantic”). We reverse

and remand.

I.

This case arises from damage sustained to

an oxygen co mpressor and instrument rack

owned by Mannesman, which were

transporte d from Bremerhaven, Germany, to

Terre Haute, Indiana. Atlantic carried the

goods from Bremerhaven to the Port of

Baltimo re, Maryland, aboard the M/V

CONCERT EXPRESS. Trism carried the

goods from Baltimore to Terre Haute. While

en route from Baltimore to Terre Haute, the

goods were damaged when Trism’s trailer

overturned. 1

There was only one bill of lading for the

entire transportation, issued by Atlantic, re

flecting an agreement to t ransport the goods

from Bre merhaven, Germany, to the

midwestern United States. 2 The bill is what is called a “through bill of lading.” 3 Because the

bill obligated the carrier to transport the cargo

“through” the port to its ultimate destination,

it is referred to as a “through bill.” When the

goods arrived at the P o rt of Baltimore,

Atlantic hired Trism to transport them to Terre

Haute.

A.

T his case presents an issue of f irst

impression regarding the applicability of

federa l maritime statutes to inland transport

under a through bill o f lading. The following

excerpt descr ibes the origin of this issue.

Until the advent of the containerization of cargo, the cargo owner typically

w ould enter into a new shipme n t

contract with a new carrier e a ch time

the mode of t ransport changed. An

inland carrier 

### SS

a railroad, trucker or, in

some cases, an inland barge operator 

### SS would carry the goods to a seaport

under one contract o f carriage. There

so m eone, usually a “freight forwarder”

acting on behal f of the cargo owner,

would arrange to place the goods in the

hands of a steamship line. Frequently it

would be necessary to repack the goods

for ocean shipment. The ocean carrier

* District Judge of the So uthern District of

Texas, sitting by designation.

1 Mannesman claims that the reasonable and

necessary costs of repair amount to over $145,000.

2 Apparently, the original agreement had a final

destination of Chicago, Illinois, but the parties

agreed to final delivery in Terre Haute, Indiana. 3 “ A through bill of lading is one by which a n

ocean carrier agrees to transport goods to their final destination. Someone else (e.g. railroad, trucker, or air carrier) performs a portion of th e contracted c a rriage.” Charles S. Donovan & Jill M.

Haley, Who Done It and Who’s Gonna

Pay? SS Rights of Ship

pers and Consignees

Against Non-Ocean Carriers Performing Part of

a Contract of Carriage Covered by a Through Bill

of Lading

, 7 J. I NT ’ L L. & P RAC

. 415, 416 (1998).

See Jagenberg, Inc. v. Georgia Ports Auth.

, 882

F. Supp. 1065, 1068 (S.D. Ga. 1995).3

would transpor t them to a forei gn

seaport and release them t h ere to the

consignee o r someone acting on the

consignee’s behalf.

Different lega l regimes arose to

govern the parties’ rights and liabilities,

depe nding upon the mode of shipment.

. . . If the railroad did the damage, then

the rules of liability governing railroads

would appl

y. If the steamship line was

liable, then marit ime law would govern.

Along came intermodal shipping

con t ainers and everything changed.

Now, the same steel cargo container can

move freely between different modes of

transport. Ocean carriers began to offer

“door to door” service. Rail carriers,

truckers or other transpor ters now

contract, not with the owner of the

go ods, but as a subcontractor to the

steamship line who has offered a

complete transport package.

Under United States law, a shipper

o r consignee may recover against

non-oc ean carriers for the loss of or

damage to cargo subject to a “through

bill of lading.” The bill of lading may, if

properly drafted, li mit both the amount

an owner may seek as well as the time in

which recovery may be sought.

* * *

The U.S. Carriage of Goods by Sea

Act (COGSA) governs the liabilit y of an

ocean carrier on an international through

bill of lad ing. . . . COGSA contains

important benefits to the carrier. Inland

carriers frequently attempt to take

advantage of the benefits afforded by CO G SA. One of COGSA’s most

important provisions l

imits a carrier’s

liabilit y t o five hundred do llars

($500US) per package unles s a higher

value is decl ared by the shipper.

COGSA also c o ntains a one-year

limitation for cargo claims.

* * *

By its terms, COGSA applies

“tackle-to-tackle” only; it does not

e xt end to losses which occur prior to

loading or subsequent to discharge from

a vessel. 4 A Period of Respo nsibility

clause can be used to extend COGSA’s

application to the entire time the goods

are within the carrier’s custody.

