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United States Court of Appeals,
Fifth Circuit.
No. 94-20228.
MENDES JUNIOR INTERNATIONAL COMPANY, Plaintiff-Counterclaim
Defendant-Appellant,
v.
M/V SOKAI MARU, Defendant-Appellee,
and
Atlanta Maritime Corporation, Defendant-Counterclaim Plaintiff-
Appellee.
Jan. 26, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before WHITE, Associate Justice (Ret.)*, BARKSDALE and PARKER,
Circuit Judges.
PER CURIAM:
Plaintiff-Counterclaim Defendant-Appellant Mendes Junior
International Company ("Mendes") appeals the final judgment of the
district court finding its claim time-barred and awarding damages
in favor of Defendant-Counterclaim Plaintiff-Appellee Atlanta
Maritime Corporation ("AMC") on its counterclaims. We affirm.
FACTS AND PROCEDURAL HISTORY
This dispute arises out of a contract to ship supplies from
South America to Iraq in the early 1980s. Mendes had a contract to
build a railroad in Iraq. Mendes consulted Agenave Maritime Agency
("Agenave") regarding shipments of supplies to Iraq, and Agenave,
*The Honorable Byron R. White, Associate Justice of the
United States Supreme Court, (Ret.), sitting by designation,
pursuant to 28 U.S.C. § 294(a).
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as agent for time-charterers, undertook to engage appropriate
vessels for Mendes.
Agenave booked several ships with AMC, a time-charterer in
Houston, Texas on "full liner terms," meaning that, in exchange for
receiving a higher freight rate, AMC bore the burden of loading and
discharging cargo and assumed all risk of delay in port. One of
these ships, the M/V Sokai Maru ("Sokai Maru "), left Brazil in
December 1980 to sail for the Middle East. The Sokai Maru
apparently sailed to the Port of Aqaba, Jordan, but because of
congestion, simply registered there instead of discharging its
cargo. The Sokai Maru proceeded to Jeddah, Saudi Arabia to unload
other cargo. At Jeddah, the Sokai Maru was detained for over a
month because the Saudis claimed that the ship was on the Arab
blacklist. The Sokai Maru then returned to Aqaba, arriving on
February 12, 1981. However, she was only able to unload a small
part of the Mendes cargo. The Sokai Maru then proceeded to Kuwait
and discharged the remainder of the cargo.1
On March 24, 1982, Mendes filed suit against the Sokai Maru,
in rem, her owners, her time-chartered owners, and AMC for damages
arising out of the delay in shipment of its cargo. The district
court dismissed the action against the owners and time-charterers
for lack of personal jurisdiction. AMC counterclaimed against
Mendes for amounts due from this and other voyages.
The case was tried before District Judge Sterling in June
1According to Kuwaiti port authority documents, the Mendes
cargo was unloaded and warehoused on March 15, 1981.
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1985. Judge Sterling took the case under advisement, but died
before handing down a decision. In 1988, the parties consented to
have Magistrate Judge Karen K. Brown conduct any and all further
proceedings in the case. The joint consent form filed with the
district court contained an order of reference, signed by District
Judge Singleton, assigning the case to Magistrate Judge Brown.
However, before Magistrate Judge Brown was able to enter judgment,
she was elevated to the bankruptcy bench. The case was
subsequently transferred to Magistrate Judge Frances H. Stacy
without the parties' additional consent or objection.
Magistrate Judge Stacy reheard final arguments on November 28,
1990. In April 1991, she entered final judgment against Mendes on
the grounds that its claim was barred by the statute of
limitations, and rendered judgment in favor of AMC on its
counterclaims. 758 F.Supp. 1169 (S.D.Tex.1991). This Court
reversed the judgment and remanded to the district court because
Magistrate Judge Stacy lacked jurisdiction to enter judgment in the
absence of both an order referring the case to her and written
consent by the parties. Mendes Junior Int'l Co. v. M/V Sokai Maru,
978 F.2d 920 (5th Cir.1992). The case was then assigned to
District Judge Lynn Hughes, who rendered a final judgment on the
record of the trial before Judge Sterling. The final judgment
ordered that Mendes take nothing, and awarded AMC $1,008,291.80
plus pre- and post-judgment interest and costs.
