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EVERGREEN MARINE CORP. v. WELGROW INT'L INC.

October 22, 1996

EVERGREEN MARINE CORPORATION, Plaintiff, against WELGROW INTERNATIONAL INC., Defendant.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 In this action to recover damages for alleged non-payment of detention charges under a service contract and bills of lading, Plaintiff Evergreen Marine Corporation ("Evergreen") has moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. Defendant Welgrow International, Inc. ("Welgrow") has cross-moved to dismiss on the following grounds: insufficient service of process, pursuant to Rule 12(b)(5) and Rule 4; failure to join an indispensable party, pursuant to Rule 12(b)(7) and Rule 19(b); and the pendency of an action in Antwerp, Belgium presenting the same claims and issues. Both parties have made motions to strike matters in declarations and affidavits submitted in relation to the motions to dismiss and for summary judgment.

 For the reasons set forth below, Plaintiff's motion will be denied, and Defendant's cross motions also will be denied. The motions to strike will be summarily denied.

 The Parties

 Evergreen is an ocean common carrier incorporated under the laws of Taiwan, with its principal place of business in Taiwan.

 Welgrow is a domestic corporation with its principal place of business in New York.

  Facts *fn1" and Procedural Background

 On June 5, 1992, Evergreen and Welgrow entered into a Service Contract (the "Contract"), by which Evergreen agreed to transport a minimum quantity of goods shipped by Welgrow over a fixed period of time at an agreed upon rate that was lower than the tariff freight rate Evergreen charges to other, non-contract, shippers. It is customary for carriers to charge shippers for delays in returning cargo containers to the carrier within a specified time after the goods are tendered to the consignee designated to receive the shipped goods in another port. Such "detention charges" are included when a non-contract shipper engages a carrier under the carrier's standard tariff. The Contract does not, on its face, specify a rate for detention charges. However, it does specify the "free time" -- the time period after the carrier delivers the containers before detention charges begin to accrue -- for containers bound for different ports. It also provides that the carriage of goods would be subject to Evergreen's standard bill of lading, which refers to detention charges, but does not specify a rate.

 In this case, the consignee of the shipments was a Belgian company, Grisar & Velge, N.V. ("Grisar"). The Contract contemplated the transportation of goods from U.S. ports to Belgium, where Grisar would take the goods and ship them, in Evergreen's containers, to ports in Eastern Europe.

 The Contract contained the following integration clause:

 
This Contract constitutes the entire agreement between the parties. FMC Regulations . . . prohibit modification of the essential terms of this Contract during its duration. Any modification to non-essential terms may only be made by written agreement signed by both parties.

 As required by 46 CFR § 514.7, the essential terms of the Contract were filed with the Federal Maritime Commission ("FMC"). On or about November 9, 1992, the Contract was amended to: (1) extend the amount of time to return containers to Evergreen; and (2) reduce the detention charge rate. The Contract amendment was also filed with the FMC, as required by 46 CFR §§ 514.7 and 514.17. The amended Contract specifies the amount of detention charges directly and by reference to Tariff FMC 155, which Evergreen has on file with the Federal Maritime Commission.

 Construing the facts in the light most favorable to Welgrow, Evergreen, Welgrow and Grisar agreed that Grisar would pay the detention charges incurred under the shipping arrangements among Evergreen, Welgrow and Grisar. It is unclear when this agreement was reached.

 Pursuant to the Contract and bills of lading issued to Welgrow, Evergreen transported shipments from various U.S. ports to Antwerp. Detention charges were incurred as a result of delays in the return of Evergreen's cargo containers. Both Grisar and Welgrow made payments to Evergreen for detention charges during the time the Contract was in force. Grisar reimbursed Welgrow for detention charges Welgrow paid. Grisar acknowledged to Evergreen, in a number of written communications, its continuing obligation to return containers in a timely manner. Grisar, in explaining that it was withholding payment of certain invoices for detention charges, also communicated its future intention to pay charges when errors in the invoices were corrected.

 On March 12, 1993, after it had satisfied its minimum volume commitment, Evergreen terminated the Contract. At that time, outstanding detention charges were due under the Contract and bills of lading. Evergreen issued invoices for detention charges to Grisar.

 On April 27, 1993, Evergreen commenced an action for unpaid detention charges against Grisar in the Commercial Court located in Antwerp, Belgium (the "Antwerp Court" or "Antwerp Tribunal"). On August 12, 1993, Evergreen commenced a second action for additional unpaid detention charges against Grisar in the Antwerp Court.

 Evergreen filed the complaint in this action on October 5, 1993. On October 13, 1993, Arthur Burke ("Burke") served process upon Jerry Crow ("Crow"), a clerical employee of Welgrow. Burke entered Welgrow's corporate offices, spoke with Crow and inquired whether he was authorized to receive legal documents for Welgrow. When Crow responded ...


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