Ralston Purina Co. v. Barge Juneau and Gulf Caribbean Marine Lines, Inc.

• Decision Date: 16 June 1980
• Docket Number: No. 79-3004,79-3004
• Citation: 619 F.2d 374
• Parties: RALSTON PURINA CO., Plaintiff-Appellant, v. BARGE JUNEAU AND GULF CARIBBEAN MARINE LINES, INC., Defendant-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 374

619 F.2d 374

RALSTON PURINA CO., Plaintiff-Appellant, v. BARGE JUNEAU AND GULF CARIBBEAN MARINE LINES, INC. Defendant-Appellee.

No. 79-3004

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

June 16, 1980.

Leach, Paysse & Baldwin, Rene S. Paysse, New Orleans, La., for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John J. Broders, J. Kelly Duncan, New Orleans, La., for defendant-appellee.

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

Before RONEY, KRAVITCH and TATE, Circuit Judges.

PER CURIAM:

In this admiralty action the district court granted defendant-appellee's motion for summary judgment, holding that the statute of limitations had run on the claim. We affirm.

On December 29 and 30, 1977, a shipment of tinplate and ceiling compound, carried by barge between Port Arthur, Texas, and Ponce, Puerto Rico, was delivered to the consignee in apparently damaged condition. A complaint was filed by Ralston Purina against the Barge Juneau and Gulf Caribbean Marine Lines, Inc. (carrier), on December 14, 1978. Service was not obtained, however, until February 8, 1979, more than one year after delivery of the goods.

Article 19 ¹ of the Ocean Bill of Lading specifically provided that suit had to be brought within one year of delivery and that suit was not deemed brought until the carrier had been served with process. Because service of process was not effective until more than one year after the claim arose, the district court granted the appellee's motion for summary judgment.

Two issues must be considered on this appeal. First, it is necessary to reconcile the contractual limitation with certain language in the United States Carriage of Goods by Sea Act (COGSA or the Act), 46 U.S.C.A. § 1300 et seq., which was incorporated by reference. ² The statute of limitations in the Act, 46 U.S.C.A. § 1303(6), as it has been judicially construed, would have been met here. See Internatio-Rotterdam, Inc. v. Thomsen, 218 F.2d 514, 516 (4th Cir. 1955); Ore Steamship Corp. v. D/S A/S Hassel, 137 F.2d 326, 329 (2d Cir. 1943). Second, Ralston Purina contends that the requirement that the limitations period be tolled only upon service violates public policy as demonstrated in Federal Rules of Civil Procedure 3 and is therefore not binding. Rule 3 provides that a civil action is commenced by filing a complaint with the court.

Because the goods were carried between ports of the United States, COGSA did not apply ex proprio vigore. The parties agreed, however, that the Act should be incorporated into their contract and should govern "except as may be otherwise specifically provided herein." It would thus seem to be clearly the intent of the parties to be governed by most but not all of the provisions of COGSA.

Section 1312 of COGSA reads in part:

Provided, however, That any bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea between such ports, containing an express statement that it shall be subject to the provisions of this chapter, shall be subjected hereto as fully as if subject hereto by the express provisions of this chapter . . . .

It is contended that, to avoid rendering this proviso a nullity, whenever COGSA is incorporated into a contract its provisions are not merely additional terms of the contract but instead apply to the contract as forcefully as if the Act applied of its own force. If by this contention it is suggested that an attempt to incorporate a portion of COGSA automatically results in the incorporation of the entire Act, we reject such a contention out of hand as being inconsistent with the well established and undisputed principle of contract law that "a reference by the contracting parties to an extraneous writing for a particular purpose makes it a part of their agreement only for the purpose specified." Guerini Stone Co. v. P. J. Carlin Construction Co., 240 U.S. 264, 277, 36 S.Ct. 300, 306, 60 L.Ed. 636 (1916). See also Hill & Combs v. First National Bank, 139 F.2d 740, 742 (5th Cir. 1944):

(I)t is quite well settled that a reference (in a contract) is not effective beyond the agreement of the contract and that if the agreement contains qualifying words, they will be given effect, and the reference limited accordingly.

There can be no doubt that if they had wanted to, the drafters of this contract could have identified specific provisions or sections of COGSA and incorporated them by individual reference. Surely no one could then argue that by doing so all the provisions of COGSA would apply. We think the effect is the same where, as here, the parties incorporated all the Act with certain specific exceptions. The net result is that certain provisions of the Act apply to the relationship of the parties and others do not.

It may be that the effect of the contention is to suggest that when all or part of the Act is incorporated into the contract, the incorporated...