Bankers Trust Co. v. Worldwide Transp. Services

• Decision Date: 29 April 1982
• Docket Number: No. LR-C-80-31.,LR-C-80-31.
• Citation: 537 F. Supp. 1101
• Parties: BANKERS TRUST COMPANY, Plaintiff, v. WORLDWIDE TRANSPORTATION SERVICES, INC., and Compania Nacional De Subsistencias Populares, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

537 F. Supp. 1101

BANKERS TRUST COMPANY, Plaintiff, v. WORLDWIDE TRANSPORTATION SERVICES, INC., and Compania Nacional De Subsistencias Populares, Defendants.

No. LR-C-80-31.

United States District Court, E. D. Arkansas, W. D.

April 29, 1982.

Vincent Foster, Jr., Rose, Nash, Williamson, Carroll, Clay & Giroir, Little Rock, Ark., for plaintiff.

Mike Thompson and Joseph E. Kilpatrick, Jr., Friday, Eldredge & Clark, Little Rock, Ark., for Worldwide Transp.

Bill Clinton, Wright, Lindsey & Jennings, Little Rock, Ark., for CONASUPO.

MEMORANDUM OPINION

ROY, District Judge.

This case initially involved an action filed on January 18, 1980, by Bankers Trust Company ("Bankers Trust" or "Bankers"), a New York bank, against Worldwide Transportation Services, Inc. ("Worldwide"), for restitution in the amount of $299,700.00. The litigation arose from an alleged error on the part of Bankers in transferring funds from the account of Compania Nacional de Subsistencias Populares ("CONASUPO") at Bankers' place of business in New York, New York, to an account of Worldwide, as agent for CONASUPO, which was located at The First National Bank in Little Rock, Arkansas. Subsequent to the filing of the original complaint herein, Worldwide filed a motion to require Bankers to join CONASUPO as an indispensable party defendant, alleging that $300,000.00 was transferred by Bankers to Worldwide for the purpose of paying outstanding freight charges and related bills owed by CONASUPO. The Court granted Worldwide's motion and ordered Bankers to file an amended complaint joining CONASUPO as a party defendant.

On December 16, 1980, Bankers served its amended complaint on CONASUPO alleging that the action was based upon a commercial activity of CONASUPO in the United States, or upon an act performed in the United States in connection with a commercial activity of CONASUPO; that Bankers was instructed by CONASUPO to wire $300.00 to Worldwide; that Bankers mistakenly wired $300,000.00 to Worldwide; that Bankers has only debited CONASUPO $300.00 for the transfer; that Worldwide has refused to return the $299,700.00 overpayment to Bankers because it used the funds to pay debts of CONASUPO; and that, if Worldwide in fact used the funds for CONASUPO's benefit, Bankers is entitled to restitution from CONASUPO.

Worldwide filed a cross-complaint against CONASUPO alleging in Count I that a contract between Worldwide and CONASUPO had been entered into on June 8, 1978, whereby Worldwide was to act as CONASUPO's agent with regard to the transportation, storage, loading and inspecting of various commodities purchased by CONASUPO in the United States; that under this agreement Worldwide would advise CONASUPO of any charges incurred on the latter's account, whereupon CONASUPO would send funds to cover the charges to The First National Bank of Little Rock account which Worldwide held as trustee for CONASUPO; that just prior to the receipt of the $300,000.00 from Bankers Trust, Worldwide had requested $300,000.00 from CONASUPO to pay outstanding bills; and that the $300,000.00 actually sent was in fact used to pay debts incurred by Worldwide on behalf of CONASUPO.

Count II of Worldwide's cross-complaint alleges that CONASUPO owes Worldwide some $830,167.83 for services rendered under the contract covering the period July 1, 1978—June 30, 1979. A further $999,996.00 is claimed for the period July 1, 1979—June 30, 1980. Count III alleges, as an alternative to Count II, that Worldwide is entitled to $2,000,000.00 from CONASUPO under the theory of quantum meruit, said amount being the value of alleged information and services rendered by Worldwide.

CONASUPO has filed motions to dismiss both the amended complaint and the cross-complaint for lack of personal jurisdiction, waiver of the forum and forum non conveniens. CONASUPO asserts that this Court does not have personal jurisdiction over it because it has not had sufficient contacts either with Arkansas or with the United States to support the exercise of this Court's jurisdiction; that Worldwide has waived the jurisdiction of this Court, or any other court, in favor of the courts of Mexico City, Federal District, Mexico; and that, alternatively, if this Court has personal jurisdiction over CONASUPO, it should decline to exercise jurisdiction under the doctrine of forum non conveniens.

