Global Oil Tools, Inc. v. Expeditors Int'l of Wash., Inc.

• Decision Date: 10 June 2019
• Docket Number: CIVIL ACTION NO. 16-16372
• Citation: 429 F.Supp.3d 221
• Parties: GLOBAL OIL TOOLS, INC. v. EXPEDITORS INTERNATIONAL OF WASHINGTON, INC. and Zurich American Insurance Company
• Court: U.S. District Court — Eastern District of Louisiana

429 F.Supp.3d 221

GLOBAL OIL TOOLS, INC.

v.EXPEDITORS INTERNATIONAL OF WASHINGTON, INC. and Zurich American Insurance Company

CIVIL ACTION NO. 16-16372

United States District Court, E.D. Louisiana.

Signed June 10, 2019

Filed June 11, 2019

Robert Joshua Koch, Jr., Koch & Schmidt, LLC, New Orleans, LA, David S. Toy, David S. Toy, PLLC, Lynne M. Jurek, Pro Hac Vice, Jurek Law Group, PLLC, Pete T. Patterson, Pro Hac Vice, Patterson, P.C., Houston, TX, for Global Oil Tools, Inc.

John F. Fay, Jr., Fay, Nelson & Fay, LLC, New Orleans, LA, Steven William Block, Pro Hac Vice, Foster Pepper PLLC, Seattle, WA, for Expeditors International of Washington, Inc. and Zurich American Insurance Company.

Andrea Merzario, S.A, pro se.

SECTION M (1)

ORDER & REASONS

BARRY W. ASHE, UNITED STATES DISTRICT JUDGE

Before the Court are:

(1) a motion filed by Hapag-Lloyd (America), LLC ("Hapag-Lloyd") to dismiss crossclaims of Expeditors International of Washington, Inc. ("Expeditors") and Andrea Merzario, S.A. ("Merzario") on the basis of a forum selection clause, and alternatively, for partial summary judgment to limit recoverable damages,¹ to which Expeditors responds in opposition,² and in further support of which Hapag-Lloyd replies;³

(2) a motion filed by Expeditors and its insurer, Zurich American Insurance Company ("Zurich") (collectively, "Expeditors"), to dismiss the claims of plaintiff Global Oil Tools, Inc. ("Plaintiff") on the basis of another forum selection clause,⁴ to which Hapag-Lloyd⁵ and Plaintiff respond in opposition,⁶ and in further support of which Expeditors replies;⁷

(3) Zurich's motion for summary judgment on Plaintiff's first-party insurance claims,⁸ to which Plaintiff responds in opposition;⁹ and

(4) Expeditors' motion for partial summary judgment to limit recoverable damages,¹⁰ to which Plaintiff responds in opposition,¹¹ and in further support of which Expeditors replies.¹²

Having considered the parties' memoranda, the record, and the applicable law, the Court issues this Order & Reasons.

I. BACKGROUND

This case involves a shipping arrangement gone awry. The pertinent facts were recited by the Court in a previous Order & Reasons:¹³

Plaintiff sells tools for oil and gas exploration. In early 2016, plaintiff was in negotiations to sell a large number of tools, allegedly worth $2.4 million, as well as intellectual property, to an overseas buyer. In anticipation of the sale, plaintiff packed these tools and intellectual property into two shipping containers, and contracted with defendant Expeditors International of Washington, Inc. (Expeditors) to arrange for the shipment of these containers to Romania. Expeditors arranged for the containers to sail from New Orleans on March 12, 2016, aboard a ship operated by Hapag-Lloyd. The containers arrived in New Orleans from Houma, Louisiana on March 8, but plaintiff (through Expeditors) requested that Hapag-Lloyd delay the trans-Atlantic shipment for two weeks.

The containers were then scheduled to sail in late March aboard the M/V BAVARIA. On March 22, plaintiff instructed Expeditors to delay the shipment again. Expeditors relayed this instruction to Hapag-Lloyd, but Hapag-Lloyd failed to relay it to defendant Ports America, the stevedoring company responsible for loading containers onto the M/V BAVARIA. The ship, with plaintiff's containers on board, sailed on March 28.

After the ship sailed, plaintiff acquiesced in the discharge of its containers at Constanta, Romania. The containers were transshipped in Cagliari, Italy, and arrived at Constanta on April 23, 2016. A bill of lading, dated March 28, was approved by plaintiff on May 27. The bill of lading identifies Romarftrans Group Srl. (RGS) as plaintiff's intermediate consignee. RGS is Andrea Merzario, S.A.'s agent in Romania. Acting through RGS, and pursuant to plaintiff's instructions, Andrea Merzario moved the containers to a bonded storage facility in June 2016. The sale of plaintiff's tools and intellectual property was never consummated, and the containers remain in Constanta. Some tools were purportedly damaged during transit.