Charles S. D o no van & Jill M. Haley, s upra

note 3, at 415-17.

B.

The parties agree that the cont r o lling

contractual document is the si n gle bill of

lading issued by Atlantic, which provides:

3. CARRIER’S RESPONSIBILITY

(1) . . . If and to the extent that the

provisions of the Harter Act

. . . would

otherwise be compulsorily applicable to

regulate the Carrier’s responsibility for

the goods

. . . the Carrier’s responsibility

shall instead be subject to COGSA, but

where COGSA i s found not to be

applicable such responsibility shall be

determined by the provisions of 3(2)

below . . . .

* * *

4 The Harter Act applies after discharge but before “proper delivery.” See part IV, infra

.4

(2) Save as is otherwise provided in

this Bill of Lading, the Carrier shall be

liable for loss of or damage to the goods

occurring from the time that the goods

are taken into his charge until the time

of delivery to the extent set out below.

* * *

( B) Where the stage of carri age

where the loss or damage occurred can

be proved.

* * *

(i i ) Wi th respect to the

transportati on in the United States . . .

fr om t he Port of Discharge, the

responsibility of the Ca rrier shall be to

procure transpo rt ation by carriers (one

or more) and such transportation shall

be subject to the inland carrier’s

contracts of carriage and tariffs and any

law compuls o rily applicable. The

Carrier guarantees the fulfillment of

such inland carrie r s’ obligations under

their contracts and tariffs.

* * *

6. PACKAGE/UNIT LIMITATION

AND DECLARED VALUE

(1) Package or Unit Limitation

Where the Hague Rules or any

legislat ion making such Rules

compu lsorily applicable (such as

C O GSA or COGWA) to this Bill of

Lading apply, the Carrier shall not,

unless a declared value has been noted

.

. . be or become liable for any loss or damage t o o r in connection with the

goods in an amount per package or unit

in excess of the pa ckage or uni t

limitation as laid down by such Rules or

legislation. Such limitation amount

according to

. . . COGSA is US $500 .

. . .

* * *

7. TIME-BAR

. . . All liability whatsoever of the

Carrier shall cease unless suit is brought

wit hin 12 months after delivery of the

goods or the date when the goods

should have been delivered.

C.

Before filing the insta n

t matter, Mannesman

sued Trism (the “previous lawsuit”). 5 Trism

argued that t he suit was barred by the bill’s

one-year time-bar, while Mannesman contended that the suit was governed by limitations in

Trism’s contracts of carriage and tariffs. As a

matter of contractual interpretation, the court

held that the “TIME-BAR” provisio n of the

Bill unambiguously applied to all aspects of the

through bill, and therefore granted summary

judgment in favor of Trism. Mannesman did

not appeal.

Mannesman then filed the instant suit

against Atlantic, which brought a third-party

claim against Trism for co ntribution and

indemnit y. Mannesman moved for summary

judgment against Atlantic, which filed a crossmotion for summary judgment ag ainst

5 Apparently to avoid being a party t o the

previous lawsuit, Atlantic sig ned an agreement

with Mannesman exte nding the contractual

limitations period.5

Mannesman. The court granted summary

judgment, without opin i on, in favor of

Mannesman against Atlantic in the amount of

$100 0 plus post-judgment interest, and in

favor of Atlantic again st Trism in the same

amount, arriving a t the $1000 figure via the

bill’s $500 per package limitation.

Mannesman appeals the amount of the

aw ard, and Trism cross-appeals, contesting

liabilit y. Atlantic does not appeal and thus

does not contest the finding of liability.

II.

Atl a ntic contends that Mannesman is

attempting to r elit igate issues that were

necessarily decided in the previous lawsuit and

is barred fr o m doing so by the doctrine of

collateral estoppel. Although Mannesman

does not so argue, it appears that neither Atlantic nor Trism raised collatera l estoppel in

t he district court, in which case we will no t

apply the doctrine on appeal. S ee American

Cas. Co. v. United S. Bank

, 950 F.2d 250, 253

(5th Cir. 1992).

It is, however, unnecessary to resolve

waiver, because Atlantic’s contention of

collateral estoppel is without merit 

### SS the issue

is not identical to that litigated in the previous

lawsuit. 6 In that suit, the court merely had to

decide that the express one-year limitations bar

was applicable to all aspects of the through bill

of lading. That limitation is not relevant here,

because Atlan t ic has contractually agreed to

extend that period. Instead, we must decide

which of the two co nt ractual limitations of

liabilit y is applicable, which requ ires interpretation of, inter alia, the Harter Act.

