Greenpack of Puerto Rico, Inc. v. American President Lines

United States Court of Appeals
For the First Circuit
No. 11-2120
GREENPACK OF PUERTO RICO, INC.,
Plaintiff, Appellant,
v.
AMERICAN PRESIDENT LINES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
María I. Santos-Rivera, for appellant.
J. Ramón Rivera-Morales, with whom Jiménez, Graffam & Lausell,
was on brief for appellee.
July 6, 2012
TORRUELLA, Circuit Judge. Plaintiff-Appellant Greenpack
of Puerto Rico, Inc. ("Greenpack") appeals the dismissal of its
claim for damages resulting from a delayed delivery of perishable
food items from Puerto Limón, Costa Rica to San Juan, Puerto Rico.
The district court dismissed the complaint as time-barred by the
statute of limitations in the Carriage of Goods by Sea Act ("COGSA"
or the "Act"), Pub. L. No. 521, ch. 229, 49 Stat. 1207 (1936),
reprinted in 46 U.S.C. § 30701 note (2006) (previously codified at
46 U.S.C. app. §§ 1300-1315 (2000)). Having considered the
parties' claims, we affirm the district court's decision.
I. Background
In October of 2009, Greenpack hired Defendant-Appellee
American President Lines ("APL") to ship four crates of perishable
foodstuffs1 from Costa Rica to San Juan. Although APL had promised
to convey Greenpack's cargo to San Juan within seven days, it did
not. The food allegedly sat on the dock in Costa Rica for a number
of days before being loaded on board. The last container arrived
in San Juan on November 18, 2009. Perhaps predictably, the items
in the crates were no longer fit to sell upon their arrival in San
1
The crates contained, inter alia, cassavas, bananas, plantains,
and purple dasheen, which is a variety of tuber known colloquially
in Puerto Rico as "malanga."
-2-
Juan, and the Department of Agriculture duly decommissioned all
four cargos.2
On February 3, 2011, Greenpack filed suit against APL in
the Puerto Rico Superior Court, claiming breach of contract and
demanding damages for the lost cargo. On March 23, 2011, APL
removed the action to the U.S. District Court for the District of
Puerto Rico, and subsequently moved for dismissal or judgment on
the pleadings under Rules 12(b)(6) and 12(c), respectively.
APL argued that COGSA governed the relationship between
the parties and that therefore Greenpack's claim was time-barred by
the Act's one-year statute of limitations. See COGSA § 3(6), 46
U.S.C. § 30701 note (previously codified at 46 U.S.C. app.
§ 1303(6)) (providing that "the carrier and the ship shall be
discharged from all liability in respect of loss or damage unless
suit is brought within one year after delivery of the goods or the
date when the goods should have been delivered"). Greenpack
opposed APL's argument by positing that the Harter Act, 27 Stat.
445 (1893) (codified previously at 46 U.S.C. app. §§ 190-196 and
presently at 46 U.S.C. §§ 30701-30707), rather than COGSA, governed
any liability arising from these shipments. Since the Harter Act
contains "no specific limitations period for suits by a consignee
2
The first two cargos, which arrived in Puerto Rico on
October 29, 2009, were decommissioned on November 4 of the same
year. The remaining two cargos arrived on November 18 and were
decommissioned two days later.
-3-
against a carrier," under Greenpack's theory, its suit was not
time-barred as long as it was filed within a "reasonable" time.
Ins. Co. of N. Am. v. P.R. Marine Mgmt., Inc., 768 F.2d 470, 473
(1st Cir. 1985).
Greenpack's complaint had alleged in general terms that
the damage to its cargo was caused by "the delay in the
transportation of the same by APL." In its pleadings, Greenpack
advanced the theory that the damage likely occurred during those
days that the food remained on the dock in Costa Rica, prior to
being loaded on the vessel. For purposes of its motion to dismiss,
APL did not contest that the loss may have occurred at a point in
time when the goods were in its possession prior to loading. And
this fact, which we accept as true at this stage in the
proceedings, Gray v. Evercore Restructuring L.L.C., 544 F.3d 320,
324 (1st Cir. 2008), is key to the parties' dispute.
