Bunge Edible Oil Corp (Bunge) contracted with Canadian Pacific (Bermuda) Ltd (Canadian Pacific Bermuda) to ship palm oil from Pasir Gudang, Malaysia, to the US. The palm oil was loaded onto the MV Torm Rask for delivery to New Orleans or New York. The bill of lading bore the name of another Canadian Pacific entity, Canadian Pacific Steamships London. A/S Dampskibsselskabet Torm (Torm) owned the Torm Rask and chartered it to Canadian Pacific Bermuda.

Instead of proceeding directly to the United States, the Torm Rask went to Rotterdam and transferred the palm oil into a shoreside tank. The palm oil was then pumped into the MV Fort Steele, owned and operated by Canadian Pacific Bermuda. The Fort Steele transported the palm oil to Reserve, Louisiana, where it discharged the oil into the Barge MMI-307 on or about 3 October 1988. Within a week of delivery, Bunge notified the Canadian Pacific entities that the palm oil was damaged, most likely from moisture and heat, and was therefore unacceptable.

Bunge asserted that it was unaware of the differences between the various Canadian Pacific entities when it first contacted them regarding the damage. The underwriters insuring the cargo paid Bunge the total loss of the cargo, less salvage value, and turned the claims handling over to Transatlantic Marine Claims Agency (TMCA). TMCA's attempts to resolve the matter with the Canadian Pacific entities were unsuccessful. As the expiry of the one-year limitation period under the Carriage of Goods by Sea Act, 46 USC App § 1301 ff (COGSA), approached, TMCA asked the Canadian Pacific entities for an extension of time to 1 January 1990. Canadian Pacific Bermuda granted an extension for the Torm Rask (and arguably the Fort Steele) 'subject to owners granting similar'. TMCA did not request a similar extension from Torm until after the one-year period had expired, and after Canadian Pacific Bermuda had notified TMCA that the period had expired, that the condition of the extension had not been met, and that the claim was therefore time-barred. In December 1989, Torm granted an extension to TMCA, conditioned on Canadian Pacific Bermuda granting a similar extension. Canadian Pacific Bermuda refused to grant any further extensions or waivers. Bunge filed suit on 29 December 1989, which the Court described as nearly two months after the expiration of the COGSA one-year limitation period.

The defendants moved for summary judgment, asserting that the COGSA one-year statute of limitations had expired. Bunge argued that the defendants were not entitled to the defence of the one-year limitation because they had unreasonably deviated from the bill of lading. The District Court held that an unreasonable deviation does not deprive a carrier of the one-year statute of limitations, that Bunge had failed to fulfil the conditions set forth in the extensions, and that Canadian Pacific Bermuda was a carrier under COGSA entitled to the statute of limitations defence: Bunge Edible Oil Corp v MVs Torm Rask and Fort Steele 756 F Supp 261 (ED La 1991). The Court dismissed the actions against the two vessels in rem and against the carrier Canadian Pacific Bermuda in personam. Bunge appealed.

Held: Judgment affirmed. Action time-barred.

Bunge argued that COGSA's one-year limitation period was inapplicable because Canadian Pacific committed an unreasonable deviation when it discharged the palm oil in Rotterdam and reloaded it upon another ship, and that an unreasonable deviation abrogates the contract of carriage and prohibits Canadian Pacific from asserting any defences permitted under COGSA. Based on the reasoning set forth by the District Court, that argument must be rejected. An unreasonable deviation does not prevent a carrier from invoking the one-year limitation period under COGSA: Bunge Edible Oil 756 F Supp 264-267; see also Francosteel Corp v NV Nederlandsch Amerikaansche Stoomvart-Maatschappij 249 Cal App 2d 880, 57 Cal Rptr 867 (1967).

Bunge also appealed the District Court's determination that the summary judgment record presented no genuine issue of material fact about Canadian Pacific Bermuda's status as a carrier. The District Court correctly stated that Canadian Pacific admitted that Canadian Pacific Bermuda entered into the contract of carriage with Bunge, and that Bunge did not refute this fact: Bunge Edible Oil 756 F Supp 268. In his deposition, Mr Stanley Marchant repeatedly stated that Canadian Pacific Bermuda issued the bill of lading and was the charterer of the Torm Rask, and the Canadian Pacific entities asserted the same throughout their motion for summary judgment and statement of uncontested facts. Bunge's contention that a dispute of fact existed was based solely on the bill of lading, which bore the name and logo of Canadian Pacific Steamships London. Marchant, however, adequately explained the reason for Canadian Pacific Bermuda's use of this bill of lading form, and Bunge did not present any evidence to contradict this explanation. Canadian Pacific Bermuda accordingly satisfied its obligation to show that there were no factual issues regarding its status as a carrier: Russ v International Paper Co 943 F 2d 589, 591-592 (5th Cir 1991). Indeed, Bunge itself presented excerpts from Marchant's deposition which supported Canadian Pacific Bermuda's assertions that it was the charterer of the Torm Rask and a carrier of the palm oil within the terms of COGSA.

Bunge further argued that other Canadian Pacific entities might be the carrier because they negotiated the bill of lading or controlled the handling of the cargo. The District Court did not determine whether any of those other entities were carriers under COGSA; it merely held that there was no dispute as to the fact that Canadian Pacific Bermuda was a carrier: see 46 USC App § 1301(a) ('The term "carrier" includes ... the charterer who enters into a contract of carriage with a shipper.').