Dimond Rigging Company, LLC v. BDP International, Inc., 012519 FED6, 18-3615

Docket Nº:18-3615
Party Name:Dimond Rigging Company, LLC, Plaintiff-Appellant, v. BDP International, Inc.; Logitrans International, LLC, Defendants-Appellees.
Attorney:Duncan H. Brown, LAW OFFICES OF DUNCAN H. BROWN, Northville, Michigan, for Appellant. Troy B. Morris, PEREZ & MORRIS LLC, Columbus, Ohio, for Appellee BDP International. Eric W. Beery, BEERY & SPURLOCK CO., L.P.A., Columbus, Ohio, for Appellee Logitrans.
Judge Panel:Before: BOGGS, KETHLEDGE, and NALBANDIAN, Circuit Judges
Case Date:January 25, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Dimond Rigging Company, LLC, Plaintiff-Appellant,


BDP International, Inc.; Logitrans International, LLC, Defendants-Appellees.

No. 18-3615

United States Court of Appeals, Sixth Circuit

January 25, 2019

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:17-cv-02054-Christopher A. Boyko, District Judge.


Duncan H. Brown, LAW OFFICES OF DUNCAN H. BROWN, Northville, Michigan, for Appellant.

Troy B. Morris, PEREZ & MORRIS LLC, Columbus, Ohio, for Appellee

BDP International. Eric W. Beery, BEERY & SPURLOCK CO., L.P.A., Columbus, Ohio, for Appellee Logitrans.

Before: BOGGS, KETHLEDGE, and NALBANDIAN, Circuit Judges



Appellant Dimond Rigging Company, LLC ("Dimond"), appeals from a district-court judgment dismissing its suit against Appellees BDP International, Inc. ("BDP") and Logitrans International, LLC ("Logitrans") because Dimond's suit was not timely filed within the one-year statute of limitations set forth in the Carriage of Goods by Sea Act ("COGSA"). We affirm the district court's judgment.


Dimond was hired by a Chinese auto manufacturer to "rig, dismantle, wash, and pack," and ultimately ship several tons of used automotive assembly-line equipment to China (the "Equipment"). Dimond lacked experience in international shipment. Dimond Rigging Co., LLC v. BDP Int'l, Inc., 320 F.Supp.3d 947, 948 (N.D. Ohio 2018). Dimond alleged that it received an "unsolicited call" from BDP offering to "assume and perform . . . each and every aspect of the shipment." Ibid. Dimond hired BDP to ship the Equipment. Dimond asserted that BDP did not disclose that it was not a licensed Ocean Transport Intermediary ("OTI") by the Federal Maritime Commission. Ibid.

In May 2011, BDP informed Dimond that it had obtained a ship and sent a booking note to Dimond that included proposed terms and conditions of the shipment. At that time, the Equipment had not been completely dismantled and weighed. Id. at 948-49. Between May and October 2011, Dimond completed these tasks and prepared a "preliminary and estimated packing list" for BDP. BDP allegedly provided the preliminary packing list when it obtained quotes from third-party contractors who would load the Equipment. Id. at 949.

In October 2011, BDP notified Dimond that the first ship it had booked was no longer available. Dimond asserted that BDP had "without Dimond's knowledge, consent or approval" hired Logitrans to "perform some, or all of BDP's freight forwarding duties including locating/booking or providing a ship; acting in the capacity as the NVOCC carrier for the shipment . . . and negotiating loading services . . . ." Dimond alleged that BDP misrepresented that Logitrans was a Non-Vessel Operating Common Carrier1 ("NVOCC").

BDP and Logitrans hired the Gisele Scan, operated by Scan-Trans, Inc. ("Scan-Trans"), to transport the Equipment from the Port of Cleveland to Xingang, China. BDP prepared a new Booking Note and Bill of Lading for the transportation of the Equipment aboard the Gisele Scan.2 Dimond Rigging

Co., 320 F.Supp.3d at 949. The Booking Note identified Dimond3 as the Merchant, 4 Logitrans as the Carrier, Scan-Trans as the Agent-Shipbrokers, and BDP as the Merchant's Representative. Ibid.

The Booking Note incorporated the Bill of Lading. The following terms in the Bill of Lading are of particular relevance. (a) In case the Contract evidenced by this Bill of Lading is subject to the Carriage of Goods by Sea Act of the United States of America, 1936 ("U.S. COGSA"), then the provisions stated in said Act shall govern before loading and after discharge and throughout the entire time the cargo is in the Carrier's custody and in which event freight shall be payable on the cargo coming into the Carrier's custody.

