# Petition for Writ of Certiorari — Hiram Walker & Sons, Inc. v. Eller & Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1204%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1018 ## Text eee Me No. yPIBEBD in Th 41 28 8 JAN 2 6 1999 Supreme Court of The Milfted “States October Term, 1994 HIRAM WALKER AND SONS, INC., Petitioner, vs. KIRK LINE, R.B. KIRKONNELL & BRO. LTD.; JAMAICA MERCHANT MARINE ATLANTIC LINE; ELLER & COMPANY INC., INDIAN RIVER TRANSPORT, INC.; AND S.S. MORANT BAY, its engines, boilers etc. Respondents. Petition for Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit PETITION FOR WRIT OF CERTIORARI JOHN P. D’AMBROSIO Counsel of Record D’AMBROSIO & D’AMBROSIO, P.C. Attorneys for Petitioner 42 Main Street Irvington, New York 10533 (914) 591-5400 Appeal Press at (914) 761-3600 (212) 267-6602 (516) 872-1110 (3339) l QUESTIONS PRESENTED FOR REVIEW 1. Is an independent terminal operator entitled to the benefit of a contractually extended Carriage of Goods by Sea Act (COGSA) (46 U.S.C. App. Section 1304 {5}) limit of liability when performing in a non-maritime situs? 2. Is a contractual limitation of liability rendered null and void by the Harter Act, 46 U.S.C. App. Sections 190, 191 where a terminal operator negligently damages goods after they have been successfully discharged from the ship but before they are properly delivered? 3. Where a terminal operator so unreasonably deviates from the contract in the manner of making delivery that the goods are exposed to greater risk than had been agreed upon is it deprived of the contractual limit of liability under St. John’s Corp. v. Companhia Geral., 263 U.S. 119 (1923)? 4. Where a common carrier makes a proper delivery, is an independent subcontractor terminal operator which thereafter damages cargo deprived of a contractually extended limit of liability? 2 LIST OF PARTIES The parties to the proceeding are: Petitioner: Hiram Walker & Sons, Inc. (Parent: Allied Domecq PLC; no nonwholly owned subsidiaries) Respondent: Eller & Company, Inc. SP en tte ae 4 nt a PERSE i. a TABLE OF CONTENTS Page Questions Presented for Review .............. l Rs 2 EE ee ee eee 3 ES 6 TE gece sect ee een tenses 8 ea ling bia gs ee eee wok 8 a ee ee ee ee eee eee 9 EE a ee em 9 ee 12 Reasons for Granting the Writ ............... 15 THE DECISION BELOW PRESENTS IMPORTANT UNANSWERED QUESTIONS AND CONFLICTS WITH SUPREME COURT, FEDERAL CIRCUIT COURT | 15 mE wg Ce ct cee ee eee ees 16 i ws5 bs wo 60'S 6 eb cw Oo 18 Sg, rr re ee ee 21 re ee ee ee er er . 24 IE | o's 00K 0 ee FOROS CASS OS SOR 25 APPENDIX Appendix A - The Decision of the Eleventh Circuit Court of Appeals, affirming, Hiram Walker & Sons, Inc. v. Kirk Line, 30 F.3d 1370 (11th Cir. 1994) ...... la Appendix B - The Order on remand from Court of Appeals of the United States District Court for the Southern District of Florida, entered March 10, 1993 2la Appendix C - The Decision of the Eleventh Circuit Court of Appeals, reversing and remanding, Hiram Walker & Sons, Inc. v. Kirk Line, 963 F.2d Be ee ee 6S bw ee wees 25a Appendix D - Judgment entered August 6, 1990 ............ 35a Appendix E - The Findings of Fact and Conclusions of Law of the United States District for the Southern District of Florida dated August 6, 1990 ........ 36a Appendix F - The Decision of the Eleventh Circuit Court of Appeals, reversing and remanding, Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d soa fe Sere ee. ee ee ee 53a Appendix G - Judgment entered February 10, 1988 .......... 72a Appendix H - The Findings of Fact and Conclusions of Law of the United States District Court for the Southern District of Florida dated Pobriaty 2, 1908 ccc ccc e scenes 73a Appendix I - The Order granting partial Summary Judgment of the United States District Court for the Southern District of Florida, entered Se Fee Ue na Ree kee Ke Vee 88a Appendix J - Denial of Rehearing and Rehearing en banc, pe eer 95a Appendix K - The judgment sought to be reviewed entered on September 1, 1994 .........20 eee eee 97a 6 TABLE OF AUTHORITIES Page CASES: American President Lines Inc. v. Federal Maritime Board, 317 F.2d 887 (D.C. Cir. 1962) . 20,21 Baker Oil Tools v. Delta, 562 F.2d 938 (Sth Cir. 1977) ...........0... 24 Brown & Root, Inc. v M/V Peisander, 684 F.2d 415 (Sth Cir. 1981) ........20..0... 18 F.J Walker Limited v Orleans International Inc.., 561 F.2d 1138 (Sth Cir. 1977) ............. 20,21 Hiram Walker & Sons, Inc. v. Kirk Line, 877 F. 2d 1508 (11th Cir. 1989) .......... 8,14,16 Hirarn Walker & Sons, Inc. v. Kirk Line, 963 F. 2d 327 (11th Cir. 1992)..........., 8,15,17 Hiram Walker & Sons, Inc. v. Kirk Line, 30 F. 3d 1370 (11th Cir. 1994)............. 8,15 Nemeth v General SS Corp. Lid., 694 F.2d 609 (9th Cir. 1982) ...........0... 24 Philip Morris v. American Shipping Co. Inc., 748 F.2d 563 (11th Cir. 1984) ............. 23,24 Robert C. Herd & Company, Inc. v. Krawill Machinery Corp., 359 U.S. 297 (1959) Veer hs 6-6 ae oe vee a alee awe 17,18,19,25 Schiess-Froriep Corp. v. S.S. Finnsailor, a pe le a 6 ee ee 19 St. John’s N.F. Shipping Corp. v. S.A. Companhia Geral Commercial Do Rio de Janeiro, yr ee ef Pee TTT Lee 1,24,25 STATUTES ae OR an BID gh 6 oi 0 eo VG 9 yp BR ER | | re eer 12 po errr ee ee ee 12 46 U.S.C. App. Section 190 ......... 1,9,16,21,22 44 U3. Aap. Geen Bs ee es 1,10,21,22 46 U.S.C. App. Section 1301(e) .......... 10,12,16 46 U.S.C. App. Section 1304(5) ............ 1,10 El ere ee 11,17 Se Be SII hoe ee ew 12,16 RULE: Federal Rules of Civil Procedure Rule 9(h) ....... 12 8 PETITION FOR A WRIT OF CERTIORARI PRELIMINARY STATEMENT Petitioner, Hiram Walker & Sons, Inc. (Hiram Walker) petitions for a writ of certiorari to review the Judgment of the United States Court of Appeals for the Eleventh Circuit which affirmed the Judgment of the United States District Court for the Southern District of Florida limiting liability of Eller & Company, a terminal operator, for negligently damaging cargo as a matter of law to $500.00. OPINIONS BELOW The Order granting partial Summary Judgment of the United States District Court for the Southern District of Florida, entered December 17, 1986 is unreported (88a). The Findings of Fact and Conclusions of Law of the United States District Court for the Southern District of Florida dated February 2, 1988 is unreported (73a). The Findings of Fact and Conclusions of Law of the United States District Court for the Southern District of Florida dated August 6, 1990 is unreported (36a). The Order on remand from Court of Appeals of the United States District Court for the Southern District of Florida, entered March 10, 1993 is unreported (21a). The Decision of the Eleventh Circuit Court of Appeals, reversing and remanding is reported. Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d 1508 (11th Cir. 1989) (53a). The Decision of the Eleventh Circuit Court of Appeals, reversing and remanding is reported. Hiram Walker & Sons, Inc. v. Kirk Line, 963 F.2d 327 (11th Cir. 1992) (25a). The Decision of the Eleventh Circuit Court of Appeals, affirming is reported. Hiram Walker & Sons, Inc. v. Kirk Line, 30 F.3d 1370 (11th Cir. 1994) (1a). 9 JURISDICTION The judgment sought to be reviewed was entered on September 1, 1994 (97a). This Court’s jurisdiction to review a Judgment of the United States Court of Appeals for the Eleventh Circuit, affirming the Judgment of the United States District Court for the Southern District of Florida in favor of Petitioner and against Eller & Company in the amount of $500.00 pius interest and costs is invoked pursuant to 28 U.S.C. Section 1254 (1). This Petition is timely filed within 90 days of the denial by the Eleventh Circuit on November 1, 1994 of Petitioner’s Petition for a re-hearing (95a). STATUTES INVOLVED Section 190 of the Harter Act, 46 U.S.C. App. Section 190, provides: Stipulations relieving from liability for negligence 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 agreement 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 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. Feb. 13, 1893, c. 105, Section 1, 27 Stat. 445. 10 Section 191 of the Harter Act provides: Stipulations relieving from exercise of due diligence in equipping vessels It shall not be lawful for any vessel transporting merchandise Or property from or between 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. Feb. 13, 1893, c. 105, Sections 2, 27 Stat. 445. Section 1301 (e) of the Carriage of Goods by Sea Act (COGSA) 46 U.S.C. App. 1301(e) provides: Definitions (e) The term "carriage of goods” covers the period from the time when the goods are loaded on to the time when they are discharged from the ship. Section 1304 (5) of the Carriage of Goods by Sea Act, 46 U.S.C. App. Section 1304 (5S) provides: Amount of liability; valuation of cargo (5) Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount 11 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 equivalent 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 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. Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently misstated by the shipper in the bill of lading. Section 1311 of the Carriage of Goods by Sea Act, 46 U.S.C. App. Section 1311 provides: Liabilities before loading and after discharge; effect on other laws Nothing in this chapter shall be construed as Superseding any part of sections 190 to 196 of this title, or of any other law which would be applicable in the absence of this chapter, insofar as they relate to the duties, responsibilities, and liabilities of the ship or carrier prior to the time when the goods are loaded on or after the time they are discharged from the ship. 12 STATEMENT OF THE CASE On March 15, 1985 Hiram Walker purchased 5,000 gallons of Tia Maria from Estate Industries in Jamaica. On March 26, 1985 a 23 ton tank on wheels, similar to a milk or gasoline tank truck, containing the liqueur was rolled aboard the M/V Morant Bay in Kingston in apparent good order and condition. The Morant Bay was operated by Kirk Line under charter. Kirk Line issued a bill of lading to Hiram Walker. The vessel arrived in Miami on March 29, 1985. On that day, Eller & Company (Eller), a stevedore and terminal operator hired by Kirk Line rolled the tank from the Morant Bay to a place of rest on its terminal. It was, at that time, in good order and condition. Hiram Walker contracted with Indian River Transport, Inc. (Indian River) to transfer the liqueur from the Kirk Line tank into its own Over-the-road tanker trailer for delivery to New Jersey. Hiram Walker and Indian River agreed that Indian River was to pump the liqueur from the tank into its trailer. On April 1, 1985 the Indian River driver arrived at the pier, was issued several documents including a delivery receipt signed by Eller & Company and countersigned by the driver, David Jones. Jones found that he was missing a fitting in order to connect hoses from the Kirk tank to his own to effect a pump transfer. Unable to do so, he asked an Eller longshoreman employee to help him accomplish a gravity feed. Eller raised the tank on a large fork lift. It fell off the fork lift spilling almost all of its contents. Petitioner, Hiram Walker, brought this case in the United States District Court for the Southern District of New York pursuant to the admiralty and maritime jurisdiction of the Federal Courts as a maritime or admiralty claim within the meaning of Rule 9 (h) of the Federal Rules of Civil Procedure and pursuant to 28 U.S.C. Sections 1333 (1), 1332, 46 U.S.C. 1301 et. seq. and 49 U.S.C. 11707. It was later removed to the U.S. District Court for the Southern 13 District of Florida. Hiram Walker, Kirk Line and Eller agreed that Hiram Walker alone was responsible for arranging a transfer of the Tia Maria from the Kirk Line tank to the Indian River tank. Hiram Walker and Kirk Line had no agreement regarding delivery of the Tia Maria. The bill of lading made no provision regarding delivery. Kirk Line and Eller & Company testified that neither had any obligation to transfer the Tia Maria either by pump or gravity feed. However, Kirk Line testified that it expected Eller to provide whatever services were needed by Hiram to effect a transfer, and Eller’s longshoreman testified that in lifting the truck he was under no obligation to do so but just did Indian River a favor. Officers of Hiram Walker, Kirk Line and Eller testified that they had no prior knowledge that Eller was going to raise the tank by fork lift. They would not have approved it if they had known. Eller would not have approved it because it felt it was a dangerous operation. Unbeknownst to Eller or Hiram, Eller’s employees had performed gravity feeds before the April 1, 1985 incident in about 1/3 of the cases and used a fork lift in about 15 prior cases. In 1986 all of the Defendants moved for partial Summary Judgment to limit their liability if any to $500.00 pursuant to the per package limitation contained in the bill of lading. Hiram Walker moved for Summary Judgment against all of the Defendants both on the question of their liability and in opposition to their Motions to limit that liability to $500.00. By Order of December 16, 1986, (88a) the District Court denied the Motions of Eller and Indian River, granted Hiram’s Motion for liability against them holding that they were not entitled to limit their liability and granted Kirk Line’s Motion to be dismissed from the action holding that there were no grounds upon which it might be held liable since Kirk Line fulfilled its obligations to Hiram at the point where Hiram’s liqueur had been safely delivered to Miami, 14 unloaded from the Morant, and placed in storage. Indian River was held not to be entitled to limit its liability because it was not a carrier within the contemplation of maritime law. Eller was held not to be entitled to a limitation of liability because, in performing the gravity feed, it had acted as a volunteer and not on behalf of Kirk Line. The Court held that transfer of the liqueur from the Kirk tank to the Indian tank was not a function or duty for which Kirk was responsible. Hiram, Eller and Indian River appealed. While the appeals were pending, the District Court held hearings wherein Hiram quantified its damages and on February 10, 1988 the District Court entered Judgment for Hiram Walker against Indian River and Eller in the amount of $147,111.43 Plus costs (72a). Indian River thereafter settled with Hiram Walker and the appeals proceeded between Hiram Walker and Eller. In Hiram Walker y. Kirk Line et al (Hiram Walker 1), 877 F.2d at 1515-1517 (1989) (64a) the Eleventh Circuit agreed with the District Court that Eller’s negligence had been established as a matter of law, but reversed the Judgment because it perceived unresolved questions of fact regarding Eller’s eligibility for the $500.00 liability cap. Expressly ignoring the District Court’s Order wherein Kirk Line was dismissed because it had fulfilled its responsibility, and despite the fact that Kirk Line did not appeal, the Circuit Court focused on Kirk Line’s responsibility for the cargo and whether that responsibility had been completely discharged when the spill occurred. It remanded, directing the District Court to determine whether, at the time of the accident, delivery had occurred. The District Court, after a bench trial, entered Judgment in favor of Hiram Walker but this time limited Eller’s liability to $500.00, basically because Eller still had custody of the Cargo at the time of the loss (35a, 36a). In so holding the Court explicitly disregarded the delivery receipt issued by Eller to Indian River before the accident. 