Starrag v. Maersk, Inc. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STARRAG; STARRAG-HECKERT INC., 
Plaintiffs-Appellants,
No. 04-56771
v.
MAERSK, INC., a New York  D.C. No.
CV-01-11013-PA
Corporation; MAERSK PACIFIC LTD.,
OPINION
a California Corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
October 16, 2006—Pasadena, California
Filed May 14, 2007
Before: John R. Gibson,* Raymond C. Fisher, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
5633
5636 STARRAG v. MAERSK, INC.
COUNSEL
Iliaura Hands (argued), New Orleans, Louisiana, Timothy R.
Lord, Bernadette M. Chala, Costa Mesa, California, for the
appellants.
Theodore H. Adkinson (argued), and John D. Giffin, Long
Beach, California, for the appellees.
STARRAG v. MAERSK, INC. 5637
OPINION
CALLAHAN, Circuit Judge:
INTRODUCTION
Starrag and Starrag-Heckert, Inc. (collectively “Starrag”)
appeal from the district court’s order granting partial sum-
mary judgment and applying the $500 per package liability
limitation under the Carriage of Goods by Sea Act
(“COGSA”) to three machines shipped with Maersk, Inc. that
were damaged while being transported across a container yard
operated by Maersk Pacific Ltd., a terminal operator. Starrag
argues that the package limitation cannot apply to damage
that occurred after Maersk unloaded the machines from their
ship, and that application of the limitation conflicts with the
COGSA and a related statute, the Harter Act.1 In addition,
Starrag claims that the term “delivery” in Maersk’s Combined
Transport Bill of Lading (“CTBL”) is ambiguous, and there-
fore should be read to restrict the package limitation to dam-
age occurring after the machines were loaded onto the ship
and before the cargo was unloaded.
We affirm the district court, holding: (1) Maersk did not
need to provide actual notice to Starrag that the CTBL con-
tractually extended the terms of COGSA outside of the
“tackle to tackle” period; (2) contractually extending the
package limitation does not conflict with the COGSA or the
Harter Act; and (3) the district court properly interpreted the
term “delivery” in a manner consistent with both maritime
law and the terms of the short form non-negotiable sea way-
bill (“Short Form”) and the CTBL.
FACTUAL BACKGROUND2
1
Congress recodified both COGSA and the Harter Act on October 6,
2006 at 46 U.S.C. § 30701 historical and statutory notes. Act of October
6, 2006, Pub. L. No. 109-304, 120 Stat. 1485.
2
The parties stipulated to the following facts, repeated here verbatim,
for the purposes of the cross-motions for summary judgment.
5638 STARRAG v. MAERSK, INC.
On or about August 31, 2000, Starrag and Maersk entered
into a Contract of Affreightment that is embodied in a Non-
Negotiable Seaway Bill.3 By the terms of the seaway bill, a
flat rack with three crates containing aerospace machinery
were carried from Rotterdam to Long Beach, California
aboard the M/V McKinney Maersk. Maersk Inc. was acting
as the U.S. Agent for the owners of the M/V McKinney
Maersk, and Maersk Pacific Ltd., which operated the terminal
at which the cargo was removed from the M/V McKinney
Maersk. The flat rack was unloaded from the M/V McKinney
Maersk at Maersk Pacific Ltd.’s terminal at Pier J in the Port
of Long Beach. The flat rack was moved from the dock to
Maersk Pacific Ltd.’s container yard. While the flat rack was
being parked in Row M, it tipped over to its side causing
damage to the cargo contained within the three crates.
PROCEDURAL HISTORY
The parties filed cross-motions for partial summary judg-
ment on whether Maersk could enforce the package liability
limit of $500 per package under the COGSA, capping defen-
dants’ liability at $1,500. The district court granted Maersk’s
motion for partial summary judgment, limiting Maersk’s total
liability to $1,500. The district court found that the CTBL
incorporated the package damage liability limit of the
COGSA into the Short Form as expressly authorized by the
COGSA. The district court rejected Starrag’s claim that
Maersk was required to provide actual notice of the extension
of COGSA to any damage after unloading of the cargo and
before “delivery” of the goods. The district court also found
that under the terms of the CTBL, there was no “delivery” of
the machines. As a result, the district court found that under
the terms of the Short Form and the CTBL, the package dam-
age liability limit of $500 per package applied, and Maersk
was not liable for more than $1,500 in damages. The parties
3
The waybill is referred to in this opinion as the Short Form.
