P & O Nedlloyd, Ltd. v. Sanderson Farms, Inc.

• Decision Date: 30 August 2006
• Docket Number: No. 05-3766.,05-3766.
• Citation: 462 F.3d 1015
• Parties: P & O NEDLLOYD, LTD., Plaintiff, v. SANDERSON FARMS, INC.; Certain Underwriters at Lloyd's of London, Defendants, v. Sanderson Farms, Inc., Third Party Plaintiff/Appellant, v. Certain Underwriters at Lloyd's of London, Subscribing to Insurance Contract No. Mc02adkh, Third Party Defendant/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1015

462 F.3d 1015

P & O NEDLLOYD, LTD., Plaintiff, v. SANDERSON FARMS, INC.; Certain Underwriters at Lloyd's of London, Defendants, v. Sanderson Farms, Inc., Third Party Plaintiff/Appellant, v. Certain Underwriters at Lloyd's of London, Subscribing to Insurance Contract No. Mc02adkh, Third Party Defendant/Appellee.

No. 05-3766.

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2006.

Filed: August 30, 2006.

A Spencer Gilbert, argued, Jackson, Mississippi (Stephen Lee Wood, on the brief), for appellant.

Mark Winfield Dossett, argued, Fayetteville, Arkansas, for appellee.

Before RILEY, BEAM, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

Sanderson Farms, Inc. (Sanderson), assignee of Sams Management Group, Inc. (SMG) and the real party in interest,¹ appeals the adverse ruling of the district court² granting summary judgment in favor of Certain Underwriters at Lloyd's of London (Lloyd's). We affirm.

I. BACKGROUND

The parties adopted the factual summary set out in the district court's order, which we briefly summarize. At all times relevant, SMG was a frozen poultry wholesaler based in Rogers, Arkansas. Sanderson was one of SMG's chicken suppliers. SMG contracted to sell twenty-four containers of frozen poultry (cargo) to KVADRO, a Russian company owned by Leonid Budilin (Budilin). SMG invoices 199 and 206 contained all the contract terms for the sale. Both invoices listed the shipment terms as "C.I.F." (cost, insurance, and freight), and the payment terms as "20% Down Payment," "20% Upon Shipping," and "60% Due 19 days after Discharge."

In connection with its business, SMG acquired a one-year, open cargo insurance policy from Lloyd's (Lloyd's policy), effective February 1, 2002. In accordance with the Lloyd's policy, SMG applied for coverage of the cargo and Lloyd's issued SMG two certificates of insurance. SMG arranged for shipment of the cargo from New Orleans, Louisiana, to St. Petersburg, Russia, through P & O Nedlloyd, Ltd. (P & O), a New Jersey based shipper. P & O shipped the cargo in four separate shipments arriving in St. Petersburg, Russia, on March 3, March 4, March 26, and April 5, 2002.

On March 27, 2002, at KVADRO's request, SMG changed the consignee for the cargo from OOO Diliat to OOO Techpromptorg (Techpromptorg). On April 15 2002, the Russian government revoked all previously issued veterinary permits for the import of poultry from the United States. Because Techpromptorg had not arranged for customs clearance before the revocation, Techpromptorg had to reapply for the necessary permits. Two months after arriving in port, the cargo still had not cleared customs as required by Russian regulations (sixty-day rule). Techpromptorg applied for an extension of the sixty-day rule based on the Russian government's blanket revocation, but the request was denied. Although Techpromptorg filed an appeal, as of June 17, 2002, Techpromptorg had not received new permits or an extension.

On June 8 and June 18, 2002, Russian Federation Officials of the Baltic Customs House (Russian Federation) issued protocols, seized the cargo, and instituted an investigation into Techpromptorg's apparent sixty-day rule violation. The poultry in fourteen of the twenty-four containers was sold during the pendency of the investigation and the appeal.

The Russian Federation ultimately granted Techpromptorg's request for an extension of the sixty-day rule and also granted judgment in Techpromptorg's favor on the appeal, ruling the remaining ten containers, as well as the proceeds from the fourteen containers of sold poultry, should be turned over to the poultry owner. Before Techpromptorg picked up the ten remaining containers, the containers were seized anew by Russian authorities as part of a different investigation involving Techpromptorg. Techpromptorg never enforced the judgment it received from the Russian Federation. The ten containers were never returned to SMG or P & O. SMG never received the proceeds from the fourteen containers of sold poultry. SMG never received payment for the cargo and unsuccessfully pursued an action against Budilin and KVADRO.

