Opinion
Civil Action No:00-3677, SECTION: "A" (4)
September 30, 2002
ORDER AND REASONS
Before the Court is defendant Industrial Maritime Carriers (Bahamas), Inc.'s (IMC) Motion for Partial Summary Judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure (Rec. Doc. 24). IMC seeks a declaration that the U.S. Carriage of Goods by Sea Act (COGSA), 46 U.S.C. App. §§ 1300- 1315, rather than the Hague-Visby Rules applies to this dispute. For the following reasons, defendant's motion is GRANTED.
BACKGROUND
The general facts are not in dispute. Plaintiff Foster Wheeler is seeking relief for cargo damage allegedly caused aboard the M/V AN NING JIANG against its charterer NC. NC is a corporation organized under the laws of the Bahamas and has its principal place of business in New Orleans, Louisiana. NC is engaged in the operation of vessels for the carriage of goods for hire and at all times pertinent hereto was the charterer of the M/V AN NING JIANG. Pursuant to the applicable federal regulations, IMC had a tariff on file with the Federal Maritime Commission. As required by law, IMC's tariff incorporates IMC's long form bill of lading, which states that United States law applies to disputes between the shipper and IMC.Foster Wheeler is a large multi-national corporation principally domiciled in the United States and engaged in a wide variety of manufacturing and shipping endeavors. Foster Wheeler entered into an agreement with Habei Hanfeng Power Generation Company Limited, a Chinese corporation, to provide equipment for two (2) 666 MW coal-fired generation units. Foster Wheeler then contracted with Industrial Maritime Carriers (Bahamas), Inc (NC) to ship 695 packages aboard the M/V AN NING JIANG. During the course of negotiations, Foster Wheeler sent IMC a sample of the text of the body of the bills of lading for this shipment. The affidavit of Melissa Dovie, employee of Intermarine, Inc., agent for IMC, stated that the bills of lading used for this particular shipment were practically identical to those used for previous cargoes carried by IMC for Foster Wheeler.
Defendant's Exhibit H.
Bills of lading numbered IMTB991583001, IMTB991583A001 and IMTB991583002.
Defendant's Exhibit 1.
The packages were shipped under three separate bills of lading, issued clean on board, listing the shipper as Foster Wheeler Energia, S.A. The cargo was loaded aboard the M/V AN NING JIANG in Tarragona, Spain and the vessel sailed for China in June 1999. During the voyage, the vessel encountered heavy weather and upon offloading it was determined that some of the cargo had been damaged. Foster Wheeler filed suit against IMC in the Eastern District of Louisiana and subsequently filed a Supplemental and Amended Complaint alleging that IMC breached its duties under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq., and/or the Harter Act, 46 U.S.C. § 190 et seq. Nowhere in its pleadings does Foster Wheeler aver that any law other than U.S. law applies. Despite the allegations of the petition, Foster Wheeler now argues that the Hague-Visby rules found in the General Paramount clause of the bills of lading oust the specific choice of law and forum clause in the bills of lading that designate suit shall be filed in New Orleans, in the U.S. District Court for the Eastern District of Louisiana and U.S. law (COGSA) shall apply.
The Court notes that COGSA entitles the carrier to limit its liability for loss or damage to cargo to $500 per package whereas the Hague-Visby Rules allow a higher limitation of liability, specifically, 666.67 special drawing rights (SDR) per package or 2 SDR per kilo, whichever is higher. The Court also notes that both Foster Wheeler and IMC are salted, sophisticated entities in the maritime industry.
SUMMARY JUDGMENT STANDARD
Summary judgment will be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. "[A] dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995).To oppose a motion for summary judgment, the non-movant cannot rest on mere allegations or denials but must set forth specific facts showing that there is a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 321-22, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Partial summary judgment dismissing only certain claims is appropriate under the same standards. See Fed.R.Civ.P. 56(d). See also Corporate Investigative Division, Inc. v. American Telephone Telegraph Co., 884 F. Supp. 220, 223-24 (W.D.La. 1995) (using same standard of review for partial summary judgment on liability alone under 56(c)). If the evidence leads to only one reasonable conclusion, summary judgment is proper. See *589 Anderson v. Liberty hobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here, there is no factual dispute, but only a question of law presented, which is amenable to resolution on summary judgment.
ANALYSIS
The issue before the Court is whether the specific choice of law and forum clause in a bill of lading can be trumped by the terms of a General Paramount clause. Each of the bills of lading in this matter contained identical, specific choice of law and forum clauses at Clause III. Clause III is entitled "Jurisdiction" and states:
Any lawsuit arising under this Bill of Lading shall be filed at New Orleans, the Carrier's principal (sic) place of business, in the U.S. District Court for the Eastern District of Louisiana. U.S. Law shall apply.
