IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20631 Summary Calendar

PEGASUS TRANSAIR INC,

Plaintiff-Appellant,

versus

CARRERA TRANSPORT INC,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-1137 -------------------- January 28, 2003

Before BARKSDALE, DEMOSS and BENAVIDES, CIRCUIT JUDGES.

PER CURIAM:*

Pegasus Transair, Inc. (“Pegasus”) appeals the judgment of the

district court limiting the liability of another carrier, Carrera

Transport, Inc. (“Carrera”) based on Pegasus’ bill of lading.

Pegasus argues that the district court erred in allowing Carrera to

amend its pleadings. The district court’s decision to permit a

party to amend its pleadings is reviewed for abuse of discretion.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Bank One Capital Partners Corp. v. Kneipper,

(5th Cir. 1995).

Where there is no evidence of motive such as undue delay or

bad faith, and amendment would not be futile or prejudice the non-

movant, leave to amend pleadings should be “freely give[n].”

Estate of Strangi v. Commissioner of Internal Revenue,

(5th Cir. 2002). Pegasus has not alleged that Carrera

sought leave to amend for bad-faith motives. Further, the court

granted Pegasus’ request to conduct discovery, and Pegasus cites no

ruling by the district court preventing it from designating a

rebuttal expert, undercutting its assertion of prejudice. Thus,

the district court did not abuse its discretion in granting

Carrera’s motion.

Pegasus paid the entirety of the consignee’s claim for damages

for a shortage in its shipment. Pegasus argues that the limitation

of liability provision in its bill of lading did not limit

Carrera’s liability for loss or damage to the shipment since the

bill of lading included no Himalaya clause. The district court

determined that Pegasus’ bill of lading limited Carrera’s liability

by its terms. The interpretation of a contract such as the instant

bill of lading is a question of law which this court reviews de

novo. Quorum Health Res., L.L.C. v. Maverick County Hosp. Dist.,

, 458 (5th Cir. 2002).

The Carmack Amendment anticipates multiple carriers operating

under one bill of lading. See

(a)(1). On its

2 face, the Carmack Amendment requires no Himalaya clause for

liability to be limited to all carriers carrying under a particular

bill of lading. Further, the case law cited by Pegasus does not

support its argument. The cases cited by Pegasus involve

limitations of liability under the Carriage of Goods by Sea Act,

COGSA, rather than for land transportation under the Carmack

Amendment. The district court did not err in its ruling.

Pegasus argues that the district court erred when it did not

consider the shipment as an “insured load.” Pegasus did not argue

at trial that the availability of insurance affected its or

Carrera’s liability. Pegasus has not shown that the district court

plainly erred on the issue of insurance affecting Pegasus’

substantial rights. See United States v. Olano,

(1993) (describing plain error standard for arguments not

timely raised in the district court). The judgment of the district

court is AFFIRMED.

3