STARRAG v. MAERSK, INC. 5639
stipulated to liability and damages, and the district court
entered a final judgment.
STANDARD OF REVIEW
In an appeal from a summary judgment, the appellate court
must determine, viewing the evidence in the light most favor-
able to the nonmoving party, whether there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law. Olsen v. Idaho State Bd.
of Medicine, 363 F.3d 916, 922 (9th Cir. 2004). Appellate
courts review a district court’s analysis of contractual lan-
guage and application of principles of contract interpretation
de novo. Miller v. Safeco Title Ins. Co., 758 F.2d 364, 367
(9th Cir. 1985).
DISCUSSION
I.
[1] The COGSA limits damages against a carrier for loss or
damage to goods in transit to $500, stating:
Neither the carrier nor the ship shall in any event be
or become liable for any loss or damage to or in con-
nection with the transportation of goods in an
amount exceeding $500 per package lawful money
of the United States, or in case of goods not shipped
in packages, per customary freight unit, or the equiv-
alent of that sum in other currency, 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
5640 STARRAG v. MAERSK, INC.
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. COGSA § 4(5).4 Essen-
tially, the package limitation presents the shipper
with a choice to accept the liability limitation in
exchange for a lower rate for shipping, or to declare
a higher value and pay a higher rate. See Norfolk
Southern Railway Co. v. Kirby, 543 U.S. 14, 19
(2004) (“[A]s is common in the industry, Kirby
accepted a contractual liability limitation for ICC
below the machinery’s true value, resulting, presum-
ably, in lower shipping rates.”).5
[2] Ordinarily, the COGSA only applies “from the time
when the goods are loaded on to the time when they are dis-
charged from the ship.” COGSA § 1(e); see Mori Seiki USA,
Inc. v. M.V. Alligator Triumph, 990 F.2d 444, 447 (9th Cir.
1993) (“By its own terms, COGSA limits liability for cargo
damage to $500, if the damage occurs between the time the
cargo is loaded on to the ship and the time it is discharged
from the ship (‘tackle to tackle’).”); Pan Am. World Airways,
Inc. v. California Stevedore & Ballast Co., 559 F.2d 1173,
1177 n. 5 (9th Cir. 1978) (noting COGSA applies “from the
time the ship’s tackle is hooked onto the cargo at the port of
loading until the time when cargo is released from the tackle
at the port of discharge”). Section 7 of the COGSA explicitly
states, however, that:
4
See 46 U.S.C. § 30701, note (2006) (Carriage of Goods by Sea Act).
5
Because the short form in this case is not “a bill of lading or any simi-
lar document of title,” COGSA § 1(b), COGSA does not apply to it by its
own force. See 1 Thomas J. Schoenbaum, Admiralty & Maritime Law,
§ 10-11 (4th ed. 2004). However, the Short Form on its face states that,
“In the case of carriage to or from the United States of America, the provi-
sions of the United States Carriage of Goods by Sea Act 1936 (COGSA)
shall apply to the contract as if it were a Bill of Lading . . . .” This is suffi-
cient to incorporate the rules embodied in COGSA. See id.
STARRAG v. MAERSK, INC. 5641
Nothing contained in [COGSA] shall prevent a car-
rier or a shipper from entering into any agreement,
stipulation, condition, reservation, or exemption as
to the responsibility and liability of the carrier or the
ship for the loss or damage to or in connection with
the custody and care and handling of goods prior to
the loading on and subsequent to the discharge from
the ship on which the goods are carried by sea.
COGSA § 7. Therefore, the COGSA expressly permits parties
to a maritime shipping contract to provide for liability limita-
tions beyond the “tackle to tackle” period for damage that
occurs prior to loading or after unloading of the goods from
the ship.
[3] In this case, the Short Form begins by stating, “[t]he
contract evidenced by this Waybill is subject to the excep-
tions, limitations, conditions and liberties (including those
relating to pre-carriage and on-carriage) set out in Maersk
Sealand’s current Combined Transport Bill of Lading.” The
Short Form therefore incorporates by reference the CTBL’s
language in paragraph 5.2 (also known as a “period of respon-
sibility clause,” see Sompo Japan Ins. Co. of Am. v. Union
Pac. R.R. Co., 456 F.3d 54, 56 (2d Cir. 2006)), stating that
Maersk’s liability shall be determined according to the
COGSA “[w]here loss or damage has occurred between the
time of receipt of the Goods by the Carrier at the port of load-
ing and the time of delivery by the Carrier at the port of dis-
charge, or during any prior or subsequent period of carriage
by water . . . .” As a matter of contract interpretation, this lan-
guage extends COGSA’s liability limitation beyond its statu-
tory terms to activities before and after the “tackle to tackle”
period, including up to “the time of delivery.”
