United States Court of Appeals,
Fifth Circuit.
No. 93-3524.
ASSOCIATED METALS AND MINERALS CORPORATION, Plaintiffs-Appellees,
v.
ALEXANDER'S UNITY MV, her engines, boilers, etc., et al.
Defendants,
Banque Internationale A Luxembourg S.A., Claimant-Appellant.
Jan. 9, 1995.
Appeals from the United States District Court for the Eastern
District of Louisiana.
Before KING, JOLLY and STEWART, Circuit Judges.
KING, Circuit Judge:
This case concerns damage to maritime cargo. In the lower
court, Associated Metals and Minerals Corporation argued, and the
district court agreed, that damage to its cargo transported by the
M/V Alexander's Unity resulted not only from the breach of the
contract of carriage by the vessel but also from the physical and
financial unseaworthiness of the vessel and the negligence of her
owners and/or operators. The district court's judgment recognized
that Associated Metals and Minerals had a preferred maritime tort
lien for the full amount of its claim, priming the liens of the
preferred ship mortgages held by Banque Internationale A Luxembourg
S.A. The district court also determined that the expenses incurred
by Associated Metals and Minerals in discharging its cargo were
custodia legis. Banque Internationale A Luxembourg S.A., which was
also awarded a default judgment and custodia legis expenses in a
1
separate proceeding, appeals the district court's findings that:
(1) Associated Metals' claims are tort claims and therefore
entitled to preferred maritime lien status and (2) Associated
Metals' expenditures surrounding the removal of the cargo were
custodia legis expenses. We find that we have jurisdiction over
this matter and affirm the rulings of the district court.
I. BACKGROUND
In early May of 1992, the M/V Alexander's Unity, a bulk
carrier travelling under the Maltese flag, arrived in India at the
port of Visakhapatnam. After discharging its cargo, the ship was
moved to another berth for the loading of steel plates for
transport to the ports of Houston and Mobile pursuant to a May 15,
1992 charter agreement between Alexander's Unity Shipping Company,
Ltd. Valletta ("Alexander's Unity Shipping") and Associated Metals
and Minerals Corporation ("Associated Metals"). Over seven
thousand pieces of steel were loaded into three of the Alexander's
Unity's hatches. While in Visakhapatnam, the ship also picked up
a cargo of high carbon ferro chrome for transport to New Orleans;
later, after sailing to the port of Paradip, the Alexander's Unity
received a cargo of chrome also bound for delivery in New Orleans.
While the ship was discharging and loading its various cargos
in India, the ship's master and the port engineer, a representative
of Alexander's Shipping, discussed the upcoming voyage. The
Master, aware that the cargo of steel was "sensitive to sea water,"
expressed concern that the ship would encounter high winds and
rough seas traveling around the Cape of Good Hope during winter.
2
His apprehension was magnified by the condition of the hatch
covers, which had been in disrepair for some time and which the
Master believed likely would allow water to seep through them. The
Master pointed out his concerns and requested permission to travel
through the more tranquil Suez canal. Unwilling to pay the fees
associated with traveling through the Suez canal, Alexander's
Shipping's representative ordered the ship to proceed around
Africa. Additionally, instead of removing the hatch covers or
placing the ship in dry dock for repair, the hatch covers were
patched with "asphalt tape." Thus loaded, the Alexander's Unity
set sail for the United States in June of 1992.
In late June, during the journey to the United States, the
Master's concerns came to fruition, and the ship encountered
weather and seas so rough that the ship's log reflects that "waves
cover[ed] the deck" for several days. During the inclement
conditions, seawater evidently penetrated the hatch covers and
cargo holds, necessitating the operation of the bilge pumps for
several days in late June and early July. Except for some engine
repairs at the end of July, the rest of the voyage was relatively
uneventful, and the Alexander's Unity arrived in New Orleans on
July 30, 1992.
Upon its arrival in New Orleans, the Alexander's Unity
suffered the first of several arrests. The ship had outstanding
debts to numerous groups including the appellant in this matter,
Banque Internationale A Luxembourg S.A. ("BIL"). Specifically, BIL
held two mortgages on the Alexander's Unity, and on the basis of
3
these debts, BIL initiated an in rem action against the ship.
Associated Metals also initiated an in rem action against the
Alexander's Unity as well as in personam actions against
Alexander's Unity Shipping and Alexco Shipmanagement (Hellas) Ltd.,
the vessel's operator.
On October 29, 1992, the United States Marshal sold the
Alexander's Unity and the proceeds of $4,615,000 (less the
Marshal's commission and certain custodia legis expenses) were
placed in the court's registry. From these funds, outstanding
debts owed to the Master and crew of the ship and to domestically
based suppliers were paid; nevertheless, more than four million
dollars still remains in the registry of the court.