The timing of the loss alleged by Greenpack is germane to
the question of which statutory structure controls the parties'
liability. "By its terms, COGSA governs bills of lading for the
carriage of goods 'from the time when the goods are loaded on to
the time when they are discharged from the ship.'" Norfolk S. Ry.
Co. v. Kirby, 543 U.S. 14, 29 (2004) (quoting COGSA § 1(e),
46 U.S.C. § 30701 note (previously codified at 46 U.S.C. app.
§ 1301(e)) defining "carriage of goods" under the Act); see
Antilles Ins. Co. v. Transconex, Inc., 862 F.2d 391, 392 (1st Cir.
-4-
1988) (noting and citing case for proposition that COGSA applies
from time goods in international commerce are loaded onto a ship
until they are released from the ship's tackle at port). In other
words, "COGSA applies when there is a contract for carriage of
goods between a foreign port and a port of the United States,"
Barretto Peat, Inc. v. Luis Ayala Colón Sucrs., Inc., 896 F.2d 656,
659 (1st Cir. 1990), but only during the interval when the cargo is
at sea, also referred to as the "tackle-to-tackle" period.3
Without more, damage that occurred on the dock during the land
portion of the shipment's journey, or outside of the tackle-to-
tackle period (i.e., "beyond the tackles"), would escape COGSA's
statute of limitations and, as Greenpack argued in its opposition
to APL's motion, the Harter Act would govern.4
3
See Robert Force et al., Admiralty and Maritime Law: Abridged
Edition 212-13 (2006) ("Tackle to tackle has traditionally meant
from the moment when the ship's tackle is hooked on at the loading
port until the moment when the ship's tackle is unhooked at
discharge.") (quoting W. Tetley, Marine Cargo Claims 14 (3d ed.
1988)); see, e.g., Starrag v. Maersk, Inc., 486 F.3d 607, 612 (9th
Cir. 2007).
4
The parties do not contest that the Harter Act applies ex
proprio vigore beyond the tackles. See, e.g., Schramm, Inc. v.
Shipco Transp., Inc., 364 F.3d 560, 565 (4th Cir. 2004) (noting
that "[t]he Harter Act, which was superseded in large part by
COGSA, still applies 'prior to the time when the goods are loaded
on or after the time they are discharged from the ship'") (quoting
COGSA § 12, 46 U.S.C. § 30701 note (previously codified at 46
U.S.C. app. § 1311)); see also 2A Michael F. Sturley, Benedict on
Admiralty, ch. II, § 14 (2012) (indicating that "section 12 of
COGSA explicitly preserves the Harter Act from implied repeal to
the extent that it governs the carrier's duties" before loading and
after discharge). We assume as much for purposes of this appeal.
-5-
As recognized by the district court, however, "the
parties to a shipping contract may agree to extend [COGSA's]
coverage to the period before loading or after unloading of the
goods." Ins. Co. of N. Am., 768 F.2d at 475. See Kirby, 543 U.S.
at 29 (noting that "COGSA [] gives the option of extending its rule
by contract" to cover "the entire period in which [the goods] would
be under [a carrier's] responsibility, including the period of the
inland transport") (citing COGSA § 7, 46 U.S.C. § 30701 note
(previously codified at 46 U.S.C. app. § 1307)).5 The issue before
the district court was therefore whether the bills of lading in
this case extended the time-for-suit provision of COGSA to the
period when the damage allegedly occurred, i.e., prior to loading
the cargo on board the ship.
Although the four containers of perishable food were
shipped separately, they were governed by identical bills of
lading, all of which were referenced in the complaint. APL
successfully argued before the district court that these bills of
lading contained a "Paramount Clause" that specifically
incorporated COGSA to cover the period prior to loading and after
discharge.
5
The cited provision of COGSA states that "[n]othing contained in
this [Act] shall prevent a carrier or a shipper from entering into
any agreement . . . as to [the parties'] responsibility and
liability . . . [arising from] 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."
-6-
The relevant language is contained in subsection (iv) of
the Paramount Clause, which reads in pertinent part as follows:
Prior to loading onto the Vessel and after
discharge from the Vessel or if the stage of
Carriage during which the loss or damage to
Goods occurred cannot be proved, the Carrier's
liability shall be governed under the Hague
Rules, except that the limitation shall be
US$500 per package or per shipping unit as
stated in [the bill of lading's "Package
Limitation" clause], and for this purpose the
Hague Rules shall be extended to the periods
before loading and sub-sequent [sic] to
discharge and to the entire period of the
Carrier's responsibility.