II.
Starrag’s main contention is that the failure of the Short
Form (that was provided to Starrag) to explicitly state that the
5642 STARRAG v. MAERSK, INC.
CTBL (that was merely made available to Starrag) contractu-
ally extends the COGSA package limitation through delivery
of the goods causes it to conflict with the COGSA and there-
fore the package limitation cannot be enforced.
A.
[4] A short form bill of lading may incorporate by reference
the terms in a long form bill of lading without providing spe-
cific notice of those terms so long as the incorporated provi-
sions are not special terms or exceptions that differ from the
governing federal statutes. See Comsource Foodservice Indep.
Foodservice Cos. v. Union Pac. R.R., 102 F.3d 438, 443-444
(9th Cir. 1997) (citing Encyclopaedia Britannica, Inc. v. S.S.
Hong Kong Producer, 422 F.2d 7, 14 (2d Cir. 1969)). If a
short form bill of lading fails to give notice of a term in a long
form bill of lading that is inconsistent with a statute, a court
may refuse to enforce the contract clause. See Encyclopaedia
Britannica, 422 F.2d at 16 (refusing to enforce a clause that
shifted the burden of proof from the carrier to the shipper);
see also Comsource, 102 F.3d at 444 (holding under the Inter-
state Commerce Act that absent “reasonable notice” of a one
year statute of limitations provision that conflicted with the
Act, the provision did not bind the shipper). The reason for
refusing to enforce inconsistent contractual terms is that by
“accepting the short form, the shipper relies upon the fact that
the long form, which is incorporated by reference, contains
only the usual provisions which closely follow COGSA,
unless there is some warning on the face of the short form of
special terms or exceptions which differ from the COGSA
provisions.” Encyclopaedia Brittanica, 422 F.2d at 14. In
other words, shippers are entitled to additional notice of “pro-
visions differing from federal statutes because the existence of
the statute itself will not provide any constructive notice for
such provisions.” Comsource, 102 F.3d at 443-444.
[5] Comsource and Encyclopaedia Britannica are distin-
guishable from this case because extending COGSA’s liabil-
STARRAG v. MAERSK, INC. 5643
ity limit is entirely consistent with COGSA and other statutes.
See Sabah Shipyard Sdn. Bhd. v. M/V Harbel Tapper, 178
F.3d 400, 406-409 (5th Cir. 1999) (holding that a period of
responsibility clause is permitted by COGSA and does not
conflict with the Harter Act). In Comsource, we noted that 49
U.S.C. § 11707 (“The Carmack Amendment”), part of the
Interstate Commerce Act (“ICA”), prohibited carriers from
providing for a statute of limitations shorter than the Act’s
two year default. Comsource, 102 F.3d at 442 & n.11 (quoting
49 U.S.C. § 10505(e)). Another provision of the ICA, 49
U.S.C. § 10505(e) (“The Staggars Amendment”), however,
allowed rail carriers to offer alternative terms, thus “free[ing]
rail carriers from the strict application of the Carmack
Amendment.” Id. at 442-43 (citing 49 U.S.C. § 10505(e)). In
light of the tension between the two amendments, we held
that the railroad could not enforce the one year statute of limi-
tations contained in its tariff without providing reasonable
notice of the term because it “conflicts with a federal statute
— namely the Carmack Amendment of the Interstate Com-
merce Act which requires a two year limitations period.”
Comsource, 102 F.3d at 444.
In this case, the extension of COGSA’s terms utilizes,
rather than contradicts an express provision of the COGSA.
Moreover, as the Supreme Court remarked in Norfolk South-
ern, a carrier’s use of a period of responsibility clause may
both benefit the shipper and further the purposes of COGSA:
As COGSA permits, Hamburg Sud in its bill of lad-
ing chose to extend the [package limitation] to the
entire period in which the machinery would be under
its responsibility, including the period of inland
transport. Hamburg Sud would not enjoy the effi-
ciencies of the [package limitation] if the liability
limitation it chose did not apply equally to all legs
of the journey for which it undertook responsibility.
