GIC Servs., L.L.C. v. Freightplus USA, Inc., 15-30975

• Decision Date: 08 August 2017
• Docket Number: No. 15-30975,15-30975
• Citation: 866 F.3d 649
• Parties: GIC SERVICES, L.L.C., Plaintiff–Appellee, v. FREIGHTPLUS USA, INCORPORATED, Defendant–Third Party Plaintiff–Appellant–Appellee, Industrial Maritime Carriers, L.L.C., Third Party Defendant–Appellant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

866 F.3d 649

GIC SERVICES, L.L.C., Plaintiff–Appellee,

v.FREIGHTPLUS USA, INCORPORATED, Defendant–Third Party Plaintiff–Appellant–Appellee,Industrial Maritime Carriers, L.L.C., Third Party Defendant–Appellant–Appellee.

No. 15-30975

United States Court of Appeals, Fifth Circuit.

FILED August 8, 2017

Desherick J.W. Boone, Attorney, Southern Poverty Law Center, New Orleans, LA, for Plaintiff–Appellee.

Kevin Patrick Walters, Royston, Rayzor, Vickery & Williams, L.L.P., Houston, TX, for Defendant–Third Party Plaintiff–Appellant Freightplus USA, Incorporated.

Jason P. Waguespack, Esq., Director, David N. Loria, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant–Third Party Plaintiff–Appellant Industrial Maritime Carriers, L.L.C.

Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

This case is about a tugboat and its voyage across the Atlantic from Houston to Nigeria. Though the tugboat arrived safely in port, the parties dispute whether it was discharged at the correct port. The party that arranged for the tugboat's transport wanted it discharged at Lagos, Nigeria; the ocean carrier believed Warri, Nigeria to be the correct port of discharge, claiming it was told so by an intermediary. Despite the parties' efforts to secure discharge at Lagos, the ocean carrier was unable to do so and continued on to Warri. And there the tugboat remained. Predictably, litigation ensued. After a bench trial, the district court entered judgment, allocating the liabilities and associated damages among the parties. On appeal, the ocean carrier and the intermediary challenge various aspects of the judgment. We AFFIRM in part and REVERSE in part.

I.

The plaintiff in this case, GIC Services, L.L.C. (GIC), contracted with Freightplus USA, Inc. (Freightplus), the defendant/third-party plaintiff, to arrange for the transport of a tugboat—the REBEL—to Nigeria.¹ Freightplus does not own vessels capable of transporting the REBEL, so Freightplus contracted with Yacht Path International, Inc. (Yacht Path)² —a broker specializing in the transportation of large water craft—who in turn contracted with Industrial Maritime Carriers, L.L.C. (IMC) as the "vessel-operating common carrier." In the end, GIC agreed to pay Freightplus $111,000 for its services, Freightplus agreed to pay Yacht Path $85,000, and Yacht Path agreed to pay IMC $70,000. While GIC paid the amount it owed to Freightplus, and Freightplus paid the amount owed to Yacht Path, Yacht Path did not remit the amount owed to IMC.

In the course of making these arrangements, representatives from Yacht Path spoke with representatives of IMC via telephone and communicated information for IMC's bill of lading,³ including the desired port of discharge. Exactly what was communicated by Yacht Path is in dispute: IMC claims that Yacht Path said that Warri was the port of discharge, while Freightplus claims that Yacht Path identified Lagos as the port of discharge. IMC then issued a "booking note," which purported to specify the terms of its agreement with Yacht Path. This "booking note," which was sent to Yacht Path, lists Warri as the port of discharge. Yacht Path issued its own booking note and bill of lading, both of which list Lagos as the port of discharge. In late December, Freightplus issued a "house bill of lading," identifying Lagos as the port of discharge. The next day, IMC issued a "non-negotiable" bill of lading and a cargo manifest, both of which listed Warri as the port of discharge.⁴ IMC asserts that its non-negotiable bill of lading and cargo manifest were both sent to Yacht Path. At no time prior to the REBEL's departure from Houston did anyone notice or acknowledge the discrepancy as to the port of discharge.

The REBEL departed Houston in late December. In early January, while the REBEL was en route to Nigeria, communications occurred between Mr. Branting of IMC and Mr. Cummings of Yacht Path through which it became clear that there was confusion over the REBEL's port of discharge. In mid-January, representatives from Yacht Path, Freightplus, and GIC attempted to find a way to discharge the REBEL at Lagos. However, the district court found that a late-night e-mail on January 16 from a Yacht Path representative was the first occasion in which "anyone at Yacht Path or IMC discussed the need for changing the REBEL's destination" from Warri to Lagos. Despite efforts to rectify the situation, IMC was unable to discharge the REBEL at Lagos. While various parties blame an inability to contact GIC's agent in Nigeria at the eleventh hour, the district court found that "manifest and customs documents" listing Warri as the port of discharge also contributed to IMC's inability to discharge the REBEL at Lagos.