As the district court noted, the Paramount Clause in the bills of
lading explicitly references COGSA's relationship to the Hague
Rules6 in its subsection (i), which states that, for the tackle-to-
tackle period,
the Carrier's responsibility shall be subject
to the provisions of any legislation
compulsorily applicable to this Bill of Lading
[] which gives effect to the Hague Rules . . .
including adaptations thereof, such as
[COGSA], the provisions of which shall apply
on all shipments to or from the United States
whether compulsorily applicable or not . . . .
6
The "Hague Rules" are formally known as the International
Convention for the Unification of Certain Rules of Law Relating to
Bills of Lading, August 25, 1924, 51 Stat. 233, 120 U.N.T.S. 155,
and were promulgated to standardize the rules governing ocean
carriers' liability for negligence. See generally Hanover Ins. Co.
v. Shulman Transp. Enters., Inc., 581 F.2d 268, 270-72 (1st Cir.
1978) (examining COGSA's origins). COGSA is the United States'
domestic enactment of the Hague Rules, which the United States
ratified in 1937. Id. at 271 n.6.
-7-
Although the district court did not rely on the following
additional language, we note as relevant to the parties' dispute
subsection (i) of the Package Limitation clause in the bills of
lading, which reads as follows:
For shipments to and from the United States,
neither the Carrier nor the Vessel shall in
any event become liable for any loss of or
damage to or in connection with the Carriage
of Goods in an amount exceeding US$500 (which
is the package or ship-ping [sic] unit
limitation under []COGSA) per package or in
the case of Goods not shipped in packages per
customary freight unit.
This clause further states that "[it] applies in addition to and
shall not be construed as derogating from any defense or exclusion,
restriction or limitation of liability available to the Carrier
under the terms of this Bill of Lading or otherwise." The bills of
lading also contained a "Notice of Loss, Time Bar" provision
establishing that
[t]he Carrier shall in any event be discharged
from all liability whatsoever in respect of
the Goods, unless suit is brought in the
proper forum and written notice thereof
received by the Carrier within nine months
after delivery of the Goods or the date when
the Goods should have been delivered.
In its order, dated August 10, 2011, the district court
granted APL's motion for dismissal or judgment on the pleadings,
finding that, per the Paramount Clause in the bills of lading,
Greenpack's claims were subject to COGSA's one-year statute of
limitations. Since suit was filed more than one year after the
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delivery of the cargo, the same was found to be time-barred. This
appeal ensued.
II. Discussion
Greenpack's contention on appeal is that the bills of
lading did not extend COGSA's time-for-suit provision to cover the
time prior to loading because the language in the Paramount Clause
incorporated only the liability provision of COGSA and not its
statute of limitations.7 APL, in turn, argues that a plain reading
of the contractual language at issue reveals the parties' intention
to extend COGSA's provisions in full to the period in question.
A. Standard of Review
"We review dismissals under Rule 12(b)(6) and judgments
on the pleadings under Rule 12(c) de novo." Gray, 544 F.3d at 324.
7
Greenpack also suggests that COGSA relates only to issues of
seaworthiness, and so cannot apply to this breach of contract case.
Greenpack's claim is waived, as Greenpack summarily advances the
argument, citing to no pertinent authority. See P.R. Tel. Co. v.
T-Mobile P.R. LLC, 678 F.3d 49, 58 n.5 (1st Cir. 2012). In any
event, Greenpack's argument fails on its own terms, as it is
evident that COGSA applies to the type of claim Greenpack advances.
COGSA makes clear that "under every contract of carriage of goods
by sea, the carrier in relation to the loading, handling, stowage,
carriage, custody, care, and discharge of such goods, shall be
subject to the responsibilities and liabilities and entitled to the
rights and immunities [] set forth" in the Act. COGSA § 2, 46
U.S.C. § 30701 note (previously codified at 46 U.S.C. app. § 1302).
COGSA requires carriers to "properly and carefully load, handle,
stow, carry, keep, care for, and discharge the goods carried."