15 Hiram Walker appealed that decision and again the Eleventh Circuit reversed, Hiram Walker & Sons v. Kirk Line et al, 963 F.2d 327 (1992) (Hiram Walker IT) (25a), holding that the District Court had misinterpreted the bill of lading as identifying change of Custody as the only possible evidence of delivery. It remanded with a direction that the District Court develop any facts that would aid it in determining the point of delivery. On remand, the District Court amended its findings of fact and conclusions of law, found that the delivery receipt was issued either inadvertently or in error, concluded that Eller was trying to effect delivery when the accident occurred and was, therefore, entitled to the $500.00 limitation of liability (21a). Hiram Walker appealed again. In Hiram Walker & Sons v. Kirk Line et al, 30 F.3d 1370 (1994) (Hiram Walker IIT) (1a), the Circuit Court affirmed the District Court, opining that although delivery receipts are generally highly probative evidence of delivery, the receipt in this case was issued prematurely and mistakenly before completion of delivery. Chief Judge Tjoflat dissented, finding that legal delivery had taken place before the spill since Indian River controlled the process by which the Tia Maria would be transferred and that accordingly Eller was not working on behalf of Kirk at the time of the loss and was not entitled to the $500.00 per package limitation. REASONS FOR GRANTING THE WRIT THE DECISION BELOW PRESENTS IMPORTANT, UNANSWERED QUESTIONS AND CONFLICTS WITH SUPREME COURT, FEDERAL CIRCUIT COURT AND STATUTORY LAW 16 a) Non Maritime Claim In Hiram Walker & Sons, Inc. v. Kirk Line (Hiram Walker I), 877 F.2d at 1511 (57a), the Eleventh Circuit observed that since the accident in question did not occur at a maritime situs, admiralty jurisdiction would not support the claims against Indian River and Eller. As to Eller, jurisdiction was upheld as properly within the pendent-party jurisdiction of the District Court. Specifically, the claim against Eller was sustained because it was sued as a joint tort-feasor with Indian River and the claim against Indian River was properly a federal claim arising under the Carmack Amendment, 49 U.S.C. Section 11707. After the ocean carrier, Kirk Line, had been dismissed from the case because it was held to have fulfilled its obligations to Hiram by safely delivering the liqueur to Miami and placing it in storage, Eller, as a terminal operator, was allowed to limit its liability to $500.00 under COGSA and the parallel provisions of the bill of lading when it almost totally destroyed the cargo by subjecting it to a risk unauthorized by the parties. The District Court, and the Circuit Court below, in sanctioning that result, gave Eller an independent right under COGSA and Harter which Congress never intended. A carriage of goods by sea involves three Stages. The goods are: 1. delivered to a carrier or its agent, 2. loaded to, carried by, and discharged from the vessel, and 3. delivered to a consignee. All stages are governed by the Harter Act, 46 U.S.C. App. Section 190 et seq. The Harter Act took effect in 1893. In 1936 the Congress adopted the Carriage of Goods by Sea Act, 46 U.S.C.-App. Section 1301 et seq. (COGSA). By its terms COGSA applies only to that stage of the carriage when the goods are actually on the vessel. COGSA Section 1301 (e). The carrier’s custody and care for the goods pre-loading and after discharge but before delivery are governed exclusively by the Harter Act. By virtue of the bill of lading’s “clause paramount" 17 Kirk Line applied COGSA to all Stages of the shipment and at all times that the goods were in the Custody of the carrier. However, it could only do so effectively insofar as COGSA did not contradict the Harter Act during those periods of time prior to loading and after discharge, 46 U.S.C. App. Section 1311. The $500.00 per package limit at issue in this case was either the COGSA limit or a parallel independent provision of the bill of lading found in clause 17 thereof set forth verbatim in Hiram Walker II at 963 F.2d 329, note 1 (31a, 32a). It essentially tracks COGSA. It’s application to Eller was found by the Courts below to likewise exist in clause 17. There, the bill of lading’s Himalaya clause provided as follows: “The limitation of liability and other provisions contained in the article shall inure not only to the agents, servants and employees, but also to the benefit of any independent contractors performing services including stevedoring in connection with the goods covered hereunder." In Robert C. Herd & Company, Inc. v. Krawill Machinery Corp., 359 U.S. 297 (1959) this Court held that neither the limitation of liability provisions of COGSA nor the parallel provisions of an ocean bill of lading, limiting the liability of the steamship carrier to a shipper to $500.00 per package, protected a stevedore who negligently damaged cargo while attempting to load it aboard the vessel. There, the stevedore dropped a press weighing 19 tons into the harbor while in the process of loading it to the ship. While concluding that there was nothing in the provisions, legislative history and environment of the Carriage of Goods by Sea Act, or in the limitation of liability provisions of the bill of lading to directly extend the benefits of the limitations of liability to the stevedore, the court invited carriers to 18 extend those provisions by contract to their negligent agents. In the intervening 35 years that invitation has been accepted by carriers in a variety of wordings. The extension has been upheld or rejected in an equally varied set of factual contexts, mainly involving stevedores operating in a Clearly maritime situs. Brown & Root, Inc. v. M/V Peisander, 684 F.2d 415 (Sth Cir. 1981) esp. ns. 17 & 18. This case presents the important unanswered question of whether a terminal operator which is under no obligation to the carrier to undertake the act which results in damage in a non-maritime situs, although originally engaged by the carrier, nevertheless, enjoys the limitation of liability provisions of an ocean bill of lading and the Carriage of Goods by Sea Act, both clearly maritime in nature and application. The question is important because those engaged in international trade, whether in the insurance, freight forwarding, merchant or shipping industries, need to have a Clear understanding of the risks which flow from their reliance on the maritime laws of the United States. b. Lack of Clarity This Court has not directly re-visited this area since Herd & Co., supra. Petitioner respectfully submits that it should do so now. The facts in this case have expanded the envelope concerning the extension of ocean carriers’ limitations of liability to their agents to the breaking point. Eller & Company was not operating as a stevedore when it raised the truck off its wheels on a hi-lo and dropped it. The accident happened in what .was essentially a parking lot where the Kirk Line truck awaited removal of its cargo by an ICC regulated carrier which alone was responsible to make the transfer. Without authorization by even Eller itself, one of its employees, at the request of Indian River, and simply to accommodate and help Indian River, performed an act 19 which Eller characterized as dangerous. The questions are presented: Is the Himalaya provision in the Kirk Line bill of lading what this Court intended in Herd as a sufficiently clear contracting provision making Eller a beneficiary of COGSA? Is it effective to extend that limitation of liability to “any independent contractors performing services...in connection with the goods covered...(by the bill of lading)", without ever mentioning the carrier’s obligation to the shipper as the defining criterion? Is the clause a nullity for lack of clarity in failing to identify whose independent contractors are meant? See, Schiess-Froriep Corp. v. S.S. Finnsailor, 574 F.2d 123 (2d Cir. 1978). A literal reading of that phrase could be said to limit the liability of Indian River itself which was clearly not fulfilling Kirk’s obligation, but, equally clearly, was performing services in connection with the goods. The Petitioner respectfully submits that such cannot have been the intention of Congress or this Court and that the decisions of the Eleventh Circuit and the District Court distort the maritime law as formulated by this Court, the various circuits, COGSA and the Harter Act itself. Accordingly, this case conflicts with the purpose of COGSA and Harter and the precedents of this Court and the various circuits, and requires guidance on important but unanswered questions of Federal Maritime Law. c) Delivery The Hiram Walker trilogy, culminating with the Eleventh Circuit opinion under review including the District Court’s Findings of Fact and Conclusions of Law and Final Judgment all dated August 6, 1990 (35a, 36a) and, the District Court’s Order on remand from Court of Appeals entered March 10, 1993 (21a) are all fatally flawed. They all pursued the elusive question of whether and when delivery had been accomplished in order to properly position Eller’s actions as having taken place either before delivery or after 20 delivery. That question was further refined into an inquiry as whether Kirk Line’s responsibility for the cargo had ended before the spill. But that question had been answered in 1986 when the District Court granted Kirk Line’s Motion to Dismiss holding that it “fulfilled its obligations to Hiram at the point where Hiram’s liqueur had been safely delivered to Miami, unloaded from the Morant, and placed in storage.” (93a). In reality, that was, then, the beginning and the end of the matter. Kirk Line had been dismissed, having been held to have completed its obligations to Hiram Walker and with it, the vicarious entitlement, if any, of Eller to the $500.00 per package cap of the bill of lading. Hiram Walker rested comfortably on that determination which became the law of the case. That determination conformed with long standing maritime law. F.J. Walker Limited v. Orleans International Inc., 561 F.2d 1138, 1142 (Sth Cir. 1977); American President Lines Inc. v. Federal Maritime Board, 317 F.2d 887, 888 (D.C. Cir. 1962). Ignoring that conclusion and the dismissal of Kirk Line, the District Court and the Eleventh Circuit in its trilogy continued to treat Eller’s obligation as if it were not vicarious and as if Eller were a carrier entitled directly to the benefits of the Harter Act and COGSA. It is not and it was not. That inherent conflict in the cases led to a tremendous amount of mischief, and the trilogy, resulting in the Judgment sought to be reviewed. In essence the dismissal of Kirk Line from this action, which the Petitioner consciously declined to appeal, severed the underpinnings of Eller’s further arguments of entitlement to a vicarious $500.00 per package limit. Nevertheless, the Eleventh Circuit and the District Court at its prompting, continued pursuit of that question which had already been answered. Quite apart from that state of the law of the case after the dismissal of Kirk Line, the continued pursuit of the issue of when delivery occurred by the Eleventh Circuit and the District court should have resulted in the same conclusion: 21 That delivery had occurred before the spill. All of the proven facts lead to that conclusion. The parties did not define between themselves anywhere what constituted delivery. COGSA has no requirement whatsoever concerning delivery. It is undisputed that all parties including Kirk agreed that neither Kirk nor Eller had any obligation to transfer the liqueur. Kirk and Eller admitted in answers to interrogatories unequivocally that delivery had been effected on April 1, 1985 before the accident and that the cargo had been delivered in good order and condition to Indian River, Hiram Walker’s agent. Despite all of those facts and despite the actual issuance of a delivery receipt signed by both Eller and Indian River, the District Court and the Eleventh Circuit continued to explore the meaning behind all of those facts and dwelt on the absence of a gate pass