Herod's Stone Design v. Mediterranean Shipping Co.

• Decision Date: 22 January 2020
• Docket Number: 18 Civ. 5720 (AT)
• Citation: 434 F.Supp.3d 142
• Parties: HEROD'S STONE DESIGN, Plaintiff, v. MEDITERRANEAN SHIPPING COMPANY S.A. and BNSF Railway Company, Defendants.
• Court: U.S. District Court — Southern District of New York

434 F.Supp.3d 142

HEROD'S STONE DESIGN, Plaintiff,

v.MEDITERRANEAN SHIPPING COMPANY S.A. and BNSF Railway Company, Defendants.

18 Civ. 5720 (AT)

United States District Court, S.D. New York.

Signed January 22, 2020

Michael M. Cohen, Englewood, NJ, Michael M. Cohen, Law Offices of Michael M. Cohen, Brooklyn, NY, for Plaintiff.

Matthew Jason Pallay, William Joseph Pallas, III, Freehill, Hogan and Mahar LLP, New York, NY, for Defendants.

ORDER

ANALISA TORRES, District Judge:

This case concerns an international shipment of marble tiles that allegedly went wrong. Plaintiff, Herod's Stone Design, contracted through a series of intermediaries with Mediterranean Shipping Company S.A. ("MSC") to ship marble tiles from China to New York. 56.1 Stmt. ¶¶ 1, 3, ECF No. 47-4. Plaintiff alleges that MSC handled the journey across the Pacific Ocean, then subcontracted with BNSF Railway Company ("BNSF") to bring the tiles across the United States. Amended Complaint ¶¶ 18, 27, ECF No. 44. When Plaintiff received the tiles, they were allegedly damaged beyond repair. Id. ¶ 30. After going through MSC's claims process, and being denied. Plaintiff brought suit against MSC in New Jersey state court, ECF No. 1-1. The case was removed to federal court there, ECF No. 1, and later transferred to this Court, ECF No. 9. Plaintiff then filed an amended complaint asserting claims against MSC and BNSF. See Amended Complaint ¶¶ 8, 12.

Now before the Court is MSC's motion to dismiss the complaint for failure to state a claim, or in the alternative for summary judgment, ECF No. 47; and BNSF's motion to dismiss the complaint for lack of personal jurisdiction and for failure to state a claim, ECF No. 74. For the reasons that follow: (1) BNSF's motion to dismiss for lack of personal jurisdiction is DENIED; (2) BNSF's motion to dismiss for failure to state a claim is GRANTED; and MSC's motion for summary judgment is GRANTED.

BACKGROUND¹

I. Factual Background

A. The Sea Waybill

Plaintiff's domestic shipping agent, Go Forward Freight Services ("Go Forward"), contracted with a foreign shipping agent, Parisi Grand Smooth Logistics, LTD ("Parisi"), which in turn contracted with MSC to ship marble tiles from China to New York. 56.1 Stmt. ¶¶ 1, 3. MSC issued a "sea waybill"—"a contract for the shipment of goods ... by which the carrier undertakes to deliver the goods to the consignee named in the document," 1 Admiralty & Mar. Law § 10:11 (6th ed.) —for shipment of the tiles, numbered MSCUYS895277 (the "Sea Waybill"). 56.1 Stmt. ¶ 7. The Sea Waybill originally provided that MSC would undertake to ship the tiles from China to Long Beach, California, but was amended at the request of either Plaintiff or Go Forward to reflect that MSC was responsible for carrying the cargo to New York. Id. ¶¶ 8–9.

The front side of the Sea Waybill provided that 23 packages of marble tile would be shipped from Chongqing, China to New York, NY, via Long Beach. Sea Waybill Front, ECF No. 48-1 Ex. 2. The reverse side provided detailed contract terms. Sea Waybill Reverse, ECF No. 48-1 Ex. 4; see ECF No. 48-1 Ex. 3.² It defines the "Carrier" as "MSC Mediteranean Shipping Company S.A.," and the "Merchant" as "includ[ing] the Shipper, Consignee, holder of this Sea Waybill, the receiver of the Goods, and any Person owning, entitled to or claiming possession of the Goods or of this Sea Waybill or anyone acting on behalf of this Person." Sea Waybill Reverse ¶ 1. It permits MSC to subcontract carriage of the goods "on any terms whatsoever." Id. ¶ 4.1. It also requires any claims against MSC to be brought in accordance with the Sea Waybill's terms, providing:

The Merchant further undertakes that no claim or allegation in respect of the Goods shall be made against the carrier by any person which imposes or attempts to impose upon the Carrier any liability whatsoever in connection with the Goods or the carriage of the Goods other than in accordance with the terms and conditions of this Sea Waybill, whether or not arising out of negligence or misdelivery on the part of the Carrier.... #

Id. ¶ 4.4.

