Interested Lloyds Underwriters v. Danzas Corp.

Decision Date22 December 2020
Docket NumberCase No. 20-22065-CIV-ALTONAGA/Goodman
Citation508 F.Supp.3d 1249
CourtU.S. District Court — Southern District of Florida

James Joseph McNally, Quintairos Prieto Wood Boyer, P.A., miami, FL, Alexander Shindler, Brody & Branch LLP, New York, NY, for Plaintiff.

Andrew Robert Spector, Robert Mark Borak, Spector Rubin, P.A., Miami, FL, for Defendant.



THIS CAUSE came before the Court on Defendant, Danzas Corporation d/b/a DHL Global Forwarding's Motion for Summary Judgment [ECF No. 51], filed on November 3, 2020. Plaintiff, Interested Lloyds Underwriters, filed a Memorandum of Law in Opposition to Defendants [sic] Motion [ECF No. 55], to which Defendant filed a Reply [ECF No. 59]. The Court has carefully considered the [Second] Amended Complaint ("SAC") [ECF No. 31], the parties’ submissions,1 the record, and applicable law.


This action arises from an international shipping dispute. (See generally SAC). Plaintiff a group of foreign insurance underwriters located in London. (See id. ¶ 3). Defendant is an Ohio corporation with an office in Plantation, Florida. (See id. ¶ 4).

The Policy and Subrogation Agreement . Plaintiff issued a Cargo Insurance Policy Number B0595JY864018J ("Policy") listing as assureds Pegasus Parts Distribution LLC ("Pegasus"); Orion Supplies LLC; Commercial Blue South LTDA; Distribudora Dominicos; Reliable Parts Distributors; Partstek Distributors Ltd.; Specialty Sales Inc.; KB International Trading Corp.; Global Trading Partners Inc.; Paradigm Distributors Inc.; and/or associated or affiliated companies. (See Pl.’s Facts ¶ 69; Policy [ECF No. 53-18] 2).2 According to Plaintiff, International Brand Development and Dynamix are two associated or affiliated companies insured under the Policy. (See Pl.’s Facts ¶¶ 19, 70). Defendant disputes that International Brand Development is an associated or affiliated company. (See Def.’s Resp. Facts ¶ 70).

Plaintiff alleges the Policy insured Pegasus for an international shipment of a refrigerated container of 20 pallets and 2300 packages of Duke's Mayonnaise from Charleston, South Carolina to Chile. (See SAC ¶ 5). According to the SAC, the mayonnaise shipment was damaged when it was transported at a temperature of -18.3 degrees Celsius rather than 18.3 degrees Celsius, causing a total loss in the amount of $42,854.00 (see id. ¶¶ 6, 11, 19); and Pegasus made a claim against Plaintiff for that sum less a $5,000.00 deductible (see id. ¶ 6). Having paid the claim, Plaintiff maintains it is subrogated to the rights of Pegasus. (See id. ¶ 7; see also id. , Proof of Loss and Subrogation Agreement ("Subrogation Agreement") 8).

The sale and transportation arrangements .International Brand Development, not Pegasus, in fact purchased the mayonnaise from the supplier, C.F. Sauer Company, and sold it to Hipermercados Tottus, S.A. ("Tottus") in Chile for $42,854.00. (See Def.’s Facts ¶¶ 7, 51; Commercial Invoice [ECF No. 53-7]). The goods were sold "on FOB terms[,]" meaning that "title and risk of loss passed to Tottus when the shipment arrived at the port" in Charleston.3 (Def.’s Facts ¶¶ 7–8 (alteration added; emphasis omitted); see also Commercial Invoice).

Tottus retained Defendant to make the arrangements for the ocean transportation of the shipment. (See Def.’s Facts ¶ 28). Defendant, in turn, coordinated the ocean transportation with an ocean carrier, Maersk Line A/S d/b/a Sealand ("Sealand"), to transport the shipment. (See id. ¶¶ 12, 16). Tottus had a separate contract directly with Sealand for these services. (See id. ¶ 25; Decl. of Jason Gorman ("Gorman Decl.") [ECF No. 52-2] ¶ 22). As for the inland transportation of the shipment, Tottus requested that Dynamix arrange to transport the shipment from C.F. Sauer's facility in Greenville, South Carolina to the port in Charleston. (See Pl.’s Facts ¶¶ 34–35; Gorman Decl. ¶ 9).

The parties have submitted email exchanges providing further detail about the discussions regarding the logistics.In September 2018, Dynamix emailed Defendant to coordinate transportation of the shipment from Greenville, South Carolina to Chile (see Sept. 21–Oct. 4, 2018 Correspondence [ECF No. 53-11] 11), and noted the shipment was "to be moved under [Defendant's] contract with ... Tottus (id. 6 (alterations added)). On October 4, 2018, Dynamix advised Defendant that the temperature of the reefer should be set to 18.3 degrees Celsius. (See id. 1; Pl.’s Facts ¶ 76).That same day, Defendant emailed Sealand to book the ocean transportation, noting that the temperature for the shipment should be set to 18.3 degrees Celsius. (See Gorman Decl., Oct. 4, 2018 Correspondence 11–12).