And the apparent purpose of COGSA, to facilitate
5644 STARRAG v. MAERSK, INC.
efficient contracting in contracts for carriage by sea,
would be defeated.
543 U.S. at 29.
[6] Comsource is also distinguishable because in that case,
the bill of lading issued to the shipper contradicted the statute
of limitations term in the carrier’s tariff. See Comsource, 102
F.3d at 441 fn. 7. Although the carrier sought to enforce a one
year statute of limitations in its tariff, the underlying bill of
lading incorporated a Uniform Domestic Straight Bill of Lad-
ing that provided for a two year statute of limitations, not the
tariff. Id. Thus, the tariff was inconsistent with the bill of lad-
ing as well as the applicable statute. Here, there is no conflict
between the documents, and the Supreme Court has held that
such an extension is consistent with the COGSA.
In the second case relied upon by Starrag, Encyclopaedia
Britannica, the Second Circuit considered a clause in a long
form bill of lading, not mentioned in the short form bill of
lading, that required a shipper to notify the carrier if stowage
of the goods below deck was required. 422 F.2d at 10. The
clause also disclaimed any liability for damage to goods
stored on deck. Id. at 10, 13-14. After characterizing this
clause as a “substantial deviation from the standard provi-
sions,” the Second Circuit noted that the clause shifted “the
burden of proof from the carrier, as provided by COGSA, to
the shipper.” Id. at 13, 16. The court concluded that the
attempt to contractually shift the burden of proof regarding
damages stated in COGSA violated the Act’s prohibition on
exculpatory clauses.6 Id. at 16. Encyclopaedia Britannica is
distinguishable because the contractual extension of the
COGSA’s package limitation does not violate any of the pro-
visions of the COGSA, and is expressly allowed by § 7 of the
Act. Therefore, no additional notice was required.
6
Not only did the short form bill of lading fail to inform the shipper of
this burden shifting, but the carrier did not even mention the clause in the
long form bill of lading until it filed a post-trial motion. Id. at 17.
 STARRAG v. MAERSK, INC. 5645
[7] As a practical matter, contractual extension of the
COGSA is now routine in the shipping industry. See Michael
E. Crowley, The Limited Scope of the Cargo Liability Regime
Covering Carriage of Goods by Sea: The Multimodal Prob-
lem, 79 Tul. L. Rev. 1461, 1471 (2005); 8 Benedict on Admi-
ralty, § 16.06 (7th rev. ed. 2004). The clause at issue in this
case, paragraph 5.2 of the CTBL, is a period of responsibility
clause that is recognized as a “term and condition normally
found on the reverse side of a bill of lading.” 1 Schoenbaum,
Admiralty and Maritime Law, § 10-11 at 64-65. Unlike the
burden shifting terms of the bill of lading in Encyclopaedia
Britannica, or the shorter statute of limitations in Comsource,
the existence of COGSA § 7, and industry practice makes
contractual extension of the COGSA package limitation one
of “the usual provisions which closely follow COGSA” and
not a special term or exception that differs from the COGSA
provisions. Encyclopaedia Britannica, 422 F.2d at 14. We
conclude that Maersk’s Short Form and CTBL are in harmony
with the relevant provisions of the COGSA, that the district
court properly distinguished Comsource and Encyclopaedia
Britannica, and that Maersk was not required to give addi-
tional notice to enforce the package liability limitation or to
contractually extend the terms of the COGSA.
III.
[8] Starrag also argues that the package limitation violates
the Harter Act’s prohibition of clauses exculpating carriers
from liability.7 This argument fails for two reasons. First,
7
The Harter Act’s prohibition on exculpation formerly stated:
It shall not be lawful for the manager, agent, master, or owner of
any vessel transporting merchandise or property from or between
ports of the United States and foreign ports to insert in any bill
of lading or shipping document any clause, covenant, or agree-
ment whereby it, he, or they shall be relieved from liability for
loss or damage arising from negligence, fault, or failure in proper
loading, stowage, custody, care, or proper delivery of any and all
5646 STARRAG v. MAERSK, INC.
where the parties contractually extend the COGSA to cover
the damage, the Harter Act does not apply. See Sea-Land
Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 816-17 (9th Cir.
