In 2014, Eli Lilly & Co (Eli Lilly) enlisted DHL Global Forwarding to transport a consignment of Pulmotil, a treatment for bovine respiratory disease, from England to Nebraska. In turn, DHL hired the German shipping firm Hapag-Lloyd, who then engaged several subcontractors, to transport the Pulmotil. A mechanic employed by one of those subcontractors, Spirit Trucking Co (Spirit), used a blowtorch to remove a placard from the relevant container in a railyard in Illinois, igniting it and destroying most of its contents.

The transportation was governed by two waybills. The first, the Danmar waybill, was issued by DHL and designated Eli Lilly as the shipper, DHL as the forwarding agent, Nebraska as the place of delivery, and 1 December 2014 as the estimated delivery date. The second, the Hapag-Lloyd waybill, was issued by Hapag-Lloyd, and described DHL as the shipper and consignee. It made no mention of Eli Lilly, and Eli Lilly was unaware of its existence. The Hapag-Lloyd waybill included a Himalaya clause providing that the 'Carrier shall be entitled to sub-contract on any terms whatsoever the whole or any part of the Carriage' and that 'all exemptions and limitations of and exoneration from liability provided by law or by the Terms and Conditions including the jurisdiction clause shall be available to such Servant or Agent'. The Hapag-Lloyd waybill also included a time-for-suit clause providing that:

In any event, the carrier shall be discharged from all liability in respect of loss of or damage to the Goods, non-delivery, mis-delivery, delay or any other loss or damage connected to or related to the Carriage unless suit is brought within (one) 1 year after delivery of the Goods or the date when the Goods should have been delivered.

About four years later, ELCO Insurance Co Ltd (ELCO), a subrogee of Eli Lilly, brought a claim against Spirit to recover damages for the loss of the Pulmotil. Spirit moved for summary judgment on the ground that the one-year limitation period in the Hapag-Lloyd waybill barred ELCO's suit.

Held: Motion for summary judgment is granted.

ELCO contended that the Hapag-Lloyd waybill was void or unenforceable. In doing so, it relied on cases interpreting the Carmack Amendment, the statute that regulates domestic rail shipments. ELCO also argued that the Hapag-Lloyd waybill was void by its own terms. In particular, ELCO cited a clause in the waybill which provides that '[t]his Sea Waybill is issued for a contract of Carriage which is not covered by a Bill of Lading or similar document or [sic] title'. ELCO argued that, given 'the transportation of the Pulmotil was already covered by another bill of lading', the waybill was void. The Judge rejected this argument. The Carriage of Goods by Sea Act (COGSA) extends 'to contracts of carriage covered by a bill of lading or any similar document of title': 46 USC § 30701 (Note § 1(b)). In an obvious attempt to avoid the application of COGSA, the cited clause almost perfectly mirrored that language. The failure of this clause might establish that COGSA applied to the carriage, but not that the waybill was void. As an aside, the Judge noted that COGSA featured a one-year limitation provision that would bar ELCO's claim for the same reasons as the Hapag-Lloyd waybill's time-for-suit clause: 46 USC § 30701 (Note § 3(6)).

Applying the principles established in Norfolk S Ry Co v Kirby, 543 US 14, the Judge further held that the Hapag-Lloyd waybill bound ELCO: 'Kirby dictates that ELCO must honor the liability limitations outlined in the Hapag-Lloyd Waybill in a suit against Spirit'.

The Judge also rejected ELCO's argument, based on the common-law doctrine of unreasonable deviation, that the waybill's limitations provisions did not cover Spirit's storage of the Pulmotil. In applying that doctrine to COGSA, the Fifth and Eleventh Circuits have held that '[a]n unreasonable deviation does not prevent a carrier from invoking the one-year limitations period under [that Act]': Bunge Edible Oil Corp v M/Vs Torm Rask and Fort Steele, 949 F 2d 786, 788 (5th Cir 1992); see too Mesocap Ind Ltd v Torm Lines, 194 F 3d 1342, 1344 (11th Cir 1999). In any event, even if the doctrine of unreasonable deviation were to apply, it would not salvage ELCO's claim. What counts as a deviation depends on 'the scope of the carriage contract': Taisho Marine & Fire Ins Co v Maersk Line Inc, 796 F Supp 336, 340 (ND Ill 1992). The time-for-suit clause in the waybill dictated that 'the Carrier shall be discharged from all liability ... connected or related to the Carriage'. Given that broad language, no reasonable factfinder could classify the storage of the Pulmotil and removal of the placard from its container as unconnected to the carriage. Accordingly, Spirit did not unreasonably deviate from the waybill.

Finally, the Judge rejected ELCO's contention that the Hapag-Lloyd waybill's time-for-suit provision by its terms exonerated only negligent acts, not reckless or intentional ones.