In 1996, the plaintiff, Ferne McAlpin, arranged with the defendant, Crowley American Transport Inc, to transport her car from Florida to St Croix, Virgin Islands. The car was delivered in a damaged state. The Small Claims Division of the Territorial Court entered judgment in favour of the plaintiff. The defendant appealed the disallowance of limitation of liability, arguing that the Carriage of Goods by Sea Act 46 USC ss 1300 ff (COGSA) was the applicable federal law and could not be waived by the defendant.

Held: The judgment of the Small Claims Division of the Territorial Court is affirmed.

With respect to the defendant's assertion, at the second hearing, that COGSA 'eliminates' the defendant's liability, the Judge quite properly ruled that the defendant was estopped from asserting the statutory limitation to liability in 46 USC s 1304(5). By clearly admitting liability for any damages actually caused by its negligence, at the first hearing, the defendant waived its defence under the statute. In a proper case, a defendant may, by its representations, promises, or conduct, be estopped from asserting the statute: see United Fruit Co v JA Folger & Co 270 F 2d 666, 669 (5th Cir 1959). Waiver may be shown by express declarations, or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage, or it may be shown by a course of acts and conduct: Dewerd v Bushfield 993 F Supp 365, 369 (DVI App Div 1997).

Even if the defendant could not have waived COGSA's liability limitation through its conduct at the first hearing, as it argues, the mere assertion that COGSA limits liability to USD 500 per package does not automatically resolve the issue. The defendant can avail itself of COGSA's USD 500 liability limitation only if the plaintiff had a 'fair opportunity' to escape the limitation by paying a higher charge. But the defendant did not offer the bill of lading as evidence in the Court below. Without it, the Court below had no way of determining whether the plaintiff had a 'fair opportunity' to avoid the liability limitation by declaring on the bill of lading the nature and value of the vehicle and paying the applicable tariff. Thus, even if the defendant had not waived its COGSA defence at the first hearing, it failed to show at the most basic level that the plaintiff had ample opportunity to avoid the liability limitation. In short, the Judge below could not have held the plaintiff to a limitations clause for which there was zero evidence of notice and opportunity to avoid it.