The district court’s opinion in the previous

lawsuit recognizes this distinction (emphasis in

original):

Section 3 of the [Atl ant ic] Bill of

Lading, entitled “Carrier’s

Responsibility,” addresses the Carrier’s

liabilit y, and section 3(2) states the

different measures of liabilit y depending

upon where the loss or damage to the

goods occurred

. . . . S pecifically,

section 3(2)(B)(ii) sets forth the

measure of liabilit

y for inland carriage of

goods in the Un i ted States or Canada.

For inland carriage of goods, liabilit y is

to be measured by reference to the

inland carrier’s contracts of carriage and

t ariffs and any law compulsorily

applicable. There is no mention in section 3(2)(B)(ii), or in the entirety of

section 3 for t hat matter, of a specific

limitations period for the bringing of suit

for recovery of the damage o r loss of

go o ds during the inland portion of the

carriage. Section 7, however, of the

govern i ng [Atlantic] Bill of Lading is

specifically entitled, “Tim e Bar,” and

sets forth an all-inclus ive time bar provision

. . . . Mannesman has no t

directed the Court to any case law, and

the Court can find none, that would read

a conflicting limitations period into the

lia bility provision contained in section

3(2)(B)(ii) in the face of, and contrary

t o, a separate section of the Bill of

Ladi n g that sets forth a specific and all

inclusive time bar proviso.

Atlantic argues that, to determine when the

limitations period began running, the previous

lawsuit necessarily resolved when and where 6 See Winters v. Diamond Shamrock Chem.

Co.

, 149 F.3d 387, 391 (5th Cir. 1998) (stating the

four required collateral estoppel factors)

, c ert.

denied , 526 U.S. 1034 (1999).6

delivery occurred. That determination,

however, is not equivalent to determining

when delivery occurred under the Harter Act.

B ecause the bill’s liabilit y limitation is explicit ly partitioned ba s ed on the limit s of

Harter Act compulsory applicabil i ty

, interpretation of the Harter Act remains for us

in this appeal.

III.

Atlantic contends that Mannesman waived

argument regarding t he Harter Act by failing

to raise the issue in the district court. Mannesman moved fo r summary judgment, arguing

that the inland carrier’s tariff, not the COGSA

$500 per packag e limitation, provided the

applicable limitation of liabilit y. Atlantic

cross-moved for summary judgment, arguing

that the limitation is the C OGSA $500 per

package amount and specifically averring that

the Harter Act is compulsory applicabile.

By granting Atlant i c’s cross-motion as to

amount of liabilit y, the court necessarily

determined that the Har ter Act was

compulsorily applicable to the inland porti on

of carriage. This issue was therefore raised

and co nsidered by the district court and is

properly before us. 7

IV.

We must determine, as a matter of first impression, wheth er the Harter Act i s

compulsorily applicable to the inland porti on

of carriage pursuant to a through bill of lading.

We hav e decided a number of cases

interpreting similar bills of lading and their

reference to the Harter Act, but in none of those cases had the goods begun inland

transport. 8

Atlantic’s bill references two statutes, the

Carriage of Goods by Sea Act (“COGSA”), 46

U.S.C. app. §§ 1300-1315, and the Harter

Act, 46 U.S.C. app. §§ 190-196. Under

COGSA, a c arrier of goods in international

commerce must “prop erly and carefully load,

handle, stow, carry, keep, c are for, and

discharge the goods carried.” 46 U.S.C. app.

§ 1303(2). The Harter Act imposes a duty of

“proper loading, stowage, custody, care, [and]

proper delivery.” 46 U.S.C. app. § 190.

Although the Harter Act’s applicability to international comme rce was partially superseded

by COGSA, 9 COGSA is applicable only from

t he t ime goods are loaded onto the ship until

t he time the cargo is released from the ship’s

tackle at port. See 46 U.S.C. app. § 1301(e);

Tapco, 702 F.2d at 1255. Therefore, the Harter Act applies to the period between the discharge of the cargo from the vessel and “proper delivery.” See Tapco , 702 F.2d at 1255.

Because the Harter Act does not define

“proper delivery,” courts have defined proper

7 See Gilley v. Protective Life Ins. Co.

, 17 F.3d

775, 781 (5th Cir. 1994) (rejecting the contention

that an argument first raised in response to a motion for summary judgment is waived on appeal). 8 See, e.g.