Plaintiff sued Expeditors and Zurich American Insurance Company, Expeditors' liability insurer, on November 15, 2016, for damages and declaratory relief. Plaintiff added Hapag-Lloyd, Ports America, and Andrea Merzario as defendants on March 13, 2017. Several defendants have filed crossclaims and counterclaims.¹⁴

Some months ago Hapag-Lloyd moved for summary judgment on Plaintiff's claims, and Ports America moved for summary judgment on Plaintiff's claims and Expeditors' and Merzario's crossclaims.¹⁵ As to Plaintiff's claims, Hapag-Lloyd and Ports America argued that the Himalaya clause in Expeditors' bill of lading precluded Plaintiff from asserting claims against anyone except Expeditors for issues related to the shipping.¹⁶

In ruling on these summary judgment motions, the Court found that Expeditors, as a non-vessel operating common carrier, acted as the carrier vis-à-vis Plaintiff, and the shipper with respect to Hapag-Lloyd.¹⁷ Expeditors issued a bill of lading to Plaintiff that incorporated the provisions of the Carriage of Goods by Sea Act ("COGSA"), and included the following Himalaya clause:

Merchant undertakes that no claim or allegation shall be made against any Person or Vessel whatsoever other than Carrier, including the Carrier's servants or agents, any independent contractors (at any time) and their servants or agents, Participating Carriers, and all others by whom the whole or any part of the Carriage, whether directly or indirectly, is procured, performed, or undertaken, which imposes or attempts to impose upon any such Person or Vessel any liability whatsoever in connection with the Good or the Carriage....¹⁸

The Court granted the motions holding that "[t]he Himalaya clause in the relevant bill of lading forecloses the liability of Hapag-Lloyd and Ports America to plaintiff," and that Ports America was "entitled to summary judgment on two crossclaims against it because it was not negligent."¹⁹ The Court further found (1) that it was irrelevant that the bill of lading was issued after the erroneous shipment because "courts routinely enforce bills of lading issued after goods are damaged during transit,"²⁰ and (2) "that plaintiff had notice of the bill of lading's terms and explicitly approved the bill of lading by email on May 27, 2016."²¹

II. LAW & ANALYSIS

A. Hapag-Lloyd's Motion to Dismiss (R. Doc. 171)

Having used the bill of lading's Himalaya clause to shut the door on its direct exposure to Plaintiff, Hapag-Lloyd has now filed a motion to dismiss Expeditors' crossclaims seeking to enforce a forum selection clause in the sea waybill Hapag-Lloyd (as vessel operating common carrier) issued to Expeditors (as shipper),²² which states:

24. Law and Jurisdiction

Except as otherwise provided specifically herein any claim or dispute arising under the Sea Waybill shall be governed by the law of the Federal Republic of Germany and determined in the Hamburg courts to the exclusion of the jurisdiction of the courts of any other place....²³

Hapag-Lloyd argues that the forum selection clause is mandatory, and thus must be enforced under the doctrine of forum non conveniens.²⁴

Expeditors does not dispute that the forum selection clause is mandatory.²⁵ Rather, Expeditors argues that Hapag-Lloyd waived the right to enforce the forum selection clause by filing a motion for summary judgment seeking substantive relief under the Himalaya clause against Plaintiff's claim, which filing was inconsistent with any intent on Hapag-Lloyd's part to enforce the forum selection clause and which, thereby, substantially invoked the judicial process causing detriment to Expeditors.²⁶ Expeditors claims that it would have sought to enforce against Plaintiff the forum selection clause in its bill of lading had it known that Hapag-Lloyd would seek to enforce the forum selection clause in the sea waybill.²⁷ The bill of lading's forum selection clause provides:

27. LAW; DISPUTES; VENUE; SEVERABILITY; ETC.

(a) This Bill of Lading shall be governed by and construed in accordance with the internal Laws of the State of Washington (excluding its Laws relating to conflicts of law), except as the same may be governed by the federal Law of the United States. MERCHANT IRREVOCABLY CONSENTS TO NON-EXCLUSIVE JURISDICTION AND VENUE FOR LEGAL PROCEEDINGS RELATED TO ALL CLAIMS AND DISPUTES ARISING FROM OR IN CONNECTION WITH THIS BILL OF LADING OR THE GOODS, WHETHER UNDER FEDERAL, STATE, LOCAL, OR FOREIGN STATUTES, REGULATIONS, OR COMMON LAW, IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON OR THE SUPERIOR COURT OF THE STATE OF WASHINGTON SITTING IN KING COUNTY. MERCHANT AND CARRIER HEREBY CONSENT TO THE COMMENCEMENT AND TRANSFER OF ALL SUCH LEGAL PROCEEDINGS TO SUCH COURTS. Merchant irrevocably consents to the commencement and to the transfer of venue in any or all such actions to any other venue in which Carrier is party to a legal action brought by itself or a third party that arises from or is connected with the Goods, their carriage, loading, unloading, handling, or storage, or loss, damage, or delay related to any of the Goods. The Merchant waives all defenses based on inconvenience of forum in all actions commenced in the venues agreed to under this Bill of Lading....²⁸

Expeditors states that it forwent filing a motion to transfer this action to the United States District Court for the Western District of Washington because it believed that Hapag-Lloyd had consented to going forward in this Court, and it was preferable to have the entirety of the case and all parties before a single tribunal.²⁹

A forum selection clause pointing to a state or foreign forum is properly enforced through the doctrine of forum non conveniens . Atl. Marine Constr. Co. v. U.S. Dist. Court , 571 U.S. 49, 60, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013). Ordinarily, in ruling on such a motion the district court considers various...