The plaintiff, Viva Logistics Inc (Viva), alleged that the defendants, MSC Mediterranean Shipping Co SA, and Mediterranean Shipping Co (USA) Inc (collectively MSC), failed to properly ventilate and refrigerate its oranges while en route from Cape Town to New York, in breach of the contract of carriage. MSC moved to dismiss the complaint for failure to state a claim.

Held: Viva's claim is barred by the statute of limitations, MSC's motion is granted, and the complaint is dismissed with prejudice.

This case is governed by the United States Carriage of Goods at Sea Act (COGSA), codified at 46 USC § 30701 ff. See Norfolk S Ry Co v Kirby 543 US 14, 29 (2004) (CMI1454): 'By its terms, COGSA governs bills of lading for the carriage of goods from the time when the goods are loaded on to the time when they are discharged from the ship.' The statute of limitations under COGSA bars claims after one year, though this period can be extended by agreement: 46 USC § 30701 n § 3(6): 'In any event 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 ...'.

Viva failed to file its complaint within the one-year statute of limitations. Viva received the allegedly spoiled oranges on 21 June 2021. One year following that date is 21 June 2022. The complaint was filed on 11 July 2022. Viva argues that its complaint was nonetheless in time, because MSC voluntarily extended the statute of limitations period. On 8 June 2022, Peter Simeoni, an attorney acting on behalf of MSC, sent an email in which he said with respect to Viva's claim: 'Time extension will be granted for one month up to and including 8/7/2022 purely based on good will.' Viva asserts that, through this email, MSC voluntarily extended the statute of limitations period to 7 August 2022.

This argument is frivolous. The unavoidable interpretation is that Mr Simeoni - a South African lawyer, emailing a German addressee - used the day-month-year convention prevalent in both South Africa and in Germany to enumerate the date, and therefore extended the statute of limitations by only the one month indicated in his communiqué, to 8 July 2022. Even when the facts are viewed in a light most favourable to the plaintiff, it is simply not plausible to infer that the statute of limitations period applicable to Viva's claims extended beyond 8 July 2022.

Viva does not produce any justification or excuse for breaching COGSA's statute of limitations. In the absence of such, the general rule that a 'waiver of the one-year statute of limitations period under COGSA is strictly construed' must be enforced: Gen Elec Co v M/V Gediz 720 F Supp 29, 31 (SD NY 1989). As stated in United Fruit Co v JA Folger & Co 270 F 2d 666, 670 (5th Cir 1959):

It is in the interests of all shippers and all carriers that when a steamship company grants an extension of the time for suit, in writing, before the running of the statute, specifically limited to a fixed and reasonable time, that the parties be able to rely on the terms of their agreement. If a shipper may dishonor an unambiguous extension agreement, and if a carrier is to be penalized for being liberal toward a shipper in not requiring rigid adherence to the statute - there will be no more extensions.