The ocean carrier proceeded on to Warri and discharged the REBEL there. Though GIC initially sought to obtain the REBEL's release, it was informed that the REBEL could not be released because IMC had not been paid its freight. And so, the REBEL remained in Warri in the custody of a company called Julius Berger.

GIC sued Freightplus, and Freightplus in turn brought a third-party action against IMC. IMC counter-claimed against Freightplus and the REBEL in rem to recover its unpaid freight. After a two-day bench trial, the district court concluded that Freightplus was liable to GIC for $1,860,985 in damages incurred as a result of the REBEL's discharge in Warri. The district court then determined that IMC was 30 percent at fault for GIC's damages and so the court required IMC to pay 30 percent of the judgment, as well as 30 percent of Freightplus's attorneys' fees. Finally, the district court concluded that IMC was entitled to recover $70,309.12, plus pre-judgment interest, from Freightplus—the amount of IMC's unpaid freight. The district court subsequently amended its judgment to remove IMC's obligation to pay 30 percent of Freightplus's attorneys' fees.⁵ Freightplus and IMC both timely appealed.

After briefing in this court was completed, Freightplus filed a "Motion for Partial Dismissal of Appeal." In this motion, Freightplus represented that it and GIC have "reached a settlement" as to that part of the Second Amended Judgment "relat[ing] to GIC Services and Freightplus." Freightplus thus requested that we allow it to "dismiss its appeal." A few days later, GIC filed a "Notice of Satisfaction of Judgment" in the district court, indicating that "GIC and Freightplus entered into a settlement agreement, resolving all claims between them," that "Freightplus has fulfilled the terms of the settlement agreement" and so "[t]he judgment [ ] in favor of GIC and against Freightplus is satisfied[.]" We granted Freightplus's motion and dismissed its appeal "as to those aspects of the Second Amended Judgment in favor of GIC Services, L.L.C. and against Freightplus USA, Incorporated ONLY."⁶

II.

The parties raise a host of challenges to the judgment. IMC challenges: (1) the requirement that it indemnify Freightplus for a portion of the damages award; (2) the amount of damages awarded GIC; (3) the allocation of damages between itself and Freightplus; and (4) the determination that it may not exercise a lien against the REBEL in rem to recover its unpaid freight. Like IMC, Freightplus objects to the allocation of damages between itself and IMC. It also challenges the district court's refusal to award it attorneys' fees and the requirement that it reimburse IMC for its unpaid freight.⁷ We address each of these in turn.

A.

We first consider whether IMC is liable to Freightplus under a theory of tort indemnification for a portion of the judgment awarded to GIC.

Once a prominent feature of maritime law, maritime tort indemnification is now available only in limited situations. Hardy v. Gulf Oil Corp. , 949 F.2d 826, 833 (5th Cir. 1992). One of these situations arises from a "special relationship" between two entities. Cities Serv. Co. v. Lee–Vac, Ltd. , 761 F.2d 238, 240 (5th Cir. 1985) (citing Fed. Marine Terminals, Inc. v. Burnside Shipping Co. , 394 U.S. 404, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969) ); see also LCI Shipholdings, Inc. v. Muller Weingarten AG , 153 Fed.Appx. 929, 931 (5th Cir. 2005). Under this theory, an entity will owe indemnity when its negligence is the cause of a loss to its counterpart.

The parties agree with the district court⁸ that a "special relationship" exists between a "non-vessel operating common carrier" (NVOCC)⁹ and a "vessel-operating common carrier" (VOCC).¹⁰ They disagree, however, with the district court's conclusion that: (1) Freightplus was operating as an NVOCC; and (2) IMC was negligent and its negligence caused Freightplus's injury.

While we are not aware of a decision of ours recognizing maritime tort liability based on the relationship between a NVOCC and a VOCC, two of our sister circuits appear to have done so. See SPM Corp. v. M/V Ming Moon , 22 F.3d 523, 526–27 (3d Cir. 1994) ; Ins. Co. of N. Am. v. M/V Ocean Lynx , 901 F.2d 934, 937, 941 (11th Cir. 1990). Seeing no reason to depart from these decisions, and given the parties' agreement on this question, we conclude that the NVOCC/VOCC relationship may give rise to a claim for maritime tort indemnity to the extent articulated in this opinion.

1.

The first question is whether Freightplus was operating as an NVOCC. "Non-vessel operating common carrier" is a term defined by statute. See 46 U.S.C. § 40102(16). As such, we review the interpretation of that term de novo . See AEL Asia Express (H.K.) Ltd. v. Am. Bankers Ins. Co. of Fla. , 5 Fed.Appx. 106, 107 (4th Cir. 2001). To the extent this question involves factual issues, "[m]ixed questions of law and fact are also reviewed de novo ." Trinity Indus., Inc. v. United States , 757 F.3d 400, 407 (5th Cir. 2014) ; see also Prima U.S. Inc. v. Panalpina, Inc. , 223 F.3d 126, 129 (2d Cir. 2000) (reviewing de novo whether party was an ocean freight forwarder as a mixed question of law and fact).

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