The Sea Waybill also incorporates the terms of the U.S. Carriage of Goods by Sea Act ("COGSA"), # 46 U.S.C. § 30701 note, in what is known as a "U.S. Trade Clause." That clause provides:

[F]or carriage to or from any port of the United States, its territories or possessions, or if suit is brought in the United States, this Sea Waybill shall have effect subject to the provisions of the COGSA and to the provisions of the Pomerene Act regardless of whether said Act would apply of its own force. The provisions of the COGSA are incorporated herein and save as otherwise provided herein shall apply throughout the entire time the Goods are in the Carrier's custody, including before loading and after discharge as long as the Goods remain in the custody of the Carrier or its Subcontractors, including cargo carried on deck. Nothing contained herein is to be deemed a surrender by the Carrier of its rights, immunities, exemptions or limitations or an increase of any of its responsibilities or liabilities under the COGSA.

Sea Waybill Reverse ¶ 6.1.

The Sea Waybill also limits MSC's liability for damaged or lost cargo, stating, "Where COGSA applies by virtue of clause 6, neither the Carrier nor the Vessel shall in any event be or become liable in an amount exceeding US$500 per package or per customary freight unit." Id. ¶ 7.2.2. And it provides a limitation period for claims, stating that "the Carrier shall be discharged from all liability if suit is not commenced within one (1) year after delivery of the Goods or the date that the Goods should have been delivered for claims related to loss or damage during the Port-to-Port carriage, and for claims related to loss or damage during Inland Transport the shorter of nine (9) months or any time limit provided for by any applicable international convention, national law, regulation or contract...." Id. ¶ 10.2.

Finally, the Sea Waybill provides protections for subcontractors. It requires suits for damage to cargo to be brought against MSC, not any subcontractor: "The Merchant undertakes that no claim or allegation whether arising in contract, bailment, tort or otherwise shall be made against any servant, agent, or Subcontractor of the Carrier which imposes or attempts to impose upon any of them or any Vessel owned or chartered by any of them any liability whatsoever in connection with the Goods or the carriage of the ·Goods whether or not arising out of negligence on the part of such Person." Id. ¶ 4.2. And it provides that "every such servant, agent and Subcontractor shall have the benefit of all terms and conditions of whatsoever nature contained herein or otherwise benefiting the Carrier under this Sea Waybill, as if such terms and conditions were expressly for their benefit." Id.#

B. The Claims Process

The shipment of marble tiles was carried from China to Long Beach by ocean vessel, and then transferred to BNSF for rail transport to New York.³ 56.1 Stmt. ¶ 12. Plaintiff alleges, and MSC does not dispute for purposes of its current motion, that the tiles were undamaged when they were removed from the ocean vessel. Id. ¶ 1; 56.1 Counterstmt. ¶¶ 1–2, ECF No. 47-4. The first package was delivered to a railyard in New York on June 29, 2016, and the second package was delivered to the same railyard on July 6, 2016. 56.1 Stmt. ¶ 13; see also id. ¶ 14. Plaintiff alleges that the tile was damaged upon delivery to New York, and MSC again does not dispute that claim for purposes of this motion. Id. ¶ 1.

On July 6, 2016, Plaintiff's claims processing agent Abe Follman contacted MSC to file a claim. Follman Decl. ¶¶ 1, 20–22, ECF No. 57; First Rocco Decl. ¶ 5, ECF No. 47-2. In an email, Antoinetta di Buono, an MSC claims agent, acknowledged receipt of the claim and requested supporting documents, including a "formal statement of claim, stating the amount claimed and its breakdown," while also noting that "[a]s per pics below it seems damage is due to improper blocking and securing of the cargo inside the container for which MSC cannot be deemed liable." First Rocco Decl. at 55.⁴ On July 11, 2016, a manager for Go Forward (on Plaintiff's behalf), sent an email to Allison Rocco, who had taken over as claims manager, First Rocco Decl. ¶¶ 4–5, stating that it "[w]as nice talking to you," and outlining the claim he believed existed. Id. at 51. Rocco responded shortly thereafter, requesting documents in support of the claim, again including a "formal statement of claim." Id. at 35–36.

Between July 2016 and January 2017, MSC sought further documents from Plaintiff to confirm that Plaintiff was entitled to assert a claim with respect to the tiles. Follman Decl. ¶ 34; First Rocco Decl. at 7–44. On January 20, 2017, after Plaintiff submitted certain documents, Rocco wrote to Follman stating that "[w]e will review this claim with our principals and further advise." Id. at 8. Several minutes later, Rocco wrote again, repeating her request for a "formal claim statement." Id. On January 24, 2017, Follman replied, "attached the loss[,] was sold for $288,000 client gave a deposit for $20,000 the broken tiles are available for pick[up] at anytime." Id. at 4. Follman asserts that between January 20 and January 24, 2017, he called Rocco to ask why the July 11, 2016 email from the Go Forward manager was insufficient, and Rocco stated that a formal claim statement was needed as a "formality." Follman Decl. ¶ 37.

The parties apparently did not communicate by email again until May 17, 2017, when Follman wrote to Rocco, "it['s] been month[s] since we spoke[,] when can the insured get a check[?]" First Rocco Decl. at 4. Follman asserts, however, that he and Rocco spoke by phone multiple times between January 2017 and May 2017, and that "every time I phoned MSC to inquire on the status of the claim, Rocco assured me that the claim was being approved and that a check would was being cut in the ‘near future,’ " and...