The plaintiffs, representing themselves, asserted counts for civil theft under Florida Statutes s 812.014 and conversion under Florida common law against the first defendant, King Ocean Services Ltd (King Ocean). The plaintiffs had contracted with King Ocean to ship a truck from Florida to Costa Rica under a bill of lading. After the truck was delivered to Costa Rica and discharged from the ship, but while it remained in King Ocean's custody, it was wrongfully released to the second defendant, Oscar Calderon, without the plaintiffs’ approval.

The reverse of the bill of lading contained the following clause paramount regarding King Ocean's liability:

This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of 1936 of the United States of America, as amended ('COGSA') which shall apply to the Goods whether the Goods carried on or under deck to carriage of the Goods to, from, or between U.S. ports or between non-U.S. ports before the Goods are loaded on and after they are discharged from the vessel and throughout the entire time that they are in custody of the Carrier, whether acting as carrier, bailee, terminal operator, inland carrier, stevedore. Carrier shall be entitled to any and all defenses and limitations of liability provided under COGSA or any other compulsorily applicable law or for any and all claims arising out of Carrier's custody or control of the Goods ....

The front of the bill of lading established that '[t]he goods [are] to be delivered at the aforementioned port of discharge or place of delivery, whichever is applicable, subject always to the exceptions, limitations, conditions and liberties set out on the reverse side hereof to which the Shipper and Consignee agree to accepting this Bill of Lading.' (emphasis added). The reverse of the bill of lading also established that the 'Merchant', by 'accepting this bill of lading, whether or not signed by Merchant, Merchant expressly accepts and agrees that the receipt, custody, carriage, delivery and any transshipping of the Goods are subject to the terms appearing on the face and back hereof'. 'Merchant' was defined as 'includ[ing] the shipper, holder, consignee, receiver of Goods, [or] any Person owning or entitled to the possession of the Goods or of this Bill of Lading'

King Ocean moved to dismiss the two counts against it for failure to state a claim upon which relief can be granted, asserting that the plaintiffs’ claims for civil theft and conversion are pre-empted by the federal Carriage of Goods at Sea Act (COGSA, codified at 46 USC s 30701 n), based on the express terms of the bill of lading.

Held: The Court grants King Ocean's motion to dismiss, and dismisses counts one and two of the plaintiffs' complaint without prejudice.

The Eleventh Circuit holds that, where COGSA applies, it provides the plaintiff with an exclusive remedy: Polo Ralph Lauren LP v Tropical Shipping & Const Co 215 F 3d 1217, 1220 (11th Cir 2000) (CMI1536). A plaintiff therefore may not plead tort claims under state law where a COGSA claim would be appropriate.

COGSA allows parties to extend its application by contract. Section 7 provides that:

Nothing contained in this Act shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by sea.

The Eleventh Circuit has confirmed that, by its own terms, COGSA allows the parties to extend its application to times when shipments of goods are in the custody of the carrier: Groupe Chegaray/V De Chalus v P&O Containers 251 F 3d 1359, 1364 (11th Cir 2001) (CMI1487). The Supreme Court has confirmed this as well: Norfolk S Ry Co v Kirby 543 US 14, 29 (2004) (CMI1454) ('As COGSA permits, [the defendant carrier] in its bill of lading chose to extend the default rule to the entire period in which the machinery would be under its responsibility, including the period of the inland transport.').

The plaintiffs incorporated the bill of lading in their complaint. They therefore may not disclaim the terms and conditions contained in the bill of lading, and King Ocean may properly rely on the bill of lading's terms on a motion to dismiss. Under the express terms of the bill of lading, COGSA applies as long as the truck was in King Ocean's custody, and the bill of lading makes clear that, by shipping goods with King Ocean, the Plaintiffs accepted the bill of lading's terms and conditions contained on the reverse. Therefore, the bill of lading's clause paramount is enforceable against the plaintiffs, and COGSA applies while the truck was in King Ocean's custody after discharge.

The plaintiffs' claims against King Ocean are based on circumstances that occurred while the truck was in King Ocean's custody. Because COGSA contractually applies to that period and provides an exclusive remedy where it applies, the plaintiffs' claims for civil theft and conversion fail to state a claim upon which relief may be granted as a matter of law. The plaintiffs may plead a claim against King Ocean only under COGSA on these facts.