Ingram Barge Co. v. Bunge N. Am., Inc.

• Decision Date: 17 April 2020
• Docket Number: Case No. 3:19-cv-01030
• Parties: INGRAM BARGE COMPANY, LLC, Plaintiff, v. BUNGE NORTH AMERICA, INC., Defendant.
• Court: U.S. District Court — Middle District of Tennessee

455 F.Supp.3d 558

INGRAM BARGE COMPANY, LLC, Plaintiff,

v.BUNGE NORTH AMERICA, INC., Defendant.

Case No. 3:19-cv-01030

United States District Court, M.D. Tennessee, Nashville Division.

Filed April 17, 2020

David L. Reisman, Raymond T. Waid, Trinity Morale, Liskow & Lewis, New Orleans, LA, W. Brantley Phillips, Jr., Bass, Berry & Sims, Nashville, TN, for Plaintiff.

Bridget G. Hoy, R. Bradley Ziegler, Lewis Rice LLC, St. Louis, MO, Grace A. Fox, Samuel P. Funk, Sims Funk, PLC, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge Bunge North America, Inc. ("Bunge") has filed a Motion to Dismiss and/or to Transfer Venue (Docket No. 14), to which Ingram Barge Company, LLC ("Ingram") has filed a Response (Docket No. 18), Bunge has filed a Reply (Docket No. 19), and Ingram has filed a Sur-Reply (Docket No. 24). For the reasons set out herein, Bunge's motion will be granted in part and denied in part.

I. BACKGROUND

Bunge is a New York corporation with its headquarters in Missouri. It "originate[s], process[es], and transport[s] agricultural commodities, including soybeans, corn and grain byproducts." (Docket No. 15-1 ¶¶ 3, 5.) Bunge routinely works with SCF Marine, Inc. ("SCF"), which Bunge characterizes as the "exclusive provider of barge freight for Bunge's dry bulk grain and grain-related products along the Mississippi River and other waterways." (Id. ¶ 7.) In that capacity, "SCF procures transportation for Bunge on barges owned or contracted by SCF through the barge freight market." (Id. ¶ 8.) It does so pursuant to an ongoing "Contract of Affreightment" between the two entities. (Id. ¶ 9.) Bunge has informed the court that it considers the terms of that contract to be proprietary and confidential, and no copy of the contract has been filed with the court. (Id. ¶ 11.) Ingram has provided email correspondence between its personnel and SCF personnel, in which SCF personnel appear to be relaying Bunge's position on freight contracts to Ingram. (Docket No. 18-1 at 5–12 (ex.1).)

Ingram is a river freight company based in Tennessee. This case involves 26 shipments of grains purchased by Bunge from various sellers and carried by Ingram barges to Louisiana, where Bunge received them. The freight for 21 of those 26 shipments was arranged for by SCF pursuant to its ongoing relationship with Bunge ("SCF Shipments"). The other 5 shipments ("Non-SCF Shipments") were purchased by Bunge from grain sellers on a "CIF" basis—that is, "cost, insurance, freight," also known as "delivered"—meaning that the seller was responsible for paying the charges for transporting the grain from its point of origin to the buyer's point of receipt.¹ . (Docket No. 15-1 ¶¶ 14–15.)

Ingram used a version of its standard bill of lading for the jobs. "A bill of lading is ‘the basic transportation contract between the shipper-consignor and the carrier.’ " Great W. Cas. Co. v. Flandrich , 605 F. Supp. 2d 955, 964 (S.D. Ohio 2009) (quoting S. Pac. Transp. Co. v. Commercial Metals Co. , 456 U.S. 336, 342, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982) ). "A bill of lading has three purposes: (1) it records that a carrier has received goods from the party that wishes to ship them; (2) it defines the terms governing the carriage; and (3) it serves as evidence of the contract for carriage." CSX Transp., Inc. v. Meserole St. Recycling , 618 F. Supp. 2d 753, 765 (W.D. Mich. 2009) (citing Norfolk S. Ry. Co. v. Kirby , 543 U.S. 14, 18–19, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) ).

In its most simplified form, a bill of lading defines the relationship of three parties—the consignor, the consignee, and the carrier—although it is possible for one entity to serve in more than one of those capacities. The consignor is the shipper—the party arranging for the goods to be shipped. See Oak Harbor Freight Lines, Inc. v. Sears Roebuck, & Co. , 513 F.3d 949, 954 (9th Cir. 2008). The consignee is "[t]he person named in the bill of lading as the person ‘to whom or to whose order the bill promises delivery.’ " Paper Magic Grp., Inc. v. J.B. Hunt Transp., Inc. , 318 F.3d 458, 461 (3d Cir. 2003) (quoting U.C.C. § 7-102 (2002)). The carrier is the party that carries the goods from where they can be found to where they are received. See Saul Sorkin, 1 Goods in Transit § 1.02 (2019) ("Carriers of goods, in addition to their description by mode, such as motor carriers, rail carriers, carriers by water, sea or air are also designated by other terms such as common carrier, private carrier, contract carrier, non-vessel operating common carrier, freight forwarder, consolidator, or dispatcher."). The bill is "issued by the carrier to the shipper at the time goods are loaded aboard ship .... The shipper sends the bill of lading to the intended recipient of the goods (consignee); upon notification that the goods have arrived, the consignee presents the bill to the carrier at the delivery port, and receives the goods in return." Evergreen Marine Corp. v. Six Consignments of Frozen Scallops , 4 F.3d 90, 92 n.1 (1st Cir. 1993).

