330 F.3d 225 (4th Cir. 2003), 02-1058, Hawkspere Shipping Co., Ltd. v. Intamex, S.A.

Docket Nº:02-1058
Citation:330 F.3d 225
Party Name:Hawkspere Shipping Co., Ltd. v. Intamex, S.A.
Case Date:May 27, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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330 F.3d 225 (4th Cir. 2003)



INTAMEX, S.A.; AMALCO, A.G., Defendants-Appellants,




No. 02-1058

United States Court of Appeals, Fourth Circuit

May 27, 2003

Argued: February 24, 2003

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Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge.



John Stephen Simms, GREBER & SIMMS, Baltimore, Maryland, for Appellants. JoAnne Zawitoski, SEMMES, BOWEN & SEMMES, P.C., Baltimore, Maryland, for Appellee.


Stephen S. McCloskey, GREBER & SIMMS, Baltimore, Maryland, for Appellants. Alexander M. Giles, SEMMES, BOWEN & SEMMES, P.C., Baltimore, Maryland, for Appellee.

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Before NIEMEYER, MICHAEL, and KING, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Michael joined. Judge Niemeyer wrote separately, concurring in part and dissenting in part and concurring in the judgment.


KING, Circuit Judge:

On June 9, 2000, a shipment of aluminum that had travelled by sea from St. Petersburg, Russia, arrived at the Port of Baltimore, Maryland. The carrier (i.e., the owner of the ship) asserted a maritime lien against the cargo, and it subsequently filed in rem and in personam claims in the District of Maryland, seeking to recover unpaid freight. The shippers (i.e., the owners of the cargo), in turn, filed a counterclaim contesting the lien and seeking damages. The district court granted the carrier’s motions for summary judgment. The shippers have appealed, and as explained below, we affirm.


Intamex, S.A., and Amalco, A.G. ("Intamex and Amalco" or the "Shippers"), are international metal traders. Both are incorporated in Switzerland and both are engaged primarily in the purchase and sale of aluminum. In the spring of 2000, Intamex and Amalco bought aluminum in Russia for sale to American buyers. In order to have the aluminum transported to the United States, they booked ocean carriage aboard the M/V ANANGEL FIDELITY (the "FIDELITY"), a vessel owned by Hawkspere Shipping Company, Limited ("Hawkspere"), a Bahamian corporation. Rather than contact Hawkspere directly to book passage for the aluminum, Intamex and Amalco instead made the arrangements for ocean carriage through International Commodities Transport Services ("ICTS"), an Alabama corporation. ICTS is a "cargo consolidator": it packages shipments bound for a common destination and charters a vessel to carry the cargo on behalf of various shippers. In the past, Intamex and Amalco had arranged several shipments using ICTS, either directly or through their Russian agent, International Transportation Logistics ("ITL"). Generally, Intamex and Amalco would remit payment for the ocean freight charges to ICTS in Athens, Alabama. ICTS would then deduct its commissions and forward the balance to the carrier. There were occasions, however, when Intamex paid the ocean freight directly to the carrier, rather than by way of ICTS. It is undisputed that both Intamex and Amalco were aware that ICTS did not use its own vessels for shipping, and that it instead brokered the services of other companies.

On April 28, 2000, ICTS, as charterer, entered into a voyage charterparty with Hawkspere, as owner, for the services of one of Hawkspere’s ships, the FIDELITY. A "voyage charterparty" is simply a contract for the hire of a ship. See William Tetley, Marine Cargo Claims 10 (3d ed. 1988). The charterparty form employed in this instance was drafted in New York by the attorneys for ICTS, and it had been used in each of the approximately eight other charterparties that ICTS and Hawkspere had executed. In each instance, the form was modified with different details and rider terms, depending on the nature of the particular shipment. The terms of the charterparty for this shipment were negotiated through a Houston company, Argosy Shipping, and the charter was "fixed," or made, in the United States. In addition to consolidating the cargo of Intamex and Amalco for the Page 229

St. Petersburg to Baltimore voyage, ICTS also arranged for Hawkspere’s FIDELITY to carry cargo belonging to two other shippers. Upon the loading of Intamex’s and Amalco’s aluminum on board the FIDELITY, Hawkspere’s St. Petersburg agent issued ocean bills of lading for the cargo on pre-printed forms to Intamex and Amalco, as shippers. A "bill of lading" is a contract for the carriage of goods by sea. See Tetley, Marine Cargo Claims 10 (3d ed. 1988).1 The last of the bills of lading was issued on May 12, 2000, and all of the bills were immediately sent to Intamex and Amalco. Once Intamex and Amalco received the bills of lading, they were aware that the carrier of their cargo was Hawkspere. Both Intamex and Amalco were also aware, prior to the shipment at issue, that payment of the ocean freight charges would ultimately have to be made to Hawkspere, the carrier of their cargo.