Id. § 3(2) (previously codified at 46 U.S.C. app. § 1303(2)). By
its terms, COGSA governs instances of "loss or damage" to goods
that are the subject of contracts of carriage by sea, and precludes
liability for such losses and damages unless suit is brought within
a year. Id. § 3(6) (previously codified at 46 U.S.C. app.
§ 1303(6).
-9-
Likewise, the question of whether (and to what extent) the bills of
lading in this case extended the dispositions of COGSA to cover the
parties' relationship beyond the tackles is a matter of contract
interpretation, and thus a "question of law" that is reviewed de
novo. See OfficeMax, Inc. v. Levesque, 658 F.3d 94, 97 (1st Cir.
2011) ("Contract interpretation, when based on contractual language
without resort to extrinsic evidence, is a 'question of law' that
is reviewed de novo.") (citing Principal Mut. Life Ins. Co. v.
Racal-Datacom, Inc., 233 F.3d 1, 3 (1st Cir. 2000)). As we conduct
our review, "we view the well-pleaded facts in the light most
favorable to the non-moving party, drawing all reasonable
inferences in its favor." Gray, 544 F.3d at 324. In doing so, we
may consider, in addition to the complaint, any documents -- such
as bills of lading -- if their authenticity is not disputed by the
parties, if they are central to the plaintiff's claims, or if they
are sufficiently referenced in the complaint. See Curran v.
Cousins, 509 F.3d 36, 44 (1st Cir. 2007).
B. Extension of COGSA Beyond the Tackles
As previously noted, a carrier and a shipper may extend
COGSA so that it applies prior to loading and subsequent to the
discharge of the goods from the vessel. See COGSA § 7, 46 U.S.C.
§ 30701 note (previously codified at 46 U.S.C. app. § 1307); Ins.
Co. of N. Am., 768 F.2d at 475. To determine the extent of any
extension of COGSA beyond the scope of the statute, we must look to
-10-
the parties' intent as expressed in the bills of lading. See
Kirby, 543 U.S. at 31 ("[C]ontracts for carriage of goods by sea
must be construed like any other contracts: by their terms and
consistent with the intent of the parties."); Henley Drilling Co.
v. McGee, 36 F.3d 143, 148 n.11 (1st Cir. 1994) ("Since the bill of
lading is the contract of carriage between shipper and carrier,
familiar principles of contract interpretation govern its
construction.") (citations omitted).
Greenpack contends that a plain reading of the Paramount
Clause demonstrates that the parties meant to incorporate COGSA
solely for the purpose of limiting the carrier's liability to $500,
per COGSA's limitation of liability provision. See COGSA § 4(5),
46 U.S.C. § 30701 note (previously codified at 46 U.S.C. app.
§ 1304(5)) (limiting the liability of a carrier "for any loss or
damage to or in connection with the transportation of goods" to
"$500 per package"). We find Greenpack's reasoning unpersuasive.
The Paramount Clause here has two relevant subsections,
(i) and (iv). The first of these sets out the law that will govern
the rights of the parties "[f]rom loading of the Goods onto the
Vessel until [their] discharge," i.e., tackle-to-tackle, while the
second identifies the applicable law "[p]rior to loading onto . . .
and after discharge from the Vessel," i.e., beyond the tackles. As
to the latter, subsection (iv) plainly indicates that, during that
time, "or if the stage of Carriage during which the loss or damage
-11-
to Goods occurred cannot be proved, the Carrier's liability shall
be governed under the Hague Rules, except that the limitation shall
be US$500 per package or per shipping unit as stated in [the bill
of lading's Package Limitation clause] . . . ." (Emphasis added.)
As we explained supra, COGSA is the United States' domestic
enactment of the Hague Rules, see Hanover Ins. Co., 581 F.2d at
270-72, and the parties acknowledge the same in subsection (i) of
the Paramount Clause itself. Therefore, a natural reading of the
quoted language from subsection (iv) leads us to conclude that the
parties intended a general extension of the provisions of COGSA to
govern all issues relating to the carrier's liability arising
during the period beyond the tackles, which would include the Act's
time-for-suit provision.8
Greenpack focuses on the phrase in subsection (iv) of the
Paramount Clause that begins with "except" and establishes a per
package limitation of "US$500" to the liability of the carrier.