to conclude that delivery had not taken place and was actually in the process of occurring when the accident happened. As a consequence, Eller was given the benefit of the limitation. Petitioner submits that the conclusion was in error and conflicts with F.J. Walker, and American President Lines. d) Proper Delivery Assuming that the Courts below were justified in ignoring the dismissal of Kirk Line from the case because it had completed its obligations, and thereafter were correct in pursuing that very question in the absence of Kirk Line, and if they were thereafter correct in concluding that delivery did not take place prior to the spill, there is no question but that the delivery was not proper. Dropping the tank could not be a proper delivery. Neither the parties nor the bill of lading nor COGSA nor the Harter Act define "delivery". “Delivery” only appears in the statutes as a term modified by the adjective “proper”. And it appears in the Harter Act, Sections 190 and 191. Petitioner respectfully submits that if delivery is not proper it does not comply with the Harter Act 22 and it results in a deprivation to the Carrier and its subcontractors of the benefits of any limitations of liability. Eller was held liable as a matter of law on account of its negligence. That was, in itself, a highly unusual holding by both the District Court and the Eleventh Circuit since negligence is almost always a question of fact for the trier. However, despite that holding Eller was deemed entitled to limit its liability to $500.00. That conclusion by the Court below directly conflicts with the Harter Act which proscribes any lessening, weakening, or avoiding of a carrier’s obligation to carefully handle, care for, and properly deliver Cargo. Section 191 of the Act renders unlawful any agreement whereby the obligations of the master, officers, agenis, or servants of the vessel “to carefully handle and Stow her cargo and to care for and Properly deliver same, Shall in any wise be lessened, weakened or avoided." (Emphasis added). Petitioner submits that when Eller, through Kirk Line, was entitled to limit its liability for destroying $146,000.00 worth of cargo to $500.00 its obligations to care for and properly deliver the cargo were substantially lessened and weakened and, essentially, avoided. Petitioner respectfully submits that the most compelling evidence that Congress intended to void any limitation on a carrier’s liability under circumstances like those at bar is from the very language of the Harter Act itself. In Section 190 it speaks in terms of relief from liability. Section 191, on the other hand, speaks in terms of obligations which it mandates cannot be lessened, weakened, or avoided. While relief from liability does not preclude limiting that liability when it comes to quantifying damages, lessening, weakening or avoiding obligations does. An obligation of a carrier extends not only to its legal liability for damaging goods of others, but also to paying for that damage. In short, the Court below rewarded the Carrier in a way that Congress forbade. Oe ee ee Ey ee ee ee ee ee 23 Petitioner submits that the holding of the Court below also conflicts with the various Circuits that have addressed the question. In Philip Morris v. American Shipping Co. Inc., 748 F.2d 563 (11th Cir. 1984), in a case involving damage sustained by a cargo of tobacco owned by Philip Morris, the tobacco moved to Miami where Maritime Terminal Inc. unloaded the Cargo and stored it in its unprotected yard during which time it sustained damage. This was post discharge and, therefore, COGSA did not apply to the case ex proprio vigore. While American’s bill of lading extended the COGSA provisions including the $500.00 per package limitation to the entire period of time in which the Cargo was in the custody of the carrier, the District Court refused to grant the carrier a limitation of liability because it violated the provisions of the Harter Act concerning proper delivery. The Circuit held: "The district court properly found that delivery by American to Philip Morris was not effected until the cargo was picked up by Central Truck Lines on January 21, 1980. Limitations on the carrier’s liability are inapplicable if damage occurs due to negligence in the proper delivery of the cargo." (emphasis added) (citing cases). Philip Morris at 566, 567. The court went on to hold that because the Cargo was not properly delivered, the Harter Act, not the limitation provisions contained in the bills of lading, controls the question of liability. The court continued at 567: “To permit American the benefit of the $500 limitation, despite the finding of the district court that American did not exercise due diligence in preventing damage to the cargo, both before it was loaded onto the CRUZ DEL 24 SUR and after it arrived in Miami, would immunize the carrier from the adverse consequences of the negligent handling of the cargo." The holding of the Eleventh Circuit below in the case at bar conflicts with Philip Morris, Supra and also with the Fifth Circuit Decision in Baker Oil Tools v, Delta, 562 F.2d 938 (Sth Cir. 1977); rehearing denied 571 F.2d 978, rehearing denied 577 F.2d 1134. There, when goods were lost on a pier before loading onboard the vessel, again at the time when Harter applied of its own force and COGSA did not, the Court held that the carrier did not have a limitation on its liability precisely because the Harter Act forbade it. e) Deviation The holding of the Eleventh Circuit below in the case at bar also conflicts with this Court’s holding in St. John’s N.F. Shipping Corp. v. S.A. Companhia Geral Commercial Do Rio de Janeiro, 263 U.S. 119, 124, 44 S.Ct. 30, 31, 65 L.Ed. 201 (1923) and Nemeth v. General SS Corp. Lid. , 694 F.2d 609 (9th Cir. 1982). Eller clearly unreasonably deviated from the agreement Hiram had with Kirk that the liqueur would be pumped. Hiram did not bargain for, expect, or sanction the risks to which Eller subjected its goods. Neither Kirk, nor Hiram, nor Eller itself knew that the Eller employees would lift the tank. None of them would have approved of the exercise. Eller considered it dangerous. It was, in short, fraught with danger and unorthodox. The consequence of that deviation is loss of any limit of liability. For the Courts below to observe that Eller’s employees did the dangerous act carefully on prior occasions does not make it any less a deviation. Nor did it thereby become a custom of the port. Eller claims its limit through Kirk’s bill of lading. By ii 25 lifting the tank, Eller broke Kirk’s contract with Hiram, exposed the goods to greater risk than had been agreed and thereby caused the loss which would never had happened if a pump had been used. As in St. John’s N.F., Kirk, and Eller through Kirk, “became liable as for a deviation, cannot escape by reason of the relieving clauses inserted in the bill of lading...and must account for the value at destination." Id. at 263 U.S. 124, 125. CONCLUSION The Decision below conflicts with the purpose of COGSA and the Harter Act and is an unwarranted extension of the principle enunciated in Herd & Co. It presents an important unanswered question about what limits, if any, should be imposed on an ocean carrier when it extends the benefits of COGSA and the maritime law of the United States to a non-maritime entity operating in a non-maritime situs, under an ambiguous provision of a bill of lading, where the actions at issue are a breach of the parties’ contract. For the foregoing reasons, certiorari should be granted. Respectfully Submitted John P. D’Ambrosio Counsel of record D’Ambrosio & D’Ambrosio, P.C. Attorneys for Petitioner 42 Main Street Irvington, New York 10533 (914) 591-5400 la Appendix A HIRAM WALKER & SONS, INC., Plaintiff-Appellant, Ve KIRK LINE, R.B. Kirkconnell & Bro. Ltd.; Jamaica Merchant Marine, Adantic Line Ltd.; Eller & Company, Inc.; Indian River Transport, Inc.; and SS Morant Bay, _its engines, boilers, etc., Defendants-Appellees. No. 93-4346. United States Court of Appeals, Eleventh Circuit. Sept. 1, 1994, Shipper brought action against common Carrier and stevedore to recover damages arising from cargo spill. The United States District Court for the Southern District of Florida entered summary judgment for shipper and carrier and stevedore appealed. The Court of Appeals, 877 F.2d 1508, reversed and remanded. The District Court, No. 86- 762-CIV-KLR, Kenneth L. Ryskamp, J., entered judgment for stevedore and the Court of Appeals, 963 F.2d 327, reversed and remanded. On remand, the District Court en- tered judgment for stevedore and shipper appealed. The Court of Appeals, Roney, Senior Circuit Judge, held that finding that delivery receipt was issued inadvertently before stevedore completed delivery of cargo on behalf of ocean carrier and was therefore not probative of delivery, as bearing on stevedore’s entitlement to $500 limitation of liability under Carriage of Goods by Sea Act (COGSA) for 2a destruction of cargo when it fell from forklift, was not Clearly erroneous. Affirmed. Dubina, Circuit Judge, concurred specially with opinion. Tjoflat, Chief Judge, filed dissenting opinion. (Keynotes not reproduced) Appeal from the United States District Court for the Southern District of Florida. Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and RONEY, Senior Circuit Judge. RONEY, Senior Circuit Judge: At issue in this case is whether Eller & Co., Inc., a stevedore and terminal operator, was in the process of delivering cargo on behalf of an ocean carrier, R.B. Kirkconnell & Bro. Ltd. (Kirk Line) when it negligently destroyed the cargo in a forklift accident. The district court, following remand, made certain factual findings and reinstated its earlier judgment, holding that delivery was ongoing at the time of the accident, and that, as a result, Eller’s liability was limited to $500 under the Carriage of Goods by Sea Act, 46 U.S.C.App. Section 1304(5), as incorporated into the bill of lading between Kirk Line and the cargo’s owner, Hiram Walker & Sons, Inc. (Hiram Walker). Hiram Walker appeals the limitation of Eller’s liability, contending that the underlying factual findings are clearly erroneous. We affirm. I. This case is before us for the third time. To understand its current posture, it is necessary to review the factual and procedural background in some detail. We begin by reciting the facts as set forth in our prior opinions: 3a Hiram Walker purchased five thousand gallons of Tia Maria from Estate Industries in Jamaica on March 15, 1985. On March 26, a twenty-three ton tank containing the liqueur was loaded aboard the M/V Morant Bay in Kingston, apparently in good order. Kirk Line had chartered the Morant Bay ... for a shipment of cargo including Hiram Walker’s liqueur, which was shipped under the Kirk Line-Hiram Walker bill of lading. The tank arrived in Miami three days later. Kirk Line hired Eller, a stevedore, to unload the tank from the Morant Bay and store it at the dock. Hiram Walker contracted with [Indian River Transport, Inc. (Indian River)] to transport the liqueur overland to New Jersey; Hiram Walker and Indian River agreed that Indian River was to pump the liqueur from the tank into its freight trailer. On April 1, Jones, an employee of Indian River, arrived at the port to effect the pumping transfer. An Eller employee removed the tank from storage and aligned it with the trailer. Jones attempted to connect the tank and the trailer, but realized that a fitting needed to connect the hoses was missing. Even though another fitting on the back of the tank might have been used to pump the liqueur into the trailer, Jones decided that pumping the liqueur would be impossible; therefore, he asked Marshall, an Eller employee, to help him accomplish a "gravity feed” - essentially, Jones wanted to pour the liqueur from the tank to the trailer. To effect a gravity feed, the tank had to be elevated higher than the trailer. Marshall directed another Eller employee, Wright, to assist Jones. Wright lifted the tank on a large forklift; Wright, however, was not licensed to operate forklifts of this capacity. Wright and Marshal neglected to put straw mats or other dunnage between the metal forks and the metal container. Fifteen minutes into the operation, the tank apparently began to slide off the forks because of the lack of dunnage. Deciding that the tank was not properly balanced, Marshall instructed Wright to find another forklift. Wright 4a did not lower the tank, but left the forklift holding the tank suspended eight feet off the ground for ten minutes; leaving a load suspended was a violation of Standard company procedure. As Wright returned, the tank fell off the forklift. The tank ruptured, and eighty-five percent of the Tia Maria in the tank spilled out. The liqueur remaining in the tank was contaminated during the cleanup, in which several fire engine companies covered the area with anti-explosive foam. Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d 1510-11 (11th Cir.1989) (Hiram Walker )). Hiram Walker sued Eller, among others, for the loss of the cargo. In December 1986, the district court granted summary judgment in favor of Hiram Walker on the issue of liability, finding that Eller had been negligent as a matter of Florida law. The court also considered whether Eller was entitled to COGSA’s $500 per container limitation on liability, which was incorporated into the bill of lading between Kirk Line and Hiram Walker, and which, pursuant to a “Himalaya” clause, "inure{d] to the benefit of any inde- pendent contractors performing services including stevedoring" for Kirk Line. (Footnote 1) The court concluded that the $500 limitation did not apply because Eller, in performing the gravity feed, had acted as a volunteer, not as Kirk Line’s independent contractor. Eller appealed, and in Hiram Walker I, 877 F.2d at 1515-1517, we agreed with the district court that Eller’s negligence had been established as a matter of law, but reversed the judgment because there remained unresolved factual issues regarding its eligibility for the $500 liability cap. Noting that the bill of lading required Kirk Line to deliver the cargo to Indian River, we held that Eller would be a beneficiary of the Himalaya clause as long as Kirk Line had not completely discharged that responsibility when the spill occurred. We remanded for trial, directing the district court to determine whether, at the time of the spill, delivery had already occurred. If not, then Eller had performed the Sa gravity feed on Kirk Line’s behalf and was entitled to the $500 limitation on liability. If delivery was complete, howev- er, Eller would be deemed a volunteer and there would be no such limitation. After the resulting bench trial, the district court again entered judgment in favor of Hiram Walker. This time, however, it limited Eller’s liability to $500, finding that Kirk Line’s responsibility for delivery under the bill of lading had not ended before the spill, and that Eller was therefore performing services on its behalf. Noting that the parties had not defined "delivery", the court made extensive findings of fact regarding the parties’ agreements and practices. It found, for example, that although Hiram Walker and Indian River orally agreed that Indian River was responsible for pumping the cargo into its trailer, they had no agreement about how the cargo should be transferred if not pumped. The court found, moreover, that neither the bill of lading, which contained the carriage agreement between Hiram Walker and Kirk Line, nor the oral contract between Kirk Line and Eller for stevedoring and terminal services, specified the method of transferring the cargo to Indian River. From the trial testimony, however, the court determined that Kirk Line expected Eller to provide Indian River “with whatever services were necessary to effect a physical transfer of the cargo", and that Eller had discretion to decide how best to accomplish that task. It further found that Eller had performed gravity transfers in approximately one-third of all deliveries, and that at least fifteen of those deliveries involved the use of a forklift. In concluding that delivery was not complete before the spill, the district court placed special emphasis on Clause 18 of the bill of lading, which provided 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 by the Carrier of the goods as described in the bill of lading." The court interpreted that 6a language as precluding the possibility of delivery without a change of custody. Because it was undisputed that Eller had never transferred the cargo into Indian River’s Custody, the court held that delivery did not occur in this case. In so holding, the court explicitly disregarded evidence that Eller had issued a delivery receipt to Indian River before the accident. Hiram Walker appealed that decision, and again this court reversed. Hiram Walker & Sons v. Kirk Line, 963 F.2d 327 (11th Cir. 1992) (Hiram Walker Il). Although con- cluding that the district court’s findings of fact were not Clearly erroneous, we held that the court had misinterpreted the bill of lading as identifying change of custody as the only possible evidence of delivery. Id. at 331. We explained that although Clause 18 provided that change of custody would be prima facie evidence of delivery, Indian River’s lack of custody at the time of the spill was not conclusive evidence that delivery had not occurred. Noting that other evidence, such as the delivery receipt, might establish that Kirk Line’s delivery obligation was completed before the accident, the case was remanded with instructions that the district court develop any facts that would aid it in determining the point of delivery. We made Clear, however, that the delivery receipt was not conclusive evidence of delivery and that its probative value would depend upon the circumstances of its issuance. Id. at 332. On remand, the district court held a status conference at which both parties indicated they had no further evidence to present regarding delivery. Thereafter, the court amended its findings of fact and conclusions of law, stating that "the court has considered the significance of the delivery receipt, in accordance with the Eleventh Circuit’s mandate, and has determined that the delivery receipt did not establish the point in time that ’legal delivery’ took place." Relying on the trial testimony, the district court found that the issuance of the delivery receipt in this case was either inadvertent or 7a erroneous because it was inconsistent with Eller’s usual practice of issuing such receipts, along with gate passes, only after physical possession of the Cargo has passed to the consignee. Because the receipt was issued in error, and there was no other compelling evidence that delivery was complete, the district court concluded that Eller was trying to effect delivery when the accident occurred , and that it was therefore entitled to the $500 limitation on liability. Hiram Walker has again appealed. I. [1] The sole issue in this appeal is whether the district court committed reversible error in finding that the delivery receipt was issued inadvertently or erroneously and was therefore not probative of delivery. (Footnote 2) {2,3] As Hiram Walker acknowledges, the Challenged finding is one of fact and is therefore reviewed only for clear error. Fed.R.Civ.P. 52. "This court will not disturb a district court’s findings of fact under the clearly erroneous standard unless it is left with the ‘definite and firm conviction that a mistake has been made’ after making all credibility choices in favor of the fact-finder’s choice, in light of the record as a whole." Meek v. Metropolitan Dade County, 985 F.2d 1471, 1481 (11th Cir. 1993) (quoting Maddox v. Claytor, 764 F.2d 1539, 1545 (11th Cir. 1985). If the district court’s finding is plausible in light of the entire record, “the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson vy. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Hiram Walker contends that the district court’s finding is clearly erroneous because there is no evidence in the record that the delivery receipt was issued erroneously or 8a that such receipts are customarily issued only after physical transfer of the cargo. This argument is baseless. The district court finding rests on the trial testimony of two Eller employees, Marvin Stephens and Jose Naranjo. Stephens, Eller’s manager of operations at the time of the spill, testified as follows: Q. Now on April 1, 1985, the incident took place where the Tia Maria was spilled. What function was Eller & Company performing at that period of time? A. They were attempting to deliver the product to Indian River. (R9-61). Q. Would the delivery have occurred upon the alignment of Tank 24 with the Indian River tank if Indian River could have pumped the cargo? A. After it was cleared our gate, yes. Q. What do you mean by that? A. If all the proper documentation had been made and it was pumped and a gate pass was issued for it to leave our gate and leave the Port of Miami. Q. Would delivery have occurred by aligning Tank 24 with trailer no. 24 [sic] when the pumping could not occur? A. No. (R9-83-84). Q. Is there a point in time when Eller’s terminal services for Kirk Line ends that you are aware of, for the handling of cargo? A. Yes, upon the issuance of a gate pass. (R9-83-84), A. That’s right. Q. Do you know ifa delivery receipt was issued in this case? A. I think I saw one. Q. Is there a difference between the two? A. Yes. The gate pass allows the unit to leave our facility. Q. What’s the function of the delivery receipt? A. It is that the cargo has been delivered. (R9-93). Q. Was it customary on a day-to-day basis for Eller & 9a Company to sign delivery receipts and to get a receiver, a trucker, to sign a delivery receipt before delivery had been effected? That’s my only question. Was that customary to do? A. No. Q. And yet it was done in this case, is that what you are suggesting. A. Evidently. (R9-100-101). Q. Were delivery receipts issued customarily with shipments of Tia Maria, that is coming into Miami and going off? A. Yes. Q. And when ordinarily were those issued? A. Upon completion of the delivery of the cargo. Q. And ordinarily the delivery of the cargo of bulk Tia Maria was done by pumping, isn’t that correct? A. Not all the time. Q. But I mean customarily it was - A. Not in this case. Q. I know not in this case. Tank 24 was normally pumped out, wasn’t it? A. I would say probably at least a third of the time it was delivered by a gravity feed. (R9-103). Stephens’s testimony is clear: Eller, contrary to its custom, issued the delivery receipt to Indian River before completion of delivery, which in this case was being performed by gravity transfer. The court reasonably inferred that this departure from custom was a mistake, and that the receipt, therefore, did not establish the time delivery took place. The testimony of Jose Naranjo, Eller’s general traffic manager at the time of the accident, further supports the district court’s finding: Q. Were there times when the pumping couldn’t be performed that you are aware of? A. Yes sir, there were many times. 10a Q. At any time prior to April 1, 1985, what if anything did Eller do with the Tia Maria when a pump could not occur? A ... [W]e brought the tank from the lot, the container lot, and brought it alongside the Indian River truck where the tank was transferred through gravity. What we did very simply is we placed it at a higher level than the receiving tank. (R9- 113-114). Q. Do you think Eller was obligated to lift Tank 24 on the forklifts for this gravity feed in its contract with Kirk Line? [objection omitted] A. Eller’s responsibility was to deliver the contents of Tank 24 to Indian River and they were to utilize whatever methods were necessary to complete the transfer. Q. But lifting the tank with a forklift, was that an obligation Eller owed to Kirkconnell? A. With a forklift or any other equipment that was available.... (R9-116). Q. Please look at Plaintiff's Exhibit 11. Can you identify that for the court? A. Yes sir. This is a delivery receipt. Q. What is the function of the delivery receipt? A. This delivery receipt is completed after the cargo is delivered to the receiver’s trucker. Q. That appears to be the delivery receipt issued for the Tia Maria that was spilled. Would that have been issued before the spill or after the spill, if you know? A. Normally this document is issued immediately after the delivery. (R9-117). Q. Can you think of a reason why there would be the release for this dock receipt signed by the parties prior to the transfer? [objection omitted] A. No sir, I couldn’t say why. Like I say, normally this is issued after the cargo is delivered. Q. Could it have been issued because it was anticipated that the cargo would have been pumped? lla A. I would say that is the case, yes sir. (R9-118). [4] Thus, Naranjo, like Stephens, believed that Eller performed gravity transfers, whenever necessary, as a service to Kirk Line, and that the issuance of a delivery receipt before completion of such a transfer was contrary to normal procedures. Even assuming, as Hiram Walker contends, the evidence on this point is not uncontroverted, it is the factfinder’s job to weigh the evidence and make necessary credibility determinations. The "clear error" standard of review "imposes an especially heavy burden on the appellant in a case such as this, in which the evidence was largely testimonial, and the district court had the advantage of observing the witnesses and evaluating their credibility firsthand." Lincoln v. Board of Regents of the University System of Georgia, 697 F.2d 928, 939 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). Nothing Hiram Walker has presented to this court comes close to satisfying its heavy burden. Having found the testimony of Stephens and Naranjo believable, the district court could easily infer that the receipt was issued inadvertently or in error. This court is not in a position to second guess that finding. Hiram Walker is mistaken in asserting that "the [delivery receipt] itself hardly bespeaks an inadvertent error." As the district court noted, the face of the receipt does, in fact, suggest that it was issued erroneously. Handwritten across the front of the document are the words “pumped out of Tank # 24 (as per manifest).". Obviously, no such pumping occurred, and the written statement is therefore false. Moreover, the writing implies, consistent with court’s finding, that the receipt is meant to confirm that cargo has been successfully transferred. On its face, therefore, the receipt indicates that it was issued prematurely, in the mistaken belief that a successful pump transfer would ensue and that no further services would be required of Eller. Because the anticipated method of delivery proved infeasible, 12a and Eller was requested to provide additional services, the district court reasonably concluded the receipt had been issued in error and that it did not accurately reflect the point of delivery. [5] In its amended findings, the district court also considered it important that no gate pass was issued in this case. (Footnote 3) The court found, based on the testimony of Naranjo and Stephens, that had Eller acted in accordance with its custom, a gate pass would have issued simultaneously with the delivery receipt. Thus, the court reasoned, the absence of a gate pass further demonstrates that the delivery receipt was issued prematurely. Hiram Walker contends the district court’s finding is clearly wrong because there is no evidence that gate passes and delivery receipts normally issue simultaneously. This argument, too, is