A.P. Moller-Maersk a/S v. Ocean Express Miami

• Decision Date: 05 December 2008
• Docket Number: No. 06 Civ. 2778.,06 Civ. 2778.
• Citation: 590 F.Supp.2d 526
• Parties: A.P. MOLLER-MAERSK A/S d/b/a Maersk Sealand, Plaintiff, v. OCEAN EXPRESS MIAMI; Carga Global, Sociedad Anonima; Caniz International Corporation; Caniz Logistica, Sociedad Anonima; and Comercializadora De Calidad, Sociedad Anonima (a.k.a. Quality Print), Defendants.
• Court: U.S. District Court — Southern District of New York

590 F.Supp.2d 526

A.P. MOLLER-MAERSK A/S d/b/a Maersk Sealand, Plaintiff, v. OCEAN EXPRESS MIAMI; Carga Global, Sociedad Anonima; Caniz International Corporation; Caniz Logistica, Sociedad Anonima; and Comercializadora De Calidad, Sociedad Anonima (a.k.a. Quality Print), Defendants.

No. 06 Civ. 2778.

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

December 5, 2008.

Freehill, Hogan & Mahar, LLP, by Eric E. Lench, Esq., William J. Pallas, Esq., New York, NY, for Plaintiff.

OPINION

SWEET, District Judge.

A.P. MOLLER MAERSK A/S ("Plaintiff" or "Maersk") has moved for an order (1) for partial summary judgment enforcing the COGSA $500 package limitation defense; and (2) enjoining Comercializadora de Calidad, Sociedad Anonima ("Defendant" or "Quality Print") from proceeding with litigation on the merits relating to the shipment at issue in this case in any forum other than the United States District Court for the Southern District of New York, in accordance with the forum selection clause incorporated in the contract of carriage. For the reasons stated below, Maersk's motion will be granted.

I. PRIOR PROCEEDINGS

On April 10, 2006, Maersk filed its complaint. On August 22, 2006, Maersk filed an amended complaint and on August 31, 2006, an order of attachment was signed in the amount of $650,000. On April 24, 2007, Maersk filed a Second Amended Complaint ("SAC").

On August 9, 2007, Quality Print moved to vacate the attachment obtained by Maersk and to dismiss the SAC for lack of subject matter jurisdiction and failure to state a claim. That motion was denied on April 25, 2008.

The instant motion was filed May 29, 2008. On June 9, 2008, counsel for Quality Print moved to withdraw due to Quality Print's failure to pay outstanding attorneys' fees. That motion was granted by this Court's Order of June 13, 2008, and Quality Print was granted twenty days from the date of the Order to engage new counsel and file papers in opposition to the instant motion. The twenty days has expired, and there is no record of Quality Print having engaged counsel or filing opposition papers.

II. FACTUAL BACKGROUND

In 2005, Quality Print, a Guatemalan corporation, purchased a used Heidelberg SpeedMaster 102-SP & L Series No. 533138 (the "Printing Machinery") from Webster Synge Corporation ("Webster"), an American company based in Miami, Florida. The Printing Machinery was located in Milwaukee, Wisconsin.

Quality Print arranged for the carriage of the Printing Machinery through Caniz International Corp. ("Caniz"), which in turn booked the shipment with Maersk through the freight forwarder Ocean Express Miami ("Ocean Express").

The Printing Machinery was packed for shipping in four containers provided by Maersk identified by the following numbers: (i) Container No. MSKU 8502736; (ii) Container No. TRIU 8932686-0; (iii) Container No. GSTU 2608422 (collectively, the "Guatemala Containers"); and (iv) Container No. MSKU 9065081 (the "New Orleans Container").

The Guatemala Containers were trucked from Milwaukee to Chicago and carried by rail to New Orleans, arriving at the Maersk sea terminal between August 16th and 17th, and loaded on board the M.V. MAERSK FREMANTLE (the "FRMANTLE") for carriage to Guatemala. The New Orleans Container containing the electronic unit that operates the Printing Machinery did not arrive at the New Orleans rail container terminal until August 23, 2005, and was not delivered to the Maersk sea terminal until August 25, 2005. The FREMANTLE had a cargo loading cut-off date of August 22, 2005.