According to Greenpack, this qualifying phrase was meant to narrow
the preceding, more general language incorporating COGSA. As APL
argues, however, such language is not unusual in this context.
8
Even if one were to read the language in subsection (iv) as
extending the Hague Rules, rather than COGSA, to the period beyond
the tackles, the result in this case would be the same, as "[t]he
language of COGSA mirrors that of the [Hague Rules], with only a
few deviations," none of which are relevant here. Hanover Ins.
Co., 581 F.3d at 271 n.6; see also In re Damodar Bulk Carriers,
Ltd., 903 F.2d 675, 681 (9th Cir. 1990) (finding no error in the
district court's application of COGSA rather than the Hague Rules,
since the two are "virtually identical in their language").
-12-
Moreover, we do not believe the qualifying phrase was meant to
operate as a continuum of the first part of the sentence to confine
COGSA's application solely to setting the package limitation rule.
The inclusion of a package limitation clause equivalent
to the one contained in COGSA, even where the Act applies ex
proprio vigore, appears to be common in contracts for international
carriage. See 2A Michael F. Sturley, Benedict on Admiralty, ch.
XVI, § 166, at n.20 (2012) (indicating that "[m]ost carriers have
[] decided to include an explicit limitation clause in the bill of
lading" despite the plain language of COGSA's section 4(5) limiting
the carrier's liability in a similar manner, "[t]o ensure that
courts actually enforce their rights under [the Act]"). We note
that section 4(5) itself states that the $500 limit will apply
"unless the nature and value of [the goods in carriage] have been
declared by the shipper before shipment and inserted in the bill of
lading." 46 U.S.C. § 30701 note (previously codified at 46 U.S.C.
app. § 1304(5)). Thus, the shipper retains the right to avoid the
limitation by declaring a higher value, and a carrier who does not
provide adequate notice of this possibility does so at his own
peril. See, e.g., Henley Drilling Co., 36 F.3d at 144-47(considering, without embracing, other circuits' requirement under
COGSA that carriers afford shippers a "fair opportunity" to declare
their cargo's value; enforcing Act's limit on liability only after
concluding that combination of paramount clause incorporating COGSA
-13-
and a valuation clause mimicking section 4(5) in the bill of lading
afforded shipper both constructive and actual notice of the
provision's applicability).
Indeed, parties to a contract of carriage governed by
COGSA may agree on a higher amount as the limit on liability. See
COGSA § 4(5), 46 U.S.C. § 30701 note (previously codified at 46
U.S.C. app. § 1304(5)) (providing that "[b]y agreement between the
carrier . . . and the shipper another maximum amount . . . may be
fixed," provided that "such maximum" is not less than the $500 set
by the Act); see also Hanover Ins. Co., 581 F.2d at 271-73 & n.6
(concluding that COGSA's $500 limitation of liability provision,
which "mirrors" that of the Hague Rules, is a "minimum level of
valuation . . . . that cannot be reduced by contractual agreement")
(second emphasis added). Other countries may also impose higher
amounts as the carrier's minimum liability. See 8 Michael F.
Sturley, Benedict on Admiralty, ch. XVI, § 16.11(B)(6)(c) (2012)
("Because foreign statutes comparable to COGSA often impose greater
liability on the carrier, particularly foreign enactments of the
Hague-Visby Rules,9 cargo claimants have sometimes argued that the
9
The "Hague-Visby Rules" are the Hague Rules as amended by two
protocols, the 1968 Visby Amendments and the 1979 "SDR" Protocol.
See 2A Michael F. Sturley, Benedict on Admiralty, ch. I, § 1, at
n.3 (2012). These rules were never ratified by the United States,
and they impose a higher limitation on the liability of carriers.
See id. § 3 (noting that "most [] major U.S. trade partners" are
now parties to the Hague-Visby Rules).
-14-
limitation provisions of a foreign statute should apply in
preference to COGSA's.").
