Judge Haynes concurs in the judgment only. *

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not **

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31075

TRADEARBED INC; ARCELOR TRADING USA INC, doing business as

Freemak Industries; FREEMAK INDUSTRIES INC,

Plaintiff-Appellees

v.

WESTERN BULK CARRIERS K/S,

Defendant-Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:03-CV-00529

Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.

*

PER CURIAM:**

At issue in this maritime-shipping dispute is whether the district court

erred in determining liability and damages for cold-rolled steel coils and steel

pipes shipped on the MEDI TRADER from Eastern Europe to Houston and New

Orleans. Western Bulk challenges: the district court’s finding the coils were

undamaged when loaded onto the MEDI TRADER, but damaged when unloaded;

United States Court of Appeals

Fifth Circuit

F I L E D

January 26, 2010

Charles R. Fulbruge III

Clerk

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2

its damages assessment; and its finding Western Bulk was the sole Carriage of

Goods by Sea Act (COGSA) carrier—and therefore the sole party liable for

damages—with respect to TradeArbed, Inc. (the coils’ owner), and Freemak

Industries, Inc. (the pipes’ owner). AFFIRMED.

I.

 Western Bulk was the last in a chain of time charterers of the MEDI

TRADER, tracing back to her owner, Seafarers Shipping, Inc. Seafarers was a

party to this action, but, post-trial, was dismissed without prejudice, as

discussed infra.

A.

The cargo at issue for TradeArbed and Freemak is described in turn. The

primary disputes concern TradeArbed.

1.

In December 2002, TradeArbed entered into a charter party with Western

Bulk to ship hot-rolled and cold-rolled steel coils on the MEDI TRADER, from

Bourgas, Bulgaria, to New Orleans. TradeArbed later became Arcelor Trading

(they are referred to as TradeArbed). (Although it does not affect this analysis,

there were two charter parties signed on 5 December 2002. Western Bulk

negotiated one with TradeArbed; the other, with Arcelor Trading. The latter

exists to reflect the above-noted merger. The charter parties refer only to “Hot

Rolled Coils”, but the parties understood this term covered cold-rolled coils as

well.)

TradeArbed’s coils were loaded onto the MEDI TRADER in January 2003.

The moisture-sensitive cold-rolled coils were shipped in the usual protective

wrappings; the non-moisture-sensitive hot-rolled coils were not wrapped.

TradeArbed’s damages at issue concern only the cold-rolled coils.

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Three bills of lading (numbers six–eight) covered the cold-rolled coils, and

each noted tears, dents, and minor rust on some of the wrappings. Otherwise,

the bills were clean.

TradeArbed’s coils were stowed in holds one, three, and five. After loading

in Bourgas, hold one contained cold-rolled coils covered by bill six, along with

TradeArbed’s bill-nine cold-rolled coils and another shipper’s galvanized-rolled

coils (also moisture-sensitive, the galvanized-rolled coils were wrapped similar

to cold-rolled coils); hold three contained cold-rolled coils covered by bill seven,

along with some of TradeArbed’s hot-rolled coils and another shipper’s

galvanized-rolled coils; and hold five contained cold-rolled coils covered by bills

seven and eight, along with more of TradeArbed’s hot-rolled coils.

Holds two and four were filled with other shippers’ cargo. Cargo was

added to holds one and three at a subsequent port, before ocean transit to the

United States.

Evidence was presented at trial regarding the existence of condensation

in the holds, which can cause rust on moisture-sensitive cold-rolled coils. The

moisture was claimed to have entered the holds from either or both of two

principal sources. 

First, it could have entered with non-moisture-sensitive cargo, like the hotrolled coils, which, prior to loading, were stored in the open air and were covered

with snow during loading. During loading, the MEDI TRADER’s chief mate

objected to stowing wet hot-rolled coils in the same hold with moisture-sensitive

cold-rolled coils.

