concurring specially:
In Hiram Walker I, 877 F.2d 1508, 1516-17 (11th Cir.1989), we held that the stevedore Eller was entitled to the COGSA $500 limitation of liability up until the point at which it delivered the cargo. In Hiram Walker II, 963 F.2d 327, 331-32 (11th Cir.1992), we held that the district court erred in treating custody of the cargo as conclusive evidence of delivery and ignoring all other evidence of delivery, in particular the issuance of a delivery receipt. We remanded this case for the district court to make a factual determination of delivery based on all the evidence. On remand, the district court found that the delivery receipt had been issued erroneously and contrary to custom and thus provided no evidence of delivery. In sum, the district court found no evidence that delivery had taken place at the time of the accident.
The issues presented in this appeal are what constitutes delivery and whether deliv*1378ery is a purely factual question or a mixed question of law and fact. Although the panel in Hiram Walker II treated it as a purely factual question, in the present appeal Chief Judge Tjoflat’s dissent treats it as a mixed question.1 Neither COGSA nor the agreements between the parties define delivery. The closest thing to a definition is the provision in clause 18 of bill of lading number 9 which states that “removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage ... shall be prima facie evidence of the delivery ...” Regardless of whether delivery is a legal or factual question, the district court found no evidence of delivery: custody had not been transferred; the delivery receipt was issued erroneously; and in the case of gravity feeds, delivery receipts customarily were not issued until the completion of the transfer. These factual findings are not clearly erroneous.2 In the absence. of any factual evidence of delivery, I fail to see how there could have been any delivery, either factual or legal.
While Chief Judge Tjoflat has written a compelling dissent, under the circumstances of this case, I disagree with his treatment of delivery as a legal question for several reasons. First, Hiram Walker II essentially remanded for the district court to make a factual finding on delivery. If this court were going to propound a legal definition of delivery, we should have done so in Hiram II. Second, Chief Judge Tjoflat cites no authority for his definition of delivery, which he equates with control of the cargo. Third, I disagree with Chief Judge Tjoflat’s finding that Indian River controlled the cargo at the time of the accident. I agree that Indian River would have had control if it had proceeded to pump the Tia Maria into its own tank; however, since Indian River did not in fact pump the Tia Maria but rather chose to use a gravity feed transfer, it remained dependent on Eller to effectuate the transfer and thus Indian River did not have control of the cargo at the time of the accident.
For the foregoing reasons, I concur in Judge RONEY’S opinion.
. While I agree with the dissent that the question of delivery can be a mixed question — that is, depending on the circumstances of a given case, delivery can be purely factual or purely legal'— here, given the sparse factual evidence of delivery, I cannot see how legal delivery could have taken place under any common sense notion of delivery.
. The Seventh Circuit’s definition of clearly erroneous is the best I have seen: "To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of the court recently stated during oral argument, strike us as wrong with the force of a five-week old, unrefrigerated dead fish.” Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.1988).