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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 98-20877
_______________
MANNESMAN DEMAG CORPORATION,
Plaintiff-Appellant-
Appellee,
VERSUS
M/V CONCERT EXPRESS, ETC., ET AL.,
Defendants.
ATLANTIC CONTAINER LINE, INC.,
Defendant-
Third Party Plaintiff-
Appellee,
VERSUS
TRISM SPECIALIZED CARRIERS, INC.,
Third Party Defendant-
Appellee-
Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
September 8, 2000

Before SMITH and DENNIS, Circuit
called a "through bill of lading."3 Because the
Judges, and HARMON, District Judge.*
bill obligated the carrier to transport the cargo
"through" the port to its ultimate destination,
JERRY E. SMITH, Circuit Judge:
it is referred to as a "through bill." When the
goods arrived at the Port of Baltimore,
Mannesman Demag Corporation ("Mannes-
Atlantic hired Trism to transport them to Terre
man") appeals the amount of a summary judg-
Haute.
ment award in its favor, and Trism Specialized
Carriers, Inc. ("Trism"), appeals an adverse
A.
summary judgment in favor of Atlantic
This case presents an issue of first
Container Line, Inc. ("Atlantic"). We reverse
impression regarding the applicability of
and remand.
federal maritime statutes to inland transport
under a through bill of lading. The following
I.
excerpt describes the origin of this issue.
This case arises from damage sustained to
an oxygen compressor and instrument rack
owned by Mannesman, which were
Until the advent of the containeriza-
transported from Bremerhaven, Germany, to
tion of cargo, the cargo owner typically
Terre Haute, Indiana. Atlantic carried the
would enter into a new shipment
goods from Bremerhaven to the Port of
contract with a new carrier each time
Baltimore, Maryland, aboard the M/V
the mode of transport changed. An
CONCERT EXPRESS. Trism carried the
inland carrierSSa railroad, trucker or, in
goods from Baltimore to Terre Haute. While
some cases, an inland barge operat-
en route from Baltimore to Terre Haute, the
orSSwould carry the goods to a seaport
goods were damaged when Trism's trailer
under one contract of carriage. There
overturned.1
someone, usually a "freight forwarder"
acting on behalf of the cargo owner,
There was only one bill of lading for the
would arrange to place the goods in the
entire transportation, issued by Atlantic, re-
hands of a steamship line. Frequently it
flecting an agreement to transport the goods
would be necessary to repack the goods
from Bremerhaven, Germany, to the
for ocean shipment. The ocean carrier
midwestern United States.2 The bill is what is
3 "A through bill of lading is one by which an
ocean carrier agrees to transport goods to their fi-
nal destination. Someone else (e.g. railroad, truck-
* District Judge of the Southern District of
er, or air carrier) performs a portion of the con-
Texas, sitting by designation.
tracted carriage." Charles S. Donovan & Jill M.
Haley, Who Done It and Who's Gonna
1 Mannesman claims that the reasonable and
Pay?SSRights of Shippers and Consignees
necessary costs of repair amount to over $145,000.
Against Non-Ocean Carriers Performing Part of
a Contract of Carriage Covered by a Through Bill
2 Apparently, the original agreement had a final
of Lading, 7 J. INT'L L. & PRAC. 415, 416 (1998).
destination of Chicago, Illinois, but the parties
See Jagenberg, Inc. v. Georgia Ports Auth., 882
agreed to final delivery in Terre Haute, Indiana.
F. Supp. 1065, 1068 (S.D. Ga. 1995).
2

would transport them to a foreign
COGSA. One of COGSA's most
seaport and release them there to the
important provisions limits a carrier's
consignee or someone acting on the
liability to five hundred dollars
consignee's behalf.
($500US) per package unless a higher
value is declared by the shipper.
Different legal regimes arose to
COGSA also contains a one-year
govern the parties' rights and liabilities,
limitation for cargo claims.
depending upon the mode of shipment.