In April of 1993, Associated Metals sought a default judgment
against the Alexander's Unity, Alexander's Unity Shipping, and
Alexco Shipmanagement (Hellas) Ltd. Specifically, Associated
Metals sought $736,873 for seawater rust damage to the steel
plates. Associated Metals also requested $181,340.97 for expenses
resulting from the forced discharge of the steel in New Orleans
instead of in Houston and in Mobile, the original destinations of
the cargo. Additionally, Associated Metals argued that it was
entitled to interest and that the full amount of its claim
constituted a preferred maritime tort lien. Finally, Associated
Metals asserted that its costs from the forced discharge were
custodia legis expenses.
In late May, the district court granted a default judgment in
favor of Associated Metals in the amounts requested. Specifically,
4
in a minute entry, the district court found that Alexander's Unity
was engaged in the common carriage of cargo, and that Associated
Metals' cargo aboard the ship was "damaged not only from the breach
of contract of carriage by the vessel but also from the physical
and financial unseaworthiness of the vessel and the negligence of
her owners and/or operators." The district court also determined
that "under admiralty law, Associated rightfully has a claim in
tort for negligence and such a claim is a preferred maritime tort
lien against the vessel, ... [and] Associated's preferred maritime
tort lien against the vessel encompasses both the seawater rust
damage to the cargo and the forced discharge expenses." The
district court later modified the judgment to include an additional
$70,889.95 in forwarding expenses. This sum was not added to the
custodia legis expenses, but was added to the preferred maritime
tort lien because the district court concluded that "the financial
unseaworthiness of the M/V Alexander's Unity was the proximate
cause of these unanticipated forwarding expenses." Thus, on June
23, 1993, the district court entered its minute entry and modified
default judgment consisting of a preferred maritime tort lien in
the amount of $918,213.97 plus five percent interest from the date
of discharge; $110,451.02 of that sum was recognized as custodia
legis expenses. BIL appeals from this order.
II. STANDARD OF REVIEW
BIL does not challenge the grant of the default judgment, the
district court's findings of unseaworthiness and negligence, or the
determination that the Alexander's Unity was a common carrier.
5
Instead, BIL contests the application of the law to the findings
contained within the judgment and the determination that the
discharge expenses were custodia legis. It is well settled that a
district court's findings of fact must be accepted unless clearly
erroneous. Prudhomme v. Tenneco Oil Co., 955 F.2d 390, 392 (5th
Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 84, 121 L.Ed.2d 48
(1992). On the other hand, "we review de novo the legal questions
decided by the district court." Landmark Land Co. v. Office of
Thrift Supervision, 990 F.2d 807, 809 (5th Cir.1993); accord
Prudhomme, 955 F.2d at 392. Finally, we examine determinations of
custodia legis expenses for abuse of discretion. Oil Shipping
(Bunkering) B.V. v. Sonmez Denizcilik Ve Ticaret A.S., 10 F.3d 176,
181 n. 3 (3d Cir.1993); Taino Lines, Inc. v. M/V Constance Pan
Atlantic, 982 F.2d 20, 24 (1st Cir.1992); Kingstate Oil v. M/V
Green Star, 815 F.2d 918, 922-23 (3d Cir.1987).
III. ANALYSIS
A. Jurisdiction
Because there are still aspects of this case pending in the
district court, our jurisdiction to decide the issues presented in
this case must be addressed. Generally, appellate courts only have
jurisdiction over final decisions of district courts. See 28
U.S.C. § 1291. There is, however, an exception allowing review of
certain interlocutory decisions. Section 1292(a)(3) of 28 U.S.C.
provides that "the courts of appeals shall have jurisdiction of
appeals from ... [i]nterlocutory decrees of such district courts or
the judges thereof determining the rights and liabilities of the
6
parties to admiralty cases in which appeals from final decrees are
allowed." See Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d
745, 751 (5th Cir.1985); Gulf Towing Co. v. Steam Tanker, Amoco
New York, 648 F.2d 242, 244 (5th Cir.1981) (per curiam). Although
in order for this exception to apply, it is not necessary for "all
of the rights and liabilities of all of the parties [to] be
determined," Gulf Towing Co., 648 F.2d at 244, to fall within the
ambit of § 1292(a)(3) "the order appealed from must conclusively
determine the merits of a claim or defense." Kingstate Oil, 815
F.2d at 921; accord All Alaskan Seafoods, Inc. v. M/V Sea
Producer, 882 F.2d 425, 427 (9th Cir.1989); see also Todd
Shipyards Corp., 763 F.2d at 751 (finding § 1292(a)(3) applicable
when a district court's ruling determined all rights and
liabilities among the parties and calculated almost all recoverable
damages).
For an order to "conclusively determine the merits of a claim
or defense," it is not necessary for that claim to be extinguished.
Rather, in certain situations, a court's order determining the
priority of claims for all practical purposes may be conclusive of
the rights of the parties to collect the claim and thus be
determinative for § 1292(a)(3) purposes. For example, the Third
Circuit in Kingstate Oil found that because the "mortgagee's and
crew's preferred liens far exceed[ed] the proceeds from the sale of
the vessel," the district court's interlocutory determination of
the priority of claimants to the fund was appealable under §
1292(a)(3). 815 F.2d at 922. The court reasoned that the limited
7
funds available to creditors required them to "pierce theory and
look at reality. For although, in the abstract, appellants may
still assert their claims, their nether position on the creditor's
totem pole converts this assertion into a fruitless gesture." Id.
