Ambraco, Inc. v. Bossclip B.V.

• Decision Date: 28 May 2009
• Docket Number: No. 07-31156.,No. 07-30727.,07-30727.,07-31156.
• Citation: 570 F.3d 233
• Parties: AMBRACO, INC.; Great American Insurance Company, Plaintiffs-Appellants, v. BOSSCLIP B.V., in personam; Dockendale Shipping Company, Ltd., in personam; Faith Shipping Company, Ltd., in personam, Defendants-Appellees. Ambraco, Inc.; Great American Insurance Company, Plaintiffs-Appellants, v. CLIPPER FAITH MV, her engines, tackle, apparel, furniture, etc., in rem; Bossclip B.V., in personam; Dockendale Shipping Company, Ltd., in personam; Faith Shipping Company, Ltd., in personam, Defendants-Third Party Defendants-Appellees, v. Pacorini Holding, LLC, Defendant-Third Party Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

570 F.3d 233

AMBRACO, INC.; Great American Insurance Company, Plaintiffs-Appellants, v. BOSSCLIP B.V., in personam; Dockendale Shipping Company, Ltd., in personam; Faith Shipping Company, Ltd., in personam, Defendants-Appellees.

Ambraco, Inc.; Great American Insurance Company, Plaintiffs-Appellants, v. CLIPPER FAITH MV, her engines, tackle, apparel, furniture, etc., in rem; Bossclip B.V., in personam; Dockendale Shipping Company, Ltd., in personam; Faith Shipping Company, Ltd., in personam, Defendants-Third Party Defendants-Appellees, v. Pacorini Holding, LLC, Defendant-Third Party Plaintiff-Appellant.

No. 07-30727.

No. 07-31156.

United States Court of Appeals, Fifth Circuit.

May 28, 2009.

Francis Aitkens Courtenay, Jr. (argued), Preis & Roy, New Orleans, LA, for Ambraco, Inc. an Great American Ins. Co.

Jason P. Waguespack (argued), David N. Loria, Michael J. Nicaud, Frederick W. Swaim, Galloway, Johnson, Tompkins, Burr & Smith, Charles F. Lozes, Phelps Dunbar, New Orleans, La, for Bossclip B.V., Dockendale Shipping Co., Ltd., and Faith Shipping Co., Ltd.

Jon Anthony Van Steenis (argued), John Fredrick Kessenich, Jonathan H. Sandoz, Daigle, Fisse & Kessenich, Madisonville, LA, for Pacorini Holding, LLC.

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

Before GARWOOD, DENNIS and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Plaintiff-Appellant Ambraco, Inc. ("Ambraco") contracted with Defendants-Appellees M/V CLIPPER FAITH ("CLIPPER FAITH"), Bossclip B.V. ("Bossclip"), Dockendale Shipping Co., Ltd. ("Dockendale"), and Faith Shipping Co., Ltd. ("Faith") (collectively "Vessel Interests") to transport a cargo of bailer twine from Brazil to New Orleans, Louisiana. The cargo was damaged while in the custody of the Vessel Interests or Defendant-Third-Party Plaintiff-Appellant Pacorini Holding, L.L.C. ("Pacorini"), the cargo's discharging stevedore. Ambraco filed a maritime cargo damage case against the Vessel Interests and Pacorini. The district court dismissed the claims against the Vessel Interests for improper venue based upon a forum selection clause in the contracts of carriage, which are known commonly as bills of lading. Ambraco appeals the district court's dismissal of its claims against the Vessel Interests, asserting that the forum selection clause is invalid as a violation of the public policy codified in the Carriage of Goods by Sea Act ("COGSA"), Pub.L. No. 74-521, ch. 229, 49 Stat. 1207 (reprinted in the notes to 46 U.S.C. § 30701).

In a consolidated case, Pacorini appeals the district court's dismissal of its third-party complaint for indemnification against the Vessel Interests. The district court dismissed Pacorini's claims after finding that Federal Rule of Civil Procedure 14(c) was not available because the Vessel Interests were not true "third-party defendants" under Rule 14(c). Pacorini asserts that Rule 14(c) expressly provides that a third-party plaintiff may implead a third-party defendant who may be liable to it for contribution or indemnity. For the following reasons, we affirm in part, vacate in part, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ambraco delivered several thousand bales of bailer twine to the Vessel Interests, who were to transport this cargo from Brazil to the United States on the CLIPPER FAITH, an ocean-going cargo vessel owned by Faith. Pacorini acted as the cargo's discharging stevedore in New Orleans.

The cargo was covered by seventeen bills of lading, all identical in terms and conditions, issued by Bossclip to the other Vessel Interests. The bills of lading contained three clauses critical to the present dispute:

1. Definitions

(a) "Carrier" means the carrier as stipulated on page 2 of this bill of lading, and insofar as carriage by sea is concerned, the registered owner of the vessel.

