Crown Pacific International, Inc. v. Horizon Lines, LLC

Filing 16

ORDER granting 11 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Terrence W. Boyle on 11/12/2015. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
IN ADMIRALTY
NO. 5:15-CV-242-BO

CROWN PACIFIC INTERN ATI ON AL, INC.,
Plaintiff,

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V.

HORIZON LINES, LLC,
Defendant.

ORDER

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This matter comes before the Court on defendant's motion to dismiss plaintiffs
complaint as time-barred and for failure to state a claim upon which relief can be granted. [DE
11]. Plaintiff has responded in opposition. [DE 14]. For the reasons stated below, defendant's
motion is GRANTED and plaintiffs complaint [DE 1] is DISMISSED as time-barred.
BACKGROUND
In 2012, plaintiff and defendant entered into an agreement for defendant to transport a
container of ginger for plaintiff via container ship from Honolulu, Hawaii to Los Angeles,
California. The Service Request Summary detailing the transaction states an "ETD" (estimated
time of departure) from Hawaii as November 30, 2012, and an "ETA" (estimated time of arrival)
in Los Angeles of December 6, 2012, with an ETA at final destination of December 7, 2012. [DE
1-1]. However, defendant in fact shipped the container on a vessel leaving Hawaii on December
6, 2012, and arriving at the final destination on December 14, 2012. Plaintiff alleges that because
of the delay in shipping the quality of the ginger degraded to such an extent that the intended

buyer refused to accept it, necessitating finding a new buyer to sell to at a discounted price and
ultimately costing plaintiff $72,132.69. [DE 1-4].
On December 21, 2012, plaintiff submitted a formal claim for the loss to defendant. [DE
15-1]. Defendant denied liability on February 14, 2013. [DE 15-1]. Plaintiff filed a complaint on
the matter in Wake County District Court on January 13, 2014, which defendant removed to this
Court on February 12, 2014. The complaint, executed on Wake County paperwork, was
dismissed without prejudice by this Court under Federal Rule of Civil Procedure 12(b)(6) on
March 27, 2014. Plaintiff filed the instant matter on June 8, 2015, about 15 months after the
initial dismissal by this Court and about 30 months after the incident occurred. [DE 1].
DISCUSSION
Contracts concerning water carrier liability are governed by the Harter Act. 46 U.S.C. §
30701 et seq. Parties to such a contract may incorporate the terms of the Carriage of Goods by
Sea Act, or COG SA, into their bills of lading. 46 U.S.C. § 1300 et seq. Therefore, this matter is
properly before the Court in admiralty under either the Harter Act or COOSA.
The COOSA contains a one-year statute oflimitations. 46 U.S.C. § 1303(6); Alpha Int'l

Trading Co. v. Maersk, Inc., 141 F. Supp. 2d 580, 582-583 (W.D.N.C. 2001). The Harter Act
does not itself contain a statute of limitations clause; however, contracts under the Harter Act
may include a reasonable provision, such as the one-year instituted under the COOSA. Capital

Ptnrs. Int'! Ventures, Inc. v. Danzas Corp., 309 F. Supp. 2d 1138, 1145 (N.D. Cal. 2004); see
also B. Elliott (Canada), Ltd. v. John T Clark & Son, Inc., 704 F.2d 1305, 1307 (4th Cir. 1983).
Statute of limitations provisions are commonly incorporated into shippers' terms and
conditions and tariff documents. Tariffs are filed with the Federal Maritime Commission and,
thus, can be made available to customers, potential customers, and the public. Here, defendant's

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tariff documents contained language establishing time limits for claims of defendant liability for
loss or damage. Defendant's tariff 361-01 and bill of lading text read, in relevant part:
[c]arrier and the vessel shall be discharged from all liability in respect of loss or
damage unless a claim in writing has been made within one year after delivery of
the goods or date when the goods should have been delivered; or, if a claim has
been timely made, but declined, suit is not brought within two years from the date
of declination of the claim in whole or part.
[DE 12-3] (emphasis added). Defendant claims this language is controlling, and plaintiff cites to
this same language in its response in opposition to the instant motion. [DE 11, 14]. Nowhere in
its response does plaintiff contend that it was unaware of this time limitation or that it is per se
invalid. 1 Id. Instead, the parties disagree on whether plaintiff's claim was ever declined, thus
starting the two-year clock.
Plaintiff contends that it first made written demand upon defendant for damages on
March 21, 2013, and that this demand went unanswered. [DE 14]. Plaintiff also states that
"[t]here are no fact [sic] before this Court that would allow for a finding of the date of
Defendant's date of declination and therefore there is no basis upon which Defendant's Motion
to Dismiss should be granted for the lapsing of a statute of limitation." [DE 14]. However,
examination of defendant's reply to this assertion rebuts it completely. In its reply, defendant
included an email from plaintiff on December 21, 2012, which discussed the facts at issue in this
case and read, in pertinent part, "[t]his is a formal claim." [DE 15-1]. This claim was rejected in
writing on February 14, 2013. [DE 15-1]. Thus, the two-year clock began running on February

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Plaintiff does contend that defendant's delay in shipping constituted a unilateral change in the
agreement which plaintiff did not accept, so plaintiff should not be bound by the bill of lading's
terms. However plaintiff has not alleged sufficient facts to show a breach on the part of
defendant. This Court has already held that "delay alone cannot amount to a breach of a shipping
contract absent a specific agreement for delivery at a certain time." Crown Pac. Int'!, Inc. v.
Horizon Lines, LLC, 2014 U.S. Dist. LEXIS 41078, *3 (E.D.N.C. Mar. 26, 2014). Here, the
dates at issue were included as "estimated time of departure" and "estimated time of arrival."
(Emphasis added).
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14, 2013, and expired on February 14, 2015. Plaintiff filed the instant complaint on June 8, 2015,
which is almost four months beyond the end of the time limit. [DE 1]. Accordingly, plaintiffs
complaint is time-barred.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss [DE 11] is GRANTED and
plaintiffs complaint [DE 1] is DISMISSED as time-barred. The clerk is DIRECTED to close the
case.

SO ORDERED, this

J)_ day of November, 2015.
l.),
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDG

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