Consequently, the court concluded that the district court's
determination of priority conclusively determined those appellant's
claims and was reviewable under § 1292(a)(3). Id.
Similarly, the Ninth Circuit in All Alaskan Seafoods, found
that § 1292(a)(3) conferred appellate jurisdiction over a district
court's determination of the lien status of a claim. 882 F.2d at
427-28. The court found that because there was simply not enough
money to satisfy all of the claims, the district court's decision
to give the mortgage claim priority over "All Alaskan's lien claim
constitute[d] a final determination of All Alaskan's right to
recover anything for its cargo loss under any theory." Id.
The instant matter is similar to Kingstate Oil and All
Alaskan Seafoods. Here, the district court's ruling, for all
intents and purposes, will be dispositive of the claims in this
case. As noted above, there is slightly more than four million
dollars in the registry of the court. Associated Metals' judgment
is slightly under a million dollars, and BIL's mortgages amount to
nearly nine million dollars. Simply put, there is not enough money
in the court's registry for all of the claims to be paid. Thus,
the determination of whether the award to Associated Metals is
entitled to preferred maritime tort lien status and is therefore
entitled to disbursement ahead of BIL in reality will determine
8
whether Associated Metals collects its judgment. Accordingly, we
find that we have jurisdiction over this matter pursuant to 28
U.S.C. § 1292(a)(3).
B. Type of Lien
The primary question raised in this appeal is whether the
district court erred in concluding that Associated Metals' award
for cargo damage stems from a tort claim and is thus entitled to
preferred maritime lien status. We find that the district court
was correct in its determination.
This controversy is rooted in the Ship Mortgage Act, 46 U.S.C.
§§ 31301-43. The Act was enacted in 1920 to improve lienholders'
security and to encourage investment in the shipping industry. All
Alaskan Seafood, 882 F.2d at 428. See generally, 1 Thomas J.
Schoenbaum, Admiralty and Maritime Law § 9-5 (2d ed. 1994). The
Act provides that the holder of a preferred ship mortgage has
priority over almost all other claims on the vessel except for
preferred maritime liens and costs and expenses in custodia legis.1
1
Specifically, the section, entitled "Court Sales to Enforce
Preferred Mortgage Liens and Maritime Liens and Priority of
Claims," provides:
(a) When a vessel is sold by order of a district court
in a civil action in rem brought to enforce a preferred
mortgage lien or a maritime lien, any claim in the
vessel existing on the date of sale is terminated,
including a possessory common law lien ... and the
vessel is sold free of all those claims.
(b) Each of the claims terminated under subsection (a)
of this section attaches, in the same amount and in
accordance with their priorities to the proceeds of the
sale, except that—
(1) the preferred mortgage lien, including a
9
46 U.S.C. § 31326; All Alaskan Seafood, 882 F.2d at 428; Oriente
Commercial, Inc. v. American Flag Vessel, M/V Floridian, 529 F.2d
221, 222 (4th Cir.1975). Moreover, the Act further describes that
a " "preferred maritime lien' means a maritime lien on a vessel ...
for damage arising out of maritime tort." 46 U.S.C. § 31301(5)(B)
(emphasis added). Thus, we are faced with the question of whether
the cargo damage award to Associated Metals is entitled to a
preferred maritime lien, for this is a case where "[d]etermining
priorities among maritime liens is important [because] upon
foreclosure and sale of [the] vessel there is not enough money to
satisfy all of the claims." Schoenbaum, supra, § 9-6.
1. Historical Background
Nearly a century ago, in The John G. Stevens, 170 U.S. 113, 18
S.Ct. 544, 42 L.Ed. 969 (1898), the Supreme Court announced that a
claim for damage to cargo could sound in tort, irrespective of
whether a contract governing the carriage of those goods existed.
The John G. Stevens Court primarily discussed whether a claim by a
tow against her tug for damages resulting from negligent towing
gave rise to a tort claim, and the Court found that such a claim
existed. But the Court did not stop there. In fact, the Court
specifically noted that "even an action by a passenger, or by an
owner of goods, against a carrier, for neglect to carry and deliver
preferred mortgage lien on a foreign vessel whose
mortgage has been guaranteed ... has priority over all
claims against the vessel (except for expenses and fees
allowed by the court, costs imposed by the court and
preferred maritime liens)....
46 U.S.C. § 31326.
10
in safety, is an action for the breach of a duty imposed by the
law, independently of contract or of consideration, and is
therefore founded in tort." Id. at 125, 18 S.Ct. at 549.
This sentiment was echoed in The Henry W. Breyer, 17 F.2d 423
(D.Md.1927). In that case, the court was required to characterize
the claim of an owner of cargo damaged during maritime transport.
The court found that:
[t]he intervening libels of the shippers sound in tort, on the
theory that they are entitled to recover damages for breach of
the carrier's common-law duty, notwithstanding that the
carrier's default was also a breach of the contract expressed
in the bill of lading.... It is well established that
ordinarily the owner of goods damaged by the dereliction of a
common carrier has the option to bring in an action either in
contract or in tort.
