The opinion of the court was delivered by: Chin, District Judge.
In February 1998 a container filled with ladies' dresses and
jumpers was allegedly stolen from the yard area outside a New
Jersey warehouse. Sportswear Group, LLC ("Sportswear"), the owner
of the dresses and jumpers, filed a claim for the loss with its
insurance company Royal Insurance Company of America ("Royal").
In response, Royal brought this action seeking a declaratory
judgment that under the terms of the marine cargo insurance
policy it issued to Sportswear it is not liable for Sportswear's
claimed loss. Sportswear filed a counterclaim against Royal for a
declaration that the loss was covered and brought a third-party
complaint against both the broker that procured the insurance
policy on Sportswear's behalf, Rampart Brokerage Corporation
("Rampart"), and the New Jersey warehouse, Robalo Enterprise,
Inc. ("Robalo"). In its amended answer to the third-party
complaint, Rampart asserted a claim against Royal for
indemnification and cross-claims against Robalo for
indemnification and apportionment of responsibility for the
Royal moves for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(c) against Sportswear, arguing that the marine
cargo insurance policy at issue in this case does not cover
Sportswear's loss as a matter of law. Sportswear cross-moves for
judgment on the pleadings, pursuant to Fed. R.Civ.P. 12(c), or in
the alternative for summary judgment, pursuant to Fed. R.Civ.P.
56, against Royal, contending that its loss is covered by the
insurance policy. Rampart also cross-moves for judgment on the
pleadings, contending that Sportswear's claims against it must be
dismissed because Royal's insurance policy provides coverage for
Sportswear's loss. Each of the three moving parties has indicated
that its motion is based upon all the pleadings filed in this
action.*fn1 For the reasons that follow Royal's motion for
judgment on the pleadings is granted and the remaining motions
Sportswear retained Rampart, a licensed insurance broker, to
procure a marine cargo insurance policy on its behalf.
(Third-party compl. ¶ 7). According to Sportswear, it sought to
replace its existing policy, set to expire, with a new policy
containing the same terms. On or about November 2, 1997, Rampart
obtained Royal insurance policy POC 102586 (the "Policy") on
behalf of Sportswear. (Compl. ¶ 8; Answer ¶ 4; Third-party compl.
¶ 9). The Policy is annexed to the Complaint as Exhibit 1.
On or about January 4, 1998, Sportswear purchased 1700 dozen
packed in 1018 cartons, from Raiment Limited in Dhaka,
Bangladesh. (Compl. ¶ 11; Answer ¶ 5). The following day,
Sportswear purchased 400 dozen ladies' jumpers, packed in 200
cartons, from Borax Apparels, Limited, also located in Dhaka,
Bangladesh. (Compl. ¶ 12; Answer ¶ 5). Both the dresses and the
jumpers were placed in container number CATU 4082480 (the
"container") and shipped aboard the vessel SOPHIE SCHULTE from
Chittagong, Bangladesh. (Compl. ¶¶ 13, 14; Answer ¶ 6). The
container was discharged from the SOPHIE SCHULTE in California
and transported by rail to New Jersey where it was picked up by
Jett Trucking and taken to a warehouse located at 333 Hamilton
Road in South Plainfield, New Jersey (the "Warehouse"). (Compl.
¶¶ 15-16; Answer ¶¶ 2, 5, 7; Third-party compl. ¶ 10). The
Warehouse is owned and operated by Robalo, the receiving agent
Sportswear utilized for the storage and distribution of its
shipments. (Compl. ¶¶ 7, 17; Answer ¶ 5; Third-party compl. ¶
It is undisputed that on February 16, 1998, Robalo's employee
accepted the container from Jett Trucking and inserted a pin lock
in the container chassis. (Compl. ¶ 19; Answer ¶ 10). According
to Royal and Sportswear, Robalo did not have personnel on duty to
unload the container at the time it inserted the pin lock; as a
result, Robalo stored the container on its premises outside the
warehouse.*fn2 (Compl. ¶ 16; Third-party compl. ¶ 10). At some
point between the evening of February 16, 1998 and the morning of
February 17, 1998, the container and its contents were stolen.
(Compl. ¶ 21; Answer ¶ 11; Third-party compl. ¶ 10). Sportswear
admits that at the time the container and its contents were
stolen they "were in the complete care, custody and control of
Robalo," and "were no longer in the ordinary course of transit
but rather had been delivered to the final destination." (Compl.
¶¶ 26, 27; Answer ¶ 15).
In their motions for judgment on the pleadings, both Sportswear
and Rampart contend that Sportswear's stolen goods are insured
under either Section I or III of the Policy.
Section I of the Policy contains the following "warehouse to
This insurance attaches from the time the goods leave
the warehouse and/or store named in the policy for
the commencement of the transit and continues during
the ordinary course of transit, including customary
transshipment, if any, until the goods are discharged
overside from the overseas vessel at the final port.
Thereafter the insurance continues whilst the goods
are in transit and/or awaiting transit until
delivered to the final warehouse at the destination
named in the Policy or until expiry of (15) days . .
. whichever shall first occur. . . .
(Policy, § I ¶ 21, annexed to the Compl. as Exhibit 1). A marine
extension clause provides coverage in case of "deviation, delay,
forced discharge, reshipment and transshipment." (Id., § I ¶
22B). Section III of the Policy provides insurance coverage
"while [the covered property is] temporarily stored in warehouses
at locations listed in the attached Schedule." (Id., § III, ¶
1). Another paragraph in the same section further provides,
applies only while Property Insured is located at the approved
locations shown in the attached Schedule and only for amounts not
exceeding the limits shown opposite each location." (Id., §
III, ¶ 3). The Policy's Schedule of Approved Locations lists only
one location: "333 Hamilton Boulevard, Bldg 5A and 12, South
Plainfield, N.J. 07080." Royal contends that because at the time
the goods were allegedly stolen they (1) had been delivered to
their final destination, and (2) were stored outside rather than
inside the Warehouse, neither section of the Policy covers the
A. Judgment on the Pleadings Standard
The parties have moved for judgment on the pleadings. A motion
for judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c) is
analyzed under the same standard applicable to a motion to
dismiss for failure to state a claim under Fed. R.Civ.P.
12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.),
cert. denied, 513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28
(1994); Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v.
Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987).
Accordingly, judgment on the pleadings is appropriate only if,
drawing all reasonable inferences in favor of the non-moving
party, it is apparent from the pleadings that the moving party is
entitled to judgment as a matter of law. See United States v.
Weisz, 914 F. Supp. 1050, 1052 (S.D.N.Y. 1996). In deciding a
motion for judgment on the pleadings, a court may consider the
pleadings and exhibits attached thereto, and statements or
documents incorporated by reference in the pleadings. See Brass
v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.
1993); Cue ...