Second, moisture could have entered when, at a subsequent port, cargo

was loaded into the holds during rainfall. This was also over the chief mate’s

protests.

After discharging some of her cargo in Houston, including Freemak’s

pipes, the MEDI TRADER proceeded to New Orleans, where her remaining

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cargo, including the cold-rolled coils, was unloaded; those coils were still in

wrappers. In both Houston and New Orleans, a number of surveyors inspected

the cargo and the holds.

Surveyors agreed hold three contained “tide marks”—evidence of standing

water in the hold. In the three holds containing the coils at issue, surveyors also

found “drip-down condensation” resulting from water condensing at the top of

the hold and dripping onto the cargo. Surveyors generally agreed this was freshwater, as opposed to salt-water, condensation, and attributed it to the moisture

introduced during loading. It was also noted that some coils were dripping water

during unloading in New Orleans.

TradeArbed’s cold-rolled coils were loaded from the MEDI TRADER onto

barges for shipment to their final destinations up the Mississippi River. They

were not unwrapped until they reached those destinations.

The original buyer of the bills-seven and -eight coils rejected them as unfit,

citing heavy rust. Another round of surveys generally attributed the rust to

moisture encountered in ocean transit. TradeArbed sold those coils to the

original buyer at a depreciated value. Surveys approved of the new sale price as

“fair, reasonable, [and] represent[ative of] conditions viewed”.

The bill-six coils were rejected based on damage caused by rust and oil

emulsification within the coils. More so than with the bills-seven and -eight

coils, evidence conflicted on whether the bill-six coils were damaged in ocean

transit. The original buyer of those coils rejected them, but TradeArbed reached

agreement with a different buyer to purchase them at a depreciated value.

Surveys described the new bill-six sale price as “representat[ative of] conditions

viewed, . . . fair, reasonable, and . . . recommended as the best disposition in the

matter . . . .”

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2.

For the same voyage on the MEDI TRADER, Freemak also chartered, from

Western Bulk, space to ship its steel pipes. They were loaded in December 2002

in Odessa, Ukraine. Upon unloading them in Houston, it was discovered they

had been crushed by rebar. As it did at trial, Western Bulk concedes the pipes

were damaged during the ocean transit.

B.

TradeArbed and Freemak filed an action for damages against: the MEDI

TRADER, in rem; her owner (Seafarers); her manager (Victoria Ship

Management, Inc.); and her charterer (Western Bulk). The district court

consolidated the action with one filed earlier by Cargill Ferrous International,

another shipper with cargo on the MEDI TRADER during the voyage at issue.

Seafarers and Victoria filed a cross claim and a third-party complaint against

Western Bulk, seeking indemnification for damage to the cargo.

The district court bifurcated the trial, separating “the cargo quantum

claims from the issues of liability between [Western Bulk] and Seafarers”.

Cargill Ferrous Int’l v. M/V MEDI TRADER, 513 F. Supp. 2d 609, 612 (E.D. La.

2007). The second part of the bifurcated trial has yet to occur.

After a bench trial on the claimed cargo damage, the district court found

Western Bulk liable, inter alia, to TradeArbed for $787,222.44 for the bill-six

through bill-eight coils; and, to Freemak for $256,814.22 for the pipes. MEDI

TRADER, 513 F. Supp. 2d at 625–26. (A significant portion of the district court’s

opinion was devoted to Cargill’s claims, and Cargill was awarded damages of,

inter alia, $264,452.67. Cargill settled its claims.) Western Bulk’s motions for

reconsideration and for a new trial were denied. 

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On 20 October 2008, an omnibus order: dismissed without prejudice

claims that settled after trial (not at issue in this appeal); and, consistent with

its earlier opinion, awarded judgment for TradeArbed and Freemak against

Western Bulk.

II.