The Henry W. Breyer, 17 F.2d at 429 (emphasis added); see also
Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699
(1932) (holding "that suit for an injury to the tow caused by the
negligence of her tug is a suit ex delicto and not ex contractu,"
regardless of the existence of a contract); Cortes v. Baltimore
Insular Line, 287 U.S. 367, 372, 53 S.Ct. 173, 174-75, 77 L.Ed. 368
(1932) (finding that in a maintenance and cure case "the remedy
upon the contract does not exclude an alternative remedy based upon
the tort.").
Thus, the statements in The John G. Stevens and The Henry W.
Breyer gave rise to the notion, generally accepted by commentators,
that, in certain situations, maritime damage to cargo gave rise to
potential claims either in contract or in tort. See, e.g., Grant
Gilmore & Charles L. Black, Jr., The Law of Admiralty 630 (2d ed.
1975) ("Cargo damage caused by improper loading, stowage, custody,
11
etc. ... may be looked on as arising out of contract (under the
bill of lading or charter-party) or out of tort."); William
Tetley, Maritime Liens and Claims 309 (1985) ("In the U.S., claims
for cargo loss or damage on the carrying vessel may be pleaded in
two ways; as a breach of the contract of affreightment or as a
tort.").
Further, the idea that damage to cargo may give rise to a
hybrid contract/tort claim has been embraced by the Second, Fourth,
and Ninth Circuits. See Texport Oil Co. v. M/V Amolyntos, 11 F.3d
361 (2d Cir.1993); All Alaskan Seafoods, Inc. v. M/V Sea Producer,
882 F.2d 425 (9th Cir.1989); Oriente Commercial, Inc. v. The
American Flag Vessel, 529 F.2d 221 (4th Cir.1975). For example, in
Oriente Commercial, the Fourth Circuit confronted a situation
nearly identical to the case at bar. There, citing The John G.
Stevens and The Henry W. Breyer, the court concluded that a claim
for damage to cargo "sound[ed] in tort." 529 F.2d at 223.
Similarly, the Ninth Circuit in All Alaskan Seafoods, Inc. v. M/V
Sea Producer, held that the breach of the duty of care with respect
to the owner of cargo "can give rise to tort liability irrespective
of contract obligations between the parties." 882 F.2d at 430.
Most recently, the Second Circuit rejected the notion that cases
for damages to cargo are simple contract actions, noting that an
"action under COGSA is a maritime action in the nature of a mixed
tort, contract and bailment cause of action." M/V Amolyntos, 11
F.3d at 367.
Despite these precedents, BIL asserts that the Fourth and
12
Ninth Circuits (and implicitly the Second Circuit) have misapplied
the law. In particular, BIL asserts that the Supreme Court's
decision in East River Steamship Corp. v. Transamerica Delaval
Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), and its
progeny in this circuit require us to find that when the only
damage in a cargo claim is to the cargo itself, there is no action
in tort; instead, the remedy lies solely in contract. Thus, based
on a mere contract claim, an award of cargo damages cannot
constitute a preferred maritime lien. BIL further asserts that
since this case is governed by COGSA, any tort claim Associated
Metals might raise regarding the damage to its cargo is preempted
by that statute. Finally, BIL argues that construing Associated
Metals' claim as a tort claim would be an unwarranted extension of
the law and would contravene the purposes of the Ship Mortgage Act.
We reject all of BIL's contentions.
2. East River Steamship
BIL first looks to East River Steamship to support its
contention that a claim for maritime cargo damages is cognizable
only in contract. In that case, the Supreme Court was confronted,
inter alia, with the question of whether, in a products liability
claim, "injury to a product itself is the kind of harm that should
be protected by products liability or left entirely to the law of
contracts." East River Steamship Corp., 476 U.S. at 859, 106 S.Ct.
at 2296. After examining the development of products liability law
in general and the purposes of tort law, the Court determined that
"[w]hen a product injures only itself the reasons for imposing a
13
tort duty are weak and those for leaving the party to its
contractual remedies are strong." Id. at 866, 106 S.Ct. at 2299-
300. The Court further reasoned that:
[d]amage to a product itself is most naturally understood as
a warranty claim. Such damage means simply that the product
has not met the customer's expectations, or, in other words,
that the customer has received insufficient product value....
[A] claim for a nonworking product can be brought as a
breach-of-warranty action. Or, if the customer prefers, it
can reject the product and sue for breach of contract.
Id. at 872, 106 S.Ct. at 2302-03 (internal quotations and citation
omitted). Thus, the Court concluded, "a manufacturer in a
commercial relationship has no duty under either a negligence or
strict products-liability theory to prevent a product from injuring
itself." Id. at 871, 106 S.Ct. at 2302; accord Shipco 2295, Inc.
v. Avondale Shipyards, Inc., 825 F.2d 925, 927 (5th Cir.1987),
cert. denied, 485 U.S. 1007, 108 S.Ct. 1472, 99 L.Ed.2d 701 (1988).