unfounded. As shown above, Stephens and Naranjo both testified that when a gravity transfer is performed, the delivery receipt ordinarily issues following the transfer. Stephens added that Eller issues gate passes when it completes its terminal services and the consignee is ready to leave the facility. Although neither witness specifically stated that the documents normally issue at the same time, that can be fairly inferred since Eller’s terminal services apparently end when the «ansfer is complete. The court’s finding is therefore not clear error. Hiram Walker also argues that the district court’s emphasis on the gate pass conflicts with this court’s Statement in Hiram Walker II, 963 F.2d at 331, that "the absence of a gate pass ... does little to question the status of the delivery receipt as evidence, though perhaps not prima facie evidence, of delivery." That argument, however, ignores the context of the quoted statement. At the time it was made, this court was not addressing whether the delivery receipt had been issued in error - that argument had not been raised. Rather, we were merely explaining that the absence of evidence establishing change of custody, such as a gate 13a pass, was not conclusive proof that delivery did not occur, and that the district court had therefore erred by apparently ignoring the receipt. In the context of the argument now before us, however, the absence of a gate pass may properly be viewed as limiting the probative value of the delivery receipt because it suggests that the receipt was issued prematurely. The district court’s finding, therefore, does not conflict with the law of this case. We emphasize that this ruling does not depreciate the evidentiary value of delivery receipts. Ordinarily, such a receipt would be strong evidence of delivery. We simply re- ject Hiram Walker’s argument that the issuance of a delivery receipt conclusively proves that delivery occurred. Such an absolute rule is inappropriate in light of situations like this where the evidence strongly indicates that the receipt was mistakenly issued before completion of delivery. [6] Finally, contrary to Hiram Walker’s argument, the district court did not ignore any longstanding practice between the parties in concluding that the gravity transfer was within the scope of Kirk Line’s, and thus Eller’s, duty of delivery. As noted above, the district court found that Kirk Line expected Eller to provide whatever services were needed to physically transfer the cargo to Indian River, and that it was up to Eller to decide how to accomplish that task. It found, moreover, that Eller performed gravity transfers in approximately one-third of all deliveries, and that forklifts were used at least fifteen times. These findings, all of which have previously been accepted by this court as not Clearly erroneous, Hiram Walker II, 963 F.2d at 330, support the district court’s conclusion that Eller was performing services for Kirk Line, and not as a volunteer, when the spill occurred. AFFIRMED. Footnotes: 1. Clause 17 of the bill of lading, which contains the Himalaya clause, provides in pertinent part l4a as follows: In the case of any loss or damage to or in connection with goods exceeding in actual value $500 lawful money of the United States per package, Or, in case of goods not shipped in packages per customary freight unit the value of the goods shall be deemed to be $500 : Per package or per unit, on which basis the freight is | adjusted and the Carrier’s liability, if any, shall be determined on the basis of a value of $500 per package j Or per customary freight unit or pro rata, in case of partial loss or damage... The limitation of liability and other provisions contained in the article shall inure not Only to the agents, servants and employees, but also to the benefit of any independent contractors performing services including stevedoring in connection with the goods covered hereunder. 2. The plaintiff also argues that delivery was complete, as a matter of law, when the tank was aligned with Indian River's trailer and made available for a pump transfer. That argument, however, was rejected in Hiram Walker 1, in which we held that undisputed evidence of such alignment was insufficient, in this case, to establish delivery as a matter of law: When a pumping transfer is effected, delivery may occur when the tank and the trailer are aligned— but it does not necessarily follow that delivery in the case of a gravity feed can finally occur before the last of the liquid is drained into the trailer; the scope of Kirk Line’s duty under the bill of lading may thus depend upon the type of transfer that actually is performed. The district court should determine after trial whether Kirk Line’s obligations had completely terminated by the time of the spill..877 F.2d at 1517. 3. This court has already accepted as not clearly erroneous the district court’s finding that “[nJo gate pass was issued." Hiram Walker II, 963 F.2d at 330. DUBINA, Circuit Judge, concurring specially: In Hiram Walker I, 877 F.2d 1508, 1516-17 (11th 15a 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 delivery 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. (Footnote 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. (Footnote 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 l6a his treatment of delivery as a legal question for several rea- sons. 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. | 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. 1. 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. 2. 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. y. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988). TJOFLAT, Chief Judge, dissenting: I respectfully dissent. 17a This case has been before the district court three times and before this court twice. See Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d 1508 (11th Cir. 1989) ("HW I"); Hiram Walker & Sons, Inc. v. Kirk Line, 963 F. 2d 327 (11th Cir.1992) ("HW II"). Nevertheless, I am convinced that the main issue to be decided - when legal delivery took place - remains unresolved. (Footnote 1) It is time that we resolve it. . What must be our focus is not the point of physical delivery of the liqueur, that is, when the transfer of the Tia Maria from one container to another was completed; of course, that never happened in this case. (Footnote 2) Rather, this case turns on the time at which legal delivery occurred: At what point was "Kirk Line’s duty . .. fulfilled?” HW I, 877 F.2d at 1516; HW II, 963 F.2d at 330 n. 3. General maritime law holds that a carrier’s responsibilities include unloading the Cargo onto the dock and making it accessible to the consignee. See FJ. Walker, Lid. v. Motor Vessel “Lemoncore", 561 F.2d 1138, 1142 (Sth Cir.1977). (Footnote 3) And, although one searches in vain for a conclusive definition of "delivery" in the Harter Act, 46 U.S.C.App. Section 190 (1988), (Footnote 4) delivery typically requires nothing more than "discharge of cargo upon a fit and customary wharf.” Allstate Ins. Co. v. Im- parca Lines, 646 F.2d 166, 168 (Sth Cir. Unit B May 1981). Yet, that definition is subject to modification "according to the custom and usage of the port." Id.. (quoting Walker, 561 F.2d at 1144), In its post-trial findings of fact and conclusions of law entered after our remand in HW I, the district court made two findings of fact that are of some assistance to our under- standing of “custom and usage” at the Port of Miami. (Footnote 5) First, the district court concluded that, “[a]ccording to an oral agreement between Hiram Walker and Indian River, Indian River was responsible for pumping the Tia Maria cargo into its trailer." In other words, in the . 7 53 " ne LS et te ee eee re 18a case of a standard, pump transfer, legal delivery took place, at the latest, at the time the two containers were aligned and Indian River was prepared to begin the pump transfer. Second, the district court noted that "Hiram Walker had no agreement with Indian River regarding how the liqueur should be transferred if it were not pumped.” Thus, in the absence of a pump transfer, Hiram Walker and Indian River had not agreed contractually to a point of legal delivery. It might well be that legal delivery took place at the time the containers were aligned, just as in a pump transfer; it is equally conceivable, however, that legal delivery would have taken place only after the liqueur physically had passed from one container to a second. Earlier, it appeared that the delivery receipt might be probative as to the point of legal delivery; now, however, it appears that the receipt may be of no use to us in resolving this contentious issue. (Footnote 6) In the absence of a probative delivery receipt, then, we must turn to indicia of control. The facts reveal that, as of the time at which Eller aligned the tank car with Indian River’s truck, Indian River controlled the direction of events. Indian River’s driver could have Provided the device by which the Tia Maria would be pumped from the tank. Having failed to bring that device, he could have directed that Eller leave the tank car in place in order that he might obtain the necessary pumping attachment. Or, as eventually occurred, he could have directed that Eller accomplish a gravity feed. Moreover, the Indian River driver could have Stopped the gravity feed at any time and, after obtaining the necessary equipment, performed a pump transfer. Thus, through it all, Eller’s actions were dictated by Indian River’s driver. Control of the process by which the contents of the tank would be transferred rested with Indian River and, with it, control of the Tia Maria itself. Legal delivery had taken place. Eller’s liability is not at issue; that was settled years 19a ago. The amount of damages also is not questioned. I, therefore, would remand to the district court with the instruc- tion that judgment be entered on behalf of Hiram Walker and against Eller for the complete injury suffered without regard to the $500 COGSA limitation. 1. I believe the issue we must examine on appeal (when legal delivery took place) to be broader than that presented in the majority opinion (whether the district court was clearly erroneous in finding that the delivery receipt was issued inadvertently). See Ante slip opinion at 3353. Accordingly, I believe our standard of review to be de novo as the determination of legal delivery is # question of law (or, at the least, a mixed question of law and fact), not a question of fact subject to a clearly erroneous standard. 2. The district court’s amended findings of fact and conclusions of law, entered after our remand in HW II, belie its continued treatment of change of custody and legal delivery as interchangeable: “As long as the Tia Maria remained in Tank # 24, it had not been delivered to Hiram Walker’s agent, Indian River.” Amended Conclusion of Law No. 8. It is the district court’s mistaken equivalence of these concepts that mandates appellate de novo review. 3, In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981 ) (en banc), this court adopted as binding precedent decisions of the former Fifth Circuit handed down prior to October 1, 1981. 4. The Harter Act defines the duty of care from the time goods are discharged from the ship until they are delivered to the consignee. See Allstate Ins. Co. y. Imparca Lines, 646 F.2d 166,168 (Sth Cir. Unit B May 1981). 5. We have accepted the findings of fact in the district court's first opinion on remand as not clearly erroneous. HW II, 963 F.2d at 330. 6. Delivery receipts, the district court correctly concluded, typically were issued only after physical delivery, regardless of the means of transfer (pump or gravity). Thus, in the case of a pump transfer, although 20a physical delivery of the liqueur and the issuance of the delivery receipt were closely conjoined, there was no nexus between the legal delivery of the Tia Maria and issuance of the delivery receipt. Eller has not demon- strated--and the district court has not found that the delivery receipt is of any greater probative value in determining the point of legal delivery for gravity transfers either. ea aed 2la Appendix B MAR 10 1993 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 86-0762-CIV-RYSKAMP HIRAM WALKER & SONS, INC., Plaintiff, v. KIRK LINE, R.B. KIRKCONNELL & BRO., LTD., Eller & Company, Inc., et al., Defendants. ORDER ON REMAND FROM COURT OF APPEALS THIS CAUSE came before the Court upon Defendant Eller’s Motion for Status Conference, after an order of remand and reversal from the Eleventh Circuit. Hiram irkli , 963 F.2d 327 (11th Cir. 1992). A status conference was held on September 25, 1992. The Court has reviewed the Eleventh Circuit’s order and the pertinent portions of the record, and enters the following amendments to its prior Findings of Fact and Conclusions of Law, rendered August 6, 1990. The purpose of these amendments is to Clarify that the Court has considered the significance of the delivery receipt, in accordance with the Eleventh Circuit’s mandate, and has determined that the delivery receipt did not establish the point in time that “legal delivery" took place. Because delivery in the legal sense had not taken place at the time of the accident which destroyed 5000 gallons of Tia Maria, the stevedore, Eller & Company, is entitled to $500 limitation of liability. AMENDED FINDINGS OF FACT (1) This Court finds that execution of the delivery receipt prior to physical transfer of the cargo was either issued inadvertently or erroneously. (2) In terms of ordinary custom and practice, delivery receipts and gate passes are usually issued only after physical transfer of the cargo from the shipper to the consignee. (See December 4, 1989 trial testimony of Jose Naranjo and Marvin Stephens, pp. 100-102 and 117-118). This undisputed evidence confirmed that it was the