SMG filed a claim with Lloyd's for recovery of the lost cargo. Lloyd's denied the claim. Thereafter, P & O sued SMG to collect for services rendered in connection with shipping the cargo. SMG filed a counterclaim alleging P & O caused the loss by failing to provide the promised services. SMG also filed a third-party complaint against Lloyd's, seeking recovery of the lost cargo under the Lloyd's policy. P & O amended its complaint, adding a third-party beneficiary claim against Lloyd's. Lloyd's moved for summary judgment, arguing (1) P & O was not an intended third-party beneficiary of the Lloyd's policy, (2) SMG had no insurable interest in the cargo at the time of the loss, (3) the Lloyd's policy did not cover credit risks, and (4) the Lloyd's policy specifically excluded losses arising out of the seizure of insured cargo by customs officials.

Applying Arkansas law,³ the district court granted Lloyd's motion for summary judgment, finding P & O was not an intended beneficiary of the Lloyd's policy and SMG did not have an insurable interest in the cargo at the time of seizure. The district court did not reach Lloyd's remaining arguments. SMG appeals.⁴

II. DISCUSSION

We review de novo the district court's grant of summary judgment, applying the same standard as the district court, and viewing the evidence in the light most favorable to SMG, the nonmoving party. See Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 845 (8th Cir.2006). The moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Bloom v. Metro Heart Group of St. Louis, Inc., 440 F.3d 1025, 1028 (8th Cir.2006). We may affirm on any ground supported by the record. Mo. Prot. & Advocacy Servs. v. Mo. Dep't of Mental Health, 447 F.3d 1021, 1023 (8th Cir.2006) (citation omitted).

The question before us is whether under the Lloyd's policy, " [SMG had] an insurable interest in the [cargo] at the time of the loss." Under Arkansas's version of the Uniform Commercial Code, "[t]he seller retains an insurable interest in goods so long as title to or any security interest in the goods remains in him." Ark.Code Ann. § 4-2-501(2). In order to determine whether SMG retained any insurable interest in the cargo, we must determine whether title passed from SMG to KVADRO.

"Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods . . . . [I]f the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment." Id. § 4-2-401(2)(a). Invoices 199 and 206 state the shipment terms are C.I.F., and under Arkansas law, if the seller has performed his obligations under a C.I.F. shipment contract, the risk of subsequent loss or damage passes to the buyer upon shipment. Id. § 4-2-320 cmt. n. 1. "Delivery to the carrier is delivery to the buyer for purposes of risk and `title.'" Id. In a C.I.F. contract, the seller is required to: (1) "put the goods into the possession of a carrier at the port for shipment and obtain a negotiable bill or bills of lading covering the entire transportation to the named destination"; (2) "load the goods and obtain a receipt from the carrier . . . showing that the freight has been paid or provided for"; (3) "obtain a policy or certificate of insurance, including any war risk insurance"; (4) "prepare an invoice of the goods"; and (5) "forward and tender with commercial promptness all the documents in due form and with any indorsement necessary to perfect the buyer's rights." Id. § 4-2-320(2)(a)-(e). It is undisputed SMG complied with all its obligations under the contracts with KVADRO.⁵

On appeal, SMG first asserts the term C.I.F. was a typographical or clerical error and postulates the parties did not intend for cargo to be shipped C.I.F. In response, Lloyd's argues (1) the clerical error argument is being raised for the first time on appeal, and (2) invoices 199 and 206 are unambiguous, clearly indicating the cargo was shipped C.I.F. The issue of clerical error is raised for the first time on appeal; therefore, we do not consider it. See Wever v. Lincoln County, Neb., 388 F.3d 601, 608 (8th Cir.2004) ("Ordinarily, this court will not consider arguments raised for the first time on appeal." (citation omitted)). Without an evidentiary record developed in the district court to prove or disprove a typographical or clerical error, consideration of this argument on appeal is particularly inappropriate. See Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir.2002) ("We consider a newly raised argument only if it is purely legal and requires no additional factual development, or if a manifest injustice would otherwise result." (citation omitted)).

For its remaining arguments, SMG points to prior conduct of the parties to show the parties did not intend invoices 199 and 206 to be C.I.F. shipments. Arkansas's parol evidence rule bars the introduction into evidence of any prior agreement of the parties that contradicts the terms of an unambiguous contract. See Ark.Code Ann. § 4-2-202. However, the Arkansas Supreme Court has declared that evidence of "a course of dealing that explains or supplements a contract...