For this admiralty bench trial, the district court heard no testimony; only

documentary evidence was presented. The court’s legal conclusions are reviewed

de novo; its findings of fact, only for clear error. E.g., Sabah Shipyard Sdn. Bhd.

v. M/V HARBEL TAPPER, 178 F.3d 400, 404 (5th Cir. 1999) (citing Nerco Oil

& Gas, Inc. v. Otto Candies, Inc., 74 F.3d 667, 668 (5th Cir. 1996)). Bench-trial

fact findings, “whether based on oral or other evidence, must not be set aside

unless clearly erroneous . . . .” FED R. CIV. P. 52(a)(6). Restated, this standard

is applied even though the district court made no credibility determinations

based on oral testimony and based them only on “documentary evidence or

inferences from other facts”. Pacific Employers Ins. Co. v. M/V GLORIA, 767

F.2d 229, 235 (5th Cir. 1985) (quoting Anderson v. City of Bessemer City, North

Carolina, 470 U.S. 564, 574 (1985)).

Western Bulk contends: TradeArbed failed to prove its prima facie case

for damage to cargo; the district court applied an improper method to calculate

damages and, in the alternative, erred by not applying COGSA’s $500-perpackage damage limitation; and this was an instance of common, not private,

carriage, and, consequently, Western Bulk is not the only party liable as a

COGSA carrier.

A.

Regarding the claimed cargo damage, Western Bulk contends TradeArbed

failed to prove two essential elements of its COGSA prima facie case: Western

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Bulk’s receipt of the cargo in good condition; and its delivery in damaged

condition. See Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).

Each element is addressed in turn.

1.

Regarding good condition on receipt, Western Bulk asserts: the coils did

not have clean bills of lading; and TradeArbed failed, in the absence of such bills,

to prove good condition by other means. In that regard, Western Bulk contends

TradeArbed failed to offer any proof of the coils’ condition on receipt because it

failed to show their condition inside their wrappings.

Clean bills of lading are prima facie evidence of good condition on receipt.

Steel Coils, Inc. v. M/V LAKE MARION, 331 F.3d 422, 426 (5th Cir. 2003). As

noted, the bills were not entirely clean. MEDI TRADER, 513 F. Supp. 2d at

625–26. In such a situation, the district court must look to other evidence to

determine good condition, such as mate’s receipts and surveys from the loading

port. See LAKE MARION, 331 F.3d at 427. 

As noted, Western Bulk contends TradeArbed failed to meet a

“considerable burden of going further to prove actual condition”, because it did

not present evidence of the coils’ condition inside their wrappings. See United

States v. Lykes Bros. Steamship Co., 511 F.2d 218, 223 (5th Cir. 1975) (quoting

Compagnie de Navigation v. Mondial United Corp., 316 F.2d 163, 170 (5th Cir.

1963)); see also Caemint Foods, Inc. v. Brasileiro, 647 F.2d 347, 352 (2d Cir.

1981). Our court has, however, expressly distinguished the “considerable

burden” placed on shippers of the wrapped perishable goods in Western Bulk’s

cited cases from the burden placed on shippers of wrapped steel coils. See LAKE

MARION, 331 F.3d at 429.

In LAKE MARION, the owner of cold-rolled steel coils sued for damages

allegedly incurred during maritime transit. Id. at 425. After a bench trial, the

district court awarded damages. Id.

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As Western Bulk does here, in LAKE MARION it was contended on

appeal: “the bill of lading notation that the condition of these coils was unknown

fatally undermined Steel Coils’s attempt to prove a prima facie case of good

condition” at loading. Id. at 428. Our court disagreed, holding: 

The evidence at trial shows that, had the cold rolled . . . coils been

damaged by rust, their outer wrappers would have revealed it.

Because the wrappers had no indication of rust, and the moisture on

the outside of the wrappers was not dripping down into the coils, it

was not clearly erroneous for the district court to conclude that the

cold rolled . . . coils were in an undamaged state prior to loading.

