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

• Decision Date: 25 April 2008
• Docket Number: No. 06 Civ. 2778.,06 Civ. 2778.
• Parties: A.P. MOLLER-MAERSK A/S d/b/a Maersk Sealand, Plaintiff, v. OCEAN EXPRESS MIAMI; Carga Global, Sociedad Anonima; Caniz Interna Tional 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

550 F.Supp.2d 454

A.P. MOLLER-MAERSK A/S d/b/a Maersk Sealand, Plaintiff, v. OCEAN EXPRESS MIAMI; Carga Global, Sociedad Anonima; Caniz Interna Tional 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.

April 25, 2008.

COPYRIGHT MATERIAL OMITTED

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Freehill, Hogan & Mahar, LLP, by: Eric Einar Lenck, Esq., William Joseph Pallas, III, Esq., New York, NY, for plaintiff.

Dougherty, Ryan, Giuffra, Zambito & Hession, by: Peter J. Zambito, Esq., New York, NY, for defendant, Ocean Express Miami.

Sheppard Mullin Richter & Hampton LLP, by: Lisa M. Lewis, Esq., Elizabeth M. Rotenberg-Schwartz, Esq., New York, NY, for defendant, Comercializadora De Calidad, S.A.

OPINION

SWEET, District Judge.

Defendant Commercializadora De Calidad, S.A. ("Quality Print" or the "Defendant") has moved pursuant to Rule E(4)(f) to vacate the attachment obtained by plaintiff A.P. Moller-Maersk A/S ("Maersk" or the "Plaintiff) and pursuant to Rules 12(b)(1) and 12(b)(6) to dismiss the Second Amended Complaint ("SAC") for lack of subject matter jurisdiction and failure to state a claim. For the reasons set forth below, the motion is denied.

The dispute arises out of the intended shipment from Milwaukee to Guatemala by way of New Orleans of four containers containing industrial printing machinery purchased by Quality Print. Maersk was the carrier hired to ship the goods. Three containers were shipped and discharged in Guatemala. One container was delayed in arriving in New Orleans, was subject to Hurricane Katrina, was surveyed on November 9, 2005, and apparently held in Jefferson, Louisiana. In October 2005,

Quality Print initiated actions in Panama seeking damages of over $8 million. Maersk filed the instant action in this district in April 2006, and Quality Print commenced an additional action in Guatemala in October 2006. Able counsel have woven a complicated tapestry of issues to be resolved, including the effect of the initial booking confirmation and the bills of lading, the limitation of liability provisions, the forum selection clause, and the doctrines of forum non conveniens and international comity.

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") seeking: (1) an injunction enforcing the forum selection clause in the contract of carriage, (2) damages arising from the commencement of actions in Panama prohibited by a service contract incorporated in the contract of carriage, (3) damages resulting from abuse of process in the actions in Panama, (4) a declaration that Maersk is not liable for any damage to the printing machinery, (5) enforcement of COGSA limitations of liability, (6) damages for demurrage, storage and other charges incurred on the containers, (7) attorneys' fees, (8) indemnity from freight forwarders.

The instant motion was heard and marked fully submitted on October 10, 2007.

The Facts

In 2005, Quality Print, a Guatemalan corporation, purchased a used Heidelberg SpeedMaster 102-SP & L, Series No. 533138 (the "Printing Machinery") from Webster Sygne 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 a Miami freight forwarder,¹ Caniz International Corp. ("Caniz"), which in turn booked the shipment with Maersk through the freight forwarder Ocean Express Miami ("Ocean Express").

On or about August 16, 2005, Maersk issued a booking note (the "Booking Note") to Ocean Express which states:

"THE TERMS, CONDITIONS, EXEMPTIONS AND EXCEPTIONS OF THE MAERSK SEALAND BILL OF LADING FOR OCEAN TRANSPORT OR MULTIMODAL TRANSPORT ARE HEREBY EXPRESSLY INCORPORATED INTO THIS BOOKING CONFIRMATION."

Clause 6 of the Maersk Sealand Bill of Lading, available on the Maersk website, sets forth the circumstances under which the carrier (Maersk) will be liable for loss or damage during the carriage of goods. 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. ...

Clause 26 of the Maersk Sealand Bill of Lading provides as follows:

26.' Law and Jurisdiction

Whenever clause 6.2(d) and/or whenever U.S. COGSA applies, whether by virtue of Carriage of the Goods to or from the United States of America or otherwise, that stage of the Carriage is to be governed by United States law and the United States Federal Court of the Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, this bill of lading shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country.

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 "FREMANTLE") for carriage to Guatemala.

Due to limited space on the train from Chicago, 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 or about August 24, 2005, Maersk issued bill of lading no. SJ1711168 (the "Maersk Bill of Lading") reflecting carriage of the Guatemala Containers from Milwaukee to Guatemala City, Guatemala. The Maersk Bill of Lading is a "straight," non-negotiable bill of lading. It identifies Defendant Ocean Express Miami ("Ocean Express") as the shipper and Defendant Carga Global, S.A. ("Carga") as the consignee and notify party.

On August 24, 2005, the FREMANTLE set sail from New Orleans to Guatemala with the three Guatemala Containers aboard, which were discharged in sound condition at Santo Tomas de Castilla, Guatemala, on August 26, 2005. However, because the cargo was not cleared through Customs, the three containers were seized by customs authorities and held for several months. The containers therefore incurred significant demurrage, storage and other charges.

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.

On or about September 14, 2005, Caniz issued bill of lading No. CNZO10753-01 (the "Caniz Bill of Lading") reflecting carriage of all four (4) containers aboard the FREMANTLE. The Caniz Bill of Lading identified Webster, the seller of the printing press, as the shipper, and Quality Print as consignee. The Caniz Bill of Lading identifies Caniz Logistica, S.A. as the notify party.

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 press. 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 ("Panamanian Court"), (the "Panamanian Actions") for damages incurred for failure to deliver the New Orleans Container to the Port of St. Thomas of Castilla in Guatemala. The first action, an in rem action against the FREMANTLE, claimed damages for U.S. $8,415,000 and sought an Order of Arrest against the FREMANTLE. On the same day the in rem action was filed, the Panamanian Court issued an Order of Arrest against the FREMANTLE. Counsel for Maersk petitioned the Panamanian Court seeking to suspend the Order of Arrest and offering a U.S. $10,000,000 cash bond as security in lieu of the arrest of the FREMANTLE. Quality Print agreed to accept the cash bond of that amount and agreed to file a joint petition with Maersk seeking the suspension of the Order of Arrest of the FREMANTLE in exchange for the cash bond. On the same day the in rem, action was filed, October 26, 2005, the Panamanian Court ordered the suspension of the Order of Arrest.

The second Panamanian Action is an in personam, action against Maersk which also claims damages for U.S. $8,415,000. In conjunction with the in personam action, Quality Print petitioned for an Order of Arrest of the M/V MARGRETHE MAERSK (the "MARGRETHE"). Two days following the filing of the in personam action, on October 29, 2005, Quality Print and Maersk filed a joint petition asking the Panamanian Court to accept the...