In Employers Insurance v. Suwannee River Spa Lines, Inc., 866
F.2d 752 (5th Cir.), cert. denied, 493 U.S. 820, 110 S.Ct. 77, 107
L.Ed.2d 43 (1989), we examined East River Steamship and concluded
that "East River's broad concern for preserving the integrity of
contract law in commercial settings applies equally to a case ...
where the professional services are an integral part of the
manufacture or construction of a product and where the only injury
alleged is to the product itself." Id. at 763. Accordingly, we
found that when injury to a product itself is allegedly caused by
negligent professional services rendered in connection with the
manufacture or the construction of that product, there is no
cognizable maritime tort cause of action. Id. at 766. BIL argues
14
that the rationale underlying the decisions of East River
Steamship, Shipco 2295, and Suwannee River applies to claims such
as that made by Associated Metals. We reject this contention.
The decisions discussed above applied to claims where the
damage was to a product whose manufacture or design was the basis
of a contractual relationship. Thus, in East River Steamship, the
claim centered around defective turbines, and the Court held that
a "manufacturer in a commercial relationship has no duty under
either a negligence or strict products-liability theory to prevent
a product from injuring itself " and emphasized that a "damage to
a product itself is most naturally understood as warranty claim."
East River Steamship, 476 U.S. at 871-72, 106 S.Ct. at 2302
(emphasis added). Similarly, in Shipco 2295, we applied the rule
of East River Steamship and concluded that "economic loss for
damage to the product bargained for, the vessels in this case,
cannot be recovered in tort." Shipco 2295, 825 F.2d at 929
(emphasis added). Suwannee River, also applying the rule of East
River Steamship, was limited to the situation in which a product
was damaged by deficient professional services "rendered in
connection with the manufacture or construction of a product."
Suwannee River, 866 F.2d at 761 (emphasis added). Consequently we
noted that, "East River's broad concern for preserving the
integrity of contract law in commercial settings applies equally to
a case ... where the professional services are an integral part of
the manufacture or construction of a product and where the only
injury alleged is to the product itself." Suwannee River, 866 F.2d
15
at 763 (emphasis added). The damage to Associated Metals' cargo
does not present such a case.
In deciding whether to apply the rule of East River Steamship,
the central question is "what is the product?" Shipco 2295, 825
F.2d at 928. In the instant case, unlike the situation in East
River Steamship, Shipco 2295, and Suwannee River, there is no
product; the contract plainly was unrelated to the design or
manufacture of a product. Instead, Associated Metals and
Alexander's Unity Shipping contracted for the carriage of goods.
Contrary to the situation of damage to a product itself, which is
"most naturally understood as a warranty claim," East River
Steamship, 476 U.S. at 871-72, 106 S.Ct. at 2302, "it is well
established that ordinarily the owner of goods damaged by the
dereliction of a common carrier has the option to bring in an
action either in contract or in tort." The Henry W. Breyer, 17
F.2d at 429; accord All Alaskan Seafoods, 882 F.2d at 425;
Oriente Commercial, 529 F.2d at 225.2 The rule of East River
Steamship and its progeny applies when the negligent design,
professional service, or other process integral to the manufacture
or construction of the product results in only injury to the
product itself. We will not extend this rule to eviscerate the
long standing tort cause of action for damage to cargo simply
2
We also reject BIL's invitation to reformulate the language
of East River Steamship and subsequent cases to apply generally,
not just to products, but to the object of any maritime contract.
We are aware of no cases (and BIL cites none) that make this leap
away from the traditional treatment of negligence in the carriage
of goods.
16
because a contract action may also exist.
3. COGSA
BIL also argues that COGSA governs the contract of shipping,
and that Congress preempted the possibility of tort actions for the
damages of cargo to which COGSA applies. We find this contention
without merit. It is true that COGSA is applicable to all
contracts of carriage of goods by sea, 46 U.S.C.App. § 1300,3 and
that claims surrounding the contract of carriage are governed by
the rights and immunities of the Act. 46 U.S.C.App. § 1302.4 It
does not follow from this, however, that in enacting COGSA Congress
meant to provide only contractual remedies for damage to cargo
carried by sea.
COGSA was enacted in 1936 as part of an international effort
to allocate the risks of loss or damage to cargo transported
internationally. Michael F. Sturley, The History of COGSA and the
Hague Rules, 22 J.Mar.L. & Com. 1, 5 (1991); Gilmore & Black,
supra, at 139-45. Prior to the enactment of COGSA and its
international analogue, the Hague Rules, a carrier was strictly
liable for damage to cargo unless it could show both that its
negligence had not contributed to the loss and that the loss was
3
COGSA provides that "[e]very bill of lading or similar
document of title which is evidence of a contract of goods by sea
to or from ports of the United States, in foreign trade, shall
have the effect subject to the provisions of this chapter." 46
U.S.C.App. § 1300.
4
COGSA mandates that, subject to certain provisions, "under
every contract of carriage of goods by sea, the carrier in
relation to the loading, handling, towage, carriage, custody,
care, and discharge of such goods, shall be subject to the rights
and immunities set forth [in the Act]." 46 U.S.C.App. § 1302.