The bill of lading for each SCF Shipment lists the consignor as "BUNGE NORTH AMERICA." The consignee is identified as "ORDER OF BUNGE NORTH AMERICA." "BUNGE NORTH AMERICA" is also listed as the "notify" party—that is, a party to be informed when the freight arrived. These bills of lading have signature blocks for Ingram and Bunge, but only Ingram's includes an actual signature, that of an Ingram representative. (See, e.g. , Docket No. 1-3 at 2.) The Non-SCF Shipments list the original grain seller as both the consignor and consignee, with Bunge listed only as the "notify" party or, in one case, not listed at all. Like the other bills of lading, these have signature blocks for Ingram and the consignor, but only Ingram has had a representative sign. (See, e.g. , Docket No. 1-103 at 2.)

Each bill of lading relevant to this case included the following language:

It is mutually agreed, as to each carrier of this property over all or any portion of said route, and to each party at any time interested in all or any part, of said property, that every service to be performed hereunder is (or will be deemed) subject to Carrier's Grain Transportation Terms which are posted on Carrier's webpage at www.ingrambarge.com/graintransportationterms.pdf ...; any Consignee hereto is (and will be deemed) bound by Carrier's Grain Transportation Terms.

(E.g., 1-3 at 2.) The Grain Transportation Terms are a separate document available from Ingram or Ingram's website. They consist of 36 detailed items covering issues related to the carriage of grain and the relationships of the related parties, including the following paragraph:

28. Choice of Law and Forum: This Contract is governed by the General Maritime Law of the United States and to the extent not inconsistent therewith, the laws of the State of Tennessee, both as to interpretation and performance. Any dispute arising from this Contract, the applicable bill of lading, or the performance of Carrier or Shipper's obligations under either this Contract or the applicable bill of lading must be brought in the U.S. District Court for the Middle District of Tennessee. Each party hereby irrevocably waives any objection to personal jurisdiction or venue therein. Each party also waives its right to a trial by jury.

(Docket No. 1-2 at 4.) The Grain Transportation Terms purport to bind "[a]ny entity that places an order for transportation of heavy grains, soybeans in bulk, (or any combination thereof) with" Ingram, as well as "any entity that causes the loading of such a cargo into [Ingram's] barges or that holds the bill of lading covering cargo transported in [Ingram's] barges." (Id. at 2.) The Terms state that the grain seller and grain purchaser are jointly and severally obligated to fulfill all of the contractual obligations of the "Shipper," which the Terms define to include both "the entity ordering the cargo transportation and the owners of the cargo (including any consignee(s))." (Id. )

Ingram has provided a Declaration by its Director of Agriculture and Dry Bulk Sales, Matt Tomayko, in which Tomayko discusses the bills of lading. (Docket No. 18-1.) Tomayko explains that "[i]t is not normal for bills of lading to be signed by the cargo owner," because "[s]ignatures are neither customary nor feasible when a particular bill of lading may be negotiated multiple times as the related cargo sails down river or over the sea." (Id. ¶ 11.) Tomayko also offers the following explanation of the significance of the various fields listed on the bill of lading:

Ingram's standard bill of lading contains several fields, including: (1) "Transportation Ordered By," which identifies the Seller; (2) "Consigned To," which identifies the Seller's first consignee of the cargo; and, (3) "Notify," which identifies the ultimate consignee and receiver of the cargo. At times, the "Notify" field identifies multiple companies. In such cases, the first name listed is the ultimate consignee, receiver, and owner of the cargo. The other names listed, typically after "A/C," meaning "on account of," are companies in the consignment chain, but who are not the ultimate consignee, receiver, and owner of the cargo.

(Id. ¶ 4.) Accordingly, pursuant to Tomayko's characterization of the terms, "[a]ll of the bills of lading contained in Ingram's complaint were ultimately consigned to Bunge," including for the Non-SCF Shipments, despite Bunge's not being listed as consignee on those bills. (Id. )

Tomayko describes his dealings with SCF as follows:

I routinely engage in commercial dealings with a company called SCF; on information and belief, SCF is a company closely connected with Bunge that purchases all of Bunge's barge freight. On numerous occasions where I engaged in negotiations surrounding barge freight contracts with SCF, SCF has represented to me that SCF needs to obtain approval from Bunge before agreeing to a particular term or set of terms. Based on these interactions,

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