The Bill of Lading also contained a "Himalaya Clause."5

(a) It is hereby expressly agreed that no servant or agent of the Carrier (which for the purpose of this Clause includes every independent contractor from time to time employed by the Carrier) shall in any circumstances whatsoever be under any liability whatsoever to the Merchant under this contract of carriage for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment.

(b) Without prejudice to the generality of the foregoing provisions in this Clause, every exemption from liability, limitation, condition and liberty herein contained and every right, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled, shall also be available and shall extend to protect every such servant and agent of the Carrier as aforesaid.

Both Logitrans and Dimond signed the Booking Note.

Dimond alleged that it was not informed about a pre-load inspection meeting and that Logitrans and BDP did not attend the meeting either. This, Dimond asserted, led to delays and increased costs, because the Gisele Scan was not able to take on all the Equipment, and the stevedores would not load all the Equipment because it was not included in their quote. Dimond Rigging, 320 F.Supp.3d at 949-50. Ultimately, the Gisele Scan departed, leaving behind approximately 34 pieces of equipment. It arrived in China in March 2012.

As a result of these shipping difficulties, Dimond became involved in multiple lawsuits, including suits with its Chinese customer and the stevedores. Id. at 950. Dimond filed a Complaint against BDP in the Northern District of Ohio on July 11, 2013, alleging Breach of Fiduciary Duty, Unjust Enrichment, and Fraud. Ibid. Dimond never served BDP with the Complaint and, when the summons expired, the district court dismissed the Complaint without prejudice. Ibid. On August 9, 2017, Dimond filed a Motion to Amend and Praecipe for Issuance of Amended Summons for its 2013 suit against BDP. The district court denied the Motion. Dimond filed a five-count Complaint against BDP and Logitrans on October 2, 2017, asserting claims for: (1) breach of fiduciary duty; (2) fraudulent non-disclosure; (3) intentional fraud; (4) breach of agreement, failure to perform and illegality of contract; and (5) unjust enrichment.


BDP filed a Motion to Dismiss, asserting that Dimond had failed to state a claim upon which relief could be granted because the statute of limitations on Dimond's claims had run. Logitrans was served on November 27, 2017. Logitrans's president sent Dimond's counsel a letter on December 19, 2017, denying liability and responding to Dimond's complaint. Logitrans did not file a copy of the letter with the court. Dimond filed a Request for an Entry of Default pursuant to Fed.R.Civ.P. 55(a) on December 29, 2017. Logitrans retained counsel and filed a Memorandum opposing Dimond's Request on January 3, 2018. The district court denied Dimond's Request for Entry of Default and ordered Logitrans to file an amended answer. Logitrans then filed a Motion to Dismiss, asserting the same defense that BDP used-that the statute of limitations had run.

The district court granted the Motions to Dismiss. It explained that, because bills of lading are "maritime contracts, governed by federal maritime law[, ]" COGSA governed Dimond's claims. Dimond Rigging, 320 F.Supp.3d at 952-53. Because COGSA has a one-year statute of limitations for cargo claims in contract or tort that begins to run after the goods have been delivered, or on the date the goods should have been delivered, the district court concluded that Dimond should have filed its claims in May 2013, one year after the goods were released to Dimond's customer. Because it did not, the district court concluded that Dimond's claims were outside the statute of limitations. Id. at 953. In reaching this conclusion, the district court substantially relied on Federal Marine Terminals, Inc. v. Dimond Rigging Co., LLC, No. 1:13-cv-01329, 2014 WL 4809427 (N.D. Ohio Sept. 26, 2014), a related case in which the same district court (albeit by a different judge) had already determined that, through the Bill of Lading, COGSA governed the shipment of the Equipment, and the Himalaya Clause extended COGSA to independent contractors. Dimond Rigging, 320 F.Supp.3d at 950. The district court also rejected Dimond's arguments that BDP and Logitrans should be estopped from benefiting from COGSA's one-year statute of limitations because they allegedly did not comply with certain licensing requirements. The district court explained that, because COGSA does not include licensure requirements, Dimond failed to sufficiently allege that BDP and Logitrans were in violation of COGSA. Id...

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