. . . If the railroad did the damage, then
* * *
the rules of liability governing railroads
By its terms, COGSA applies
would apply. If the steamship line was
"tackle-to-tackle" only; it does not
liable, then maritime law would govern.
extend to losses which occur prior to
loading or subsequent to discharge from
Along came intermodal shipping
a vessel.4 A Period of Responsibility
containers and everything changed.
clause can be used to extend COGSA's
Now, the same steel cargo container can
application to the entire time the goods
move freely between different modes of
are within the carrier's custody.
transport. Ocean carriers began to offer
"door to door" service. Rail carriers,
Charles S. Donovan & Jill M. Haley, supra
truckers or other transporters now
note 3, at 415-17.
contract, not with the owner of the
goods, but as a subcontractor to the
B.
steamship line who has offered a
The parties agree that the controlling
complete transport package.
contractual document is the single bill of
lading issued by Atlantic, which provides:
Under United States law, a shipper
or consignee may recover against
3. CARRIER'S RESPONSIBILITY
non-ocean carriers for the loss of or
damage to cargo subject to a "through
(1) . . . If and to the extent that the
bill of lading." The bill of lading may, if
provisions of the Harter Act . . . would
properly drafted, limit both the amount
otherwise be compulsorily applicable to
an owner may seek as well as the time in
regulate the Carrier's responsibility for
which recovery may be sought.
the goods . . . the Carrier's responsibility
shall instead be subject to COGSA, but
* * *
where COGSA is found not to be
applicable such responsibility shall be
The U.S. Carriage of Goods by Sea
determined by the provisions of 3(2)
Act (COGSA) governs the liability of an
below . . . .
ocean carrier on an international through
bill of lading. . . . COGSA contains
* * *
important benefits to the carrier. Inland
carriers frequently attempt to take
advantage of the benefits afforded by
4 The Harter Act applies after discharge but be-
fore "proper delivery." See part IV, infra.
3

damage to or in connection with the
(2) Save as is otherwise provided in
goods in an amount per package or unit
this Bill of Lading, the Carrier shall be
in excess of the package or unit
liable for loss of or damage to the goods
limitation as laid down by such Rules or
occurring from the time that the goods
legislation. Such limitation amount
are taken into his charge until the time
according to . . . COGSA is US $500 .
of delivery to the extent set out below.
. . .
* * *
* * *
(B) Where the stage of carriage
7. TIME-BAR
where the loss or damage occurred can
be proved.
. . . All liability whatsoever of the
Carrier shall cease unless suit is brought
* * *
within 12 months after delivery of the
goods or the date when the goods
(ii) With respect to the
should have been delivered.
transportation in the United States . . .
from the Port of Discharge, the
C.
responsibility of the Carrier shall be to
Before filing the instant matter, Mannesman
procure transportation by carriers (one
sued Trism (the "previous lawsuit").5 Trism
or more) and such transportation shall
argued that the suit was barred by the bill's
be subject to the inland carrier's
one-year time-bar, while Mannesman contend-
contracts of carriage and tariffs and any
ed that the suit was governed by limitations in
law compulsorily applicable. The
Trism's contracts of carriage and tariffs. As a
Carrier guarantees the fulfillment of
matter of contractual interpretation, the court
such inland carriers' obligations under
held that the "TIME-BAR" provision of the
their contracts and tariffs.
Bill unambiguously applied to all aspects of the
through bill, and therefore granted summary
* * *
judgment in favor of Trism. Mannesman did
not appeal.
6. PACKAGE/UNIT LIMITATION
AND DECLARED VALUE
Mannesman then filed the instant suit
against Atlantic, which brought a third-party
(1) Package or Unit Limitation
claim against Trism for contribution and
indemnity. Mannesman moved for summary
Where the Hague Rules or any
judgment against Atlantic, which filed a cross-
legislation making such Rules
motion for summary judgment against
compulsorily applicable (such as
COGSA or COGWA) to this Bill of
Lading apply, the Carrier shall not,
5 Apparently to avoid being a party to the
unless a declared value has been noted .
previous lawsuit, Atlantic signed an agreement
. . be or become liable for any loss or
with Mannesman extending the contractual
limitations period.
4

Mannesman. The court granted summary
terpretation of, inter alia, the Harter Act.
judgment, without opinion, in favor of
Mannesman against Atlantic in the amount of
The district court's opinion in the previous
$1000 plus post-judgment interest, and in
lawsuit recognizes this distinction (emphasis in
favor of Atlantic against Trism in the same
original):
amount, arriving at the $1000 figure via the
bill's $500 per package limitation.
