The Fifth Circuit, though it has not addressed the interplay between COGSA and the Carmack Amendment, has held that "[if] the parties extend the provisions of COGSA to the preloading phase, any inconsistency with the Harter Act must yield to the Harter Act." Uncle Ben's Int'l Div.
The Fifth Circuit, though it has not addressed the interplay between COGSA and the Carmack Amendment, held that "[if] the parties extend the provisions of COGSA to the preloading phase, any inconsistency with the Harter Act must yield to the Harter Act." Uncle Ben's, 855 F.2d at 217.
(15) Thus, the issue before the Fifth Circuit was whether the Harter Act, (16) a federal maritime statute, should be compulsorily applied to the inland portion of transportation pursuant to a through bill of lading.
(25) According to Atlantic's contract, they extended the provisions of COGSA to cover the period of time when the Harter Act is rendered applicable.
Due to the extension of COGSA's provisions, Atlantic's bill of lading requires application and interpretation of the Harter Act. (27) The intended purpose for Congressional execution of the Harter Act, in 1893, was to prevent the efforts of carriers to insert into bills of lading all-embracing exceptions to liability or exculpatory clauses.
Despite COGSA's encroachment upon the Harter Act's applicability in international maritime law, courts continue to hold that the Harter Act still governs the period after the cargo has been unloaded from the ship.
M/V LEMONCORE, (60) without analysis, held that the Harter Act, and not COGSA, was the applicable maritime act based upon the facts presented.
Based upon these precedents, the Fifth Circuit has consistently applied the five-part test, and has applied the Harter Act during the period of time after unloading but before "proper delivery;" decisions evidencing uniform application are Tapco Nigeria, Ltd.
Georgia Ports Auth., (71) the United States District Court for the Southern District of Georgia was presented with the issue of whether the Harter Act could be compulsorily applied to inland travel, thereby contractually extending the benefits of COGSA.
Due to the fact that all precedented Fifth Circuit case law failed to address the issue of "whether the Harter Act is compulsorily applicable to the inland portion of carriage pursuant to a through bill of lading," (75) this was an issue of first impression for the Mannesman court.
After noting the lack of circuit court decisions interpreting the Harter Act regarding constructive "proper delivery" for inland transport under a through bill of lading, the Mannesman court ruled that the United States District Court for the Southern District of Georgia's opinion in Jagenberg, Inc.
Although Atlantic extended the provisions of COGSA to cover the duration of the Harter Act's application, it did not intend COGSA to cover the entire duration.