, Metropolitan Wholesale Supply,

Inc. v. M/V ROYAL RAINBOW , 12 F.3d 58 (5th

Cir. 1994) (damage from salvage sale when goods

not pic k ed up at wharf); Tapco Nigeria, Ltd. v.

M/V WESTWIND

, 702 F.2d 1252 (5th Cir. 1983)

(damage during stevedoring); F.J. Walker, Ltd. v.

M/V LEMONCORE

, 561 F .2d 1138 (5th Cir.

1977) (damage during steved o ring and port

delivery).

9 COGSA is not applicable to contracts of carriage between ports of the United States and inland

water carriage under bills of lading, and therefore

such domestic transport is still governed by the

Harter Act. S ee 8 B ENEDICT ON A DMIRALTY

§ 21.03[1][a], at 21-7 through 21-8 (7th ed. 1998).7

delivery as discharge of cargo “upon a fit and

customary wharf.” Id. 10 Proper delivery also

includes the general marit ime law requirement

that a carrier “unload the cargo onto a dock,

segregate it by bil l of lading and count, put it

in a place of rest on t he pier so that it is

accessible t o t he consignee, and afford the

consignee a reasonable opportunity to come

and get it.” T

apco

, 702 F.2d at 1255. 11 These

requirements of “proper delivery” are modified

by “the custom, regulations, [and] law of the

port.” Tapco , 702 F.2d at 1255. 12 Thus, the

criti cal question is “whether delivery was to

persons charged by the law and the usage o f

the port wi t h the duty to receive cargo and

distribute it to the consignee.” T a p co

, 702

F.2d at 1257 (internal quotati on marks

omitted).

COGSA also refers to “delivery,” which

commenc e s the running of a one-year

limitations pe r iod. See 46 U.S.C. app.

§ 1303(6). In S ervicios-Expoarma, C.A. v.

Industrial Maritime Carr iers, Inc. , 135 F.3d

984, 993 (5th Cir. 1998), we determined that

when such “delivery” occurs varies according

to the c u stom and laws of a port but that

“delivery” is not equivalent to receipt by the

c onsignee. Thus, when an ocean carrier

transferred its cargo to an authorized customs

warehouse in the Venezuelan port of

destination, delivery was completed regardless

of the fact tha t t he consignee had not yet

received the goods. See id. Atlantic’s bill of lading provides that, to the

extent the Harter Act is compulsorily

applicable, the Carrier’s “re s ponsibility shall

. . . be subject to COGSA.” ¶ 3(1). It further

st at es that “[w]here . . . [COGSA] appl[ies],

the Carrier shall not

. . . be or become liable

for any loss or damage

. . . in an amount per

package or unit in

excess of . . . $500.”

¶ 6(1). Therefore, if the Harter Act is

compulsorily a pplicable to Trism’s inland

transport, the court correctly limit ed Atlantic’s

liability to $500 per package.

The same contractual pro vision extending

COG SA t o the limits of the Harter Act also

states: “[B]ut where COGSA is found not to

be applicable [the Carrier’s] responsibility shall

be determ

ined by the provisions of 3(2)

below.” ¶ 3(1). Paragraph 3(2)(B)(ii)

provides that, where the occurrence of damage

can be proved to occur duri ng transportati on

“in the United States,” “the responsib ilit y of

the Carrier shall be to procure transportati on

by carriers (one or more) an d such

transportati on shall be subject to the inland

carrier’s contracts of

carriage and tariffs and

any law compulsorily applicable. The Carrier

guarantees the fulfillment of such inland

carrier’s obligations under their contracts and

tariffs.”

Mannesman argues that Harter Act “proper

delivery” occ u rred when Trism acquired

control over the goods and began inland

transpo rt ation. If this is correct, then at the

time the goods were damaged, the Harter Act

was not compulsorily applicable, in which case

the Bill provide s that Atlantic’s liability is

governed by Trism’s cont racts and tariffs. 13 10 See also Metropolitan

, 12 F.3d at 61; F .J.

Walker , 561 F.2d at 1142, 1143-44.

11 See al so Metropolitan , 12 F.3d at 61; F .J.

Walker , 561 F.2d at 1142.

12 See also F.J. Walker , 561 F.2d at 1144. 13 Mannesman contends that Trism’s tariff limits liability to $2.50 per pound, but apparently he

(continued...)8

Atlantic counters that the through bill of lading

provided for carriage from Germany to Terre

Haute, inclusive, and therefore that Harter Act

proper delivery had not yet occurred at the

time the goods were damaged.