Each of the bills of lading also contained a "General Paramount" clause in Section II. This clause states:
The Hague Rules contained in the International Convention for the Unification of certain rules relating to Bills of Lading, dated Brussels the 25th of August 1924 as enacted in the country of shipment shall apply to this contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipments in which no such enactments are compulsorily applicable, the terms of the said Convention shall apply. Trades where Hague-Visby Rules Apply
In trades where the International Brussels Convention 1924 as amended by the Protocol signed at Brussels on February 23, 1968 — the Hague Visby Rules — apply compulsorily, the provisions of the respective legislation shall be considered incorporated into this Bill of Lading. The Carrier takes all reservations possible under such applicable legislation, relating to the period before loading and after discharging and while the goods are in charge of another carrier, and to deck cargo and live animals.
The Court notes that these are standard clauses found in many bills of lading. Plaintiff's continued reference to the clauses as "boilerplate" is correct. Obviously, the carrier did not draft these bills of lading for the shipment at issue; they are a standard form contract.
The United States Supreme Court has consistently held that choice of law and forum clauses are presumptively valid. Thus, the choice of law and forum clauses in each bill of lading before the court enjoy a presumption of validity. As noted above, Clause III of each bill of lading contains an identical, precise choice of law and forum clause. They require that lawsuits be filed in New Orleans, Louisiana and that U.S. law (COGSA) shall apply. The presumption of validity enjoyed by the choice of law and forum clause in the bills of lading can only be overcome by a showing that the clause is "unreasonable under the circumstances." Further, Foster Wheeler must show that the clause results from fraud or overreaching, that it violates a strong public policy, or that the enforcement of the clause denies the plaintiff of its day in court.
Vimar Seguros Reaseguros v. M/V SKY REEFER, 515 U.S. 528, 541 (1995) (enforcing a foreign arbitration clause); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991) (enforcing a Florida forum selection and choice of law clause in a form cruise ship ticket); M/S BREMEN v. Zapata Off-Shore, 407 U.S. 1 ((1972) (enforcing an English choice of law and forum clause); Mitsui Co. (USA) v. MIRA M/V, 111 F.3d 33 (5th Cir. 1997) (choice of law clauses are presumptively valid).
BREMEN, 404 U.S. at 10; Mitsui Co., 111 F.3d at 35.
Id. at 12-13, 15, 18; Mitsui Co., 11l F.3d at 35.
Foster Wheeler has provided no evidence that any fraud or overreaching occurred when these bills of lading were negotiated. In fact, Foster Wheeler sent NC a sample text of the body of the bills of lading and thus was fully familiar with its terms. Moreover, Foster Wheeler has made no allegations that the choice of law and forum clause was included in the bills of lading due to fraud or overreaching.
Haysworth v. Lloyd's of London, 121 F.3d 957 (5th Cir. 1997) (allegations of fraud and overreaching must be specific to the forum selection clause in order to invalidate it.).
The enforcement of the choice of law and forum clause in the bills of lading calls for the application of COGSA. Foster Wheeler cannot maintain that the enforcement of the clause violates strong public policy.
Bremen, 407 U.S. at 15.
Foster Wheeler has argued that the amorphous General Paramount clause mandates the application of Hague-Visby to this dispute. It ignores the clear legal precept that the terms of a specific choice of law and forum clause in a bill of lading cannot be trumped by the terms of an amorphous General Paramount clause.
Itel Container Corp. v. M/V TITAN SCAN, 139 F.3d 1450 (11th Cir. 1998), cert denied, 529 U.S. 962; Acciai Speciali Terni USA, Inc. v M/V BERANE, 182 F. Supp.2d 503; (Dist. Md. 2002); Talatala v. Nippon Yusen Kaisha Corp., 974 F. Supp. 1321 (Dist. Haw. 1997).
In this matter, Clause III of each bill of lading contains an identical, precise choice of law and forum clause that clearly states the "U.S. law shall apply." In contrast, the General Paramount clause of each bill of lading contained at Clause II is an amorphous clause and suggests that in some circumstances the Hague-Visby rules might apply. Because the choice of law and forum clause in the bills of lading specifically calls for the application of COGSA, COGSA and not the Hague-Visby rules must control.
Accordingly,
IT IS ORDERED that defendant Industrial Maritime Carriers (Bahamas), Inc.'s motion for partial summary judgment seeking a declaration that COGSA applies to this matter should be and is hereby GRANTED.