Sails v. American Export Lines

• Decision Date: 30 April 2008
• Docket Number: No. 07 Civ 5949(VM).,07 Civ 5949(VM).
• Citation: 566 F.Supp.2d 216
• Parties: Olabisi SALIS, Plaintiff, v. AMERICAN EXPORT LINES and Hoegh Autoliners Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

566 F.Supp.2d 216

Olabisi SALIS, Plaintiff, v. AMERICAN EXPORT LINES and Hoegh Autoliners Inc., Defendants.

No. 07 Civ 5949(VM).

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

April 30, 2008.

Owolabi M Salis, Salis and Associates, P.C., New York, NY, for plaintiff.

Stephen H Vengrow, Cichanowicz, Callan, Keane, Vengrow & Textor, LLP, New York, NY, for American Export Lines, defendant.

Garth S. Wolfson, Mahoney & Keane, LLP, New York, NY, Hoegh Autoliners, Inc., defendant.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Plaintiff Olabisi Salis ("Salis") brought this action against defendants American Export Lines ("AEL") and Hoegh Autoliners Inc. ("Hoegh") (collectively, "Defendants") seeking damages arising out the alleged non-delivery of a used 2006 Sunnybrook Motorhome (the "Camper") to Lagos, Nigeria from the United States. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56"). Hoegh argues that the forum selection clause in its bill of lading, dated May 19, 2006 (the "Bill of Lading") should be enforced, or in the alternative, that its liability is limited to 500 dollars pursuant to the United States Carriage of Goods by Sea Act, 46 U.S.C. § 30701 ("COGSA"). AEL argues that its liability is limited to 50 dollars pursuant to the terms and conditions set forth in its invoice to Salis, dated April 28, 2006 (the "Invoice"). For the reasons discussed below, Defendants' motions for summary judgment are GRANTED.

I. BACKGROUND¹

Salis is in the business of buying vehicles, including campers, in the State of New York and shipping those vehicles to Nigeria for resale. Beginning in or about March 2006, Salis hired AEL, a New Jersey based company, as a freight forwarder² to arrange for the shipment of vehicles from the United States to Nigeria. Since March 2006, AEL has arranged for the shipment of about 159 vehicles for Salis.

On or before April 28, 2006, Salis negotiated with AEL an agreement (the "Agreement") to ship two campers (the "Vehicles") from a port of loading in New York (the "Port") to Lagos, Nigeria. That same day, AEL issued to Salis the Invoice, which contained terms and conditions, including a disclaimer limiting AEL's liability (the "Disclaimer"). The Disclaimer stated, in relevant part, that:

(d) In the absence of additional coverage ..., the Company's liability shall be limited to the following: (i) where the claim arises from activities other than those relating to customs brokerage, $50.00 per shipment or transaction, or (ii) where the claims arises from activities relating to "Customs business," $50.00 per entry or the amount of brokerage fees paid to Company for the entry, whichever is less.

(Invoice, attached as Ex. 3 to AEL's Mem. § 9.) The Disclaimer also provides that a "[c]ustomer may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefore ...." (Id.) AEL also offered additional insurance coverage through its website.

In connection with the Agreement, AEL hired Hoegh Autoliners AS ("Hoegh AS"), as the ocean carrier to ship the Vehicles from the Port to Lagos, Nigeria. The Master of the carrying ship (the "Vessel") issued the Dock Receipt to AEL, which in turn provided it to Salis, so that Salis could deliver the Vehicles to the Vessel for loading. On or about May 19, 2006, the Vessel left the Port with the Vehicles on board, and, on behalf of Hoegh AS, Hoegh issued the Bill of Lading addressed to AEL and Salis.

Several weeks later, Salis discovered that the Camper was never delivered to Nigeria, but it remained on the Vessel and was transported to Durban, South Africa. Salis was informed that the Camper was not released in Nigeria as it could not clear Nigerian Customs because of the lack of a "Custom Form M," a form required by Nigerian Customs for clearance of certain vehicles. Sometime thereafter, the Camper was returned to Nigeria by Hoegh, and in February 2007, Salis sought its release to a designated consignee. Salis alleges that Hoegh refuses to release the Camper.