ICTS played no role in the preparation of the bills of lading, as the bills involved only Hawkspere, as carrier, and Intamex and Amalco, as shippers. Conversely, Intamex and Amalco were in no way involved with the Hawkspere-ICTS charterparty. In fact, prior to the initiation of this admiralty proceeding, neither Intamex nor Amalco ever saw a copy of the charterparty, nor were they otherwise aware of its terms. Moreover, neither shipper had any communication whatsoever with Hawkspere prior to the June 2000 arrival of their cargo in Baltimore.

On the FIDELITY’s voyage from St. Petersburg to Baltimore, Intamex shipped 1767.19 metric tons of cargo, while Amalco shipped 1233.06 metric tons. The Shippers admit that, as a result of this shipment, Intamex owed Hawkspere $54,782.89 in ocean freight, and Amalco owed $38,224.86, for a total of $93,007.75. On May 16, 2000, Hawkspere sent its invoice to ICTS for all the ICTS consolidated cargo carried on the FIDELITY. ICTS, in turn, billed ITL (Intamex’s and Amalco’s Russian agent) for their cargoes at a rate that included not only the ocean freight of $31 per metric ton, but also stevedoring charges and ICTS’s commissions on the cargoes. ITL then billed Intamex and Amalco, instructing them to remit the bulk of their payments directly to ICTS’s bank in Athens, Alabama, but also to wire $11,000 to ITL’s Russian bank, apparently in payment of ITL’s commission.

Instead of paying Hawkspere directly for the ocean freight that they owed, which Intamex has admitted was an option, Intamex and Amalco claim to have paid their ocean freight in full to ICTS. Hawkspere, though, never received payment. According to the bills of lading, the ocean freight for the cargo was to have been paid four business days after signature on the bills of lading covering the cargo.2 The only monies that ICTS ever paid to Hawkspere Page 230

in connection with the FIDELITY voyage was a wire transfer of $12,000 made on May 30, 2000, and that wire transfer did not indicate whose ocean freight (Intamex, Amalco, or the two other shippers whose cargos were also consolidated on the FIDELITY) was being paid. In order to avoid a dispute of material fact on the issue of the sum that the Shippers still owed, Hawkspere stipulated to a $12,000 credit against the $93,007.75 total freight charges. It is therefore undisputed that Hawkspere never received ocean freight due for carriage of Intamex’s and Amalco’s cargo in the sum of $81,007.75. The cargo of all shippers was discharged from the FIDELITY on or about June 9, 2000, at which time Hawkspere exercised its possessory maritime lien against the cargo shipped by Intamex and Amalco on that vessel.3 After several weeks of negotiations between counsel for Hawkspere and counsel for Intamex and Amalco, an agreement was reached whereunder Hawkspere would arrest the cargo shipped by Intamex and Amalco under bills of lading numbers 214 and 227 (the "Cargo"), and would release the remaining goods.4 Together, those two bills covered goods (specifically, sixty-five bundles of secondary aluminum and thirty-two pieces of aluminum alloy sows) whose value roughly equaled the amount of Hawkspere’s claim against Intamex and Amalco for unpaid ocean freight.


On July 28, 2000, Hawkspere sued in admiralty and obtained a warrant to arrest the Cargo, in rem, pursuant to Supplemental Admiralty and Maritime Claims Rule C of the Federal Rules of Civil Procedure ("Supplemental Admiralty Rule C"). The United States Marshal carried out the arrest. On August 9, 2000, Intamex and Amalco executed a letter of security, pursuant to which they placed the sum of $80,000 into the Registry of the Court, and the court released the Cargo from arrest. On September 11, 2000, Intamex and Amalco filed their Verified Answer and Claim to the Cargo, as well as a counterclaim against Hawkspere for wrongful arrest. On November 21, 2000, Intamex and Amalco brought a third party complaint against the cargo consolidator, ICTS, and its principal, Tony Gilbert.

On March 7, 2001, after discovery, Hawkspere moved for leave to 1990). amend its complaint to add Intamex and Amalco as in personam defendants for breach of contract of carriage totaling $93,007.75, and to Page 231

increase to $93,007.75 the damages claimed in rem against the Cargo.5 On March 16, 2001, Hawkspere moved for partial summary judgment against the Cargo in rem under its original complaint and for summary judgment against Intamex and Amalco on their counterclaim. On April 2, 2001, Intamex and Amalco filed a cross-motion for summary...

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