There is no precedent by any circui t court

of appeals interpreting H a rter Act proper delivery with res pect to the inland portion of a

through bill of lading. There is, however, a

thorough and persuasive district court opinion,

from another circuit, that has been followed by

other district courts.

In Jagenberg, Inc. v. Georgia Ports Auth.

, 882 F. Supp. 1065 (S.D. Ga. 1995), the court

considered an Atlantic bill of lading apparently

identical to the one here. The court first cited

a traditional definition of “proper delivery ”

found in Wemhoener Pressen v. Ceres Marine

Terminals, Inc.

, 5 F.3d 734, 741-42 (4th Cir.

1993) as

either actual o r constructive delivery.

Actual delivery consists of compl etel y

t ransferring the possession and contr o l

o f t he goods from the vessel to the

consig n ee or his agent. Constructive

delivery occur s where the goods are

dis charged from the ship upon a fit

wharf and the consignee recei v es due

and reasonable notice that the goods

have been discharged and has a

reasonable opportuni ty to remove the

goods or put them

under proper care

and custody.

Jagenberg

, 882 F. Supp. at 107 6-77. The

court then noted the complication raised by a

through bill: [T]he contract was intermodal, meaning

that [Atlantic] contracted wit h Jagenber g to transport the goods over sea

from The Netherlands, and then over

land to

. . . Macon, Georgi a . . . .

Macon was th e place at which a

consignee or its “agent ” . . . first

encountered the cargo. Co nsequently,

the Court must either ext end the reach

of the Harter Act 

### SS

a marit ime law 

### SS

to

the point of delivery in Macon, Georgia,

or it must f

ind some principled manner

of deciding when a proper delivery

occurred beforehand, despite the fact

that, technically, no agent of Jagenberg

had a reasonable opportuni ty to take the

g oods into “proper care and custody ”

before they reached Macon.

Id. at 1077.

Based on the marit ime nature of the Harter

Act, t he court held that inland transportation

under a through bill occurs after Harter Act

proper delivery:

[T]he Harter Act is at its core a

marit ime law; the Court is unwillin g to

rule that simply because private parties

enter an intermodal agreeme n t federal

marit ime legislation is thus extended far

beyond its congr essionally intended

bound s. The Harter Act is designed

solely to regulate the l

i abilit y of seagoing carriers. That said, t he Court

finds that the Harter Act does reach to

t he point at which goods are lo aded

o n to the vehicles of an inland trucker,

whether h ired by the shipper or the

carrier.

Id. at 1077-78 (internal

citations omitted).

Harter Act proper delivery, however, precedes 13 (...continued)

has produced no evidence in this regard.9

that inland trans port. S ee id. at 1077. The

court concluded:

In this age of “containeri zed” cargoes

subject to “multimodal” bills of lading, it

is often difficult to locate precise ly the

points of legal delivery. Increasing

efficiency and integration in cargo

transport continues to blur the lines

separating sea carrier responsibilities

from those of others. The Court finds it

advisable to keep sea carriers to the

standards impos ed by the Harter Act

until goods are in the hands of land

carriers and ac t ually leaving the

marit ime arena. With COGSA covering

carriers’ legal responsibilities through

discharge, Harter fills a potenti al gap

between discha rge and inland transit in

those situations where goods, though on

the dock, are still within the control and

responsibility of the sea carrier.

Id. at 1078-79. 14

Jagenberg was adopted in Colgate Palmolive Co. v. M/V ATLANTIC CONVEYOR

, 1997

A.M.C. 1478, 1996 U.S. Dist. LEXIS 19247,

at *14 (S.D.N.Y. Dec. 31, 1996), which again

concerned an Atlantic through bill of lading:

“ Proper delivery occurs when the cargo is

ready for inland transport.” 15 The J agenberg

and Colgate Palmolive courts were not aware of a single case extending the Harter Act to all

stages of a throu gh bill of lading. S ee id. at

*15 n.3; Jagenb erg , 882 F. Supp. at 1077

n.13. The parties in the case s ub judice cite no

contrary authority. 16

We find these decisions persuasive and

therefore conclude that the Harter Act was not

compulsorily applicable at the time Mannesman’s goods were damaged. This analysis not

only avoids compulsory application of federal

marit ime law t o non-maritime transportation,

but has the benefit of not rendering

superfluous the alternative liability provisions

fou nd at paragraph 3(2) of Atlantic’s bill of

lading. 17

Our ruling is also consistent with Servicios ’s interpretation of COGSA “delivery.” As

with COGSA, Congress could have, but chose

not to, use “receipt” instead of “delivery.” S ee

Servicios

, 135 F.3d at 989. Thus, Harter Act

“de livery,” like COGSA “delivery,” is inter14 The damage in Jagenberg o ccurred at port

before loading onto inland-bound trucks, and t herefore the court found proper delivery had not yet occurred. S ee Jagenberg

, 882 F. Supp. at 1069,

1077.

