The opinion of the court was delivered by: Sand, District Judge.
This action by Brocsonic Company, Ltd. ("Brocsonic") relates to
a transoceanic shipment of electronic goods from Kobe, Japan to
Santos, Brazil. Defendants Maersk, Inc., Dampskibsselskabet af
1912, Aktieselskab, and Aktieselskabet Dampskibsselskabet
Svendborg (collectively "Maersk") had previously moved this Court
to dismiss the Complaint for lack of subject matter jurisdiction,
but we denied that motion without prejudice to renewal so that
the parties could conduct further discovery as to certain
jurisdictional facts. Such discovery having been recently
completed, Maersk now renews its motion to dismiss for lack of
subject matter jurisdiction. This time, for reasons set forth
below, we grant Maersk's motion and dismiss Brocsonic's
The following facts are undisputed. In July and August 1995,
Brocsonic-a manufacturer and distributor of electronic
products-contracted with Maersk-an international cargo carrier-to
transport 11 shipping containers filled with electronic goods
from Kobe, Japan to Santos, Brazil. See Xavier Decl. (June 14,
2000) Ex. A. Although the ultimate destination of these goods was
Paraguay, the 11 port-to-port bills of lading only required
Maersk to discharge and deliver the containers at Santos. See
id.; Maersk's Renewed 56.1 Statement ¶¶ 8-9; Broker Dep. (Nov.
11, 1999) Tr. at 107; Hr'g (May 27, 1999) Tr. at 9. Brocsonic's
role constituted that of both shipper and consignee. See Xavier
Decl. (June 14, 2000) Ex. A.
All 11 containers arrived at the port of Santos on October
25-28, 1995. See id. Ex. B. Pursuant to local law and custom,
the subject containers were immediately given over to the "Dock
Company"*fn1-a Brazilian state-owned entity charged with the
stevedoring and in-bond storage of all cargo not otherwise
intended for importation into Brazil. See id. ¶¶ 6-9, 13-14.
The Dock Company operates under the auspices of the Brazilian
Customs Authority, see id. ¶ 8, and maintains a separate
storage facility for in-bond cargo destined for Paraguay, see
id. ¶ 10. Before the Dock Company will physically release any
stored in-bond cargo to a receiving claimant, the relevant
carrier must first authenticate the bills of lading presented by
the putative consignee.*fn2 See Xavier Dep. (Nov. 17, 1999)
Tr. at 106-109; Hr'g (Oct. 5, 2000) Tr. at 3-5; Brocsonic's Mem.
in Opp. to Renewed Mot. to Dismiss at 2-3.
Finally, sometime in April 1997, the cargo was withdrawn from
in-bond storage by unauthorized third parties utilizing
fraudulent papers.*fn6 See Xavier Dep. (Nov. 17, 1999) Tr. at
115-116; Maersk's Renewed Mot. to Dismiss at 7; Brocsonic's Mem.
in Opp. to Renewed Mot. to Dismiss at 3-4; Maersk's Reply Mem. in
Supp. of Renewed Mot. to Dismiss at 2-3. The goal of the instant
litigation is to decide whom-whether Brocsonic as the
shipper/consignee or Maersk as the contracted carrier-should bear
the cost of these "missing" electronic goods.
Brocsonic filed its Complaint against Maersk in the Southern
District of New York on October 23, 1998, seeking $63 million in
damages for the loss of its cargo stored at Santos, Brazil. On
March 8, 1999, pursuant to Rules 12(b)(1) and 56 of the Federal
Rules of Civil Procedure, Maersk moved this Court to dismiss the
action for lack of subject matter jurisdiction. Argument was held
on May 27, 1999, and we thereafter denied Maersk's motion without
prejudice to renewal in a Memorandum and Order filed on June 21,
1999. See 1999 WL 413456 (S.D.N.Y. June 21, 1999). We did so in
light of affirmative representations by Brocsonic that, without
any opportunity to perform jurisdictional discovery, it was
disadvantaged in defending against dismissal. Accordingly, we
denied Maersk's motion without prejudice to renewal and further
ordered the parties to conduct limited discovery as to relevant
On September 19, 2000, upon completion of the court-ordered
discovery, Maersk renewed its motion to dismiss for lack of
subject matter jurisdiction under Rules 12(b)(1) and 56. The sole
question presently before us is whether Brocsonic's
cause of action lies outside this Court's admiralty
jurisdiction.*fn7 After hearing oral argument on October 5,
2000, we reserved decision.
Maersk renews its motion to dismiss pursuant to Rules 12(b)(1)
and 56 of the Federal Rules of Civil Procedure. As we already
noted in our earlier denial of Maersk's original motion, see
1999 WL 413456 at *2, in this context*fn8 Rule 12(b)(1) is the
more appropriate vehicle for challenging subject matter
jurisdiction. See Kamen v. American Telephone & Telegraph Co.,
791 F.2d 1006, 1010-11 (2d Cir. 1986); Goodman v. Children's
Television Workshop, No. 98 Civ. 8348(SAS), 1999 WL 228396 at *2
(S.D.N.Y. April 19, 1999). A plaintiff "seeking to invoke the
subject matter jurisdiction of the district court bears the
burden of showing that he [is] properly before that court."
Scelsa v. City Univ. of New York, 76 F.3d 37, 40 (2d Cir.
1996). To that end, a plaintiff may be permitted limited
discovery with respect to the jurisdictional issue. See Filus v.
Lot Polish Airlines, 907 F.2d 1328, 1332 (2d Cir. 1990). And if
the defendant continues to challenge the jurisdictional
allegations of the complaint, courts may ...