Underwood Cotton Company, Inc. v. Hyundai Merchant Marine (America), Inc. Hyundai Merchant Marine Co., Ltd.

288 F.3d 405 UNDERWOOD COTTON COMPANY, INC., Plaintiff-Appellant, v. HYUNDAI MERCHANT MARINE (AMERICA), INC.; Hyundai Merchant Marine Co., Ltd., Defendants-Appellees. No. 01-55677. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 5, 2002. Filed April 26, 2002. Kenneth F. Matteld, Los Angeles, California, (argued); Geoffrey W. Gill, Arter & Hadden, LLP, Los Angeles, CA, for the plaintiff-appellant. David R. Woolley, Woolley & Russell, Long Beach, CA, for the defendants-appellees. Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CV-00-02026-R. Before: FERNANDEZ and RAWLINSON, Circuit Judges, and REED, * District Judge. Opinion by Judge FERNANDEZ; Concurrence by Judge REED. FERNANDEZ, Circuit Judge. 1 Underwood Cotton Company, Inc., brought this action against Hyundai Merchant Marine (America), Inc., and Hyundai Merchant Marine Co., Ltd. (collectively Hyundai). The district court granted Hyundai judgment on the pleadings 1 on the basis that the Carriage of Goods by Sea Act (COGSA) 2 applied and its provisions barred Underwood's action based upon the Federal Bill of…

Opinion by Judge FERNANDEZ; Concurrence by Judge REED.

Underwood Cotton Company, Inc., brought this action against Hyundai Merchant Marine (America), Inc., and Hyundai Merchant Marine Co., Ltd. (collectively Hyundai). The district court granted Hyundai judgment on the pleadings 1 on the basis that the Carriage of Goods by Sea Act (COGSA) 2 applied and its provisions barred Underwood’s action based upon the Federal Bill of Lading Act (Pom-erene Act) 3 because this action was not commenced “within one year after delivery of the goods or the date when the goods should have been delivered.” 4

BACKGROUND

Underwood brought this action and alleged that it had sold cotton to Cosan *407 U.S.A. Supply Co., Inc. Thereafter, Underwood delivered the cotton to Hyundai, which was to ship the cotton from Texas to Taiwan. Hyundai agreed that it would issue bills of lading for the cargo, and when Underwood presented those, Cosan was to pay for the cotton. However, after Underwood delivered the goods to Hyundai on January 7, 1998, Hyundai gave receipts to Underwood, but then issued the bills of lading to Cosan. Underwood protested, notified Hyundai that it was the true owner of the cotton, and…

concurring in the judgment.

I respectfully concur in the result. I write separately because it is my view that simply by applying canons of statutory construction we can arrive at the conclusion that COGSA’s proviso against “repealing” or “hmiting” the Pomerene Act does not preclude application of its one year time bar to Underwood’s claims.

The issue we confront is whether COG-SA’s one year statute of limitations can be applied to a Pomerene Act claim in light of the express proviso in COGSA that it is not meant to limit application of the Pom-erene Act. COGSA applies to “every bill of lading” which is “evidence of a contract for the carriage of goods by sea.” 46 U.S.C. app. § 1300. It contains a one year statute of limitations period. Id. § 1303(6). COGSA also expressly states that “nothing in this chapter shall be construed as repealing or limiting the application of any part of sections 81 to 124 of Title 49.” 1 Id. § 1303(4). The Pomerene Act contains no time bar.

Recognizing that COGSA sections 1300, 1303(4) and 1303(6) are somewhat at odds, the majority then proceeds to discuss: whether section 1303(6) is a statute of repose or a statute of limitations; what a perusal of…