Id. at 429; see also Couthino, Caro & Co. v. M/V SAVA, 849 F.2d 166, 168 (5th

Cir. 1988) (affirming district court’s finding, based on witness’ testimony, that

steel coils were undamaged at loading despite “numerous exceptions noting rust

and packaging damage” on bills of lading).

In the instant action, the district court relied on the pre-load surveys and

other evidence introduced at trial to find whether the cargo was in good

condition at loading. The court ruled: “while the bills of lading were claused to

note some defects in packaging and the load survey also demonstrates this, it is

the Court’s conclusion after viewing the photographs that[, at loading,] any rust

on the coils themselves was on the hot rolled coils”, not the cold-rolled coils.

MEDI TRADER, 513 F. Supp. 2d at 626. Therefore, for the cold-rolled coils, the

district court found TradeArbed proved the undamaged-at-loading element of its

prima facie case. Id.

TradeArbed was not required to do more. See LAKE MARION, 331 F.3d

at 429. The district court did not clearly err in finding the cold-rolled coils’

undamaged condition at loading. See GLORIA, 767 F.2d at 235 (stating that,

“‘[w]here there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous . . . even when the district court’s

findings do not rest on credibility determinations, but are based instead on

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physical or documentary evidence or inferences from other facts’” (quoting

Anderson, 470 U.S. at 574)).

2.

Likewise, Western Bulk asserts TradeArbed failed to prove the coils were

damaged on delivery, maintaining it failed to present any evidence of the coils’

condition because they were not unwrapped in New Orleans, but remained

packaged until they reached their upriver destinations. According to Western

Bulk, the light atmospheric rust on the coils’ wrappings at discharge in New

Orleans does not explain the heavier fresh-water rust discovered on the coils

when unwrapped over a month later. Western Bulk also suggests the coils could

have been damaged in storage after reaching those destinations.

In LAKE MARION, as here, it was contended: “the steel coils rusted on

the way from the ship to their ultimate inland destinations”. 331 F.3d at 429.

LAKE MARION ruled such contentions were “belied by a wealth of evidence

relied upon by the district court”, including a quoted survey that stated the

surveyor’s opinion as to the cause of the damage. Id. Accordingly, this issue

turns on whether evidence in the record precludes holding clearly erroneous the

finding that the coils were damaged in ocean transit.

The district court considered two separate groups of coils, and held:

“TradeArbed/Arcelor has carried its burden of proof to demonstrate that the

[bills-seven and -eight] coils were unloaded in a damaged condition as they were

rusted”, and the bill-six coils were “also damaged as a result of incompatible

cargo being stowed together”. MEDI TRADER, 513 F. Supp. 2d at 626.

a.

Regarding the bills-seven and -eight coils, Western Bulk maintains the

district court improperly relied on six surveys—three in New Orleans, and three

at the upriver destinations—cited to support its finding that those coils were

rusted during ocean carriage. Western Bulk contends: the upriver surveys do

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not prove damage at unloading in New Orleans; and the earlier New Orleans

surveys do not show rust on the coils because they were not unwrapped.

For the coils shipped in hold three, surveys reported “rust tide mark” and

“heavy drip down”, resulting from “ship’s sweat and cargo sweat in the cargo

hold due to the lack of proper ventilation and from faulty stowage”. One New

Orleans surveyor, inspecting the three holds that contained TradeArbed’s coils,

concluded: “the heavier rust to various degrees noted on the cargo in each hold

was due to sweat . . . caused as a result of improper ventilation aboard the ocean

carrier [and] improper stowage aboard the ocean carrier”. The coils were found

to have been subject to “severe sweat conditions prior to loading the barges” for

the upriver journey. As one survey explained: “Stowage of hot rolled steel cargo

in the same cargo compartment as moisture sensitive cargo is improper stowage.

Ventilation of the cargo was impeded and therefore improper . . . .”

These surveys support the district court’s finding that the bills-seven and

-eight coils were damaged when unloaded in New Orleans; therefore, the court

did not clearly err when it credited them.

b.

