Mannesman Demag Corp v. M/V Concert Express, et al

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

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

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

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

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

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

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

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

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

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

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