15 See also Colgate Palmolive

, 1996 U.S. Dist.

LEXIS 19247, at *15 (“Like the Jagenberg Court,

I decline to hold that the Harter Act covers inland

transportation of cargo.”). 16 Jagenberg has been adopted by other courts,

as well. S ee Abbott Chem., I nc. v. Molinos de

Puerto Rico, Inc.

, 62 F. Sup p. 2d 441, 448

(D.P.R. 1999) (“[T]he Harter Act is applicable to

a carrier’s liability pursuant to an intermodal cont ract . . . only to the extent that the obligations

claimed to be violat ed are maritime.”); S tandard

Multiwall Bag Mfg. Co. v. Marine Terminals

Corp.

, 961 F. Supp. 240, 242 (D. Or. 1996); M.C.

Machinery Sys., Inc. v. Maher Terminals, Inc.

, 164 N.J. 192, 212 (2000).

17 See Transitional Learning Community, Inc.

v. United States Office of Personnel Management

, 2000 U.S. App. LEXIS 19008, at * 10 (5th Cir.

Aug. 9, 2000) (“[A] contract should be interpreted

as to give meaning to all of its terms SS presuming

that every provision was intended t o accomplish

some purpose, and tha t none are deemed superfluous.”).10

preted according t o the “common law gloss”

t hat “[d]elivery [is] not defined by receipt by

the consignee, but rather occur[s] when the

carrier ha[s] properly surrendered the goods in

accordance with its contract ual duties.” S ee

id. at 991. S ervicios did not interpret

“delivery” in the context of a thro ugh bill of

lading but made clear that delivery is governed

by general mariti me law obligations as

modified by specific contractual p ro visions,

not by receipt of the goods. S ee id. at 992-93.

We do not preclude par ties from

contractually limit

ing liabilit y during the entire

time in which the carrier has cus tody or

control over the cargo. 18 We merely hold that

where parties contractually tie such limitation

t o the extent that the Harter Act is

compulsorily applicable, the limitati o n does

not apply to inland transportation in through

bills of lading. A contrary result extends t he

compulsory applicability of the Harter Ac t to

transportati on that Congress almost certainly

did not intend to include within that act.

For all of the foregoing reasons, Harter Act

proper delivery preceded the damage at issue,

so w e vacate the awards in favor of Mannesman and Atlantic. 19 Because the record lacks

evidence of, inter alia

, the applicable tariff

limitation and the exte nt of damage to the

goods, we remand for further proceedings.

V.

Mannesman moved for summary judgment against Atlantic, and Atlantic filed a crossmotion for summary judgment against

Mannesman. Although neither party moved

for summary judgment against Trism, the court

nevert heless granted judgment in favor of

Atlantic against Trism.

Th is was error. A court may grant

summary j udgment sua sponte but must

provide adequate notice and an opportuni ty to

respond akin to that required by F ED

. R. C IV

. P. 56(c). S ee Leatherman v. Tarrant County

Narcotics Intelligen ce and Coordination Unit

, 28 F.3d 1388, 1397-98 (5th Cir. 1994). If the

court fails to provide such n o tice, we will

reverse the grant unless the error is harmless.

See id. at 1398.

There is harm here, because T rism has a

po t ent ially valid defense that it was not on

notice to raise. Atlantic claims the right

unilaterally to create liability on the part of

Trism by agreeing to extend the exi s ting

contractual limitations bar. Trism is entitled to

an oppor t unity to refute this contention, and

we therefore reverse the judgment of liabilit y

against Trism.

REVERSED and REMANDED.

18 See, e.g.

, Jagenberg

, 882 F. Supp. at 1070

n.1 (citing Brown & Root, Inc. v. M/V PEISANDER , 648 F.2d 415, 420 (5th Cir. June 1981)).

19 We therefore do not reach Manne sman’s

claim that the court erred by failing to award prejudgment interest.