IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 98-20877

_______________

MANNESMAN DEMAG CORPORATION,

Plaintiff-AppellantAppellee,

VERSUS

M/V CONCERT EXPRESS, ETC., ET AL.,

Defendants.

ATLANTIC CONTAINER LINE, INC.,

DefendantThird Party PlaintiffAppellee,

VERSUS

TRISM SPECIALIZED CARRIERS, INC.,

Third Party DefendantAppelleeAppellant.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________

September 8, 2000
2

Before SMITH and DENNIS, Circuit 

Judges, and HARMON, District Judge.*

JERRY E. SMITH, Circuit Judge:

MannesmanDemagCorporation (“Mannesman”) appealsthe amount of a summary judgment award in itsfavor, and Trism Specialized

Carriers, Inc. (“Trism”), appeals an adverse

summary judgment in favor of Atlantic

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

and remand.

I.

This case arises from damage sustained to

an oxygen compressor and instrument rack

owned by Mannesman, which were

transported from Bremerhaven, Germany, to

Terre Haute, Indiana. Atlantic carried the

goods from Bremerhaven to the Port of

Baltimore, 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, reflecting an agreement to transport the goods

from Bremerhaven, 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 Port of Baltimore,

Atlantic hired Trismto transport themto Terre

Haute.

A.

This case presents an issue of first

impression regarding the applicability of

federal maritime statutes to inland transport

under a through bill of lading. The following

excerpt describes the origin of this issue.

Untilthe advent ofthe containerization of cargo, the cargo owner typically

would enter into a new shipment

contract with a new carrier each time

the mode of transport changed. An

inland carrierSSa railroad, trucker or, in

some cases, an inland barge operatorSSwould carry the goods to a seaport

under one contract of carriage. There

someone, usually a “freight forwarder”

acting on behalf 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 Southern 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 an

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

Haley, Who Done It and Who’s Gonna

Pay?SSRights of Shippers and Consignees

Against Non-Ocean Carriers Performing Part of

a Contract of CarriageCovered by a Through Bill

of Lading, 7 J. INT’L L. & PRAC. 415, 416 (1998).

See Jagenberg, Inc. v. Georgia Ports Auth., 882

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

would transport them to a foreign

seaport and release them there to the

consignee or someone acting on the

consignee’s behalf.

Different legal regimes arose to

govern the parties’ rights and liabilities,

depending upon the mode of shipment.

. . . If the railroad did the damage, then

the rules of liability governing railroads

would apply. If the steamship line was

liable, then maritime law would govern.

Along came intermodal shipping

containers 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 transporters now

contract, not with the owner of the

goods, but as a subcontractor to the

steamship line who has offered a

complete transport package.

Under United States law, a shipper

or consignee may recover against

non-ocean carriers for the loss of or

damage to cargo subject to a “through

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

properly drafted, limit 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) governsthe liability of an

oceancarrier onan internationalthrough

bill of lading. . . . COGSA contains

important benefits to the carrier. Inland

carriers frequently attempt to take

advantage of the benefits afforded by

COGSA. One of COGSA’s most

important provisions limits a carrier’s

liability to five hundred dollars

($500US) per package unless a higher

value is declared by the shipper.

COGSA also contains a one-year

limitation for cargo claims.

* * *

By its terms, COGSA applies

“tackle-to-tackle” only; it does not

extend to losses which occur prior to

loading orsubsequent to discharge from

a vessel.4 A Period of Responsibility

clause can be used to extend COGSA’s

application to the entire time the goods

are within the carrier’s custody.

Charles S. Donovan & Jill M. Haley, supra

note 3, at 415-17. 

B.

The parties agree that the controlling

contractual document is the single 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. . . theCarrier’sresponsibility

shall instead be subject to COGSA, but

where COGSA is 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 asis 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 carriage

where the loss or damage occurred can

be proved.