In light of this, it seems to us perfectly reasonable for
a carrier such as APL to be motivated to set a specific limit on
its potential liability -- in addition to language incorporating
COGSA as applicable beyond the tackles -- that (re)states the COGSA
minimum as its standard. Such language would tend to avoid
possible confusion and ensure a uniform limitation on liability
that would apply (regardless of divergences between different
countries' domestic enactments) in every jurisdiction where suit
might be brought in connection with APL's shipments. See Vimar
Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 29 F.3d 727, 728 (1st
Cir. 1994) (noting that passage of COGSA "was part of an
international effort to achieve uniformity and simplicity in bills
of lading used in foreign trade," and also "to reduce uncertainty
concerning the responsibilities and liabilities of carriers,
responsibilities and rights of shippers, and liabilities of
insurers"). While the "except" language in subsection (iv) of the
Paramount Clause operates to qualify the general incorporation of
COGSA to the period beyond the tackles, it does so only as an
attempt to clarify and make certain the amount of liability per
package that APL would be subject to in the event of suit.
Greenpack suggests in its briefing that not all of COGSA
should be applicable in this case because the bills of lading "did
-15-
not make references to all the provisions of [the Act]," citing to
Ralston Purina Company v. Barge Juneau and Gulf Caribbean Marine
Lines, Inc., 619 F.2d 374 (5th Cir. 1980) (per curiam). However,
that case in no way supports the proposition that a contract must
recite all of the elements of a law that the parties would like to
incorporate, where instead (as in this case) they could make a
general reference to the statute in the contract and then specify
limited exceptions or clarifications to the same.10
Greenpack also contends that the language used by APL (as
the drafter of the bills of lading) to extend COGSA beyond the
tackles could have been clearer, pointing to language in other
cases. See, e.g., Firestone Tire & Rubber Co. v. Almacenes
Miramar, Inc., 452 F. Supp. 670, 672 (D.P.R. 1978) (contract stated
that "[the] bill of lading shall have effect subject to the
provisions of [COGSA] . . . while [the goods] are in the custody of
10
Indeed, the question in Ralston was whether inclusion in the
bill of lading of a separate notice of suit provision, in addition
to the general incorporation of COGSA through a paramount clause,
made COGSA's statutory time-for-suit provision inapplicable.
619 F.2d at 374-76. The court so held, relying on the fact that
the paramount clause indicated that COGSA would apply "except as
may be otherwise specifically provided" in the bill of lading. Id.
at 375. The court concluded that the separate notice of suit
provision constituted such an exception. Id. We note that
Greenpack does not make an analogous claim in this case; the
parties contested solely the theory of whether COGSA's statute of
limitations applied to bar suit by virtue of the Paramount Clause.
As is discussed infra, Greenpack made only cursory reference
throughout this litigation to the Notice of Loss, Time Bar
provision in the bills of lading, which itself called for a shorter
notice and filing period of nine months.
-16-
the vessel or its agents"); see also Gamma-10 Plastics, Inc. v. Am.
President Lines, Ltd., 32 F.3d 1244, 1250 (8th Cir. 1994); Ins. Co.
of N. Am., 768 F.2d at 475 n.7; Fireman's Ins. Co. of Newark, N.J.
v. Gulf P.R. Lines, Inc., 349 F. Supp. 952, 955 (D.P.R. 1972);
Commw. of P.R. v. Sea-Land Serv., Inc., 349 F. Supp. 964, 969
(D.P.R. 1970). We do not see how the language at issue in the
cited cases is necessarily "clearer" than the language APL used in
the bills of lading relating to this case, except for the fact that
they do not include the same qualifying language regarding the
limitation on liability provision that is present here. We have
already explained our position regarding the effect of such
language supra. Moreover, the fact that other contracts for
carriage at sea have simply incorporated COGSA over the entire
period while the goods are in the carrier's custody does not mean
that APL and Greenpack were precluded in this case from setting up
a scheme of coverage that differentiated between the tackle-to-
tackle interval and the period beyond the tackles; and notably,
Greenpack does not advance such an argument.11
11
Greenpack's reliance on Foster Wheeler Energy Corporation v. An
Ning Jiang MV, 383 F.3d 349 (5th Cir. 2004) is unavailing. Foster
Wheeler dealt with the interplay of two choice-of-law clauses in
bills of lading for carriage between Spain and China that raised
the question whether COGSA or Spain's adoption of the Hague-Visby
Rules applied to the tackle-to-tackle period. See id. at 352 n.4.
The court held, as a matter of contractual interpretation, that
Spain's Hague-Visby Rules controlled despite a clause selecting a
U.S. jurisdiction as the choice of forum. Id. at 357. We fail to
see the relevance of this case to the issue at hand.
