The opinion of the court was delivered by: SWEET
In this action brought by Evergreen Marine Corporation ("Evergreen") to recover damages for alleged non-payment of detention charges under a service contract and bills of lading, Defendant Welgrow International, Inc. ("Welgrow") has moved to dismiss this action in favor of an action in Antwerp, Belgium presenting the same claims and issues, or to dismiss on the grounds that Plaintiff is not registered to do business in New York.
For the reasons set forth below, the action in this Court will be stayed on the condition Welgrow submits to the jurisdiction of the Antwerp Commercial Court for the purpose of litigating the claims brought by Evergreen in this action, waives any applicable statute of limitations defense, and agrees to be bound by the judgment of the Belgian Courts.
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 and Procedural Background
The facts and prior proceedings in this action are set forth in the prior opinion of this Court, Evergreen Marine Corp. v. Welgrow International, Inc., 942 F. Supp. 201 (S.D.N.Y. 1996). Those facts relevant to the determination of this motion are set forth below.
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. This action arises out of unpaid "detention charges" allegedly incurred by Welgrow. Detention charges (or "demurrage") are charges 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.
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.
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 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 ...