As noted, after the bill-six coils’ original buyer rejected them, TradeArbed

reached an agreement with another buyer to sell those coils at a discount based

on “rust/oil emulsification only”. The district court found these coils were

“primarily damaged by oil emulsification” resulting from “a combination of oil

and water from the high humidity in the cargo holds”. MEDI TRADER, 513 F.

Supp. 2d at 626. As also noted, the district court attributed this damage to

“incompatible cargo being stowed together”. Id. 

Surveys conflicted as to the bill-six coils’ conditions, and opinions

conflicted on the cause of damage. Evidence showed moisture in hold one. A

number of the bill-six coils’ wrappings were torn, punctured, or otherwise

damaged, thereby creating holes through which this moisture could reach the

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coils and cause emulsification and rust. “[M]oderate/heavy oxidation/rust” on

the bill-six coils was found at discharge in New Orleans.

In short, some evidence suggested the damage did not occur during ocean

transit. Nevertheless, the district court did not clearly err when it credited

contrary evidence and found the bill-six coils were damaged at unloading.

B.

Accordingly, the district court did not clearly err when it found

TradeArbed proved its COGSA prima facie case that the goods were damaged

during ocean transit. Therefore, the contested damages are addressed next. In

challenging the district court’s method of calculating them, Western Bulk

presents two alternative claims: TradeArbed failed to satisfy its initial burden

to prove a prima facie case of damages; and, in the alternative, the court erred

by denying Western Bulk the benefit of COGSA’s $500-per-package damage

limitation.

1.

Western Bulk contends: because TradeArbed failed to prove the coils’

sound market value at discharge in New Orleans, in both their damaged and

undamaged states, the district court should have denied all recovery. Using the

coils’ subsequent upriver value to determine damages, Western Bulk asserts, is

contrary to our precedent requiring damages to be calculated using market value

at discharge.

As for the cargo covered by bills-seven and -eight, the district court stated

only that “the damages suffered were $574,542.83”, and cited a survey describing

that this amount was calculated by subtracting the discounted price for the

damaged coils from the original price. MEDI TRADER, 513 F. Supp. 2d at 626.

The district court resolved the bill-six coils’ damages similarly, finding “damages

[were] $212,679.61 after mitigation of damages by TradeArbed/Arcelor through

acceptance [of] reasonable depreciation”, and cited a survey providing the

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relevant calculation. Id. These calculations were not improper under our

precedent.

COGSA does not mandate one method of calculating damages, but instead

provides a general principle: “In no event shall the carrier be liable for more

than the amount of damage actually sustained”. COGSA, § 4(5), 46 U.S.C.

§ 30701 note. Our court typically applies the traditional “market value rule” to

calculate COGSA damages. See BP N. Am. Petroleum v. SOLAR ST, 250 F.3d

307, 312 (5th Cir. 2001). As the Supreme Court has recognized, however, there

are occasions when it is necessary to use other methods. See Ill. Cent. R.R. Co.

v. Crail, 281 U.S. 57, 64–65 (1930) (“The test of market value is at best but a

convenient means of getting at the loss suffered. It may be discarded and other

more accurate means resorted to, if, for special reasons, it is not exact or

otherwise not applicable.”).

In F.J. Walker Ltd. v. M/V LEMONCORE, our court held: where the

carrier is responsible for damages, it “is in no position to complain that the

damaged parties can not establish precisely the loss it caused”. 561 F.2d 1138,

1147 (5th Cir. 1977) (citing Daniels Towing Svc., Inc. v. Nat Harrison Assoc.,

Inc., 432 F.2d 103, 105–06 (5th Cir. 1970)). The LEMONCORE district court

“was faced with establishing damages by one of two methods, both of which were

inexact”. Id. at 1147. After noting the “primary object in awarding damages is

to indemnify plaintiff for the loss sustained by reason of the carrier’s fault”,

LEMONCORE made clear that inability to prove exact damages is not fatal to

a shipper’s case. See id. at 1146–47 (quoting Interstate Steel Corp. v. S.S.