A hearing was held on the motions to dismiss, wherein testimony was heard and documentary evidence was introduced. The matter has been thoroughly and competently briefed by all parties and is now ripe for resolution. The evidence presented to the Court reveals the following facts:

CONASUPO is a decentralized organism of the Federal Republic of Mexico, charged by public law to stabilize domestic price supports and purchases of foreign agricultural staples, such as wheat, rice, corn and beans. It is somewhat comparable to the U. S. Department of Agriculture. In 1977 CONASUPO began to purchase substantial amounts of soybean meal and soybean oil from American companies. These purchases were made "f. o. b. loaded/stowed CONASUPO vessels" at the port of New Orleans. Because CONASUPO had no agent within the United States at the time, it had to purchase the commodities from United States companies either delivered to Mexican ports or loaded/stowed on CONASUPO vessels at United States gulf ports.

Subsequently, in order to be able to acquire title to the commodities at inland points of origin within the United States or delivered to gulf ports alongside vessels, CONASUPO entered into negotiations with Worldwide for the purpose of engaging the latter as its agent to coordinate the movement within the U. S. continental boundaries of the commodities purchased by CONASUPO in America for export to Mexico.

The negotiations opened in New Orleans, Louisiana, on March 2 and 3, 1978, and were attended by Mr. Joe Baldridge, president of Worldwide, and by three representatives of CONASUPO. Subsequent to the New Orleans meeting, negotiations continued by telephone. On June 1, 1978, Mr. Baldridge and other Worldwide personnel, together with their attorneys, met personally with CONASUPO representatives in Mexico City for the purpose of preparing the final contract. The negotiations, as well as the contract itself, were in Spanish. On June 8, 1978, the contract was signed by CONASUPO officials and forwarded to North Little Rock, Arkansas, to Mr. Baldridge who signed it on June 12, 1978, and returned it to Mexico City.

The contract provided, inter alia, that Worldwide would, on behalf of CONASUPO, oversee the transportation of goods from the Gulf Coast and Mississippi River ports to Mexico, and that Worldwide would receive payment for its services by funds wired by CONASUPO to Worldwide's bank in Little Rock. As a guarantee of performance, Worldwide established an irrevocable letter of credit payable to CONASUPO in Mexico in the amount of $100,000.00.

Included in the contract in Clause 8 were the following terms:

"8th—Jurisdiction.—For the interpretation of this contract and for the exercise of the rights and actions that it grants to the parties, these expressly submit themselves to the Laws and Courts of the City of Mexico, Districto Federal, waiving any other jurisdiction, present or future, that would be the corresponding one."

Worldwide asserts that it was unaware of the conditions of Clause 8 until the June 1, 1978, meetings in Mexico City began. Worldwide was informed at that time that the clause would have to be included in any contract between the parties and that the matter was not subject to further negotiation. CONASUPO officials also maintained that the clause was standard language that typically appeared in its contracts. Having already invested a great deal of time and substantial sums of money in the negotiations with CONASUPO, Worldwide reluctantly agreed to the inclusion of Clause 8.

As set forth above, Worldwide was to supervise the transportation, loading, unloading, and other services required in connection with the movement of CONASUPO's agricultural purchases within the United States from interior points of origin to Mexico. During the period of the contract between July 1, 1978, and July 31, 1979, Worldwide arranged for the transportation, loading, unloading, and acquisition of documentation relating thereto of over two million metric tons of agricultural commodities purchased by CONASUPO from American firms. The cost of these services was in excess of $4,000,000.00.

CONASUPO directed Worldwide, as CONASUPO's agent, to open a special CONASUPO bank account with The First National Bank in Little Rock, Arkansas, in order to facilitate the payment of transportation charges which were being incurred by Worldwide on behalf of CONASUPO. The account was opened in the name of "Worldwide Transportation Services, Inc., as trustee for CONASUPO" and is identified as account No. X-XXXXX-X. From July 1, 1978, through July 31, 1979, CONASUPO caused its agent banks in New York and Dallas to make twenty-six separate transfers to the Little Rock account totaling $4,227,040.00.

From time to time during the relevant period mentioned above, as CONASUPO would enter into agreements with United States firms to purchase agricultural commodities, it would advise Worldwide of its activities and issue instructions with respect to the movement of the purchases from inland points of origin to their final destination in Mexico. As noted above, Worldwide then made the necessary arrangements with United States transportation companies to move, load and unload the commodities involved, paying for such services from the CONASUPO special account with The First National Bank in Little Rock, Arkansas.

It is from this background which outlines the course of dealing between the parties that the instant suit arose. On June 1, 1979, CONASUPO wired its New York bank, Bankers Trust Company, to transfer $300.00 to Worldwide's trust account at The First...