This case hinges on the terms of three separate contracts between the parties: a service contract, and two bills of lading concerning the Portland Shipment and the Chippewa Falls Shipment respectively. Cosco Shipping Ltd (CSL) is a shipping company based in China operating a fleet of ocean-going container ships that transport cargo internationally, including between China and the United States. Shelter Forest International Acquisition Inc (SFI) is an Oregon corporation that imports and distributes lumber, plywood, and other building materials. The parties entered into the service contract in April 2018. The service contract provided that CSL would guarantee SFI a specified freight rate in exchange for SFI's promise to ship a minimum volume of cargo on CSL's vessels over the course of the contractual term.

Disputes over two separate shipments gave rise to the present action. Each of these shipments was booked under the service contract, as well as an individual bill of lading, which incorporated CSL's standard terms and conditions and set out the particulars for the respective shipments. These terms and conditions appear on the back of every one of CSL's bills of lading and are also published as part of CSL's tariff of general applicability. Several of CSL's terms and conditions expressly subject contracts for the carriage of goods to COGSA. For instance, cl 26(2) provides:

[W]here carriage includes carriage to or from or through a port or place in the United States of America, this Bill of Lading shall be subject to the provisions of the US COGSA, which shall be deemed to have been incorporated herein and nothing herein contained shall be deemed a surrender by [CSL] of any of its rights, immunities, exceptions or limitations or an increase of any of its liabilities under US COGSA ... COGSA (except as may be otherwise specifically provided herein) shall also govern before loading and after discharging as long as the goods remain in [CSL's] custody of control.

Likewise, the 'NOTICE OF CLAIM AND TIME BAR' provision incorporates COGSA's limitation on the time to bring suit: '[CSL] shall be discharged from all liabilities whatsoever unless suit is brought within one year after delivery of the Goods or the date when the Goods should have been delivered.' Finally, the 'LOSS OR DAMAGE' provision makes clear that CSL's responsibilities relating to any shipment are limited to those specified by contract:

The terms of this Bill of Lading shall at all times govern all responsibilities of [CSL] in connection with or arising out of the carriage of the Goods not only during the carriage, but also during the period prior to and/or subsequent to the carriage. The exemptions from liability, defenses and limitation of liability provided for herein or otherwise shall apply in any action against [CSL] for loss or damage or delay, howsoever occurring and whether the action be founded in contract or in tort and even if the loss, damage or delay arose as a result of unseaworthiness, negligence or fundamental breach of contract.

A dispute arose when SFI's cargo, destined for Portland, Oregon, was damaged in a roll-over accident. The parties disagree as to the cause of the accident. In any event, the cargo was delivered to Portland on May 23, 2018, and CSL made it available to SFI for pick-up upon payment for container damage and cargo transloading charges. The parties were unable to resolve fault for the damage to SFI's cargo and CSL's container. CSL continued to hold the cargo in the container yard and began charging demurrage.

The second incident, the Chippewa Falls Shipment, was also booked in April 2018 pursuant to a bill of lading. An SFI affiliate in China arranged to have cargo shipped directly to Chippewa Falls, Wisconsin. SFI was responsible for confirming that the shipment was directed to the proper port. Issues with routeing due to the cargo’s weight prevented a direct delivery to the scheduled destination. SFI's affiliate agreed to amend the bill of lading to allow rerouteing to St Paul, Minnesota, approximately 90 miles from Chippewa Falls. This rerouteing resulted in a significant delay that had a negative impact on SFI's relationship with a major client. Again, the parties disagree over who was responsible for the routeing issues and associated delay and costs.

SFI subsequently discontinued shipping its cargo with CSL. During the contractual term it only shipped 2,342 of the requisite 5,000 TEUs.

On 10 July 2019, SFI initiated this action in Multnomah County Circuit Court. In August 2019, CSL removed SFI's complaint to this Court on the basis of diversity jurisdiction. Later that month, SFI filed its first amended complaint alleging common law claims for negligence, conversion, breach of contract, and misrepresentation, as well as a statutory claim under Oregon's Unfair Trade Practices Act (UPTA), and seeking damages in excess of USD 1,000,000. In October 2019, CSL asserted two counterclaims for breach of contract. On 2 April and 4 May 2020, CSL filed the present summary judgment motions.

Held: CSL's motions for summary judgment are granted. SFI's requests for oral argument are denied as unnecessary.

The Court finds the service contract unambiguous. It plainly states: '[SFI] agrees to tender to [CSL], or cause to be tendered to [CSL], a minimum of ... 5,000 TEU[s]'. No other provision alters or amends that term. Accordingly, SFI's concession that it did not meet the minimum amount during the term of the service contract is dispositive unless a valid excuse for non-performance exists. After examining the terms of the service contract and the facts, the Court holds that there was no excuse for SFI's non-performance under the service contract.