On August 24, 2005, the FREMANTLE set sail from New Orleans to Guatemala with three Guatemala Containers aboard, which were discharged in sound condition at Santo Tomas de Castilla, Guatemala, on August 26, 2005.

On August 29, 2005, Hurricane Katrina made landfall in New Orleans, resulting in severe flooding and damaging the Maersk sea terminal, which subsequently had to discontinue operations for several weeks. The New Orleans Container therefore remained in New Orleans.

By mutual agreement, the New Orleans Container was picked up to permit Quality Print's cargo underwriters to determine the extent of any damage. An initial joint survey took place on November 9, 2005, at the Cajun Distribution facility in Jefferson, Louisiana. The survey did not reveal any obvious damage to the electronic components of the Printing Machinery. The surveyors jointly recommended that the components be assembled with those in the three containers in Guatemala, at which time the press should be run and tested for damage.

On or about October 26, 2005 and October 27, 2005, respectively, Quality Print filed two actions in the Second Maritime Court of Panama (the "Panamanian Actions") for damages incurred for failure to deliver the New Orleans Container to the Port of St. Thomas of Castilla in Guatemala. On October 30, 2006, Quality Print commenced an action in Guatemala relating to the same loss and citing the Booking Note.

The facts of this dispute were laid out in greater detail in A.P. Moller-Maersk A/S v. Ocean Express Miami, 550 F.Supp.2d 454 (S.D.N.Y.2008) (the "April 25 Opinion"). Familiarity with that Opinion is assumed.

III. THE MOTION FOR PARTIAL SUMMARY JUDGMENT IS GRANTED

A. Applicable Standard

Summary judgment is granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); SCS Commc'ns, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004). The courts do not try issues of fact on a motion for summary judgment, but rather determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish [its] right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995). Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Resid. Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994) (citations omitted).

In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002). However, "the non-moving party may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that its version of the events is not wholly fanciful." Morris v. Lindau, 196 F.3d 102, 109 (2d Cir.1999) (quotation omitted).

If an opposition party fails to respond to a motion for summary judgment, "summary judgment should, if appropriate, be entered against the party." Fed.R.Civ.P. 56(e)(2). See also Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). However,

even where a non-moving party fails to respond to a motion for summary judgment, a court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial. If the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then summary judgment must be denied even though no opposing evidentiary matter is presented.

D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 109-110 (2d Cir.2006) (internal quotations and citations omitted). Thus, even unopposed motions for summary judgment must "fail where the undisputed facts fail to show that the moving party is entitled to summary judgment as a matter of law." Vermont Teddy Bear Co., 373 F.3d at 244.

B. Maersk Is Entitled to Partial Summary Judgment

Maersk has moved for partial summary judgment limiting Quality Print's damages if any, to $2,500 pursuant to the $500 package limitation under the United States Carriage of Goods by Sea Act, 46 U.S.C. § 30701 note ("COGSA").

Clause 6 of the Maersk Sealand Bill of Lading (the "Bill of Lading") sets forth the circumstances under which Maersk will be liable for loss or damage during the carriage of goods. The Court has already determined that Quality Print is bound by the Bill of Lading. See April 25 Opinion, 550 F.Supp.2d at 462-63; see also Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 33, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (holding that cargo owner's recovery against carrier is limited by liability limitation to which an intermediary and the carrier agree). Section 6.2 states that liability of the carrier when the stage of the carriage during which loss or damage occurred is known shall be determined:

6.2(b) in case of shipments to or from the United States of America by the provisions of U.S. COGSA if the loss or damage is known to have occurred during Carriage by sea to or from the USA or during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading or of Discharge in ports of the USA ....

See April 25 Opinion, 550 F.Supp.2d at 458. Maersk has established that the alleged damage to the goods in the New Orleans Container took place under such circumstances. As such, pursuant to section 6.2 of the Bill of Lading, COGSA is applicable. Id. at...