17
caused by either an act of God, the fault of the shipper, the
inherent vice of the goods, or the acts of public enemies. Wirth
Ltd. v. S/S Acadia Forest, 537 F.2d 1272, 1276 (5th Cir.1976)
(citing Gilmore & Black, supra, at 140); see also Sturley, supra,
at 4 (citing The Propeller Niagara v. Cordes, 62 U.S. (21 How.) 7,
23, 16 L.Ed. 41 (1858)).
In response to this system, carriers began to contract around
the common law rules under which they had such broad liability.
These liability-limiting provisions, while generally accepted in
England and other European countries, were not readily embraced in
the United States. Thus, American courts permitted carriers to
limit their liability in some instances, but did not allow carriers
to contract around their own negligence or their failure to provide
a seaworthy ship. Wirth Ltd., 537 F.2d at 1276-77; Gilmore &
Black, supra, at 142; Sturley, supra, at 5-6.
The disparity between domestic and foreign law regarding the
permissible allocation of risks placed American ship owners at a
competitive disadvantage and left American shippers of goods to the
mercy of the foreign shippers and their contracts. To remedy this
situation, Congress passed the Harter Act, 46 U.S.C.App. §§ 190-96.
The Harter Act sought to balance the interests of ship owners, who
wished to contractually avoid liability for negligent damage to
cargo, and shippers, who wished to hold ship owners fully
responsible for negligent damage to cargo. Wirth Ltd., 537 F.2d at
1277; Gilmore & Black, supra, at 143; Sturley, supra, at 10-14.
Thus, under the Harter Act, a carrier still could not avoid
18
liability for his failure to "exercise due diligence" in furnishing
a seaworthy vessel5 or for his negligent care of cargo.6 Yet, on
the other hand, a carrier who exercised the required due diligence
would not be responsible for damage caused by negligence in the
navigation or management of the ship.7
5
Specifically, the Harter Act provides:
It shall not be lawful for any vessel transporting
merchandise or property from or between the ports of
the United States of America and foreign ports, her
owner, master, agent, or manager, to insert in any bill
of lading or shipping document any covenant or
agreement whereby the obligations of the owner or
owners of said vessel to exercise due diligence [to]
properly equip, man, provision, and outfit said vessel,
and to make said vessel seaworthy and capable of
performing her intended voyage, or whereby the
obligations of the master, officers, agents, or
servants to carefully handle and stow her cargo and to
care for and properly deliver same, shall in any wise
be lessened weakened, or avoided.
46 U.S.C.App. § 191.
6
The Harter Act provides:
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 or covenant, or agreement
whereby it, he, or they shall be relieved from
liability for loss or damage resulting from negligence,
fault, or failure in proper loading, stowage custody,
care, or proper delivery of any and all lawful
merchandise or property committed to its or their
charge.
46 U.S.C.App. § 190.
7
The Harter Act states:
If the owner of any vessel transporting merchandise or
property to or from any port in the United States of
America shall exercise due diligence to make the said
vessel in all respects seaworthy and properly manned,
19
Although the Harter Act protected the interest of domestic
shippers, in most of the rest of the world, shippers remained
subject to the stringent exculpatory clauses inserted into bills of
lading. Wirth Ltd., 537 F.2d at 1277; Gilmore & Black, supra, at
143-44; Sturley, supra, at 14. In response to commercial banking
and underwriting interests and after years of international
wrangling, the Harter Act's compromise was adapted for
international use in the Hague Rules, which were promulgated at the
Brussels Convention of August 25, 1924. Wirth Ltd., 537 F.2d at
1278; Sturley, supra, at 18-32. Twelve years later, COGSA was
adopted by the United States as the nation's statutory codification
of the Hague Rules.
COGSA vests shipowners with certain defenses in cargo cases.
For example, like the Harter Act, COGSA absolves carriers and
shipowners for liability for cargo damaged by an unseaworthy
vessel, if the owner or carrier exercised due diligence in making
the ship seaworthy, 46 U.S.C.App. § 1304(1),8 and for losses caused
equipped, and supplied, neither the vessel, her owner
or owners, agent, or charters, shall become or be held
responsible for damage or loss resulting from faults or
errors of navigation ... or be held liable for losses
arising from dangers of the sea or other navigable
waters, acts of God, or public enemies, or the inherent
defect, quality, or vice of the thing carried, or from
insufficiency of package, or seizure under legal
process, or for loss resulting from any act or omission
of the shipper or owner of the goods, his agent or
representative....
46 U.S.C.App. § 192.
8
Section 1304(1) of COGSA states:
Neither the carrier nor the ship shall be liable for
20
by an act of God, fire, act of a public enemy, or other specified
causes. 46 U.S.C.App. 1304(2).9 COGSA also grants shippers
freedom from cargo damage caused "without the act, fault, or
neglect of the shipper his agents, or his servants." 46 U.S.C.App.