* * *

(ii) With respect to the

transportation in the United States . . .

from the Port of Discharge, the

responsibility of the Carrier shall be to

procure transportation by carriers (one

or more) and such transportation 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 carriers’ obligations under

their contracts and tariffs.

* * *

6. PACKAGE/UNIT LIMITATION

AND DECLARED VALUE

(1) Package or Unit Limitation

Where the Hague Rules or any

legislation making such Rules

compulsorily applicable (such as

COGSA 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 to or in connection with the

goods in an amount per package or unit

in excess of the package or unit

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

within 12 months after delivery of the

goods or the date when the goods

should have been delivered.

C.

Before filing the instant matter, Mannesman

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

argued that the suit was barred by the bill’s

one-yeartime-bar, while Mannesmancontended 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” provision of the

Billunambiguouslyapplied to all aspects ofthe

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 contribution and

indemnity. Mannesman moved for summary

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

5 Apparently to avoid being a party to the

previous lawsuit, Atlantic signed an agreement

with Mannesman extending the contractual

limitations period.
5

Mannesman. The court granted summary

judgment, without opinion, in favor of

Mannesman against Atlantic in the amount of

$1000 plus post-judgment interest, and in

favor of Atlantic against Trism in the same

amount, arriving at the $1000 figure via the

bill’s $500 per package limitation.

Mannesman appeals the amount of the

award, and Trism cross-appeals, contesting

liability. Atlantic does not appeal and thus

does not contest the finding of liability.

II.

Atlantic contends that Mannesman is

attempting to relitigate issues that were

necessarily decided in the previouslawsuit and

is barred from doing so by the doctrine of

collateral estoppel. Although Mannesman

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

the district court, in which case we will not

apply the doctrine on appeal. See 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 meritSSthe 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-yearlimitations bar

was applicable to all aspects of the through bill

of lading. That limitation is not relevant here,

because Atlantic has contractually agreed to

extend that period. Instead, we must decide

which of the two contractual limitations of

liability is applicable, which requires interpretation of, inter alia, the Harter Act.

The district court’s opinion in the previous

lawsuit recognizesthis distinction (emphasisin

original):

Section 3 of the [Atlantic] Bill of

Lading, entitled “Carrier’s

Responsibility,” addresses the Carrier’s

liability, and section 3(2) states the

different measures of liability depending

upon where the loss or damage to the

goods occurred . . . . Specifically,

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

measure ofliability for inland carriage of

goods in the United States or Canada.

For inland carriage of goods, liability is

to be measured by reference to the

inland carrier’s contracts of carriage and

tariffs and any law compulsorily

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

section 3 for that matter, of a specific

limitations period for the bringing ofsuit

for recovery of the damage or loss of

goods during the inland portion of the

carriage. Section 7, however, of the

governing [Atlantic] Bill of Lading is

specifically entitled, “Time Bar,” and

sets forth an all-inclusive time bar provision . . . . Mannesman has not

directed the Court to any case law, and

the Court can find none, that would read

a conflicting limitations period into the

liability provision contained in section

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

to, a separate section of the Bill of

Lading that sets forth a specific and all

inclusive time bar proviso.

Atlantic arguesthat, 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 (5thCir. 1998) (stating the

four required collateral estoppel factors), cert.

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

delivery occurred. That determination,

however, is not equivalent to determining

when delivery occurred under the Harter Act.

Because the bill’s liability limitation is explicitly partitioned based on the limits of

Harter Act compulsory applicability,

interpretation of the Harter Act remains for us

in this appeal.

III.

Atlantic contends that Mannesman waived

argument regarding the Harter Act by failing

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

that the inland carrier’s tariff, not the COGSA

$500 per package limitation, provided the

applicable limitation of liability. Atlantic

cross-moved for summary judgment, arguing

that the limitation is the COGSA $500 per

package amount and specifically averring that

the Harter Act is compulsory applicabile.

