Hawkspere Shipping v. Intamex, 052403 FED4, 021058

Docket Nº:021058
Party Name:Hawkspere Shipping v. Intamex
Case Date:May 24, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Hawkspere Shipping v. Intamex

021058

FED4

5/24/2003

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

üH AWKSPERE SHIPPING COMPANY, LIMITED,

Plaintiff-Appellee,

v.

INTAMEX, S.A.; AMALCO, A.G.,

Defendants-Appellants,

and 65 BUNDLES OF

SECONDARY

ALUMINUM, GRADE A380.1 AND 32 PIECES OF

ALUMINUMLLOY SOWS, No. 02-1058

GRADE AK5M2, in rem; M/V ANANGEL FIDELITY, in rem,

Defendants,

v.

INTERNATIONAL COMMODITIES

TRANSPORTATION SERVICES, INCORPORATED; INTERNATIONAL

COMMODITY TRANSPORTATION

SERVICES, LLC; TONY GILBERT,

Third Party Defendants.

&Thorn;

Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge.

(CA-00-2306-S)

Argued: February 24, 2003

Decided: May 27, 2003

Before NIEMEYER, MICHAEL, and KING, Circuit Judges.

2 HAWKSPERE SHIPPING CO. v. INTAMEX, S.A.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Michael joined. Judge Niemeyer wrote separately, con- curring in part and dissenting in part and concurring in the judgment.

COUNSEL

ARGUED: John Stephen Simms, GREBER & SIMMS, Baltimore, Maryland, for Appellants. JoAnne Zawitoski, SEMMES, BOWEN & SEMMES, P.C., Baltimore, Maryland, for Appellee. ON BRIEF: Stephen S. McCloskey, GREBER & SIMMS, Baltimore, Maryland, for Appellants. Alexander M. Giles, SEMMES, BOWEN & SEMMES, P.C., Baltimore, Maryland, for Appellee.

OPINION

KING, Circuit Judge:

On June 9, 2000, a shipment of aluminum that had travelled by sea from St. Petersburg, Russia, arrived at the Port of Baltimore, Mary- land. The carrier (i.e., the owner of the ship) asserted a maritime lien against the cargo, and it subsequently filed in rem and in personam claims in the District of Maryland, seeking to recover unpaid freight. The shippers (i.e., the owners of the cargo), in turn, filed a counter- claim contesting the lien and seeking damages. The district court granted the carrier’s motions for summary judgment. The shippers have appealed, and as explained below, we affirm.

I.

Intamex, S.A., and Amalco, A.G. ("Intamex and Amalco" or the "Shippers"), are international metal traders. Both are incorporated in Switzerland and both are engaged primarily in the purchase and sale of aluminum. In the spring of 2000, Intamex and Amalco bought alu- minum in Russia for sale to American buyers. In order to have the aluminum transported to the United States, they booked ocean car- riage aboard the M/V ANANGEL FIDELITY (the "FIDELITY"), a

HAWKSPERE SHIPPING CO. v. INTAMEX, S.A.

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vessel owned by Hawkspere Shipping Company, Limited ("Hawkspere"), a Bahamian corporation.

Rather than contact Hawkspere directly to book passage for the aluminum, Intamex and Amalco instead made the arrangements for ocean carriage through International Commodities Transport Services ("ICTS"), an Alabama corporation. ICTS is a "cargo consolidator": it packages shipments bound for a common destination and charters a vessel to carry the cargo on behalf of various shippers. In the past, Intamex and Amalco had arranged several shipments using ICTS, either directly or through their Russian agent, International Transpor- tation Logistics ("ITL"). Generally, Intamex and Amalco would remit payment for the ocean freight charges to ICTS in Athens, Alabama. ICTS would then deduct its commissions and forward the balance to the carrier. There were occasions, however, when Intamex paid the ocean freight directly to the carrier, rather than by way of ICTS. It is undisputed that both Intamex and Amalco were aware that ICTS did not use its own vessels for shipping, and that it instead brokered the services of other companies.

On April 28, 2000, ICTS, as charterer, entered into a voyage charterparty with Hawkspere, as owner, for the services of one of Hawkspere’s ships, the FIDELITY. A "voyage charterparty" is simply a contract for the hire of a ship. See William Tetley, Marine Cargo Claims 10 (3d ed. 1988). The charterparty form employed in this instance was drafted in New York by the attorneys for ICTS, and it had been used in each of the approximately eight other charterparties that ICTS and Hawkspere had executed. In each instance, the form was modified with different details and rider terms, depending on the nature of the particular shipment. The terms of the charterparty for this shipment were negotiated through a Houston company, Argosy Shipping, and the charter was "fixed," or made, in the United States. In addition to consolidating the cargo of Intamex and Amalco for the St. Petersburg to Baltimore voyage, ICTS also arranged for Hawk- spere’s FIDELITY to carry cargo belonging to two other shippers.