Hoegh demanded payment of $7630 from Salis for the unplanned carriage of the Camper from Nigeria to Durban, and back to Nigeria. Salis was informed that if he did not make payment or resolve the dispute with Hoegh the Camper would be deemed abandoned. Hoegh claims that it is not its responsibility, as the carrier, to ensure that cargo "clears customs", but that it is Salis's responsibility, as the shipper, to gain customs clearance.³ Salis refused to make payment, claiming that it is Defendants' responsibility to ensure the shipper provides the proper forms for customs clearance.

Currently, the location and condition of the Camper is unknown, but Salis presumes that it continues to accrue storage charges in Nigeria. Salis seeks damages for the non-delivery of the Camper to Lagos, Nigeria in the amount of $75,000.

II. DISCUSSION

A. LEGAL STANDARD

In connection with a Rule 56 motion, "[s]ummary judgment is proper if, viewing all the facts of the record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication." Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The role of a court in ruling on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986). The moving party bears the burden of proving that no genuine issue of material fact exists, or that due to the paucity of evidence presented by the non-movant, no rational jury could find in favor of the non-moving party. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994). The party opposing summary judgment must come forward with materials setting forth specific facts showing that there is a genuine issue of material fact; he cannot defeat summary judgment by relying on the allegations in his complaint, conclusory statements, or mere assertions that affidavits supporting the motion are not credible. See Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996).

B. THE FORUM SELECTION CLAUSE

The parties agree that the Bill of Lading is subject to COGSA. COGSA applies to "all contracts for carriage of goods by sea to or from ports of the United States in foreign trade." COGSA § 13. "[E]very bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade" is subject to the provisions of COGSA. Id. All state law claims arising under the Bill of Lading are preempted by COGSA. See GFT U.S.A. Corp. v. M/V Exp. Freedom, No. 93 Civ. 4557, 1995 WL 276193, at *11 (S.D.N.Y. May 11, 1995) ("Congress has clearly preempted state law through COGSA in defining the relationship between ocean carriers and cargo interests."); see also National Auto. Publ'ns, Inc. v. United States Lines, Inc., 486 F.Supp. 1094, 1100 (S.D.N.Y.1980).

Under COGSA, the Bill of Lading sets forth contractual terms between the parties to a shipment, and the parties are bound by the provisions of the Bill of Lading. See Southern Pac. Transp. Co. v. Commercial Metals, 456 U.S. 336, 342-43, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982) ("[E]ach [term] has in effect the force of statute of which all affected must take notice."); Givaudan Delawanna v. Blijdendijk, 91 F.Supp. 663, 666 (S.D.N.Y. 1950) ("The purchase of a bill of lading ordinarily constitutes a commercial transaction between experienced businessmen or companies, and they must be held to take with notice of the provisions of the bill."); see also United Van Lines v. Hellman, 949 F.Supp. 126, 129 (E.D.N.Y.1996) ("It is well-accepted that a bill of lading may not be modified by extrinsic or parol evidence.").

In the instant matter, the Bill of Lading contains a forum selection clause (the "Forum Selection Clause") providing that:

Any claim or dispute arising under or in connection with this Bill of Lading (whether in contract, tort or otherwise) shall be referred to and decided by Oslo City Court, Norway and, if any appeals are taken, by the appellate courts of Norway and shall be governed by Norwegian law, except as provided elsewhere in this Bill of Lading.

(Bill of Lading § 2.)

Salis argues that the Forum Selection Clause should not be enforced because it would lessen Hoegh's liability below what § 3(8) of COGSA ("§ 3(8)") guarantees. The Court disagrees.

"COGSA protects the fact and extent of liability, not the means and costs of enforcing that liability". See Stemcor USA v. Hyundai Merck Marine Co., 386 F.Supp.2d 229, 232 (S.D.N.Y.2005) (citing Vimar Seguros y Reaseguros, S.A. v. M/V SKY REEFER, 515 U.S. 528, 537-39, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995) ("SKY REEFER")). COGSA § 3(8) states that:

Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this chapter ... shall be null and void and of no effect. A benefit of insurance in favor of the carrier, or similar clause, shall be deemed to be a clause relieving the carrier from liability.

COGSA § 3(8). However, Salis offers no evidence to substantiate his assertion that enforcement of the Forum Selection Clause would lessen Hoegh's liability. See Stemcor, 386 F.Supp.2d at 232.

Forum selection clauses are not automatically prohibited by COGSA. See id. The United States Supreme Court, in SKY REEFER, held that a foreign arbitration clause⁴ in a bill of lading was...