383 F.3d 349 (5th Cir. 2004), 03-30038, Foster Wheeler Energy Corp. v. An Ning Jiang MV

Docket Nº:03-30038.
Citation:383 F.3d 349
Party Name:FOSTER WHEELER ENERGY CORPORATION, Plaintiff-Appellant, v. AN NING JIANG MV, Etc.; et al., Defendants, Industrial Maritime Carriers (Bahamas), Inc., in personam, Defendant-Appellee.
Case Date:September 13, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
FREE EXCERPT

Page 349

383 F.3d 349 (5th Cir. 2004)

FOSTER WHEELER ENERGY CORPORATION, Plaintiff-Appellant,

v.

AN NING JIANG MV, Etc.; et al., Defendants,

Industrial Maritime Carriers (Bahamas), Inc., in personam, Defendant-Appellee.

No. 03-30038.

United States Court of Appeals, Fifth Circuit

September 13, 2004

Page 350

Machale A. Miller (argued), Miller & Williamson, New Orleans, LA, for Plaintiff-Appellant.

Jason P. Waguespack (argued), Michael John Wray, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BENAVIDES, STEWART and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In this maritime action arising from cargo damage sustained during a voyage from Spain to China, shipper Foster Wheeler Energy Corporation ("Foster Wheeler") appeals from a final judgment entered in

Page 351

its favor, challenging the district court's summary judgment ruling that terms in the relevant bills of lading entitled the carrier to limit its liability to $500 per package under the Carriage of Goods by Sea Act ("COGSA"). Because we find that in this case that the Hague-Visby Rules as enacted in Spain, not COGSA, apply ex proprio vigore and cannot be overcome by any terms in the bills of lading at issue here, we affirm the district court's judgment on liability, reverse the district court's ruling that COGSA governs the quantum of damages owed, and remand the case for a proper calculation of damages in accordance with the Spanish Hague-Visby Rules.

FACTUAL AND PROCEDURAL BACKGROUND

Foster Wheeler brought this maritime suit against the M/V AN NING JIANG, in rem, and carrier Industrial Maritime Carriers (Bahamas), Inc. ("IMC"), in personam, seeking relief for damage to a shipment of 695 packages containing equipment for two coal-fired generation units carried under bills of lading from Tarragona and Gijon, Spain to Xingang, China. The underlying facts are not in dispute. Foster Wheeler is a multi-national corporation which is principally domiciled in the United States and is engaged in a wide variety of manufacturing and shipping endeavors. IMC, a corporation organized under the laws of the Bahamas with its principal place of business in New Orleans, Louisiana, is engaged in the operation of vessels for the carriage of goods for hire. In February 1999, Foster Wheeler retained IMC to ship the generation equipment from Spain to China aboard the M/V AN NING JIANG, operated under charter by IMC at all times pertinent to this litigation. Accordingly, IMC, through its agent Intermarine Incorporated ("Intermarine"), issued three identical CONLINEBILL form bills of lading in Hamburg, Germany, listing Foster Wheeler as the shipper, Tarragona and Gijon, Spain as the ports of loading,1 and Xingang, China as the port of discharge. In late May 1999, the equipment was delivered in good order to the ports of Tarragona and Gijon and loaded aboard the AN NING JIANG. Unfortunately, the vessel encountered heavy weather conditions during the voyage, causing a number of the packages to shift and become damaged before being discharged in China.

On December 13, 2000, Foster Wheeler filed suit against the AN NING JIANG, in rem, and IMC, as the carrier,2 in the Eastern District of Louisiana seeking to recover damages in the amount of $ 228,576.73 as a result of IMC's alleged breach of its duties under COGSA, 46 U.S.C. app. §§ 1300 et seq., and/or the Harter Act, 46 U.S.C. app. §§ 190 et seq. IMC answered that pursuant to the terms of the bills of lading, the quantum of its liability, if any, should be limited in accordance with COGSA's $500 per package limitation, which in this case would cap IMC's exposure for cargo damage at $39,453.74.3 The three

Page 352

bills of lading at issue bore no explicit reference to any liability limitation. Instead, each of the three bills of lading contained the following pertinent conditions of carriage:

2. General Paramount Clause

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.4

3. Jurisdiction

Any lawsuit arising under this Bill of Lading shall be filed at New Orleans, the Carrier's principal place of business, in the U.S. District Court for the Eastern District of Louisiana. U.S. Law shall apply.

