Western Gear Corporation, Appellant, v. States Marine Lines, Inc., Appellee, 362 F.2d 328 (9th Cir. 1966)

M. Bayard Crutcher of Bogle, Gates, Dobrin, Wakefield & Long, Seattle, Wash., for appellant.

Donald S. Voorhees, of Riddell, Williams, Voorhees, Ivie & Bullitt, Seattle, Wash., for appellee.

Before HAMLEY AND JERTBERG, Circuit Judges, and THOMPSON, District Judge.

THOMPSON, District Judge:

This is an appeal from a summary judgment granted to States Marine Lines, Inc. upon the ground that the cause of action was barred by the applicable statute of limitations found in the Carriage of Goods by Sea Act [46 U.S.C.A. § 1303(6)].¹  We affirm.

Appellant, Western Gear Corporation, manufactured certain Barcs (Barge, Amphibious Re-Supply Craft) for the United States Army. A Barc is a large fourwheeled, two-propellered cross between a truck and a lighter, 61 feet long, 26 feet wide, weighing 90 tons. On March 10, 1963, Barc No. 26 was shipped at Seattle, Washington, by Western Gear Corporation aboard Marine Lines ship SS P & T Navigator consigned to Appellant at New Orleans, Louisiana, under bill of lading 206-1395, which recited the scheduled date of arrival at New Orleans as March 25, 1963. On March 11, 1963, Barc 26 was washed overboard off the Washington Coast. The Coast Guard recovered the Barc and returned it to Western Gear Corporation. The extensive damages were repaired and on August 6, 1963, Barc 26 was again loaded at Seattle, this time aboard Marine Lines ship SS Copper State, destined for New Orleans under bill of lading 206-2943. It was delivered at New Orleans on August 23, 1963. Western Gear Corporation's libel for damages resulting from the occurrences on March 11, 1963 was filed on August 13, 1964, within one year of the actual delivery of Barc 26 at New Orleans on August 23, 1963, but more than sixteen months after the date (March 25, 1963) it should have been delivered aboard the SS P & T Navigator.

The undisputed facts, established by affidavits, show no connection between the original shipment of Barc No. 26 via SS P & T Navigator and its ultimate successful delivery via SS Copper State.² 

It is Western Gear Corporation's contention that the words of 46 U.S.C. § 1303(6) should be read literally, that is, that "unless suit is brought within one year after delivery of the goods" means exactly what it says. If the goods were delivered at any time by any means, the limitation for commencement of suit runs from the date of such delivery. Respondent's interpretation is that the statute necessarily implies reference to the contract of carriage (bill of lading) upon which the suit is grounded and that it is only a delivery in performance of the obligations of that contract or a failure of delivery under that contract which fixes the date from which time runs, that is, either the date of delivery or the date "when the goods should have been delivered", as the case may be.

Inasmuch as libelant's claim for relief in this type of case sounds in contract and is based upon alleged violations of duties imposed by the contract of carriage, we deem Respondent's interpretation the more reasonable.³ 

The only frame of reference within which a determination can possibly be made of "the date when the goods should have been delivered" [Section 1303(6)] is by turning to the bill of lading. Further, the statute itself defines "carrier" as it is used in § 1303(6) as (46 U.S.C. § 1301): "The term `carrier' includes the owner or the charterer who enters into a contract of carriage with a shipper." (Emphasis supplied).

Neither party has found case authority on facts similar to these. Appellee cites a number of cases showing that the statute of limitations in the Carriage of Goods by Sea Act has been strictly applied by the Courts to bar untimely suits. United States v. The South Star, 210 F.2d 44 (2nd Cir., 1954); Singer Hosiery Mills of New York v. Cunard White Star, 199 Misc. 389, 102 N.Y.S.2d 762 (1951); M. V. M., Inc. v. St. Paul Fire & Marine Insurance Co., 156 F. Supp. 879 (D.C. N.Y.1957); Meredith v. The Ionian Trader, 279 F.2d 471 (2nd Cir., 1960); J. Aron & Co. v. The Askvin, 267 F.2d 276 (2nd Cir., 1959).

We also have been referred to Leo Hess International Corp. v. Isthmian Steamship Co. (1958) 5 A.D.2d 250, 170 N.Y.S.2d 705, where the Appellate Division of the New York Supreme Court, in a well-reasoned decision, decided that summary judgment should be denied on a defense that the action was barred under 46 U.S.C. § 1303(6). There a shipment of bales of Iranian carpet wool should have been delivered on March 1, 1951. There was an actual delivery of the 102 bales by the carrier to the holder of the bill of lading in June, 1952, the reasons for the long delay being unimportant to the issue of whether the claim was time-barred. The Court concluded that the issue of fact which precluded summary judgment was whether or not the June, 1952 delivery and acceptance of the goods was made in discharge of the bill of lading.⁴ 

This rationale seems to us to be entirely correct. Whenever there is an actual delivery of the goods in performance by the carrier of its obligations under the contract of carriage, the time to sue runs from the date of delivery rather than from the date when the goods should have been delivered. The difficulty with the instant case is that the undisputed evidence shows that the delivery of Barc No. 26 on August 23, 1963 was not in performance of the obligations of the contract of carriage (Bill of Lading 206-1395) upon which suit was brought. On the contrary, it was finally delivered under an entirely separate contract of carriage, to wit, Bill of Lading 206-2943. This is not to imply that the presence of two bills of lading would necessarily be conclusive in every case, but here Marine Lines has affirmed, without dispute, that the two shipments, first on the SS P & T Navigator and next on the SS Copper State, were entirely separate and distinct transactions (Fn. 3, supra).

The summary judgment is affirmed.