Section 3 of the [Atlantic] Bill of
L a d i n g , e n t i t l e d " C a r r i e r ' s
Mannesman appeals the amount of the
Responsibility," addresses the Carrier's
award, and Trism cross-appeals, contesting
liability, and section 3(2) states the
liability. Atlantic does not appeal and thus
different measures of liability depending
does not contest the finding of liability.
upon where the loss or damage to the
goods occurred . . . . Specifically,
II.
section 3(2)(B)(ii) sets forth the
Atlantic contends that Mannesman is
measure of liability for inland carriage of
attempting to relitigate issues that were
goods in the United States or Canada.
necessarily decided in the previous lawsuit and
For inland carriage of goods, liability is
is barred from doing so by the doctrine of
to be measured by reference to the
collateral estoppel. Although Mannesman
inland carrier's contracts of carriage and
does not so argue, it appears that neither At-
tariffs and any law compulsorily
lantic nor Trism raised collateral estoppel in
applicable. There is no mention in sec-
the district court, in which case we will not
tion 3(2)(B)(ii), or in the entirety of
apply the doctrine on appeal. See American
section 3 for that matter, of a specific
Cas. Co. v. United S. Bank, 950 F.2d 250, 253
limitations period for the bringing of suit
(5th Cir. 1992).
for recovery of the damage or loss of
goods during the inland portion of the
It is, however, unnecessary to resolve
carriage. Section 7, however, of the
waiver, because Atlantic's contention of
governing [Atlantic] Bill of Lading is
collateral estoppel is without meritSSthe issue
specifically entitled, "Time Bar," and
is not identical to that litigated in the previous
sets forth an all-inclusive time bar pro-
lawsuit.6 In that suit, the court merely had to
vision . . . . Mannesman has not
decide that the express one-year limitations bar
directed the Court to any case law, and
was applicable to all aspects of the through bill
the Court can find none, that would read
of lading. That limitation is not relevant here,
a conflicting limitations period into the
because Atlantic has contractually agreed to
liability provision contained in section
extend that period. Instead, we must decide
3(2)(B)(ii) in the face of, and contrary
which of the two contractual limitations of
to, a separate section of the Bill of
liability is applicable, which requires in-
Lading that sets forth a specific and all
inclusive time bar proviso.
6
Atlantic argues that, to determine when the
See Winters v. Diamond Shamrock Chem.
Co., 149 F.3d 387, 391 (5th Cir. 1998) (stating the
limitations period began running, the previous
four required collateral estoppel factors), cert.
lawsuit necessarily resolved when and where
denied, 526 U.S. 1034 (1999).
5

delivery occurred. That determination,
those cases had the goods begun inland
however, is not equivalent to determining
transport.8
when delivery occurred under the Harter Act.
Because the bill's liability limitation is ex-
Atlantic's bill references two statutes, the
plicitly partitioned based on the limits of
Carriage of Goods by Sea Act ("COGSA"), 46
Harter Act compulsory applicability,
U.S.C. app. �� 1300-1315, and the Harter
interpretation of the Harter Act remains for us
Act, 46 U.S.C. app. �� 190-196. Under
in this appeal.
COGSA, a carrier of goods in international
commerce must "properly and carefully load,
III.
handle, stow, carry, keep, care for, and
Atlantic contends that Mannesman waived
discharge the goods carried." 46 U.S.C. app.
argument regarding the Harter Act by failing
� 1303(2). The Harter Act imposes a duty of
to raise the issue in the district court. Mannes-
"proper loading, stowage, custody, care, [and]
man moved for summary judgment, arguing
proper delivery." 46 U.S.C. app. � 190.
that the inland carrier's tariff, not the COGSA
Although the Harter Act's applicability to in-
$500 per package limitation, provided the
ternational commerce was partially superseded
applicable limitation of liability. Atlantic
by COGSA,9 COGSA is applicable only from
cross-moved for summary judgment, arguing
the time goods are loaded onto the ship until
that the limitation is the COGSA $500 per
the time the cargo is released from the ship's
package amount and specifically averring that
tackle at port. See 46 U.S.C. app. � 1301(e);
the Harter Act is compulsory applicabile.
Tapco, 702 F.2d at 1255. Therefore, the Har-
ter Act applies to the period between the dis-
By granting Atlantic's cross-motion as to
charge of the cargo from the vessel and "prop-
amount of liability, the court necessarily
er delivery." See Tapco, 702 F.2d at 1255.
determined that the Harter Act was
compulsorily applicable to the inland portion
Because the Harter Act does not define
of carriage. This issue was therefore raised
"proper delivery," courts have defined proper
and considered by the district court and is
properly before us.7
8 See, e.g., Metropolitan Wholesale Supply,
IV.
