On 26 January 2004, the plaintiff John Setefano filed an action against the defendant HSAC Logistics Inc for breach of contract, negligence, and negligence with wanton disregard in relation to a shipping contract entered into between the parties to transport plaintiff's vehicle from Seattle, Washington to Pago Pago, American Samoa. Plaintiff alleges that the parties entered into the contract in May 2002, and that defendant breached the contract on or about 10 July 10 2002, when it dropped and immersed in seawater the shipping container which contained the vehicle, rendering it useless.

On 30 September 2004, defendant moved to dismiss the action in part because the bill of lading contained an express provision requiring all actions to be brought within one year, and similarly, because the Carriage of Goods by Sea Act (COGSA), which defendant maintains governs the parties' agreement, likewise contains a one-year statute of limitations period.

Held: Defendant's motion granted.

COGSA applies in this case. Section 1300 of the Act states that '[e]very bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of this chapter'. Section 1312 of COGSA states that 'foreign trade' within the meaning of the Act does not include carriage of goods between ports of the United States, its districts, territories, and possessions. Section 1312 states, however, that 'any bill of lading or similar document of title which is evidence of a contract for the carriage by sea between such [domestic] ports, containing an express statement that it shall be subject to the provisions of this chapter, shall be subjected hereto as fully as if subject hereto by the express provisions of this chapter.'

Section 3(b) of the bill of lading states that 'in the absence of compulsory applicable legislation/national law, the "Hague Rules 1924" shall govern from the time received at the Port of Loading until the time delivered at the Port of Discharge'. The language of section 3(b) incorporating the Hague Rules is an 'express statement' of COGSA applicability within the meaning of s 1312. COGSA is itself a domestic adoption of the Hague Rules, and therefore to delineate between the two would be to make a distinction without a difference. Under art 3.6 of the Hague Rules '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'. Section 1303 of COGSA adopts the identical language. Consequently, under the express provision of s 3(b) of the bill of lading, COGSA, and its one-year statute of limitations period, applies to this agreement for carriage of goods by sea from points wholly within the United States.

The limitations period must be strictly enforced. COGSA derives from the Hague Rules and has been adopted by nearly every major shipping nation for the express purpose of providing uniformity in international law. Courts have uniformly dismissed cases brought beyond the statutory period without regard to the carrier's lack of diligence or the merits of the claim. There are two situations that allow a tolling of the one-year COGSA statute of limitations period. The first is where the carrier actually promises the prospective plaintiff, unequivocally, that its claim would be paid and then fails to do so. The second involves an agreement to extend the time for suit or which other encompasses consent to be sued beyond the statutory period. Neither exception applies here. Therefore, the plaintiff is time-barred for failing to raise his claim within one year.

The plaintiff argues that because the defendant did not raise COGSA as an affirmative defence, the defendant is barred from pursuing dismissal on these grounds in its current motion. This argument is rejected. Defendant raised as a defence '[a]ny claim of Plaintiff is limited by any agreement Plaintiff entered into with Defendant'. This statement adequately incorporates the COGSA statute of limitations period as a defence. Second, even had defendant failed to raise COGSA, the applicability of COGSA does not turn on whether a party chooses to raise it in its pleadings, but on whether the bill of lading itself, the governing document, requires its application. Because there is a policy of strict enforcement of the COGSA statute of limitations period when applicable, the requirements of the bill of lading simply cannot be ignored because a defendant did not discuss them in detail. Finally, s 18 of the bill of lading, entitled 'notice of claim; time for suit' likewise expressly creates a contractual one-year statute of limitations period. This further supports the finding that the plaintiff is time-barred from his current action.