STANDARD OF REVIEW
In admiralty cases tried by the court sitting without a jury,
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as in other cases, the district court's findings of fact are
subject to the clearly erroneous standard of review, while
questions of law are subject to de novo review. Avondale
Industries, Inc. v. International Marine Carriers, Inc., 15 F.3d
489, 492 (5th Cir.1984); E.A.S.T., Inc. v. M/V Alaia, 876 F.2d
1168, 1171 (5th Cir.1989).
STATUTE OF LIMITATIONS
The Carriage of Goods by Sea Act ("COGSA") governs "all
contracts for the carriage of goods by sea to or from ports of the
United States and foreign trade." 46 U.S.C.App. § 1312;
Metropolitan Wholesale Supply, Inc. v. M/V Royal Rainbow, 12 F.3d
58, 60 (5th Cir.1994). The duty of care owed by the carriers runs
"from the time the goods are loaded on the ship until the time that
the cargo is released from the ship's tackle at port."
Metropolitan Wholesale Supply, Inc., 12 F.3d at 61 (citing 46
U.S.C.App. § 1301(e) and Tapco Nigeria, Ltd. v. M/V Westwind, 702
F.2d 1252, 1255 (5th Cir.1983)). Section 1303(6) of COGSA provides
a one-year statute of limitations for claims related to damaged
cargo:
In any event the carrier and the ship shall be discharged from
all liability in respect of loss or damages unless suit is
brought within one year after delivery of the goods or the
date when the goods should have been delivered....
46 U.S.C.App. § 1303(6). Therefore, the statute of limitations
begins to run when the goods are delivered. The question raised in
this case is what date actual delivery of the Mendes cargo
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occurred.2
Mendes contends that the statute of limitations did not begin
to run until March 26, 1981, the date mentioned in a July 10, 1981
letter from AMC's president to Mendes.3 Although some of the cargo
may have been delivered on March 15, 1981, the date when the Sokai
Maru arrived in Kuwait, Mendes argues that delivery was not
complete until March 26. Therefore, when Mendes filed suit on
March 24, 1982, it was within the one-year statute of limitations.
The district court found that the Sokai Maru left Kuwait on
March 26, 1981. Relying on documents issued by the Kuwaiti port
authority, including dock receipts and storage documents signed by
the Kuwaiti port authority, the Sokai Maru and the consignee,
however, the court determined that the Mendes cargo was completely
discharged on March 15, 1981. The court concluded that the March
26, 1981 date mentioned in the letter sent to Mendes by AMC's
president referred only to the date that the Sokai Maru sailed from
Kuwait, not to the date of delivery of the Mendes cargo. Our
review of the record reveals no evidence that the district court's
2Several courts have addressed the definition of "delivery"
with respect to the triggering of the statute of limitations
under § 1303(6). Some courts have found delivery to be complete
when the cargo leaves the ship's sling, whether to a consignee or
to an agent. See C. Tennant Sons & Co. v. Norddeutscher Lloyd,
220 F.Supp. 448 (E.D.La.1963). Others have found that, in
particular circumstances, delivery is not complete until after
the consignee has a reasonable opportunity to inspect the goods.
See Orient Atlantic Parco, Inc. v. Maersk Lines, 740 F.Supp.
1002, 1005 (S.D.N.Y.1990). However, because this issue was not
raised at trial, we decline to address it in this appeal.
3In the letter, AMC's president, John G. Miller, states that
the "vessel finished discharging in Kuwait and sailed on March
26, 1981."
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findings were clearly erroneous. Nor did the district court err on
any legal issue in this respect. Mendes has presented no other
credible evidence to prove that the discharge of its cargo
continued after March 15, 1981.
Having found this action barred by COGSA's one-year statute of
limitations, we find it unnecessary to address the remaining issues
dealing with Mendes' damages claim. We also agree with the
district court's judgment on appellees' counterclaims, including
its award of pre-judgment interest. We agree with the court's
reasoning, and find no clear error in the court's calculations.
CONCLUSION
Because the COGSA statute of limitations had expired as of
March 15, 1982, nine days before Mendes filed this lawsuit, the
action is barred by the statute. The judgment of the district
court is AFFIRMED.

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