§ 1304(3). Also, similar to the Harter Act, COGSA regulates
shippers' ability to further limit their liability by providing
that:
any clause, covenant, or agreement in a contract of carriage
relieving the carrier or the ship from liability for loss or
damage to or in connection with the goods, arising from
negligence, fault, or failure in the duties and obligations
provided in this section, or lessening such liability ...
shall be null and void and of no effect.
46 U.S.C.App. § 1303(8). This limiting clause is the codification
of the United States' common law rule preventing contractual
clauses absolving ship-owners for their negligence; it in no way
loss or damage arising or resulting from
unseaworthiness unless caused by want of due diligence
on the part of the carrier to make the ship seaworthy,
and [all] parts of the ship in which goods are carried
fit and safe for their reception, carriage, and
preservation....
46 U.S.C.App. § 1304(1).
9
COGSA catalogs several "[u]ncontrollable causes of loss"
for which "neither the carrier nor the ship shall be responsible"
if they cause damage to the cargo. These items include: neglect
in navigation or management of the ship; fire (unless caused by
the actual fault of the carrier); act of God; act of war; act
of public enemies; arrest or seizure under legal process;
quarantine restrictions; act or omission of the shipper of goods
or his agents; strikes or lockouts (not including the carriers
own actions); riots or civil commotions; acts saving or
attempting to save property or life at sea; the inherent vice of
the goods; insufficient packing; latent defects; and other
causes arising without the actual fault of the carrier (but in
these cases the burden of proof is on the carrier to show that it
did not contribute to the loss). 46 U.S.C.App. § 1304(2).
21
abrogates a negligence action for the damage to cargo.
As noted above, when COGSA was enacted, it was well
established that in certain situations a claim for cargo damage
could sound in tort as well as in contract, and "we assume that
Congress is aware of existing law when it passes legislation."
Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 325,
112 L.Ed.2d 275 (1990). Congress could have eliminated the
negligence cause of action for damage to cargo through COGSA, but
it did not. Cf. Miles 498 U.S. at 29-30, 111 S.Ct. at 323-25
(holding that the Jones Act did not eliminate the well-established
maritime cause of action for wrongful death). Thus, while COGSA
provides certain parameters under which any claim for cargo must
operate, the Act does not abrogate the long-standing rule of
admiralty allowing certain cargo claims to sound both in tort and
in contract.
In the more than half century that COGSA has existed, no
circuit has indicated that, through COGSA, Congress intended to
eliminate the tort cause of action for damage to cargo. Nor does
the legislative history of COGSA manifest such an intent. See
generally The Legislative History of the Carriage of Goods by Sea
Act and the Travaux PÁeparatoires of the Hague Rules (Michael
Sturley ed. & Caroline Boyle trans., 1990) (assembling United
States' and international legislative histories). Thus, it is not
surprising that BIL brings neither circuit court precedent nor
statutory history to the attention of the court. In Barretto Peat,
Inc. v. Luis Ayala Colon Sucrs., Inc., 896 F.2d 656 (1st Cir.1990)
22
and Reisman v. Medafrica Lines, U.S.A., 592 F.Supp. 50
(S.D.N.Y.1984), the courts, relying on Miller Export Corp. v.
Hellenic Lines, Ltd., 534 F.Supp. 707, 710-11 (S.D.N.Y.1982), held
that COGSA's one year statute of limitations barred claims of
negligence. These cases, however, did not hold that COGSA did not
allow negligence claims generally. This fact is underscored by the
Second Circuit's recent statements in the M/V Amolyntos, noting
that "an action under COGSA is a maritime action in the nature of
a mixed tort, contract and bailment cause of action." 11 F.3d at
367.
In St. Paul Fire & Marine Insurance Co. v. Marine
Transportation Services Sea-Barge Group, Inc., 727 F.Supp. 1438,
1439 (S.D.Fla.1989), the court did indicate that COGSA provided the
"exclusive remedy, barring all other theories of liability,
including theories of negligence." Nevertheless, this case merely
holds that COGSA's provisions cannot be circumvented by pleading a
claim in tort. Neither St. Paul Fire and Marine nor any of the
other cases cited by BIL stands for the proposition that in proper
circumstances a claim subject to COGSA cannot be a tort claim and
therefore should not be afforded preferred maritime lien status.
As one commentator noted:
since the law is clear that cargo claims can be pleaded so as
to sound in tort, it is difficult to see any logical reason
why such claims should be treated any differently from any
other tort claim. This is not to say that the Carriage of
Goods by Sea Act and the defenses it provides should be
ignored in lien cases. The carrier may, and in appropriate
cases undoubtedly will, plead defenses provided by COGSA and
its bill of lading. However, if cargo has pleaded and proved
a claim sounding in tort and the defenses do not prevail, the
claim should be given preferred maritime status.
23
Norman B. Richards, Maritime Liens in Tort, General Average, and
Salvage, 47 Tul.L.Rev. 569, 581-82 (1973) (footnotes omitted).