2002) (applying the COGSA to a bill of lading that contractu-
ally extended COGSA through a Clause Paramount and not
the Carmack Amendment or the Harter Act). Therefore,
because the CTBL properly states that it is governed by the
COGSA, and extends the COGSA terms through delivery of
the goods, the Harter Act does not apply.
[9] Second, even if the Harter Act applied, it does not pro-
hibit clauses that limit liability. Starrag contends that the
COGSA’s package limitation violates the Harter Act’s prohi-
bition of exculpation of liability by limiting its recovery to
$1,500 where its machines suffered approximately $600,000
in damage. The difference between the liability cap and the
actual damages, however, is irrelevant. We have recognized
that as long as the carrier does not avoid liability under the
Harter Act, it can limit liability through the use of contract
clauses. See Vision Air Flight Serv., 155 F.3d at 1171 n. 7
(citing 2A Benedict on Admiralty, § 12 at 2-5 (1988)). In
Tessler Bros., we concluded that as long as there is some lia-
bility, a package limitation is not an exculpation from liability
under either the COGSA or the Harter Act. 494 F.2d at 443
(discussing difference between a liability limit and a liability
lawful merchandise or property committed to its or their charge.
Any and all words or clauses of such import inserted in bills of
lading or shipping receipts shall be null and void and of no effect.
46 U.S.C. app. § 190 (2000). The current version of the Harter Act simi-
larly provides:
A carrier may not insert in a bill of lading or shipping document
a provision avoiding its liability for loss or damage arising from
negligence or fault in loading, stowage, custody, care, or proper
delivery. Any such provision is void.
46 U.S.C. § 30704. The differences between the two versions are immate-
rial to our holding.
STARRAG v. MAERSK, INC. 5647
exclusion). Decisions from other circuits interpreting the
Harter Act and enforcement of package liability limitations
have also found contractual liability limitations enforceable.8
We conclude that the Harter Act does not prohibit enforce-
ment of the COGSA’s package limitation or conflict with the
package limitation.
IV.
Starrag also argues that bills of lading in general are con-
tracts of adhesion, requiring stricter construction against the
carrier. Shippers may not avoid the package limitation, how-
ever, where the language and intent of the contract’s clauses
are clear. See Mori Seiki, 990 F.2d at 448 (rejecting contract
of adhesion argument regarding extension of the COGSA
package limitation and a Himalaya Clause); Institute of Lon-
don Underwriters, 881 F.2d at 767 (noting Himalaya Clauses
are matters of common usage and refusal to cover agents and
independent contractors would render Himalaya Clauses “ex-
traordinarily empty”). Therefore, the district court acted prop-
erly by applying general contract principles in finding that the
COGSA package limitation also protects Maersk Pacific Ltd.,
and that the joint liability of the Maersk defendants is limited
to $1,500.
V.
Finally, Starrag contends that the word “delivery” in the
CTBL was ambiguous, and therefore should be interpreted as
limiting the package limitation to the “tackle to tackle”
period. Starrag reads the phrase “or during any prior or subse-
quent period of carriage by water” in the CTBL in conjunc-
8
See Beaumont Export & Import Co. v. New York & Cuba Mail Steam-
ship Co., 286 F. 120, 121-22 (5th Cir. 1923) (affirming enforcement of a
$100 per package limitation); Hugetz v. Compania Transatlantica, 270 F.
90, 90-91 (2d Cir. 1920) (affirming $5 per package limitation); Hohl v.
Norddeutscher Lloyd, 175 F. 544, 545 (2d Cir. 1910).
5648 STARRAG v. MAERSK, INC.
tion with the word “delivery” so as to end the applicability of
the COGSA once the machines were placed on the dock. We,
however, agree with the district court that the word “deliv-
ery,” in the context of the CTBL, describes an act beyond the
mere placement of goods to the dock.
[10] The courts interpret and resolve disputes concerning
maritime contracts such as the CTBL according to federal
law. See Norfolk Southern, 543 U.S. at 23 (stating “that fed-
eral law governs this contract dispute”). “Since the bill of lad-
ing is a contract of carriage between shipper and carrier,
familiar principles of contract interpretation govern its con-
struction.” Yang Ming Marine Transport Corp. v. Okamoto
Freighters, Ltd., 259 F.3d 1086, 1092 (9th Cir. 2001) (quoting
Henley Drilling Co. v. McGee, 36 F.3d 143, 148 n. 11 (1st
Cir. 1994)). “Contract terms are to be given their ordinary
meaning,” and “[w]henever possible, the plain language of the
contract should be considered first.” Klamath Water Users
Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir.
