Alpha International Trading Co (the plaintiff) contracted with Maersk Inc (the defendant) to carry frozen chicken parts in refrigerated containers (reefers). The reefers left the Port of Charleston, South Carolina, on three of the defendant's vessels, the Maersk Munkebo, the Sealand Lightning, and the Louis Maersk. The shipments were to be delivered to the Port of Aqaba, Jordan, no later than 31 July 1999.

In Aqaba, Jordanian authorities rejected the shipments because the reefer temperatures had fluctuated. The parties agreed that rejection occurred on or about the end of July 1999. The plaintiff requested that the defendant remove the reefers out of Jordan, repackage them, and attempt redelivery in Jordan. The defendant allegedly shipped the reefers to Rotterdam, Netherlands, instead.

On 12 October 2000, the plaintiff commenced proceedings in the Superior Court of Mecklenburg County, North Carolina, by filing a complaint alleging breach of contract, conversion, and unfair and deceptive trade practices in violation of North Carolina state law. Thereafter, the action was removed from the state court to the District Court for the Western District of North Carolina, Charlotte Division. The defendant filed its answer to the plaintiff's complaint, and included a motion to dismiss for the plaintiff's failure to commence proceedings within one year of the alleged loss as required by the US Carriage of Goods by Sea Act (COGSA) (46 USC §§ 1300-1315).

It was undisputed that the plaintiff did not file its complaint until over one year after the alleged loss. The plaintiff conceded that its contract claim was barred by COGSA. The plaintiff filed a motion to amend its complaint to add claims of relief for negligence and punitive damages.

The key issue was whether the COGSA statute of limitation also barred the plaintiff's tort and unfair and deceptive trade practices claims.

Held: Motion to amend complaint granted. Motion to dismiss granted. Amended complaint dismissed.

The plaintiff was allowed to amend its complaint as per civil procedure rules. The Court considered the amended complaint when determining the defendant's motion to dismiss.

Bills of lading for the carriage of 'goods by sea to or from ports of the United States, in foreign trade' are governed by COGSA, which contains a one-year statute of limitation (46 USC § 1303(6)). Multiple Court of Appeals decisions of various circuits have held that the COGSA limitation period applies to tort claims.

Assuming, for the sake of argument, that the plaintiff can bring tort and unfair and deceptive trade practices claims concurrently with its COGSA contract claim, those claims would be barred by the COGSA limitation period.

The Court observed that there were conflicting Court of Appeals decisions on whether COGSA pre-empts tort claims even if filed in time. Had it been necessary to make a finding, the Court would have been persuaded that COGSA pre-empts such claims, on the approach taken in Polo Ralph Lauren LP v Tropical Shipping & Const Co Ltd 215 F 3d 1217, 1220 (11th Cir 2000) (CMI1536).