CSL argues that COGSA applies to and pre-empts SFI's claims in light of the unequivocal terms of the underlying bills of lading, which were expressly incorporated by reference into the parties' telex releases. By extension, CSL contends that, because SFI's claims accrued no later than 14 June 2018 (ie, the date the last shipment was actually delivered), they are time-barred by COGSA's one-year statute of limitations. SFI does not meaningfully dispute the application of COGSA, except to the extent that there is 'no evidence SFI was aware of the limitation terms in the bill of lading, as applied to overland claims'. In addition, SFI asserts that '[t]he language of the contractual limitation should be interpreted against' CSL, in that the limitation period did not begin to run in regard to the Portland Shipment until the actual 'date of delivery [since] delivery is possible'; and is inapplicable to the Chippewa Falls Shipment because 'SFI’s cargo was never delivered to [the proper] destination'. COGSA applies to 'all contracts for carriage of goods by sea to or from ports of the United States in foreign trade': Dimond Rigging Co LLC v BDP Int’l Inc 914 F 3d 435, 442 (6th Cir 2019) (CMI583). Pursuant to COGSA, the 'carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered': Underwood Cotton Co Inc v Hyundai Merch Marine (Am) Inc 288 F 3d 405, 408 (9th Cir 2002).

By its own terms, COGSA governs 'from the time the ship's tackle is hooked onto the cargo at the port of loading until the time when cargo is released from the tackle at the port of discharge' - otherwise known as 'tackle-to-tackle' - but it has become routine for parties to contractually extend COGSA's liability provisions 'to cover the entire period in which the goods would be under a carrier's responsibility, including a period of inland transport': Pan Am World Airways Inc v Cal Stevedore & Ballast Co 559 F 2d 1173, 1177 n 5 (9th Cir 1977); Kawasaki Kisen Kaisha Ltd v Regal-Beloit Corp 561 US 89, 96 (2010) (CMI1455). When COGSA governs, whether by force of law or contract, it completely pre-empts state law causes of action. Stated differently, where the plaintiff's claim is made pursuant to a bill of lading, COGSA represents the plaintiff's exclusive remedy whether that claim is for failure to issue a proper bill of lading, or for damage to the goods, or loss thereof, or asserted improper discharge thereof, or misdelivery, or whatever. SFI does not contest COGSA's relevance to this lawsuit. In fact, SFI's sole argument is simply that it was not aware of the bill of ladings' extension of COGSA beyond 'tackle-to-tackle'. SFI has shipped thousands of containers with CSL since 2015, and CSL's terms and conditions are publicly available. In light of these facts, COGSA controls SFI's claims.

The date of 'delivery' determines when a claim begins accruing under COGSA's one-year statute of limitations. 'Delivery' in this context can occur actually or constructively; the former takes place 'upon notification of the consignee that the goods arrived and after a reasonable opportunity for the consignee to obtain or inspect the goods': Starrag v Maersk Inc 486 F 3d 607, 617 (9th Cir 2007). Constructive delivery does not require that the plaintiff actually inspect or obtain the goods, even where a dispute exists over demurrage and other charges. SFI received notice of the Portland Shipment’s availability for pick-up on 23 May 2018. SFI's inability or refusal to access that cargo does not toll COGSA's limitation provision. SFI's arguments concerning the Chippewa Falls Shipment are even more tenuous: SFI neither disputes that it completed picking up the cargo by 14 June 2018, in St Paul, nor that the cargo was in its client's possession in Chippewa Falls by 29 June 2018. Therefore, SFI's claims related to the Chippewa Falls Shipment accrued no later than 14 June 2018, the date of actual delivery (or misdelivery), more than one year before this lawsuit was initiated.

Lastly, SFI contends that CSL should be estopped from invoking COGSA’s statute of limitations because CSL 'had no right to impose charges [in relation to the Portland Shipment] for damage SFI did not cause'. Equitable estoppel focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit, whereas equitable tolling focuses on the plaintiff's excusable ignorance of the limitations period and on lack of prejudice to the defendant. Concerning equitable estoppel, there is simply no evidence that CSL took any action to stop SFI from timely filing suit. SFI had the knowledge and means to sue CSL over the Portland Shipment as early as 30 May 2018, when SFI informed CSL that it was seeking damages and had already been in touch with its attorney. Finally, there is no evidence that any scenario giving rise to equitable tolling is present here. The record clearly reflects that SFI was well aware of its claims within the limitations period. Therefore, SFI's claims are time-barred and summary judgment is proper.

[For subsequent proceedings, see Shelter Forest International Acquisition Inc v Cosco Shipping (USA) Inc (CMI1160).]