2000). “A basic principle of contract interpretation in admi-
ralty law is to interpret, to the extent possible, all the terms in
a contract without rendering any of them meaningless or
superfluous.” Chembulk Trading LLC v. Chemex Ltd., 393
F.3d 550, 555 (5th Cir. 2004).
[11] The plain language of the CTBL states that the
COGSA applies “between the time of receipt of the Goods by
the Carrier at the port of loading and the time of delivery by
the Carrier at the port of discharge.”9 The phrase “or during
any prior or subsequent period of carriage by water” is
9
Clause 5.2 of the CTBL states:
Where loss or damage has occurred between the time of receipt
of the Goods by the Carrier at the port of loading and the time
of delivery by the Carrier at the port of discharge, or during any
prior or subsequent period of carriage by water, the liability of
the Carrier shall be determined in accordance with the ‘US Car-
riage of Goods by Sea Act 1936’ (COGSA).
STARRAG v. MAERSK, INC. 5649
phrased in the alternative, and cannot reasonably be inter-
preted as limiting the applicability of the COGSA to the
“tackle to tackle” period. See General Casualty Co. of Am. v.
Azteca Films, Inc., 278 F.2d 161, 169 n. 3 (9th Cir. 1960)
(concluding that use of “or” in an insurance exclusion stated
alternatives and that “[t]he disjunctive is used and cannot be
ignored”).
Moreover, the cases discussing “delivery” under the com-
mon law, the Harter Act, and the COGSA all require more
than physical delivery of the goods onto the wharf. Under
general maritime common law, “to constitute a valid delivery
on the wharf, the carrier should give due and reasonable
notice to the consignee, so as to afford him a fair opportunity
of providing suitable means to remove the goods, or put them
under proper care and custody.” Richardson v. Goddard, 64
U.S. 28, 39 (1859). The cases discussing the meaning of “de-
livery” under the COGSA have held that “delivery” occurs
upon notification of the consignee that the goods arrived and
after a reasonable opportunity for the consignee to obtain or
inspect the goods.10
[12] We conclude that “delivery” for the purposes of the
Short Form and CTBL had not occurred when the goods were
10
See Servicios-Exporama v. Indus. Mar. Carriers, Inc., 135 F.3d 984,
992 (5th Cir. 1998) (“ ‘Delivery’ occurs when the carrier places the cargo
into the custody of whomever is legally entitled to receive it from the car-
rier.”); Metro. Wholesale Supply, Inc. v. M/V Royal Rainbow, 12 F.3d 58,
61 (5th Cir. 1994) (deciding that “proper delivery” occurs when the con-
signee has notice of arrival and a reasonable opportunity to pick up the
goods.); see also National Packaging Corp. v. Nippon Yusen Kaisha, 354
F. Supp. 986, 987 (N.D. Cal. 1972) (“a reasonable opportunity to remove
the goods or place them under proper care and custody.”); Capital Part-
ners Int’l Ventures, Inc. v. Danzas Corp., 309 F. Supp. 2d 1138, 1146
(N.D. Cal. 2004) (discussing constructive delivery under both the Harter
Act and COGSA, and concluding that “Goods are constructively delivered
once they are placed upon a fit wharf and the consignee receives both due
and reasonable notice that the goods have been discharged and a reason-
able opportunity to remove them”).
5650 STARRAG v. MAERSK, INC.
damaged in this case. Maersk had not given notice that the
machines had arrived, or given Starrag or the Consignee an
opportunity to inspect or take possession of the machines.
Therefore, the language of the contract itself did not limit the
application of the COGSA to the “tackle to tackle” period,
and the district court properly found that the machines had not
been “delivered” when the machines were damaged.
CONCLUSION
We affirm the district court’s determination that the
COGSA’s $500 per package liability limitation applies in this
case and limits the Maersk defendants’ liability to $1,500. We
hold that (1) contractual extension of the terms of the
COGSA, including the package limitation, beyond the “tackle
to tackle” period does not conflict with COGSA; (2) the con-
tractual extension of the COGSA does not require special
notice in short form documents; and (3) the district court
properly interpreted the term “delivery” in the CTBL to mean
some point beyond delivery of the goods to the dock, and rea-
sonably found that “delivery” had not occurred when the
machines were damaged.
For the reasons stated above, the district court’s judgment
is AFFIRMED.