Bunge Edible Oil Corp. v. M/Vs' Torm Rask and Fort Steele

• Decision Date: 02 January 1992
• Docket Number: MMI-307,No. 91-3174,91-3174
• Parties: BUNGE EDIBLE OIL CORPORATION, Plaintiff-Appellant, v. M/VS' TORM RASK AND FORT STEELE, and BARGE, in rem, and A/S Dampskibsselskabet Torm, Canadian Pacific Steamships London, Canadian Pacific Bulk Ship Service, Ltd., Canadian Pacific (Bermuda) Ltd., and Canadian Pacific Ships, in personam, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 786

949 F.2d 786

1992 A.M.C. 2227

BUNGE EDIBLE OIL CORPORATION, Plaintiff-Appellant, v. M/VS' TORM RASK AND FORT STEELE, and BARGE MMI-307, in rem and A/S Dampskibsselskabet Torm, Canadian Pacific Steamships London, Canadian Pacific Bulk Ship Service, Ltd., Canadian Pacific (Bermuda) Ltd., and Canadian Pacific Ships, in personam, Defendants-Appellees.

No. 91-3174.

United States Court of Appeals Fifth Circuit.

Jan. 2, 1992.

Donald J. Volpi, Jr., Francis A. Courtenay, Jr., David Shaw, Courtenay, Forstall Guilbault, Hunter & Fontana, New Orleans, La., for plaintiff-appellant.

James L. Schupp, Jr., Terriberry, Carroll & Yancey, New Orleans, La., for Dampskibsselskabet Torm.

James H. Roussel, Stephanie G. McShane, Phelps Dunbar, New Orleans, La., for Canadian Pacific Steamships.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, WILLIAMS and BARKSDALE, Circuit Judges.

PER CURIAM:

I.

Bunge Edible Oil Corporation appeals the district court's dismissal of its admiralty and maritime claims against M/Vs' Torm Rask and Fort Steele, in rem, and Canadian Pacific (Bermuda) Ltd., in personam, because Bunge brought suit more than one year after the delivery of the goods. We affirm.

II.

Plaintiff Bunge Edible Oil Corporation (Bunge) contracted with Defendant Canadian Pacific (Bermuda) Ltd. (Canadian Pacific Bermuda) to ship palm oil from Pasir Gudang, Malaysia to the United States. The palm oil was loaded aboard the M/V TORM RASK for delivery to New Orleans or New York. The bill of lading bore the name of another Canadian Pacific entity, Canadian Pacific Steamships London. Defendant A/S Dampskibsselskabet Torm (Torm) owns the TORM RASK and chartered it to Canadian Pacific Bermuda.

Instead of proceeding directly to the United States, the TORM RASK went to Rotterdam and transferred the palm oil into a shoreside tank. The palm oil was then pumped into the M/V FORT STEELE, owned and operated by Canadian Pacific Bermuda. The FORT STEELE transported the palm oil to Reserve, Louisiana where it discharged the oil into Barge MMI-307 on or about October 3, 1988.

Within a week of delivery, Bunge notified the Canadian Pacific entities ¹ that the palm oil was damaged, most likely from moisture and heat, and therefore unacceptable.

The underwriters insuring the cargo paid Bunge the total loss of the cargo, less salvage value and turned the claims handling over to Transatlantic Marine Claims Agency (TMCA). Thereafter, TMCA attempted to work the matter out with the Canadian Pacific entities but the contacts were unsuccessful.

As the date of the one year statute of limitations under the Carriage of Goods by Sea Act, 46 U.S.C. App. § 1301 et seq. (COGSA) approached, TMCA asked the Canadian Pacific entities for an extension through and including January 1, 1990. Canadian Pacific Bermuda granted an extension for the TORM RASK (and arguably the FORT STEELE) "subject to owners granting similar." TMCA did not request a similar extension from Torm until after the one year period had expired and after Canadian Pacific Bermuda had notified TMCA that the one year period had expired, that the condition of the extension had not been met, and therefore the claim was time-barred. In December 1989, Torm granted an extension to TMCA, conditioned on Canadian Pacific Bermuda granting a similar extension. Canadian Pacific Bermuda refused to grant any further extensions or waivers. Bunge filed suit December 29, 1989, nearly two months after the expiration of the COGSA one-year limitation period.

The defendants filed a motion for summary judgment asserting that the COGSA one-year statute of limitations had expired. Bunge argued that defendants were not entitled to the defense of the one-year limitation because they had unreasonably deviated from the bill of lading. The district court held that an unreasonable deviation does not deprive a carrier of the one-year statute of limitations. 756 F.Supp. 261, 266 (E.D.La.1991). The court also found that Bunge failed to fulfill the conditions set forth in the extensions, therefore the one-year provision applied. Id. at 267. Last, the court found that Canadian Pacific Bermuda was a carrier under COGSA and entitled to the statute of limitations defense. Id. at 268. The court dismissed the actions against the two vessels, in rem, and the carrier Canadian Pacific Bermuda. Id. at 269. Bunge appeals.

III.

This court reviews the issues presented on appeal from summary judgment de novo. Trial v. Atchison, T. & S.F.R. Co., 896 F.2d 120, 122 (5th Cir.1990). To warrant summary judgment the evidence must show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

Bunge argues that COGSA's one-year limitation period is inapplicable because Canadian Pacific committed an unreasonable deviation when it discharged the palm oil in Rotterdam and reloaded it upon another ship. Bunge concludes that an...