Crystal Gem, 317 F. Supp. 112, 121 (S.D.N.Y.1970)) (holding that where

damages are unclear or difficult to prove, “the court should use the best

indication it can obtain rather than deny any recovery”).

Restated, uncertainty does not preclude recovery. Id.; see also SAUL

SORKIN, GOODS IN TRANSIT § 11.03 n.27 (2009) (“Uncertainty in ascertaining

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damages does not mean that plaintiff is precluded from recovering.” (citing C.

Itoh & Co. v. Hellenic Lines, Ltd., 470 F. Supp. 594, 598 (S.D.N.Y. 1979))). “In

such a situation the district court has a discretion to choose the method it

considers best.” LEMONCORE, 561 F.2d at 1147 (citing Ill. Cent., 281 U.S. 57;

Santiago v. Sea-Land Svc., Inc., 366 F. Supp. 1309, 1314–15 (D.P.R. 1973)).

LEMONCORE ultimately approved a method of calculating damages

similar to the market-value method urged by Western Bulk; but, in this

instance, it is the general COGSA-damages principles LEMONCORE expresses

that are persuasive. In the light of such principles, the district court did not err

by not requiring at-discharge market value. Obviously, because of the nature of

transporting cold-rolled coils, TradeArbed could not discover the extent of the

damage to them until they were unwrapped; and, because their ultimate

destinations were upriver, they were not unwrapped until more than a month

after they were discharged from the MEDI TRADER (and thereby discharged

from Western Bulk’s control).

TradeArbed’s evidence regarding bills-seven and -eight cargo included:

invoices (which can be used to determine market value, see Emmco Ins. Co. v.

Wallenius Caribbean Line, S.A., 492 F.2d 508, 514 (5th Cir. 1974)) and sale

confirmations for the coils corresponding with sale contracts entered both before

and after discharge (both for the same price, $18.33 cwt); evidence of the price

for which the coils were sold at salvage ($11.80 cwt); and an expert opinion that

the salvage price was “fair, reasonable, [and] represents conditions” of the

damaged coils as viewed during the survey. The evidence regarding the bill-six

coils was similar, with a contract price of $21 cwt and a salvage price of $11.60

cwt.

The salvage-sale agreements, which TradeArbed entered after its original

buyers complained that the coils were damaged, were necessarily non-existent

at discharge because TradeArbed did not know, and could not have known, of the

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damage, or its extent, at that time. These agreements contemplated the

percentages of coils damaged and were otherwise specific to the status of each

set of coils. TradeArbed could not have produced evidence of the at-discharge

“market price” of this certain number of coils containing this certain number of

various defects. Western Bulk provides no reason to find clearly erroneous the

district court’s finding TradeArbed presented sufficient evidence to determine

actual damages. 

Western Bulk relies on SOLAR ST, which concerns damages for oil sold

at a discount after being negligently contaminated by its carrier. That case,

however, is distinct in several ways from the instant matter. For example,

unlike the SOLAR ST district court, see 250 F.3d at 315, the district court here

was not presented with evidence it could have used to apply the market value

rule. As another example, the district court’s damage determination in this

instance did not implicate concerns that using a subsequent value would make

the carrier a “guarantor of the ups and downs of commodity prices”. See Holden

v. SS KENDALL FISH, 395 F.2d 910, 913 (5th Cir. 1968); see also SOLAR ST,

250 F.3d at 312–15. As a final example, for the bills-seven and -eight coils,

evidence showed the market relevant to this transaction—i.e., the value of the

undamaged goods vis-a-vis TradeArbed and the buyers—did not fluctuate

between discharge and re-sale.

2.

