Uncle Ben's Intern. Div. of Uncle Ben's, Inc. v. Hapag-Lloyd Aktiengesellschaft

• Citation: 855 F.2d 215
• Decision Date: 19 September 1988
• Docket Number: HAPAG-LLOYD,No. 88-2125,88-2125
• Parties: UNCLE BEN'S INTERNATIONAL DIVISION OF UNCLE BEN'S, INC. and Mars, Inc., Plaintiffs-Appellants, v.AKTIENGESELLSCHAFT and Biehl & Co., Inc.,Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 215

855 F.2d 215

1989 A.M.C. 748

UNCLE BEN'S INTERNATIONAL DIVISION OF UNCLE BEN'S, INC. and Mars, Inc., Plaintiffs-Appellants, v. HAPAG-LLOYD AKTIENGESELLSCHAFT and Biehl & Co.,

Inc.,Defendants-Appellees.

No. 88-2125

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Sept. 19, 1988.

William J. Sneckenberg, Chicago, Ill., for plaintiffs-appellants.

John M. Elsley, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, KING, and SMITH, Circuit Judges.

POLITZ, Circuit Judge:

Uncle Ben's International Division of Uncle Ben's, Inc. and Mars, Inc. appeal the summary judgment dismissal of their claims against Hapag-Lloyd Aktiengesellschaft and Biehl & Co., Inc. We affirm.

Background

In April 1982 and April 1983, Uncle Ben's and Hapag-Lloyd, through its agent Biehl & Co., contracted for the transportation of rice from Houston, Texas to points in Europe. Hapag-Lloyd transported the rice in its vessels, completing most shipments by January 1984 and delivering the final shipment sometime prior to November 1984.

On November 13, 1985 Uncle Ben's filed suit against Hapag-Lloyd and Biehl & Co. in state court in Houston, alleging that contrary to their shipping agreements the rice was delivered in a contaminated state. Uncle Ben's alleged that the contamination resulted from a breach of defendants' express and implied contractual warranties, the negligent provision of storage containers, and general negligence. The complaint made no reference to federal statutes. Invoking 28 U.S.C. Secs. 1337, 1441, and the Carriage of Goods by Sea Act (COGSA), 46 U.S.C.App. Sec. 1300 et seq., Hapag-Lloyd removed to federal court, contending that Uncle Ben's complaint, as amended, was cognizable in federal court.

Uncle Ben's filed an amended petition alleging breach of warranty and negligence focused on the storage containers, and moved to remand. The motion to remand was denied and Hapag-Lloyd moved for summary judgment, invoking limitations. Hapag-Lloyd asserted that the bills of lading, which it attached to its motion, incorporated the COGSA limitation of one year for the filing of suits for damage to goods shipped.

The district court granted Hapag-Lloyd's motion, concluding that the suit had not been timely filed. Uncle Ben's appeals, contending that the removal was improper, that COGSA's one-year limitation did not apply to the agreement to provide containers, but if it did, that the limitation was invalidated by the Harter Act, 46 U.S.C.App. Sec. 190 et seq., and that Biehl & Co. remained liable for its negligence, separate from any claim under the bills of lading.

Analysis

Contesting federal jurisdiction, Uncle Ben's maintains that the removal was in error and that the remand should have been ordered. One of Uncle Ben's allegations refers to the negligence of Hapag-Lloyd in providing the storage containers for shipment of the rice. Hornbook principles of negligence teach that to recover, a plaintiff must prove that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached the duty; and (3) the breach directly and proximately caused (4) the plaintiff actual damage. Prosser and Keeton on Torts, 5th ed. 1984 at 164-65. These general principles guide the analysis of a maritime tort. Consolidated Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). To recover from Hapag-Lloyd, Uncle Ben's must prove damages to its rice while the rice was in the custody of Hapag-Lloyd. The Harter Act, governing a shipper's custody or care of property during the preloading phase, is federal legislation regulating commerce. Ford Motor Co. v. Wallenius Lines, 476 F.Supp. 1362 (E.D.Va.1979). As such, the action involving its provisions could have been brought originally in federal court and, thus, was removable under 28 U.S.C. Sec. 1441 and 28 U.S.C. Sec. 1337. This remains true notwithstanding the artful pleading which makes no reference to federal statutes. Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359 (5th Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984); Crispin Co. v. Lykes Bros. Steamship Co., 134 F.Supp. 704 (S.D.Tex.1955). Although the district court relied on COGSA to deny remand, we may consider alternate jurisdictional grounds, sua sponte if necessary. Beers v. North American Van Lines, Inc., 836 F.2d 910 (5th Cir.1988).

Uncle Ben's next argues that the COGSA statute of limitations should not apply to the claims for damage to the rice because, even though the bills of lading incorporate COGSA and apply its attendant provisions to the preloading actions of Hapag-Lloyd, the bills of lading do not apply to the claims asserted because Uncle Ben's and Hapag-Lloyd had a separate agreement affecting the containers. Alternatively, Uncle Ben's contends that the COGSA limitations offend the Harter Act's prohibition against a carrier unreasonably limiting its liability through its bills of lading.

First we note that in response to Hapag-Lloyd's motion for summary judgment, Uncle Ben's offered no proof of a separate agreement for the provision of storage containers. Uncle Ben's affidavit merely mentions that Hapag-Lloyd was aware of Uncle Ben's requirement that its goods must be shipped in contamination-free storage containers, but it studiously avoids any mention of a separate agreement.

Uncle Ben's...