-17-
Greenpack next appeals to the principle that contracts
purporting to grant immunity from, or limitation of, liability must
be strictly construed. See Boston Metals Co. v. The Winding Gulf,
349 U.S. 122, 123-24 (1955) (Frankfurter, J., concurring)
("Release-from-liability clauses . . . are not to be applied to
alter familiar rules visiting liability upon a tortfeasor for the
consequences of his negligence, unless the clarity of the language
used expresses such to be the understanding of the contracting
parties."); see also Robert C. Herd & Co. v. Krawill Mach. Corp.,
359 U.S. 297, 302-05 (1959) (refusing to read an extension of COGSA
to limit the common-law liability of a negligent stevedore to $500
where neither COGSA nor the bill of lading adverted to stevedores
or the carrier's agents); but cf. Kirby, 543 U.S. at 31 (noting
that Herd does not require a special degree of "linguistic
specificity" in contracts for carriage of goods by sea, and only
calls for them to be construed "by their terms and consistent with
the [parties'] intent"). Whether or not a higher standard applies
to the review of contractual limitations on liability in this
context, a question we need not answer today, we believe the
outcome would be the same here because the contractual language at
issue is clear and admits no other interpretation. See Kirby, 543
U.S. at 32 ("'[W]here the words of a law, treaty, or contract, have
a plain and obvious meaning, all construction, in hostility with
-18-
such meaning, is excluded.'") (quoting Green v. Biddle, 21 U.S. (8
Wheat.) 89-90 (1823)).
Finally, Greenpack makes a one-sentence assertion in its
brief, unsupported by legal references, that its claim should not
be dismissed as untimely because "[u]nder the Harter Act, the
doctrine of laches applies," and APL suffered no prejudice from
Greenpack's delay in presenting suit. It suggests that this is so
because Greenpack alleged in its complaint that it sent an
extrajudicial notice to APL, which (it later clarified) had been
sent within nine months of the delivery of the goods, as required
by the Notice of Loss, Time Bar provision in the bills of lading.12
At oral argument, Greenpack provided a case citation to support its
point. See TAG/ICIB Servs., Inc. v. Sedeco Servicio de Descuento
en Compras, 570 F.3d 60, 63 (1st Cir. 2009) (applying principle
that "'[i]n [] admiralty case[s], maritime law and the equitable
doctrine of laches govern the time to sue'" to determine a
12
Greenpack's counsel indicated at oral argument that the
extrajudicial claim was sent on June 9, 2010, which was
approximately seven months after delivery of the last two cargos by
APL, on November 18, 2009. Surprisingly, Greenpack did not argue
below, nor is it reflected in its papers on appeal, that this
extrajudicial notice tolled the applicable limitations period.
Counsel for Greenpack introduced a tolling claim for the first time
in this case during appellate oral argument. Unfortunately for
Greenpack, however, we have not been presented here with any reason
to disturb "the bedrock rule of appellate practice that, except in
the most extraordinary circumstances (not present here), matters
not raised in the trial court cannot be hawked for the first time
on appeal." Malave v. Carney Hosp., 170 F.3d 217, 222 (1st Cir.
1999). Greenpack's failure to raise a tolling argument before the
district court requires that we consider it relinquished on appeal.
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limitations period for a suit involving overdue demurrage charges
on international shipments to Puerto Rico) (quoting TAG/ICIB
Servs., Inc. v. Pan Am. Grain Co., 215 F.3d 172, 175 (1st Cir.
2000)). Besides this, Greenpack did little to elaborate its
theory, explain to the court how it should apply this equitable
doctrine to the case at hand, or illustrate why we should bypass
both the statutory limitations period that would otherwise apply
per the Paramount Clause, or the contractual Notice of Loss, Time
Bar provision that Greenpack itself references. The argument put
forth by Greenpack is so undeveloped on appeal that we must
consider the same waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (employing "settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by []
developed argumentation, are deemed waived"); see also Barrett ex
rel. Estate of Barrett v. United States, 462 F.3d 28, 40 n.9 (1st
Cir. 2006) (refusing to consider an equitable tolling argument "not
raised below [and] developed only perfunctorily on appeal").
III. Conclusion
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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