For its alternative damages contention—that the district court should

have applied COGSA’s $500-per-package limitation—Western Bulk maintains:

either the charter party is the contract of carriage, and COGSA is thereby

incorporated; or, the bills of lading are the contracts of carriage, and COGSA

applies of its own force. The COGSA package limitation provides, in relevant

part: 

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Neither the carrier nor the ship shall in any event be or become

liable for any loss or damage to or in connection with the

transportation of goods in an amount exceeding $500 per package

. . . unless the nature and value of such goods have been declared by

the shipper before shipment and inserted in the bill of lading. This

declaration, if embodied in the bill of lading, shall be prima facie

evidence, but shall not be conclusive on the carrier. 

By agreement between the carrier, master, or agent of the carrier,

and the shipper another maximum amount than that mentioned in

this paragraph may be fixed: Provided, That such maximum shall

not be less than the figure above named. In no event shall the

carrier be liable for more than the amount of damage actually

sustained.

46 U.S.C. § 30701, note § 4(5).

Western Bulk asserts the charter party it negotiated with TradeArbed

required that COGSA be incorporated in all bills of lading, and suggests this

gave the requisite notice and opportunity for TradeArbed to declare a higher

value. See generally Brown & Root, Inc. v. M/V PEISANDER, 648 F.2d 415,

420–25 (5th Cir. 1981) (discussing fair-opportunity doctrine). Further, Western

Bulk contends TradeArbed, a sophisticated shipper, is not the type party the

fair-opportunity doctrine is designed to protect.

The district court held: “COGSA, with the exception of the limit of

recovery, applies to these contracts of carriage”, ruling that “neither [the charter

parties] nor the bills of lading evidence a fair opportunity to declare a higher

value for the shipment so as to invoke the . . . package limitation because mere

incorporation of [COGSA] into the bills of lading through the charter party is

insufficient notice”. MEDI TRADER, 513 F. Supp. 2d at 625.

Contrary to Western Bulk’s position, to invoke the package limitation, it

is necessary to provide further evidence beyond incorporation of COGSA into the

contract of carriage, such as the carrier’s giving the shipper a choice of rates and

valuations. See SAVA, 849 F.2d at 171 n.6 (“[W]e have not held . . . that the

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mere incorporation of COGSA into a bill of lading constitutes prima facie

evidence of fair opportunity”.). The carrier bears an initial burden of showing

it offered the shipper a fair opportunity to avoid the limitation. Id. at 169. A

prima facie case of fair opportunity can be made by introducing, e.g., evidence

of a published tariff that “very carefully gave Shipper a choice of valuations by

a choice of precisely definable freight rates”. PEISANDER, 648 F.2d at 424; see

also Wuerttembergische & Badische Versicherungs-Aktiengesellschaft v. M/V

STUTTGART EXPRESS, 711 F.2d 621, 622 (5th Cir. 1983) (applying

PEISANDER to invoke COGSA package limitation and emphasizing existence

of tariff that “clearly gave the shipper a choice of valuations”).

The district court did not clearly err in finding: that Western Bulk did not

provide TradeArbed sufficient notice of a fair opportunity to declare a higher

value; and that, therefore, the package limitation did not apply.

C.

Finally, Western Bulk challenges the district court’s awarding damages

before the second stage of the bifurcated trial. The award was based on the

district court’s ruling Western Bulk was the only COGSA carrier of TradeArbed’s

coils and Freemak’s pipes. Western Bulk contends: the district court should

have treated its carriage of cargo on the MEDI TRADER as common, not private;

and the bills of lading, not the charter parties, constituted the applicable

contracts of carriage. If carriage were common, Seafarers (the MEDI TRADER’s

owner) would also be a COGSA carrier liable for damage to the cargo.

1.