Inc. v. M/V ROYAL RAINBOW, 12 F.3d 58 (5th
We must determine, as a matter of first im-
Cir. 1994) (damage from salvage sale when goods
pression, whether the Harter Act is
not picked up at wharf); Tapco Nigeria, Ltd. v.
compulsorily applicable to the inland portion
M/V WESTWIND, 702 F.2d 1252 (5th Cir. 1983)
of carriage pursuant to a through bill of lading.
(damage during stevedoring); F.J. Walker, Ltd. v.
We have decided a number of cases
M/V LEMONCORE, 561 F.2d 1138 (5th Cir.
interpreting similar bills of lading and their
1977) (damage during stevedoring and port
reference to the Harter Act, but in none of
delivery).
9 COGSA is not applicable to contracts of car-
riage between ports of the United States and inland
7 See Gilley v. Protective Life Ins. Co., 17 F.3d
water carriage under bills of lading, and therefore
775, 781 (5th Cir. 1994) (rejecting the contention
such domestic transport is still governed by the
that an argument first raised in response to a mo-
Harter Act. See 8 BENEDICT ON ADMIRALTY
tion for summary judgment is waived on appeal).
� 21.03[1][a], at 21-7 through 21-8 (7th ed. 1998).
6

delivery as discharge of cargo "upon a fit and
Atlantic's bill of lading provides that, to the
customary wharf." Id.10 Proper delivery also
extent the Harter Act is compulsorily
includes the general maritime law requirement
applicable, the Carrier's "responsibility shall
that a carrier "unload the cargo onto a dock,
. . . be subject to COGSA." � 3(1). It further
segregate it by bill of lading and count, put it
states that "[w]here . . . [COGSA] appl[ies],
in a place of rest on t he pier so that it is
the Carrier shall not . . . be or become liable
accessible to the consignee, and afford the
for any loss or damage . . . in an amount per
consignee a reasonable opportunity to come
package or unit in excess of . . . $500."
and get it." Tapco, 702 F.2d at 1255.11 These
� 6(1). Therefore, if the Harter Act is
requirements of "proper delivery" are modified
compulsorily applicable to Trism's inland
by "the custom, regulations, [and] law of the
transport, the court correctly limited Atlantic's
port." Tapco, 702 F.2d at 1255.12 Thus, the
liability to $500 per package.
critical question is "whether delivery was to
persons charged by the law and the usage of
The same contractual provision extending
the port with the duty to receive cargo and
COGSA to the limits of the Harter Act also
distribute it to the consignee." Tapco, 702
states: "[B]ut where COGSA is found not to
F.2d at 1257 (internal quotation marks
be applicable [the Carrier's] responsibility shall
omitted).
be determined by the provisions of 3(2)
below." � 3(1). Paragraph 3(2)(B)(ii)
COGSA also refers to "delivery," which
provides that, where the occurrence of damage
commences the running of a one-year
can be proved to occur during transportation
limitations period. See 46 U.S.C. app.
"in the United States," "the responsibility of
� 1303(6). In Servicios-Expoarma, C.A. v.
the Carrier shall be to procure transportation
Industrial Maritime Carriers, Inc., 135 F.3d
by carriers (one or more) and such
984, 993 (5th Cir. 1998), we determined that
transportation shall be subject to the inland
when such "delivery" occurs varies according
carrier's contracts of carriage and tariffs and
to the custom and laws of a port but that
any law compulsorily applicable. The Carrier
"delivery" is not equivalent to receipt by the
guarantees the fulfillment of such inland
consignee. Thus, when an ocean carrier
carrier's obligations under their contracts and
transferred its cargo to an authorized customs
tariffs."
warehouse in the Venezuelan port of
destination, delivery was completed regardless
Mannesman argues that Harter Act "proper
of the fact that the consignee had not yet
delivery" occurred when Trism acquired
received the goods. See id.
control over the goods and began inland
transportation. If this is correct, then at the
time the goods were damaged, the Harter Act
was not compulsorily applicable, in which case
the Bill provides that Atlantic's liability is
10 See also Metropolitan, 12 F.3d at 61; F.J.
governed by Trism's contracts and tariffs.13
Walker, 561 F.2d at 1142, 1143-44.
11 See also Metropolitan, 12 F.3d at 61; F.J.
Walker, 561 F.2d at 1142.