usual practice of Eller & Company to issue the delivery receipt and gate pass after physical possession of the cargo had been transferred to the consignee. (3) The Court concludes that the person who executed the receipt earlier did so in error, and that the delivery receipt was not evidence of legal delivery of the Tia Maria. (4) Reconstructing the sequence of events, the Court finds that, before the accident, an Eller employee inadvertently or erroneously issued a delivery receipt to the Indian River driver stating that the Tia Maria was “pumped out of tank #24 (as per manifest)." Plaintiff's Exhibit No. 11. As of the moment when it was issued, the delivery receipt did not reflect the actual location or possession of the cargo. The Tia Maria had not yet been pumped out of the tanker when the receipt was issued. (5) No gate pass was ever issued, even though custom and practice dictate that both this pass and the delivery receipt should have been issued simultaneously. AMENDED CONCLUSIONS OF LAW (1) The mere fact that a delivery receipt was issued 23a does not persuade the court that actual delivery had taken place. (2) Because the undisputed evidence confirms that the receipt was issued before the physical transfer of the cargo from the possession of the shipper to the consignee, despite the undisputed evidence that it was Eller’s custom and practice to issue both the delivery receipt and the gate pass only after transfer of the physical possession of the cargo, the Court cannot determine why the delivery receipt in this case was issued before the transfer of the Tia Maria. (3) However, based on Eller’s custom and practice, the Court concludes that only the issuance of a gate pass would have completed delivery, and this pass was never issued, since delivery was aborted by the accident. (4) Thus, the uncertainty surrounding the issuance of the delivery receipt lacks legal significance. If the receipt plus the gate pass had been issued, then this Court might find that completed delivery had taken place. The weight of the testimony plus the absence of the gate pass precludes such a finding. (5) The Eleventh Circuit held in its opinion in this case that the absence of a change of custody of cargo did not compel a finding of absence of delivery for purposes of determining whether the carrier’s duty was fulfilled before cargo spill occurred. (6) This Court’s findings are not at variance with the Eleventh Circuit’s holding. This Court does not rely upon the absence of change in custody of the Tia Maria. (7) Rather, the Court relies upon the evidence presented at trial of custom and practice which indicates (1) that in this case, the delivery receipt was issued prematurely and (2) that in this case, as between these particular parties, only the issuance of a gate pass would have indicated a completed, normal delivery. (8) As long as the Tia Maria remained in Tank #24, it had not been delivered to Hiram Walker’s agent, Indian 24a River. (9) Thus, the accident occurred in the process of making the delivery to Hiram Walker which, and thus the accident was the ocean carrier’s responsibility. (10) For all the foregoing reasons, this Court again concludes that Eller & Company are entitled to the $500 COGSA limitation. (11) This Court’s Findings of Fact entered on August 6, 1990 are hereby AMENDED to include the above Findings of Fact and Conclusion of Law, following the mandate of the Eleventh Circuit. (12) This Court’s Judgment entered August 6, 1990 is hereby ADOPTED and REINSTATED. DONE AND ORDERED in chambers at the United States District Court, West Palm Beach, Florida, this 10th day of March, 1993. Kenneth L. Ryskamp United States District Judge 25a Appendix C HIRAM WALKER & SONS, INC., Plaintiff-Appellant, v. KIRK LINE, R.B. KIRKCONNELL & BRO., LTD., et al., Defendants, Eller & Company, Inc. Defendant- Appellee. No. 90-5699. United States Court of Appeals, Eleventh Circuit. June 17, 1992. Shipper brought action against common carrier and stevedore to recover damages arising from cargo spill. The United States District Court for the Southern District of Florida entered summary judgment for shipper. Carrier and stevedore appealed. The Court of Appeals, 877 F.2d 1508, reversed and remanded. The District Court, No. 86- 762-CIV-KLR, Kenneth L. Ryskamp, J., entered judgment for stevedore. Shipper appealed. The Court of Appeals, Tjoflat, Chief Judge, held that absence of change of custody of cargo did not compel finding of absence of delivery, for purposes of determining whether carrier’s duty was fulfilled before spill occurred so that stevedore could not be an independent contractor performing services under bill of lading at time of accident and would not be entitled to $500 limitation of Carriage of Goods by Sea Act (COGSA). Reversed and remanded. (Keynotes not reproduced) Appeal from the United States District Court for the Southern District of Florida. Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and HENDERSON, Senior Circuit Judge. TJOFLAT, Chief Judge: Hiram Walker & Sons, Inc. (Hiram Walker) appeals from a final judgment of the United States District Court for the Southern District of Florida holding that Eller & Company, Inc. (Eller), a stevedore and terminal operator, was an "independent contractor performing services” for R.B. Kirkconnell & Bro., Ltd. (Kirk Line), an ocean carrier, and therefore entitled to limit its liability to $500 under section 4(5) of the Carriage of Goods by Sea Act, ch. 229, 49 Stat. 1207 (1936) (codified as amended 46 U.S.C.App. Section 1304(5) (1988)) (COGSA). We reverse and remand for proceedings in accordance with this opinion. I. Hiram Walker sued Eller, among others, to recover for the loss of a shipment of five thousand gallons in bulk of Tia Maria Liqueur. On appeal from the district court’s summary judgment against Eller, we held Eller liable as a matter of law, but reversed and remanded, instructing the district court to determine whether Eller functioned as an "independent contractor performing services" for Kirk Line at the time of the spill and therefore was entitled to a $500 liability cap. Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d 1508, 1516 (11th Cir. 1989). We specifically called on the district —— a eae 27a court to "determine after trial whether Kirk Line’s obligations had completely terminated by the time of the spill...." Id. at 1517. For a more detailed rendition of the accident, we turn to our prior opinion: Hiram Walker purchased five thousand gallons of Tia Maria from Estate Industries in Jamaica on March 15, 1985. On March 26, a twenty-three ton tank containing the liqueur was loaded aboard the M/V Morant Bay in Kingston, apparently in good order. Kirk Line had chartered the Morant Bay from its proprietor, [Jamaica Merchant Marine Atlantic Line, Ltd. (Jamaica Line) }, for a shipment of cargo - including Hiram Walker’s liqueur, which was shipped under the Kirk Line-Hiram Walker bill of lading. The tank arrived in Miami three days later. Kirk Line hired Eller, a stevedore, to unload the tank from the Morant Bay and store it at the dock. Hiram Walker contracted with [Indian River Transport, Inc. (Indian River)] to transport the liqueur overland to New Jersey; Hiram Walker and Indian River agreed that Indian River was to pump the liqueur from the tank into its freight trailer. On April 1, Jones, an employee of Indian River, arrived at the port to effect the pumping transfer. An Eller employee removed the tank from storage and aligned it with the trailer. Jones attempted to connect the tank and the trailer, but realized that a fitting needed to connect the hoses was missing. Even though another fitting on the back of the tank might have been used to pump the liqueur into the trailer, Jones decided that pumping the liqueur would be impossible; therefore, he asked Marshall, an Eller employee, to help him accomplish a "gravity feed"- essentially, Jones wanted to pour the liqueur from the tank to the trailer. To effect a gravity feed, the tank had to be elevated higher than the trailer. Marshall directed another Eller employee, Wright, to assist Jones. Wright lifted the tank on a large forklift; Wright, however, was not licensed 28a to operate forklifts of this capacity. Wright and Marshall neglected to put straw mats or other dunnage between the metal forks and the metal container. Fifteen minutes into the operation, the tank apparently began to slide off the forks because of the lack of dunnage. Deciding that the tank was not properly balanced, Marshall instructed Wright to find another forklift. Wright did not lower the tank, but left the forklift holding the tank suspended eight feet off the ground for ten minutes; leaving a load suspended was a violation of standard company procedure. As Wright returned, the tank fell off the forklift. The tank ruptured, and eighty-five percent of the Tia Maria in the tank spilled out. The liqueur remaining in the tank was contaminated during the clean-up, in which several fire-engine companies covered the area with anti-explosive foam. Hiram Walker, 877 F.2d at 1510-11. On remand, the district court determined after trial that Kirk Line’s obligations had not completely terminated by the time of the spill. It found that Eller was an "independent contractor performing services” under the "Himalaya" clause in Kirk Line’s bill of lading with Hiram Walker, which limits liability to $500 “per customary freight unit" and provides that the “limitation of liability [to $500 per unit] shall inure ... to the benefit of any independent contractors performing services including stevedoring in connection with the goods covered hereunder." (Footnote . ) The bill of lading’s clause paramount further incorporated COGSA, which also limits liability to $500 for any “customary freight unit." (Footnoie 2) Since the dropped tank of Tia Maria constituted a customary freight unit, see id., the district court capped Eller’s liability at $500. The district court made extensive findings of fact, all of which we accept as not clearly erroneous. The court found iii 29a that, although “[a]ccording to an oral agreement between Hiram Walker and Indian River, Indian River was responsible for pumping the Tia Maria cargo into its trailer{,] Hiram Walker had no agreement with Indian River regarding how the liqueur should be transferred if it were not pumped.” The court further found that "Hiram Walker’s agreement with Kirk Line is contained in bill of lading number 9, which contains no provision regarding the method for transferring the liqueur from Tank 24 to the Indian River trailer." The court noted, however, that clause 18 of the bill of lading provides 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 by the Carrier of the goods as described in the bill of lading.” Finally, the court found that “[bJefore the accident, an Eller employee issued a delivery receipt to the Indian River driver, stating that the cargo was pumped out of Tank 24 (as per manifest),’" but that “[nJo gate pass was issued." At the outset of its conclusions of law, the district court correctly acknowledged that "[t]his action is governed by the terms of the bill of lading issued for Tank 24 and the provisions of COGSA." Guided by our prior opinion in this case, (Footnote 3) the district court also correctly identified delivery as the linchpin of the question we had instructed it to address. In order to determine the time at which Kirk Line’s obligations had completely terminated, it would have to pinpoint the time at which delivery had occurred. (Footnote 4) The court stumbled not in charting its road, but in traveling it. Explicitly disregarding its fact finding that a delivery receipt was issued, the court mistakenly interpreted the quoted language in clause 18 of the bill of lading as compelling the conclusion that Eller had not completed delivery at the time of the spill: "Considering [the quoted] language, the court concludes that delivery did not occur 30a before the accident, because Indian River had not removed the Tia Maria from Tank 24 into its custody. By linking delivery to custody, the parties agreed that actual delivery of the cargo would be required before Kirk Line’s responsibilities ended." The court’s reading of clause 18 turned on an incorrect interpretation of the phrase “prima facie evidence." The court, in effect, took clause 18 as identifying change of custody not only as conclusive, but also as the only possible evidence of delivery. (Footnote 5) While clause 18 did link custody to delivery, it did not equate the two at the exclusion of all other possible evidence of delivery. It was only the court’s improperly categorical reading of clause 18 that per- mitted it to ignore the delivery receipt as evidence of delivery. Clause 18 does not concern itself with the question of when delivery has not occurred, but with the question of when delivery has occurred. Absence of custody change, however, implies absence of delivery only if delivery cannot occur without a change in custody. Clause 18, however, Says no such thing. Instead of identifying custody change as the conditio sine qua non of delivery, it marks custody change as primus inter pares of all possible evidence of delivery. (Footnote 6) Once the connection between custody change and delivery is loosened in this way, it becomes obvious that the absence of custody change does not compel a finding of absence of delivery. By the terms of the bill of lading, absence of custody change simply means that the prima facie evidence of delivery identified in clause 18 is not available. We therefore look to other evidence of delivery and come upon the delivery receipt issued prior to the spill. Once it is agreed that delivery does not stand or fall on custody change, the absence of a gate pass - which would have constituted conclusive evidence of change of custody - does little to question the status of the delivery receipt as evidence, though perhaps not prima facie evidence, of delivery. 