Charter parties are the contracts of carriage in private carriage, but bills

of lading are such contracts in common carriage. See THOMAS J. SCHOENBAUM,

ADMIRALTY AND MARITIME LAW § 11-6 (2004). The district court’s deciding

Western Bulk was the sole COGSA carrier of the cold-rolled coils and, therefore,

the only party liable for damages to them, flowed from its ruling the charter

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party, not the bills of lading, was the relevant contract of carriage between

TradeArbed and Western Bulk. Western Bulk was the only charterer to sign

this charter party, and our precedent “requires privity of contract of carriage

before liability under COGSA arises”. Thyssen Steel Co. v. M/V KAVO

YERAKAS, 50 F.3d 1349, 1353 (5th Cir. 1995).

The issue turns, therefore, on whether the district court erred when it

found the applicable contract of carriage to be the charter party, not the bills of

lading (signed not only by Western Bulk, but also by an agent of Seafarers, the

MEDI TRADER’s owner). See MEDI TRADER, 513 F. Supp. 2d at 624–25.

Western Bulk maintains the MEDI TRADER was engaged in common carriage

because it carried more than one shipper’s cargo. 

In Thyssen, Inc. v. NOBILITY MV, 421 F.3d 295 (5th Cir. 2005), as here,

the district court found a voyage charter, not the bills of lading, was the contract

of carriage, id. at 304, where the ship also “carried other cargo . . . on behalf of

another cargo shipper”, id. at 297. As here, the bills of lading specifically

incorporated the charter. Id. at 307. Reviewing for clear error, our court

affirmed the district court’s finding the ship “was engaged in private carriage”,

id., and denied the contention that “multiple shipping defeats any indication of

private carriage that a bill of lading incorporating the terms of the voyage

charter may connote”, id. at 305.

Pursuant to NOBILITY, the district court did not err in deciding the MEDI

TRADER was engaged in private carriage with respect to TradeArbed’s coils,

with the charter party, not the bills of lading, being the applicable contract of

carriage. Therefore, Western Bulk, as the only charterer that signed the charter

party, was the only party in privity with TradeArbed. Because, as noted, our

precedent requires privity for COGSA carrier liability, Western Bulk was the

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only COGSA carrier; no COGSA liability allocation remains to be resolved at the

second stage of the bifurcated trial. Accordingly, the district court did not err in

awarding damages against only Western Bulk for TradeArbed’s coils.

2.

Western Bulk also contends the district court erred because it did not

reserve allocation of liability for damages to Freemak’s pipes for the second part

of the bifurcated trial, asserting the district court should have only determined

the amount of damages. Western Bulk claims its failure to introduce evidence

as to the cause of the pipes’ damages was in reliance on the bifurcation order

separating “cargo quantum claims” from “issues of liability”.

This claim, as with the coils, turns on whether Western Bulk was the only

COGSA carrier for the pipes. For the same reasons the charter party between

TradeArbed and Western Bulk constitutes the contract of carriage between those

parties, the district court ruled: “The private carriage agreement . . . between

Western Bulk and Freemak is the controlling contract of carriage” for the pipes.

MEDI TRADER, 513 F. Supp. 2d at 624.

As with the TradeArbed bills of lading, the Freemak bills expressly

incorporated the relevant charter party. Nothing about the Freemak charter

party suggests or compels a conclusion inconsistent with our earlier holding as

to TradeArbed. For the reasons provided supra, the district court did not err in

deciding the charter party, rather than the bills of lading, was the contract of

carriage; and, in concluding Western Bulk was the sole carrier of Freemak’s

pipes.

Because the district court did not err in determining Western Bulk to be

the sole carrier for the pipes, its awarding damages against Western Bulk is not

inconsistent with the bifurcation order. As the sole COGSA carrier, Western

Bulk is solely responsible for the COGSA damages. This result does not mean,

as Western Bulk asserts, that the district court treated Western Bulk’s

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admission that the pipes were damaged as tantamount to an admission of

liability. Rather, the court’s ruling that Western Bulk was the sole carrier

simply precluded consideration of the further question of how to allocate liability

among the carriers, which would have been considered at the second stage of the

bifurcated trial.

III.

For the foregoing reasons, the judgment is AFFIRMED.

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