The next day, Defendant emailed Dynamix and Defendant's Chilean affiliate, DHL Global Forwarding (Chile) S.A. ("DGF Chile"), to confirm the booking. (See Oct. 5–Dec. 17, 2018 Correspondence [ECF No. 53-12] 28–30). On October 8, 2018, Dynamix asked Defendant to "coordinate drayage as well for us" and stated, "we will pay [Defendant] directly." (Id. 26 (alteration added)). Defendant responded it could not dispatch a trucker because Tottus did not have credit with Defendant. (See id. 25). Later, DGF Chile explained Tottus was using its contract with Sealand to pay for the shipment rather than a contract with Defendant, and "because this shipment is FOB then [the s]hipper must deliver the cargo until the Charleston [p]ort[.]" (Id. 20 (alterations added)). Dynamix then again instructed Defendant to coordinate drayage and charge Dynamix directly. (See id. 17, 19).

On October 18, 2018, Defendant issued a new booking confirmation for the shipment. (See id. 12–15). The next day, a Friday, Defendant told Dynamix "I think what we're going to do is dispatch a trucker, and then turn right around invoice you on the day of loading ... (with no credit we basically have to charge you immediately?) I will have more information on that process on Monday, but it seems as though that is what we're going to do in order to get this done ASAP." (Id. 10 (alteration added)). On October 30, 2018, Defendant informed Dynamix that the shipment was "picked up and ... ingated in Charleston" and noted Defendant would "work on th[e] invoice[.]" (Id. 8 (alterations added)). On November 5, 2018, Defendant stated it would send the invoice to Dynamix that afternoon. (See id. 5). The emails do not reveal whether an invoice was ever sent to Dynamix.4

Defendant's terms and conditions . Virtually all emails sent by Defendant's representative to Dynamix and others noted the following: "All business transactions are based on DHL Global Forwarding terms and conditions, available upon request." (See generally Sept. 21–Oct. 4, 2018 Correspondence; Oct. 5–Dec. 17, 2018 Correspondence; see also Def.’s Facts ¶ 33). The parties agree their relationship is governed by Defendant's terms and conditions but dispute which set of terms and conditions applies. (See Def.’s Facts ¶ 31; Pl.’s Facts ¶ 31). Defendant provides a set of Terms and Conditions (see Gorman Decl., Terms and Conditions 9) purportedly attached to the invoice Defendant issued to DGF Chile. (See Def.’s Facts ¶ 37). Defendant states DGF Chile routinely receives invoices from Defendant along with the Terms and Conditions for services rendered by Defendant to DGF Chile on behalf of DGF Chile's customers, including Tottus. (See Def.’s Facts ¶¶ 40–43).

Defendant's proffered Terms and Conditions provide:
2. Liability Limitations of Third Parties. The Company is authorized to select and engage carriers, truckmen, lightermen, forwarders, customhouse brokers, agents, warehousemen and others, as required, to transport, store, deal with and deliver the goods, all of whom shall be considered as the agents of the Customer .... The Company shall under no circumstances be liable for any loss, damage, expense or delay to the goods for any reason whatsoever when said goods are in custody, possession or control of third parties selected by the Company to forward, enter and clear, transport or render other services with respect to such goods.
8. Limitation of $50 Per Shipment. The Customer agrees that the Company shall in no event be liable for any loss, damage, expense or delay to the goods resulting from the negligence or other fault of the Company for any amount in excess of $50.00 per shipment (or the invoice value, if less) and any partial loss or damage for which the Company may be liable shall be adjusted pro rata on the basis of such valuation.
20. Construction of Terms and Venue. The foregoing terms and conditions shall be construed according to the laws of the State of Florida. Unless otherwise consented to in writing by the Company, no legal proceeding against the Company may be instituted by the Customer, its assigns, or subrogee except in the City of Miami, Florida, U.S.A.

(Gorman Decl., Terms and Conditions 9 (alterations added; bold omitted)). "Company" refers to Defendant, and "Customer" is defined as "includ[ing] the exporter, importer, sender, receiver, owner, consignor, consignee, transferer or transferee of the shipments[.]" (Id. (alterations added)).

Plaintiff disagrees that these Terms and Conditions were contained in the invoice to DGF Chile, pointing out that the invoice is "page 1 of 1" and states "[a]ll and any business undertaken, including any advice, information or service provided, whether gratuitously or not is transacted subject to the standard conditions for the time being in force, a copy of which will be supplied on request." (Pl.’s Facts ¶ 37 (alteration added); see also Gorman Decl., DHL Invoice 8). Further, Plaintiff disputes that the Terms and Conditions apply to the subject transaction, offering four other documents that potentially apply. (See Pl.’s Facts ¶¶ 29–31, 94–97). The Court briefly describes them:

• First, the DHL Global Forwarding Terms & Conditions [ECF No. 54-1]. This document notes

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