On April 25, 2002, IMC filed a motion for partial summary judgment seeking a declaration that, pursuant to the Jurisdiction clause, COGSA and its $500 per package liability limitation governed this

Page 353

action rather than the Hague-Visby Rules referenced in the bills' General Paramount Clause.5 Foster Wheeler opposed IMC's motion, contending that the Hague-Visby Rules as enacted in Spain and their higher limitation-of-liability provision, not COGSA, governed this carriage by operation of law and by incorporation into the bills of lading, entitling it on the facts of this case to a full recovery.6 Foster Wheeler further asserted that because Spain's Hague-Visby Rules applied compulsorily by force of law, Article III(8) of these Rules nullified any contractual term in the bills of lading--namely, the Jurisdiction clause--to the extent that it invoked COGSA's lower per package limitation.7 Foster Wheeler's uncontroverted summary judgment evidence included the affidavit testimony of an expert on Spanish maritime law attesting that a voyage from Spain to China is a trade line to which the Spanish enactment of the Hague-Visby Rules applies compulsorily. Nonetheless, on September 30, 2002, the district court granted IMC's motion, reasoning that the Jurisdiction clause designating "U.S. law" was a forum selection and choice-of-law clause "call[ing] for the application of COGSA" and, as such, was entitled to a presumption of validity that Foster Wheeler failed to overcome. The district court also found that, as a matter of contractual interpretation, the Jurisdiction Clause was specific, and therefore could not "be trumped by the terms of an amorphous General Paramount clause" that merely "suggest[ed] that in some circumstances the Hague-Visby rules might apply."

On October 10, 2002, Foster Wheeler filed a motion for reconsideration of the district court's grant of partial summary judgment, which the district court denied. By December 2002, only the proper quantum of damages remained at issue between the parties. In order to expedite Foster Wheeler's ability to appeal the district court's summary judgment ruling, the parties filed a joint notice of consent to entry of judgment. Accordingly, on December 9, 2002, the district court entered final judgment in favor of Foster Wheeler, calculating the quantum of damages owed

Page 354

under COGSA. Foster Wheeler timely filed notice of appeal.

DISCUSSION

On appeal, Foster Wheeler contests the amount of its damages award, arguing that the district court erred in determining that COGSA, rather than Spain's Hague-Visby Rules, govern the extent of IMC's liability for the cargo damage. IMC does not dispute its liability for damage to the cargo; thus, the sole issue before this Court is whether COGSA or the Hague-Visby Rules as enacted in Spain govern the carriage and hence, the quantum of damages owed by IMC.

I. Standard of review

We review the grant of summary judgment de novo, applying the same legal standards as the district court applied to determine whether summary judgment was appropriate. Flock v. Scripto-Tokai Corp., 319 F.3d 231, 236 (5th Cir. 2003) (citing Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002)). A summary judgment motion is properly granted only when, viewing the evidence in the light most favorable to the nonmoving party, the record indicates that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

II. The contract of carriage and limitation of liability under the Hague Rules

Foster Wheeler challenges each of the district court's reasons for declining to rule that the Spanish Hague-Visby Rules' higher limitation of liability governs the calculation of damages available in this case. In support of its position, Foster Wheeler first contends that because the Spanish Hague-Visby Rules and its higher limits on liability govern this carriage compulsorily by force of law and COGSA does not, Article III(8) of the Hague-Visby Rules invalidates the Jurisdiction clause designating "U.S. law" to the extent it contractually incorporates COGSA's inconsistent, lower limitation of liability provision. Foster Wheeler asserts in the alternative that as a simple matter of contractual interpretation, a reading of the parties' contract of carriage as a whole reveals that the Jurisdiction clause contractually invoked COGSA and its $ 500 liability limitation only during periods and for claims not governed by the Hague-Visby...

To continue reading

FREE SIGN UP