By granting Atlantic’s cross-motion as to

amount of liability, the court necessarily

determined that the Harter Act was

compulsorily applicable to the inland portion

of carriage. This issue was therefore raised

and considered by the district court and is

properly before us.7

IV.

We must determine, as a matter of first impression, whether the Harter Act is

compulsorily applicable to the inland portion

of carriage pursuant to a through bill oflading.

We have 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 ofGoods bySea Act (“COGSA”), 46

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

Act, 46 U.S.C. app. §§ 190-196. Under

COGSA, a carrier of goods in international

commerce must “properly and carefully load,

handle, stow, carry, keep, care 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 internationalcommerce was partially superseded

by COGSA,9 COGSA is applicable only from

the time goods are loaded onto the ship until

the 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 fromthe 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 picked 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 stevedoring 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. See 8 BENEDICT ON ADMIRALTY

§ 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

includesthe general maritime law requirement

that a carrier “unload the cargo onto a dock,

segregate it by bill of lading and count, put it

in a place of rest on the pier so that it is

accessible to the consignee, and afford the

consignee a reasonable opportunity to come

and get it.” Tapco, 702 F.2d at 1255.11 These

requirements of“proper delivery” aremodified

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

port.” Tapco, 702 F.2d at 1255.12 Thus, the

critical question is “whether delivery was to

persons charged by the law and the usage of

the port with the duty to receive cargo and

distribute it to the consignee.” Tapco, 702

F.2d at 1257 (internal quotation marks

omitted).

COGSA also refers to “delivery,” which

commences the running of a one-year

limitations period. See 46 U.S.C. app.

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

Industrial Maritime Carriers, Inc., 135 F.3d

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

when such “delivery” occurs varies according

to the custom and laws of a port but that

“delivery” is not equivalent to receipt by the

consignee. Thus, when an ocean carrier

transferred its cargo to an authorized customs

warehouse in the Venezuelan port of

destination, deliverywas completed regardless

of the fact that the consignee had not yet

received the goods. See id.

Atlantic’s bill of lading providesthat, to the

extent the Harter Act is compulsorily

applicable, the Carrier’s “responsibility shall

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

states 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 applicable to Trism’s inland

transport, the court correctlylimited Atlantic’s

liability to $500 per package.

The same contractual provision extending

COGSA to the limits of the Harter Act also

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

be applicable [theCarrier’s]responsibilityshall

be determined by the provisions of 3(2)

below.” ¶ 3(1). Paragraph 3(2)(B)(ii)

providesthat, where the occurrence ofdamage

can be proved to occur during transportation

“in the United States,” “the responsibility of

the Carrier shall be to procure transportation

by carriers (one or more) and such

transportation 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 arguesthat Harter Act “proper

delivery” occurred when Trism acquired

control over the goods and began inland

transportation. If this is correct, then at the

time the goods were damaged, the Harter Act

was not compulsorily applicable, in which case

the Bill provides that Atlantic’s liability is

governed by Trism’s contracts and tariffs.13

10 See also Metropolitan, 12 F.3d at 61; F.J.

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

11 See also 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 countersthat the through billoflading

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 circuit court

of appeals interpreting Harter Act proper delivery with respect to the inland portion of a

through bill of lading. There is, however, a

thoroughand persuasive district court opinion,

fromanother 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 oflading 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 or constructive delivery.

Actual delivery consists of completely

transferring the possession and control

of the goods from the vessel to the

consignee or his agent. Constructive

delivery occurs where the goods are

discharged from the ship upon a fit

wharf and the consignee receives due

and reasonable notice that the goods

have been discharged and has a

reasonable opportunity to remove the

goods or put them under proper care

and custody.

Jagenberg, 882 F. Supp. at 1076-77. The

court then noted the complication raised by a

through bill:

[T]he contract wasintermodal, meaning

that [Atlantic] contracted with Jagenberg to transport the goods over sea

from The Netherlands, and then over

land to . . . Macon, Georgia . . . .