13 Mannesman contends that Trism's tariff lim-
its liability to $2.50 per pound, but apparently he
12 See also F.J. Walker, 561 F.2d at 1144.
(continued...)
7

Atlantic counters that the through bill of lading
[T]he contract was intermodal, meaning
provided for carriage from Germany to Terre
that [Atlantic] contracted with Jagen-
Haute, inclusive, and therefore that Harter Act
berg to transport the goods over sea
proper delivery had not yet occurred at the
from The Netherlands, and then over
time the goods were damaged.
land to . . . Macon, Georgia . . . .
Macon was the place at which a
There is no precedent by any circuit court
consignee or its "agent" . . . first
of appeals interpreting Harter Act proper de-
encountered the cargo. Consequently,
livery with respect to the inland portion of a
the Court must either extend the reach
through bill of lading. There is, however, a
of the Harter ActSSa maritime lawSSto
thorough and persuasive district court opinion,
the point of delivery in Macon, Georgia,
from another circuit, that has been followed by
or it must find some principled manner
other district courts.
of deciding when a proper delivery
occurred beforehand, despite the fact
In Jagenberg, Inc. v. Georgia Ports Auth.,
that, technically, no agent of Jagenberg
882 F. Supp. 1065 (S.D. Ga. 1995), the court
had a reasonable opportunity to take the
considered an Atlantic bill of lading apparently
goods into "proper care and custody"
identical to the one here. The court first cited
before they reached Macon.
a traditional definition of "proper delivery"
found in Wemhoener Pressen v. Ceres Marine
Id. at 1077.
Terminals, Inc., 5 F.3d 734, 741-42 (4th Cir.
1993) as
Based on the maritime nature of the Harter
Act, the court held that inland transportation
either actual or constructive delivery.
under a through bill occurs after Harter Act
Actual delivery consists of completely
proper delivery:
transferring the possession and control
of the goods from the vessel to the
[T]he Harter Act is at its core a
consignee or his agent. Constructive
maritime law; the Court is unwilling to
delivery occurs where the goods are
rule that simply because private parties
discharged from the ship upon a fit
enter an intermodal agreement federal
wharf and the consignee receives due
maritime legislation is thus extended far
and reasonable notice that the goods
beyond its congressionally intended
have been discharged and has a
bounds. The Harter Act is designed
reasonable opportunity to remove the
solely to regulate the liability of sea-
goods or put them under proper care
going carriers. That said, the Court
and custody.
finds that the Harter Act does reach to
the point at which goods are loaded
Jagenberg, 882 F. Supp. at 1076-77. The
onto the vehicles of an inland trucker,
court then noted the complication raised by a
whether hired by the shipper or the
through bill:
carrier.
Id. at 1077-78 (internal citations omitted).
13(...continued)
Harter Act proper delivery, however, precedes
has produced no evidence in this regard.
8

that inland transport. See id. at 1077. The
of a single case extending the Harter Act to all
court concluded:
stages of a through bill of lading. See id. at
*15 n.3; Jagenberg, 882 F. Supp. at 1077
In this age of "containerized" cargoes
n.13. The parties in the case sub judice cite no
subject to "multimodal" bills of lading, it
contrary authority.16
is often difficult to locate precisely the
points of legal delivery. Increasing
We find these decisions persuasive and
efficiency and integration in cargo
therefore conclude that the Harter Act was not
transport continues to blur the lines
compulsorily applicable at the time Mannes-
separating sea carrier responsibilities
man's goods were damaged. This analysis not
from those of others. The Court finds it
only avoids compulsory application of federal
advisable to keep sea carriers to the
maritime law to non-maritime transportation,
standards imposed by the Harter Act
but has the benefit of not rendering
until goods are in the hands of land
superfluous the alternative liability provisions
carriers and actually leaving the
found at paragraph 3(2) of Atlantic's bill of
maritime arena. With COGSA covering
lading.17
carriers' legal responsibilities through
discharge, Harter fills a potential gap
Our ruling is also consistent with Servici-
between discharge and inland transit in
os's interpretation of COGSA "delivery." As
those situations where goods, though on
with COGSA, Congress could have, but chose
the dock, are still within the control and
not to, use "receipt" instead of "delivery." See
responsibility of the sea carrier.