Upon the loading of Intamex’s and Amalco’s aluminum on board the FIDELITY, Hawkspere’s St. Petersburg agent issued ocean bills of lading for the cargo on pre-printed forms to Intamex and Amalco, as shippers. A "bill of lading" is a contract for the carriage of goods

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by sea. See Tetley, Marine Cargo Claims 10 (3d ed. 1988).1 The last of the bills of lading was issued on May 12, 2000, and all of the bills were immediately sent to Intamex and Amalco. Once Intamex and Amalco received the bills of lading, they were aware that the carrier of their cargo was Hawkspere. Both Intamex and Amalco were also aware, prior to the shipment at issue, that payment of the ocean freight charges would ultimately have to be made to Hawkspere, the carrier of their cargo.

ICTS played no role in the preparation of the bills of lading, as the bills involved only Hawkspere, as carrier, and Intamex and Amalco, as shippers. Conversely, Intamex and Amalco were in no way involved with the Hawkspere-ICTS charterparty. In fact, prior to the initiation of this admiralty proceeding, neither Intamex nor Amalco ever saw a copy of the charterparty, nor were they otherwise aware of its terms. Moreover, neither shipper had any communication what- soever with Hawkspere prior to the June 2000 arrival of their cargo in Baltimore.

On the FIDELITY’s voyage from St. Petersburg to Baltimore, Intamex shipped 1767.19 metric tons of cargo, while Amalco shipped 1233.06 metric tons. The Shippers admit that, as a result of this ship- ment, Intamex owed Hawkspere $54,782.89 in ocean freight, and Amalco owed $38,224.86, for a total of $93,007.75. On May 16, 2000, Hawkspere sent its invoice to ICTS for all the ICTS- consolidated cargo carried on the FIDELITY. ICTS, in turn, billed ITL (Intamex’s and Amalco’s Russian agent) for their cargoes at a rate that included not only the ocean freight of $31 per metric ton, but also stevedoring charges and ICTS’s commissions on the cargoes. ITL then billed Intamex and Amalco, instructing them to remit the

1It is important to emphasize that the cargo’s shipment involved two distinct contracts: (1) the charterparty, between Hawkspere, as ship- owner, and ICTS, as charterer; and (2) the bills of lading, between Hawkspere, as ocean carrier, and Intamex and Amalco, as shippers. Because this is a dispute between carrier (Hawkspere) and shippers (Intamex and Amalco), the bills of lading will be our primary focus. See Acciai Speciali Terni USA, Inc. v. M/V BERANE , 182 F.Supp.2d 503, 504-06 (D. Md. 2002) (holding that bill of lading, not charterparty, gov- erned contract dispute between carrier and shipper).

HAWKSPERE SHIPPING CO. v. INTAMEX, S.A.

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bulk of their payments directly to ICTS’s bank in Athens, Alabama, but also to wire $11,000 to ITL’s Russian bank, apparently in pay- ment of ITL’s commission.

Instead of paying Hawkspere directly for the ocean freight that they owed, which Intamex has admitted was an option, Intamex and Amalco claim to have paid their ocean freight in full to ICTS. Hawk- spere, though, never received payment. According to the bills of lad- ing, the ocean freight for the cargo was to have been paid four business days after signature on the bills of lading covering the cargo.2 The only monies that ICTS ever paid to Hawkspere in connection with the FIDELITY voyage was a wire transfer of $12,000 made on May 30, 2000, and that wire transfer did not indicate whose ocean freight (Intamex, Amalco, or the two other shippers whose cargos were also consolidated on the FIDELITY) was being paid. In order to avoid a dispute of material fact on the issue of the sum that the Shippers still owed, Hawkspere stipulated to a $12,000 credit against the $93,007.75 total freight charges. It is therefore undisputed that Hawkspere never received ocean freight due for carriage of Intamex’s and Amalco’s cargo in the sum of $81,007.75.

The cargo of all shippers was discharged from the FIDELITY on or about June 9, 2000, at which time Hawkspere exercised its posses- sory maritime lien against the cargo shipped by Intamex and Amalco on that vessel.3 After several weeks of negotiations between counsel

2Bills of lading are typically signed by the carrier or its agent immedi- ately after the goods that are to be transported are loaded on board. See The Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 1303(7); see generally 2 Thomas J. Schoenbaum, Admiralty and Maritime Law §10- 11 (3d ed. 2001).

3A maritime lien is "a privileged claim upon maritime property . . . arising out of services rendered to or injuries caused by that property." 1 Thomas J. Schoenbaum, Admiralty and Maritime Law §9-1 (3d ed. 2001). It "attaches simultaneously with the cause of action," and it is a right against the property in rem. Id.

If a shipper refuses to pay the full freight, the carrier may lawfully withhold the cargo. See The Bird of Paradise

, 72 U.S. (5 Wall.) 545, 554 (1866) ("Ship-owners, unquestionably, as a general rule, have a lien upon the cargo for the freight, and consequently may retain the goods after the

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for Hawkspere and counsel for Intamex and Amalco, an agreement was reached whereunder Hawkspere would arrest the cargo shipped by...

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