3la Hiram Walker concedes that Eller had custody at the time of the spill. Assuming that Eller had custody and that therefore no custody change had occurred that would have constituted prima facie evidence of delivery, (Footnote 7) we search the district court’s fact findings in vain for indications that the delivery receipt documented anything other than delivery. The passing remark that “[t]he mere fact that a delivery receipt issued does not persuade the court that actual delivery occurred" will not do once the custody determination is stripped of its dispositive pretenses. We refrain from making a factual determination regarding the point of delivery, which is better left to the district court. On remand, we instruct the district court to develop any facts that would aid it in making this determination, including, for example, the precise time at which the delivery receipt was issued. Issuance of the deliv- ery receipt prior to the time Hiram Walker claims delivery was completed - the moment the tank had been aligned with the trailer - might lessen the delivery receipt’s probative value. A finding that Indian River and Eller customarily, or by agreement, completed delivery receipts prior to delivery could have a similar effect. 3 For the above stated reasons the judgment of the district court is REVERSED and the case is REMANDED for proceedings in accordance with this opinion. REVERSED AND REMANDED. 1. Clause 17 provides in pertinent part: In the case of any loss or damage to or in connection with goods exceeding in actual value $500 lawful money of the United States per package, or, in case of goods not shipped in packages per customary freight unit the value of the goods shall be deemed to be $500 per package or per unit, on which basis the freight is adjusted and the Carrier’s liability, if any, shall be determined on the basis of a value of $500 per package 32a Or per customary freight unit or pro rata, in case of partial loss or damage, unless the nature of the goods and a valuation higher than $500 shall have been declared in writing by the shipper upon delivery to the Carrier and inserted in this bill of lading and extra freight paid if required and in such case if the actual value of the goods per package or per customary freight unit shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and the Carrier’s liability, if any, shall not exceed the declared value and any partial loss of damage shall be adjusted pro rata on the basis of such declared value. The limitation of liability and other provisions contained in the article shall inure not only to the agents, servants and employees, but also to the benefit of any independent contractors performing services including stevedoring in connection with the goods covered hereunder. 2. In pertinent part, section 4(5) of COGSA provides: Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection 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 equivalent 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. 46 U.S.C. App. Section 1304(5) (1988). 3. The question thus presented is whether Kirk Line’s duty was fulfilled when Eller aligned the tank with Indian River’s truck; if so, Kirk Line had completed its responsibilities under the bill of lading before the spill had occurred, and Eller could not be said to have been an "independent contractor performing services" under the bill of lading at the time of the accident. If, however, because of Indian River’s failure to secure the Proper fitting, delivery was not completed by the mere alignment of the tank with the trailer, then Kirk Line’s duty of delivery would have continued and Eller would 33a have been “an independent contractor performing services" under the bill of lading at the time of the spill, entitled to the $500 limitation. Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d 1508, 1516 (11th Cir. 1989) (emphasis supplied). 4. Eller argues that custody change, not delivery, constitutes the relevant occurrence for determining the scope of Kirk Line’s obligations to Hiram Walker. In support, Eller points to the clause paramount of the bill of lading, which provides that "[t]he provisions stated in [COGSA] (except as may be otherwise specifically provided herein) shall govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the carrier." (Emphasis supplied.) In its findings of fact, the district court did opine that "[uJnder the clause paramount, Kirk Line’s liability to Hiram Walker is limited to $500 per package during the entire time period that Kirk Line had custody of Tank 24." (Emphasis supplied.) In its conclusions of law, however, the court focussed not on the clause paramount, but on clause 18 of the bill of lading, and sought to determine whether delivery, not custody change, had occurred at the time of the spill. Although the court considered absence of custody change conclusive evidence of absence of delivery and conflated the two occurrences in the process, see infra slip op. pp. 2757-60, it nevertheless set out ultimately to determine the point of delivery, not of custody change. Our previous opinion specifically instructed the district court to determine the point of delivery, Hiram Walker, 877 F.2d at 1516, and we see no reason now to shift the focus onto custody. While the clause para- mount rendered COGSA applicable until the point of custody change, the district court specifically found that “the parties agreed [in clause 18] that actual delivery of the cargo would be required before Kirk Line's responsibilities ended." (Emphasis supplied.) Although COGSA remained applicable following delivery, but prior to change of custody, Eller could at that time no longer claim the benefit of the damage cap in section 4(5) of COGSA and in clause 17 of the bill of lading, 34a because it was no longer an “independent contractor performing services” for Kirk Line. 5. It is well settled that prima facie evidence differs from both conclusive evidence, and the only possible evidence, of a given occurrence. See, ¢ §-, Associated Metals and Minerals Corp. v. Etelae Suomin Laiva, 858 F.2d 674, 677-78 (11th Cir. 1988) (interpreting COGSA § 3(6); prima facie evidence “accorded no special weight" upon introduction of sufficient contrary evidence) (quoting Harbert Int'l Establishment v. Power Shipping, 635 F.2d 370, 373 (Sth Cir. Unit B 1981); Miller v. Norvell, 775 F.2d 1572, 1574 (11th Cir. 1985)), cert. denied, 476 U.S.1126,106 S.Ct. 1995, 90 L.Ed.2d 675 (1986) ("Prima facie evidence means evidence of such nature as is sufficient to establish a fact and which, if unrebutted, remains sufficient for that purpose."). The very COGSA provision the benefit of which Eller seeks distinguishes prima facie from con- clusive evidence: Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package ..., 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. 46 U.S.C. App. Section 1304(5) (emphasis supplied). 6. Strictly speaking, more than one occurrence may constitute prima facie evidence of another. 7. Hiram Walker, somewhat self-defeatingly, urges us to find that Kirk Line no longer had custody at the time of the spill. In conjunction with Hiram Walker’s concession that Eller had custody at the time of the spill, this finding would make for a change of custody, which in turn would constitute prima facie evidence of delivery. In that case, however, Kirk Line’s obligations would have terminated long before the spill, namely at the moment custody transferred from Kirk Line to Eller. 35a Appendix D UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO:86-0762-CIV-RYSKAMP HIRAM WALKER & SONS, INC., Plaintiff, V. KIRK LINE, R.B. KIRKCONNELL & BRO., LTD.; JAMAICA MERCHANT MARINE ATLANTIC LINE, LTD.; ELLER & COMPANY, INC.; INDIAN RIVER TRANSPORT, INC.; and the S/S MORANT BAY, its engines, boilers, etc. Defendants. FINAL JUDGMENT IN FAVOR OF PLAINTIFF THIS MATTER came for a trial before the court. The issues having been duly tried and a decision duly rendered, it is hereby: ORDERED and ADJUDGED that final judgment is entered in favor of plaintiff and against defendant Eller & Company, Inc., as set forth in the court’s order of August 1, 1990. The order of August 1, 1990, is expressly adopted and incorporated by reference. Accordingly, the plaintiff shall recover of defendant Eller & Company, Inc. the sum of $500; prejudgment interest on that amount from the date of loss April 1, 1985, Argonaut Ins, Co, V. May Plumbing Co., 474 So.2d 212 (Fla. 1985); and costs of the action. DONE and ORDERED at the United States District Court, Miami, Florida, this 6 day of August, 1990. Kenneth L. Ryskamp United States District Judge 36a Appendix E UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO:86-0762-CIV-RYSRAMP HIRAM WALKER & SONS, INC., Plaintiff, v. KIRK LINE, R.B. KIRKCONNELL BRO., LTD.; JAMAICA MERCHANT MARINE ATLANTIC LINE, LTD.; ELLER & COMPANY, INC.; INDIAN RIVER TRANSPORT, INC.; and the S/S MORANT BAY, its engines, boilers, etc. Defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER came before the court for trial on December 4, 1989. Having considered the testimony and other evidence presented, the court enters its findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. A. BACKGROUND Plaintiff Hiram Walker & Sons, Inc. ["Hiram Walker"] brought this action to recover for the loss of a shipment of Tia Maria liqueur transported from Kingston, Jamaica to the Port of Miami, Florida.’ The liqueur spilled as it was being transferred from a bulk tank to a trailer. Defendants were ' Aetna, Hiram Walker's insurer, paid the entire loss and thus is the real party in interest. The court constructively joined Aetna as a party plaintiff, which the Eleventh Circuit determined was within the court’s discretion . Hiram Walker & Sons, Inc. v. Kirk Line et al., 877 F.2d 1508, 1510 n.1 (11th Cir. 1989) 37a R.B. Kirkconnell & Bro., Ltd., the ocean carrier operating under the trade name Kirk Line ["Kirk Line"]; Jamaican Merchant Marine Atlantic Line, Ltd. ["Jamaican Merchant Marine”], the owners of the M/V Morant Bay, the vessel on which the tank containing the liqueur was transported; Eller & Co. ["Eller"], the stevedore and terminal operator in Miami; and Indian River Transport, Inc. ["Indian River"], the inland trucking company hired by Hiram Walker to pick up the cargo in Miami and transport it to New Jersey. In an earlier order, this court dismissed Kirk Line and Jamaican Merchant Marine and found defendants Eller and Indian River jointly and severally liable to Hiram Walker. Hiram Walker & Sons Inc, v, Kirk Line, No. 86-0762-CIV-RYSKAMP, Order Granting Partial Summary Judgment (S.D. Fla. Dec. 17, 1986). The court then held a trial on damages and determined that Hiram Walker was entitled to damages in the amount of $147,111.43, to be apportioned equally between Eller and Indian River. On appeal, the Eleventh Circuit reversed the summary judgment and remanded for further proceedings on a number of issues. Hiram Walker & Sons, Inc, v. Kirk Line, 877 F.2d 1508, 1516 (11th Cir. 1989). Before trial on remand, Hiram Walker and Indian River settled their dispute, and Indian River was dismissed from the suit with prejudice. Consequently, Eller was the sole remaining defendant at trial on remand. Regarding Eller’s purported negligence, the Eleventh Circuit agreed with this court’s conclusion that Eller’s negligence in performing the transfer was established under Florida law. Hiram Walker, 877 F. 2d at 1515 . The issue on remand was whether Eller was entitled to limit its liability to $500 pursuant to section 4(5) of the Carriage of Goods by Sea Act ["“COGSA"], ch. 229, 49 Stat. 1207 (1936) (codified as amended 46 U.S.C. App. § 1304(5) (1982 and Supp. V 1987)). As the Eleventh Circuit framed the question, the resolution of this issue required a determination of whether 38a Kirk Line’s responsibilities under the bill of lading had terminated and whether delivery of the liqueur was complete when it spilled. Hiram Walker, 877 F.2d at 1516. If so, Eller could not claim the liability limitation as it was not then acting as Kirk Line’s “independent contractor." If delivery had not been completed, however, Eller would be entitled to COGSA’s $500 package limitation as a third party beneficiary of a clause in the bill of lading. B. FINDINGS OF FACT In 1972, Kirk Line and Eller entered into an oral agreement under which Eller would provide agency, stevedoring, and terminal operating services to Kirk Line at the Port of Miami. Eller billed Kirk Line for its stevedoring services in one invoice. Eller billed Kirk Line for its terminal operations under separate invoice. Regarding the bulk tank involved in this case, Eller billed Kirk Line $74.74 for “trailer handling" of the full trailer. Plaintiff's Exhibit No. 48. Kirk Line billed Hiram Walker $200.00 for handling on the bill of lading. Plaintiff's Exhibit No. 1. Eller’s charges for trailer handling were governed by the trailer handling bill, which constituted its contract with Kirk Line. Plaintiff's Exhibit No. 57 at 9, 24. The charge for trailer handling meant that Eller “was responsible for delivering the trailer or its product to the consignee or its agents." Id. at 25. The amount Eller charged for trailer handling on Tank 24 would not vary, whether or not a forklift was used to perform a gravity feed. Id. at 25-26. The trailer handling charge also included Eller’s handling of the empty tank. Id. at 11. Beyond the trailer handling bill that Eller issued to Kirk Line, handling services performed by Port of Miami terminal operators at the time of the accident were governed by Tariff No.4 of the Port of Miami Freight Handlers, effective October 1, 1982. Plaintiff's Exhibit No. 46 at a 39a para. 12. Tariff No. 4 defined “terminal handling" as follows: Handling