Macon was the place at which a

consignee or its “agent” . . . first

encountered the cargo. Consequently,

the Court must either extend the reach

of the Harter ActSSa maritime lawSSto

the point of delivery in Macon, Georgia,

or it must find some principled manner

of deciding when a proper delivery

occurred beforehand, despite the fact

that, technically, no agent of Jagenberg

had a reasonable opportunity to take the

goods into “proper care and custody”

before they reached Macon.

Id. at 1077.

Based on the maritime nature of the Harter

Act, the court held that inland transportation

under a through bill occurs after Harter Act

proper delivery:

[T]he Harter Act is at its core a

maritime law; the Court is unwilling to

rule that simply because private parties

enter an intermodal agreement federal

maritime legislation is thus extended far

beyond its congressionally intended

bounds. The Harter Act is designed

solely to regulate the liability of seagoing carriers. That said, the Court

finds that the Harter Act does reach to

the point at which goods are loaded

onto the vehicles of an inland trucker,

whether hired 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 transport. See id. at 1077. The

court concluded:

In this age of “containerized” cargoes

subject to “multimodal” bills oflading, it

is often difficult to locate precisely 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 imposed by the Harter Act

until goods are in the hands of land

carriers and actually leaving the

maritime arena. With COGSA covering

carriers’ legal responsibilities through

discharge, Harter fills a potential gap

between discharge 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 inColgate Palmolive Co. v. M/VATLANTICCONVEYOR, 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 Jagenberg

and Colgate Palmolive courts were not aware

of a single case extending the Harter Act to all

stages of a through bill of lading. See id. at

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

n.13. The parties in the case sub 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

maritime law to non-maritime transportation,

but has the benefit of not rendering

superfluous the alternative liability provisions

found at paragraph 3(2) of Atlantic’s bill of

lading.17

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

withCOGSA, Congress could have, but chose

not to, use “receipt” instead of “delivery.” See

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

“delivery,” like COGSA “delivery,” is inter14 The damage in Jagenberg occurred at port

before loading onto inland-bound trucks, and therefore the court found proper delivery had not yet occurred. See 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. See Abbott Chem., Inc. v. Molinos de

Puerto Rico, Inc., 62 F. Supp. 2d 441, 448

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

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

claimed to be violated are maritime.”); Standard

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 termsSSpresuming

that every provision was intended to accomplish

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

preted according to the “common law gloss”

that “[d]elivery [is] not defined by receipt by

the consignee, but rather occur[s] when the

carrier ha[s] properlysurrendered the goodsin

accordance with its contractual duties.” See

id. at 991. Servicios did not interpret

“delivery” in the context of a through bill of

lading but made clear that delivery is governed

by general maritime law obligations as

modified by specific contractual provisions,

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

We do not preclude parties from

contractually limiting liability during the entire

time in which the carrier has custody or

control over the cargo.18 We merely hold that

where parties contractually tie such limitation

to the extent that the Harter Act is

compulsorily applicable, the limitation does

not apply to inland transportation in through

bills of lading. A contrary result extends the

compulsory applicability of the Harter Act to

transportation that Congress almost certainly

did not intend to include within that act.

For all ofthe foregoing reasons, Harter Act

proper delivery preceded the damage at issue,

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

evidence of, inter alia, the applicable tariff

limitation and the extent 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

forsummaryjudgment against Trism, the court

nevertheless granted judgment in favor of

Atlantic against Trism.

This was error. A court may grant

summary judgment sua sponte but must

provide adequate notice and an opportunity to

respond akin to that required by FED. R. CIV.

P. 56(c). See Leatherman v. Tarrant County

NarcoticsIntelligence and Coordination Unit,

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

court fails to provide such notice, we will

reverse the grant unless the error is harmless.

See id. at 1398.

There is harm here, because Trism has a

potentially 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 existing

contractual limitations bar. Trism is entitled to

an opportunity to refute this contention, and

we therefore reverse the judgment of liability

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 Mannesman’s

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