Thompson Pipe Group Inc (TP), an industrial pipe distributor, hired Colfletar SAS (C), a freight forwarder, to facilitate the movement of glass-reinforced plastic pipes from Türkiye to Houston, Texas, and then onward to TP job sites in Texas. TP purchased the pipe from a Turkish manufacturer, Subor. On behalf of TP, C entered into a charterparty with Spliethoff to transport the pipe and fittings from Türkiye to Houston. A sea waybill was issued, identifying Subor as 'shipper', TP as 'consignee', and Spliethoff as 'carrier'.

Subor packed the shipment in wood packaging material. US port authorities initially cleared the shipment for entry on 14 October 2022. Some of the shipment moved onward to TP job sites after that initial clearance. However, Customs and Border Patrol in Houston inspected the remaining cargo on 30 October and discovered the presence of timber pests. This infestation triggered an Emergency Action Notification mandating that the entire shipment be re-exported. C arranged for the shipment to be fumigated off the coast of Altamira, Mexico. The shipment returned to Houston in late November, only to again be found with 'wood boring pests'. This required a second re-export and fumigation of the shipment.

C filed a complaint against TP and the shipment in rem upon next return to the Port of Houston, seeking payment for its services. TP filed a counterclaim against C for breach of maritime contract and negligence.

Held: The motion by the plaintiffs C and CTR Group SA for summary judgment as to the counterclaims asserted against them is denied. The motion by the defendants TP and TPG Pressure Inc for partial summary judgment as to certain affirmative defences asserted against their counterclaims is granted.

Amongst other things, C asserts these affirmative defences:

• 39: defences, limitations and exclusions under relevant shipping documents and applicable statutes;
• 40: defences under bill of lading;
• 41: damages cap under the United States Carriage of Goods by Sea Act (COGSA); and
• 43: defences under whatever written instrument 'is found to ultimately constitute the contract of carriage'.

TP asserts that C is not covered under the liability exceptions of COGSA. It argues that C is not a carrier or a qualified subcontractor of one, and did not otherwise perform any qualifying carrier duties.

COGSA applies to 'all contracts for carriage of goods by sea to or from ports of the United States in foreign trade', while defining such trade as 'the transportation of goods between ports of the United States and ports of foreign countries': COGSA § 13. Overall, it serves to define the relationship, rights, and duties of shippers and carriers by outlining carrier obligations, ensuring carriers cannot be contracted out of obligations, and affording carriers liability protection. COGSA protections are triggered when a carrier issues a bill of lading. These cover carriers and subcarriers during the time the cargo is at sea, although they may be contracted to cover during land transportation: Norfolk Southern Railway Co v Kirby 543 US 14, 29 (2004).

Colfletar argues that it should be considered a carrier because, in its view, the Fifth Circuit determines carriers by 'function rather than form'. While this argument may be expedient, C cannot have it both ways, arguing that it was more involved when seeking to lessen its liability, while otherwise arguing that it was less involved when that, too, might lessen its liability. Regardless, C has consistently argued that it merely provided 'logistical services'. It has also repeated throughout this litigation that it was simply a 'freight forwarder' or 'logistics provider'.

No evidence suggests that C did anything more than that here. C cites Rainly Equipos de Riego SRL v Pentagon Freight Services Inc 979 F Supp 1079, 1082-83 (SD Tex 1997). But the freight forwarder there 'did more than merely arrange for transportation' - namely, unloaded the cargo, stored it, loaded it into containers, arranged for shipment through a subsidiary, and provided all the invoicing. And the Court noted that freight forwarders 'cannot typically be held liable under COGSA as a carrier' because they 'normally only act ... for the shipper in arranging for transportation of the cargo'.

C also contends that the bill of lading contractually extended to it the liability limitations of COGSA through what is known as a Himalaya clause. Such a clause allows for the agents or contractors of a carrier to take advantage of COGSA's defences and liability limitations. But C here was neither an agent nor a subcontractor of the carrier, Spliethoff. It was instead an agent of TP, providing it with freight-forwarding services. Also rejected is passing argument by C that it served as a 'servant' of Spliethoff by providing 'services' to it. C fails to explain the 'services' putatively provided to Spliethoff. Regardless, the record is undisputed that it was serving as the agent of TP.

The motion for summary judgment will be granted in this regard, and those affirmative defences will be dismissed.