COGSA governs certain aspects of claims for damage to cargo and
provides carriers with certain defenses. It does not, however,
preclude claims in tort for negligent damage to cargo. In the
instant case, there is no dispute that Associated Metals' cargo was
damaged not only by the breach of contract of carriage by the
vessel but also by the physical and financial unseaworthiness of
the vessel and the negligence of her owners and/or operators.
COGSA does not convert this hybrid action into a mere contract
claim.
Simply, we do not denigrate the importance, application, or
defenses of COGSA's. We only hold that COGSA does not preclude
claims for cargo damages that sound in tort.
4. Ship Mortgage Act
BIL also contends that recognizing Associated Metals' claim as
a tort claim and thereby granting it preferred status would defeat
the purpose of the Ship Mortgage Act. We disagree. The Fourth
Circuit's treatment of this issue is insightful. In Oriente
Commercial, the district court acknowledged that because of the
broad duties of a vessel as common carrier, claims for damage to
cargo could almost always be brought in tort. Oriente Commercial,
529 F.2d at 222. Nevertheless, the district court reasoned that
allowing these hybrid tort and contract claims to sound in tort
would contravene the purposes of the Ship Mortgage Act by giving
cargo claims priority over preferred mortgage liens and would make
24
cargo claims superior to supply and repair liens "which are most in
need of priority." Id. The Fourth Circuit squarely rejected these
arguments, stating:
that the [Ship Mortgage Act] draws no distinction between
cargo claims that sound in tort, the so-called hybrid liens,
and any other type of claim of damages arising out of tort.
While Congress might have been well advised to subordinate
cargo claims, it flatly granted priority to all claims arising
out of tort.... Whatever Congress meant, it stated that all
tort liens are prior to preferred mortgage liens.
Id. at 223; accord All Alaskan Seafoods, 882 F.2d at 429.
We agree with the reasoning of the Fourth Circuit. As noted
above, it has long been established that certain claims for damage
to cargo may sound in either tort or contract. Further, had it
wished, Congress could have prioritized tort liens resulting from
damaged cargo differently than other tort liens; it did not. The
Ship Mortgage Act plainly states that all tort liens are preferred
maritime liens, and we will not depart from Congress's plain words
by granting tort liens for damaged cargo a different status than
other tort liens.
C. Custodia Legis
Finally, BIL argues that the district court erred in its
finding that the costs associated with unloading the steel
constituted custodia legis expenses. We disagree and find that the
district court did not abuse its discretion in recognizing
Associated Metals' costs as custodia legis.
Generally, "services or property advanced to preserve and
maintain the vessel under seizure, furnished upon authority of the
court or of an officer of the court ... should be allowed as
25
custodia legis expenses." General Elec. Credit & Leasing Corp. v.
Drill Ship Mission Exploration, 668 F.2d 811, 816 (5th Cir.1982)
(citing New York Dock Co. v. The Poznan, 274 U.S. 117, 121, 47
S.Ct. 482, 484, 71 L.Ed. 955 (1927)). Even if such expenditures
are made absent a court order, " "custodia legis ' expenses may be
ordered by the court ... if equity and good conscience so require."
Id. at 815; accord Morgan Guar. Trust v. Hellenic Lines Ltd., 593
F.Supp. 1004, 1010 (S.D.N.Y.1984).
In the instant case, the district court determined that
"Associated's discharge of its cargo was beneficial to all
creditors and it was directly related to the substantial sale price
of the vessel." The Alexander's Unity contained several thousand
pieces of steel, several hundreds of miles away from their
destination; it seems more than reasonable that the removal of the
steel was necessary to maintain the value of the vessel. See
Turner & Blanchard, Inc. v. The S.S. Emilia, 322 F.2d 249, 250 (2d
Cir.1963) (holding that " "service rendered to the ship, in the aid
of cargo, necessarily inured to their [lienors] benefit' " and were
properly considered custodia legis expenses (alteration in
original)); Morgan Guar. Trust, 593 F.Supp. 1004, 1010
(S.D.N.Y.1984) (finding that cargo discharge costs necessary to
minimize the possibility of additional claims against the vessel
and to maximize the sales price of the vessel were custodia legis
expenses).
BIL attempts to argue that the award of custodia legis
expenses was improper because part of the benefit of the discharge
26
inured to Associated Metals. We find this argument wanting.
Anything that maintained the value of the ship benefited all of the
lienholders of the ship, including Associated Metals. The fact
that Associated Metals made the expenditure and benefited from the
discharge does not prohibit the finding that the expense was
necessary to maintain the value of the ship. We are also
unpersuaded by BIL's contention that the discharge expenses were
not necessary to maintain the value of the ship because no attempt
was made to sell the ship with the cargo aboard it. The district
court is not required to attempt to sell the ship and fail or to
receive insufficient offers before concluding that an expenditure
will maintain the value of the vessel. Thus, we find no clear
error in the district court's determination that the expenses of
unloading the ship were necessary to maintain the Alexander's
Unity's value. Consequently, we conclude that the district court
did not abuse its discretion in finding that the discharge expenses
were custodia legis.
IV. CONCLUSION
For the foregoing reasons, the decision of the district court
is AFFIRMED.
27