between point of rest of terminal and transporting conveyance or vice versa. The service of handling cargo to or from the terminals, to or from trucks, trailers or other highway type of conveyance. Hand stacking or unstacking of cargo in conveyances is not included in rates as shown under this classification. When hand stacking or unstacking is required, such services will be provided under Item No.7. When cargo is handled to the terminal from railroad cars or vice versa, the tariff charges shown under this classification will apply where such handling service can be accomplished with mechanized equipment (lift trucks, etc.). If hand stacking or unstacking is required, double the prevailing rate will apply. On any handling from the terminals to railroad equipment, or vice versa, the tariff rates will include the handling (loading or unloading) only, and any labor and/or material cost for cleaning or securing will be billed additionally as per Item No. 7. Should distance between point of rest and cargo conveyance exceed 250 Feet, Freight Handlers reserve the right to negotiate a cost-plus labor operation in lieu of rates shown. These services also apply to services performed in connection with the receiving or delivering of automobiles, trucks, buses, or other wheeled vehicles received or delivered under their own power. In all cases, Eller’s responsibility for terminal Operations would end when a gate pass was issued for the cargo to leave the terminal and the Port of Miami facility. Transcript of Trial Dec. 4, 1989, at 82. On or before March 26, 1985, the shipper Estate Industries loaded Tank 24, a 40-foot bulk tank owned by Kirk Line, with Tia Maria liqueur. On March 26, 1985, 40a Tank 24 was loaded aboard the M/V Morant Bay in Kingston, Jamaica. Kirk Line issued bill of lading number 9 to govern transport of Tank 24 to the Port of Miami. Clause 1 of the bill of lading, the paramount clause, provided that the bill of lading was subject to and incorporated the provisions of COGSA. In pertinent part, Clause 1 provided that: This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America, approved April 16, 1935, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act (except as may be otherwise specifically provided herein) shall govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the Carrier. The Carrier shall not be liable in any capacity whatsoever for any delay, non-delivery, or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the Carrier. If this bill of lading is issued in a locality where there is in force a Carriage of Goods by Sea Act or Ordinance or Statute of a similar nature to the International Convention for the Unification of Certain Rules Relating to Bills of Lading at Brussels of August 24, 1924, it is subject to the provisions stated in such Act, Ordinance and rules thereto annexed which may be in effect where this bill of lading is issued. The bill of lading also specifically limited Kirk Line’s liability for damage to $500 per customary freight unit, in accordance with 46 U.S.C. app. § 1304(5). Clause 17 provided that: In the case of any loss or damage to or in connection with goods exceeding in actual value $500 lawful money of the United States per package, or, in case of goods not 4la shipped in packages per customary freight unit the value of the goods shall be deemed to be $500 per package or per unit, on which basis the freight is adjusted and the Carrier’s liability, if any, shall be determined on the basis of a value of $500 per package or per customary freight unit or pro rata, in case of partial loss or damage, unless the nature of the goods and a valuation higher than $500 shall have been declared in writing by the shipper upon delivery to the Carrier and inserted in this bill of lading and extra freight paid if required and in such case if the actual value of the goods per package or per customary freight unit shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and the Carrier’s liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value. Whenever the value of the goods is less than $500 per package or other freight unit, their value in the calculation and adjustment of claims for which the Carrier may be liable shall for the purpose of avoiding uncertainties and difficulties in fixing value be deemed to be the invoice value, plus freight and insurance if paid, irrespective of whether any other value is greater or less. The limitation of liability and other provisions contained in the article shall inure not only to the agents, servants and employees, but also to the benefit of any independent contractors performing services including stevedoring in connection with the goods covered hereunder. Tank 24 was shipped on a lump sum freight basis and is a customary freight unit under COGSA. Hiram Walker, 877 F.2d at 1516. On March 26, 1985, the M/V Morant Bay set sail for the Port of Miami. It arrived March 29, 1985, after which Eller’s longshoremen unloaded Tank 24 from the vessel onto the pier at the Port of Miami and stored it on Eller’s lot number 4. On April 1, 1985, a driver for Indian River 42a arrived to receive the cargo on behalf of Hiram Walker. Eller made Tank 24 available to the Indian River driver, so that he could connect a hose to Tank 24 and pump the Tia Maria from the tank into his trailer. At this point, the Indian River driver realized that he lacked the proper connections for the pump and requested that Eller perform a gravity feed of the liqueur. The gravity feed is described in this court’s findings of fact and conclusions of law entered February 1, 1988, and in the Eleventh Circuit decision. In summary, the gravity feed involved using a forklift to lift Tank 24 to a position higher than the trailer, so that gravity would force the liqueur through a hose and into the trailer. While the gravity feed was being performed, Tank 24 fell from the blades of the forklift, and most of its contents spilled. The remaining liqueur was contaminated by anti-explosive foam during cleanup operations. According to an oral agreement between Hiram Walker and Indian River, Indian River was responsible for pumping the Tia Maria cargo into its trailer. Transcript of Trial Dec.4, 1989, at 21-22. Hiram Walker had no agreement with Indian River regarding how the liqueur should be transferred if it were not pumped. Id. Hiram Walker’s agreement with Kirk Line is contained in bill of lading number 9, which contains no provision regarding the method for transferring the liqueur from Tank 24 to the Indian River trailer. The bill of lading does not define delivery, but it makes various references to delivery. Clause 12 provides that "the goods shall be considered to be delivered and at their own risk and expense in every respect when taken into the custody of customs or other authorities." Clause 15 provides that the carrier has a lien on "the goods, which shall survive delivery” for all charges due under the bill of lading. Clause 18 provides that "removal of the goods into the custody of the person entitled to delivery thereof under the contract of 43a carriage . . . shall be prima facie evidence of the delivery by the Carrier of the goods as described in the bill of lading.” Customs authorities never took custody of the goods, so the type of delivery contemplated in Clause 12 never occurred. Before the accident, an Eller employee issued a delivery receipt to the Indian River driver, stating that “the cargo was "pumped out of Tank 24 (as per manifest).” Plaintiff's Exhibit No. 11. No gate pass was issued. Transcript of Trial Dec. 4, 1989, at 90. Although the bill of lading includes no provisions regarding transfer of the cargo, Kirk Line expected Eller to provide to the shipper whatever services were necessary to effect a physical transfer of the cargo. Plaintiff’s Exhibit No. 56 at 57. While Eller was not obligated to accommodate a gravity transfer, it was obligated to ensure that the cargo was transferred. Transcript of Trial Dec. 4, 1989, at 86. Eller performed gravity transfers in approximately a third of all deliveries, most commonly by using an elevated ramp. Id. at 103. Before the accident on April 1, 1985, Eller also had performed gravity transfers with a forklift at least fifteen times. Deposition of Daniel Wright at 24 (Oct. 1, 1986). While the agreement between Eller and Kirk Line was oral, Eller’s vice president negotiated with Kirk Line for clauses to be included in the bill of lading that would extend to Eller the COGSA liability limitation. Transcript of Trial Dec. 4, 1989, at 82-83. Clause 17 extends the liability limitation to Kirk Line’s agents, servants and employees, and to "independent contractors performing services including stevedoring in connection with the goods covered hereunder.” The same third parties are included in what is 44a known as a Himalaya clause,” clause 29 of the bill of lading entitled "Exemptions and immunities of all servants and agents of the Carrier”: It is hereby expressly agreed that no servant or agent of the Carrier (including every independent contractor from time to time employed by the Carrier) shall in any circumstances whatsoever be under any liability whatsoever to the Shipper, Consignee or Owner of the goods or to any Holder of this Bill of Lading for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, but without prejudice to the generality of the foregoing provisions in this Clause, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence [sic] and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder shall also be available and shall extend to protect every such servant or agent of the Carrier acting as aforesaid and for the purpose of all the foregoing provisions of this Clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all persons who are or might be his servants or agents from time to time (including independent contractors as aforesaid) and all such persons shall to this extent be or be deemed to be parties to the contract in or evidenced by this Bill of Lading. C. CONCLUSIONS OF LAW This action is governed by the terms of the bill of * Himalaya clauses are named after the vessel in an English case. For an explanation, see Brown & Root, Inc. v M/V Peisander, 648 F.2d 415, 417 n.5 (Sth Cir. 1981). 45a lading issued for Tank 24 and the provisions of COGSA. By its terms, COGSA applies to a carrier only “in relation to the loading, handling, stowage, carriage, custody, care ane discharge” of goods. 46 U.S.C. app. § 1302; y. American Shipping Co., Inc., 748 F.2d 563, 566 (11th Cir. 1984). Regarding the time periods not governed by COGSA--that is, the time before the cargo is loaded on the vessel and the time from discharge until delivery--the Harter Act normally applies. Harter Act, ch. 105, § 1, 27 Stat. 445 (1893) (codified as amended 46 U.S.C. app. §§ 190-195 (1982 and Supp. V 1987)). Nevertheless, the parties contractually may agree that COGSA applies to the entire period of time in which the carrier has custody of the cargo. Philip Morris, 748 F.2d at 566. The Parties may agree to incorporate COGSA in a bill of lading in whole or in part. Lines _Inc,, 619 F.2d 374, 375-76 (Sth Cir. 1980) (where COGSA incorporated but bill of lading provided different statute of limitations, limitations period in bill of lading and not COGSA would govern). Thus, by agreement the parties can extend the COGSA $500-per-package liability limitation to the period after discharge and before delivery. Cf, Baker Oil Tools Inc. y. Delta S.S. Lines Inc,, 562 F.2d 938, 940 n.3 (Sth Cir. 1977) (parties may agree to extend COGSA package limitation to period before loading when in carrier’s possession), modified and reh’g denied, 571 F.2d 978 (Sth Cir. 1978), 577 F.2d 1134 (Sth Cir. 1978). In this case, the parties included a clause paramount in bill of lading number 9 that made COGSA in its entirety applicable to the time period “after [the cargo is] discharged from the ship and throughout the entire time the goods are in the custody of the Carrier." This clause paramount makes COGSA applicable to a time period in which it would not normally apply, deems COGSA to be incorporated in the bill of lading, and ensures that nothing in the bill of lading shall 46a increase the carrier’s liability beyond the $500 per package limitation of section 1304(5). Brown & Root, Inc. y. M/V Peisander, 648 F.2d 415, 420 (Sth Cir. 1981); see also , 901 F.2d 934, 939 (11th Cir. 1990) (clause paramount and fair opportunity to declare higher value for cargo two preconditions to invoking COGSA liability limitation). Under the clause paramount, Kirk Line’s liability to Hiram Walker is limited to $500 per package during the entire time period that Kirk Line had custody of Tank 24. On its face, the COGSA package limitation incorporated in the clause paramount applies only to carriers and ships.’ Stevedores, terminal operators, freight handlers, and the carrier’s agents are not protected automatically by the COGSA liability limitation. » 359 U.S . 297 , 79 S. Ct. 766, 3 Krawill Machinery Corp, L.Ed.2d 820 (1959); Generali v, D’Amico, 766 F.2d 485, > Section 1304(5) provides that: Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection 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 equivalent 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 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. Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently misstated by the shipper in the bill of lading. 47a 487 (11th cir. 1985). Notwithstanding, it is well settled that parties to a bill of lading may contractually extend a liability limitation to non-carriers or the carrier’s agents, if the intent to make third parties beneficiaries of the liability limitation is expressed clearly and unambiguously. Generali, 766 F.2d at 487. Language in b [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1204%3A1. Public record. Not legal advice.