2. Jurisdiction

The contract evidenced by this bill of lading shall be governed by English law and any disputes thereunder shall be determined in England by the High Court of Justice in London according to English law to the exclusion of the courts of any other country.

....

5. Clause Paramount

(d) If the carriage is to or from the U.S., the Carriage of Goods By the Sea Act 1936 of the United States ("COGSA") shall apply (whether the goods are stowed on or under deck) ....

These bills of lading were issued on December 28, 2005, and their validity is not in question.

When the cargo arrived in New Orleans, Ambraco discovered extensive damage to the bailer twine. Ambraco immediately instituted proceedings to seek compensation from the Vessel Interests and Pacorini for the damage to its cargo. First, Ambraco threatened to arrest, or seize, the vessel to gain in rem jurisdiction over the ship. The parties agreed to issue a Letter of Undertaking in the amount of $2,000,000 to stand in the place of the ship for purposes of any future in rem action. On November 14, 2006, Ambraco filed an original complaint in the District Court for the Eastern District of Louisiana against the Vessel Interests. One month later, the named in personam appellees — Bossclip, Dockendale, and Faith — filed responsive pleadings raising a defense of improper venue. On March 3, 2007, Ambraco filed a supplemental and amended complaint naming Pacorini as an additional defendant. On May 21, 2007, Faith made a restricted appearance as the owner of the CLIPPER FAITH to defend Ambraco's in rem action.

On April 26, 2007, the in personam Vessel Interests filed a motion to dismiss Ambraco's claims based upon the forum selection clause contained in the bills of lading. The district court dismissed the entire case on May 25, 2007. The district court held that the forum selection clause in the bills of lading required all disputes to be adjudicated in the High Court of England. Thus, the district court held that it lacked jurisdiction over the claim. Although Ambraco had amended its complaint to include a claim against Pacorini, Pacorini had not appeared by the time the district court dismissed the suit.

Ambraco moved under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment. In support, Ambraco submitted an affidavit on issues of English law from English solicitor Mark Andrew Lloyd ("Lloyd"). The Vessel Interests disputed the motion to alter or amend the judgment and contested the introduction of Lloyd's affidavit. The district court denied Ambraco's motion to alter or amend the judgment, again concluding that the forum selection clause was valid and divested the district court of jurisdiction over the claim.

The district court did, however, partially reopen the case, clarifying that its judgment dismissing the Vessel Interests' claims did not extend to Ambraco's claims against Pacorini. The district court also asserted jurisdiction over the Letter of Undertaking, thus maintaining jurisdiction over the res. On July 18, 2007, Pacorini filed an answer and a third-party complaint under Federal Rule of Civil Procedure 14(c), naming the dismissed Vessel Interests as third-party defendants to Ambraco's suit against Pacorini. On October 3, 2007, the Vessel Interests filed a motion to dismiss Pacorini's claims and the district court granted this motion on November 5, 2007, holding that Rule 14(c) was not available to implead parties previously dismissed from the suit. After denying Pacorini's motion for reconsideration, the district court granted Pacorini's motion to certify the order dismissing the third-party complaint as a final judgment under Federal Rule of Civil Procedure 54(b). The court entered final judgment dismissing the case with prejudice on January 10, 2008.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had admiralty jurisdiction over the case pursuant to 28 U.S.C. § 1333. This court has jurisdiction under 28 U.S.C. § 1291, as the appeal arises from a final judgment entered by the district court.

This court reviews the district court's decision to enforce a forum selection clause de novo. Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 441 (5th Cir.2008). "Our de novo review under either Rule 12(b)(1) or Rule 12(b)(3) requires us to view all the facts in a light most favorable to the plaintiff." Id. at 448 (Dennis J., dissenting).¹ "Moreover, under both Rule 12(b)(1) and Rule 12(b)(3), the court is permitted to look at evidence in the record beyond simply those facts alleged in the complaint and its proper attachments." Id. at 449 (citing Lane ex rel. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir.2008) ("[T]he court may find a plausible set of facts by considering any of the following: (1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." (internal quotation marks omitted))); Murphy v. Schneider Nat'l Inc., 362 F.3d 1133, 1138-40 (9th Cir.2004) (holding that, in the absence of factual findings made by the district court based upon an evidentiary hearing, affidavits and other evidence submitted by the non-moving party in the context of a Rule 12(b)(3) challenge are to be viewed in the light most favorable to that party).

This court also reviews the district court's order dismissing Pacorini's third-party claims de novo. See Lane, 529 F.3d at 557.

III. ANALYSIS

A. Enforcement of the Forum Section Clause

On appeal, Ambraco argues that the forum selection clause in the bills of lading are invalid as the forum selection clause contradicts the public policy evidenced in COGSA, specifically § 3(8), which limits a common carrier's freedom to lessen the minimum liability contained in the Act.² The district court held that the forum selection clause did not violate public policy and that the clause, as enforced, divested the court of jurisdiction.

Section 3 of COGSA provides "explicit standards of conduct, and it is designed to correct specific abuses by...