Servicios, 135 F.3d at 989. Thus, Harter Act
"delivery," like COGSA "delivery," is inter-
Id. at 1078-79.14
Jagenberg was adopted in Colgate Palmol-
16 Jagenberg has been adopted by other courts,
ive Co. v. M/V ATLANTIC CONVEYOR, 1997
as well. See Abbott Chem., Inc. v. Molinos de
A.M.C. 1478, 1996 U.S. Dist. LEXIS 19247,
Puerto Rico, Inc., 62 F. Supp. 2d 441, 448
at *14 (S.D.N.Y. Dec. 31, 1996), which again
(D.P.R. 1999) ("[T]he Harter Act is applicable to
concerned an Atlantic through bill of lading:
a carrier's liability pursuant to an intermodal con-
"Proper delivery occurs when the cargo is
tract . . . only to the extent that the obligations
ready for inland transport."15 The Jagenberg
claimed to be violated are maritime."); Standard
and Colgate Palmolive courts were not aware
Multiwall Bag Mfg. Co. v. Marine Terminals
Corp., 961 F. Supp. 240, 242 (D. Or. 1996); M.C.
Machinery Sys., Inc. v. Maher Terminals, Inc.,
14 The damage in Jagenberg occurred at port
164 N.J. 192, 212 (2000).
before loading onto inland-bound trucks, and there-
fore the court found proper delivery had not yet oc-
17 See Transitional Learning Community, Inc.
curred. See Jagenberg, 882 F. Supp. at 1069,
v. United States Office of Personnel Management,
1077.
2000 U.S. App. LEXIS 19008, at *10 (5th Cir.
Aug. 9, 2000) ("[A] contract should be interpreted
15 See also Colgate Palmolive, 1996 U.S. Dist.
as to give meaning to all of its termsSSpresuming
LEXIS 19247, at *15 ("Like the Jagenberg Court,
that every provision was intended to accomplish
I decline to hold that the Harter Act covers inland
some purpose, and that none are deemed su-
transportation of cargo.").
perfluous.").
9

preted according to the "common law gloss"
against Atlantic, and Atlantic filed a cross-
that "[d]elivery [is] not defined by receipt by
motion for summary judgment against
the consignee, but rather occur[s] when the
Mannesman. Although neither party moved
carrier ha[s] properly surrendered the goods in
for summary judgment against Trism, the court
accordance with its contractual duties." See
nevertheless granted judgment in favor of
id. at 991. Servicios did not interpret
Atlantic against Trism.
"delivery" in the context of a through bill of
lading but made clear that delivery is governed
This was error. A court may grant
by general maritime law obligations as
summary judgment sua sponte but must
modified by specific contractual provisions,
provide adequate notice and an opportunity to
not by receipt of the goods. See id. at 992-93.
respond akin to that required by FED. R. CIV.
P. 56(c). See Leatherman v. Tarrant County
We do not preclude parties from
Narcotics Intelligence and Coordination Unit,
contractually limiting liability during the entire
28 F.3d 1388, 1397-98 (5th Cir. 1994). If the
time in which the carrier has custody or
court fails to provide such notice, we will
control over the cargo.18 We merely hold that
reverse the grant unless the error is harmless.
where parties contractually tie such limitation
See id. at 1398.
to the extent that the Harter Act is
compulsorily applicable, the limitation does
There is harm here, because Trism has a
not apply to inland transportation in through
potentially valid defense that it was not on
bills of lading. A contrary result extends the
notice to raise. Atlantic claims the right
compulsory applicability of the Harter Act to
unilaterally to create liability on the part of
transportation that Congress almost certainly
Trism by agreeing to extend the existing
did not intend to include within that act.
contractual limitations bar. Trism is entitled to
an opportunity to refute this contention, and
For all of the foregoing reasons, Harter Act
we therefore reverse the judgment of liability
proper delivery preceded the damage at issue,
against Trism.
so we vacate the awards in favor of Mannes-
man and Atlantic.19 Because the record lacks
REVERSED and REMANDED.
evidence of, inter alia, the applicable tariff
limitation and the extent of damage to the
goods, we remand for further proceedings.
V.
Mannesman moved for summary judgment
18 See, e.g., Jagenberg, 882 F. Supp. at 1070
n.1 (citing Brown & Root, Inc. v. M/V PEISAN-
DER, 648 F.2d 415, 420 (5th Cir. June 1981)).
19 We therefore do not reach Mannesman's
claim that the court erred by failing to award pre-
judgment interest.
10