Armit v. Eleni Int'l Shipping S.A.
| Decision Date | 21 January 2000 |
| Docket Number | No. 99-30097,99-30097 |
| Citation | 201 F.3d 556 |
| Parties | (5th Cir. 2000) CYNTHIA ARMIT, wife of/and JOHN ARMIT, Plaintiffs, V. ELENI INTERNATIONAL, SHIPPING, S.A., SAFETY MANAGEMENT OVERSEAS, S.A., Defendants-Cross-Defendants-Appellees, V. BUNGE CORPORATION, Defendant-Cross-Claimant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Eastern District of Louisiana
Before HIGGINBOTHAM and SMITH, Circuit Judges, and DUPLANTIER,* District Judge.
This appeal presents the issue of whether Blue Water Shipping Company (Blue Water), the agent for the time charterer of the M/V ELENI, had actual or apparent authority to bind Eleni International Shipping, S.A. (Eleni), the owner of the M/V ELENI, or Safety Management Overseas, S.A. (Safety), the operator/manager of the vessel, to the indemnification and defense provisions of a dock tariff incorporated by reference into the berth application for the vessel. The district court granted summary judgment in favor of Eleni and Safety. We affirm.
Messrs. Fratelli D'Amato, the time charterer of the vessel, designated the grain elevator owned by Bunge Corporation (Bunge) as the loading facility for the vessel and appointed Blue Water as its agent at the loading port. Thereafter, Blue Water facilitated the berthing of the vessel at the Bunge dock. Roy Sergi, an operations agent for Blue Water, signed the Application for Berth for the vessel. When the vessel experienced engine problems and was unable to berth as scheduled, a representative of Blue Water notified Bunge of the situation. Bunge then advised Blue Water that a new berth application and Notice of Readiness would have to be filed before the vessel could berth at the Bunge facility. After the vessel's engine problems were resolved, a representative of Blue Water signed and filed a new Application for Berth and Notice of Readiness, and the M/V ELENI then docked at the Bunge facility.
While preparing to load grain aboard the vessel, John Armit, a longshoreman employed by River Rentals Stevedoring, Inc.(River Rentals), was injured. In a letter addressed to Bunge and River Rentals, and copied to Blue Water, the master of the ELENI denied responsibility for the accident. Blue Water, at the request of the master, faxed the letter to Bunge.
The injured longshoreman and his wife filed suit against Eleni, Safety, and Bunge seeking damages for the injuries and losses they sustained. Bunge filed a cross-claim against Eleni and Safety for indemnification and defense costs pursuant to Bunge Corporation Grain & Dock Tariff No. 9 (Dock Tariff No. 9) which was incorporated by reference into the Application for Berth executed by Blue Water.1
The district court granted summary judgment in favor of Eleni and Safety on the Armits' claims as well as on Bunge's cross-claim for indemnification and defense costs.2 Bunge appeals the order and judgment dismissing its cross-claim.
We review the grant of a motion for summary judgment de novo. Hall v. Thomas, 190 F.3d 693, 695 (5th Cir. 1999). "[W]e apply the same standard as that used by the district court, viewing the facts and drawing inferences in favor of the non-moving party." Chamrad v. Volvo Cars of North America, 145 F.3d 671, 672 (5th Cir. 1998). Summary judgment is properly granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
It is undisputed that the Dock Tariff No. 9 is not a mandatory tariff. Therefore, its provisions are enforceable against Eleni only if Eleni, or an agent acting on Eleni's behalf, contractually assumed the obligations set out in the tariff. Bunge contends that Blue Water accepted the terms of the tariff as the agent for Eleni. Eleni argues that Blue Water had no authority, express or implied, to act on its behalf.
In determining whether an agency relationship exists between the vessel owner and the vessel charterer's agent, the following facts are relevant: (1) who selected the agent, (2) whether the owner exercised control over the selection of the agent, and (3) whether the owner exercised control over the agent. Marvirazon Compania Naviera, S.A., 674 F.2d 364, 367 (5th Cir. 1982). Where the vessel owner did not select the agent and exercised no control over the agent "with regard to obligations imposed on the charterer including berth arrangements," the charterer's agent lacks actual authority to bind the vessel owner. Id.
The charterer, not Eleni, selected Blue Water as the agent at the loading port. There is no evidence that Eleni exercised any control over the charterer in its selection of Blue Water as its agent or that Eleni exercised any control over Blue Water. There is a complete lack of evidence that Blue Water had actual authority to act on behalf of Eleni.
However, even absent actual authority to act on behalf of Eleni, acts by Blue Water bind Eleni if Blue Water had apparent authority to act on Eleni's behalf. "Apparent authority is created as to a third person by conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to the act done on his behalf by the person purporting to act for him." Cactus Pipe & Supply Co., Inc. v. M/V MONTMARTRE, 756 F.2d 1103, 1111 (5th Cir. 1985), citing Restatement (Second) of Agency 27.
To prove apparent authority, Bunge must present evidence that Eleni engaged in some conduct which Bunge could reasonably interpret as a...
To continue reading
Request your trial