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MAERSK, INC. v. INT'L COMMODITIES TRANS. SERVICES

January 15, 2004.

MAERSK, INC., d/b/a MAERSK SEALAND and/or MAERSK LINE, Plaintiff, -against- INTERNATIONAL COMMODITIES TRANSPORTATION SERVICES, LLC, I.C.T.S. INC., ANTHONY L. GILBERT, GEORGE NOEL GILBERT, III, Defendants


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff Maersk, Inc. ("Maersk") brought this action under this court's admiralty and maritime jurisdiction, pursuant to 28 U.S.C. § 1333, alleging breach of contract against International Commodities Transportation Services, LLC, also known as I.C.T.S., Inc. ("ICTS"), Anthony L. Gilbert ("A. Gilbert"), and George Noel Gilbert, III ("G. Gilbert"). Upon the defendants' failure to answer or otherwise respond to the complaint, the Clerk of Court entered a default against them. Your Honor then referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any, to be awarded to the plaintiff against the defendants. Page 2

  The Court directed the plaintiff to file and serve proposed findings of fact and conclusions of law and an inquest memorandum setting forth its proof of damages, costs of this action, and attorney fees. The defendants were directed to file and serve opposing memoranda, affidavits and exhibits, as well as any alternative findings of fact and conclusions of law they deemed appropriate. The defendants were also directed to state whether they wanted a hearing to be held for the purpose of examining witnesses.

  In support of its request for damages, the plaintiff served and filed proposed findings of fact and conclusions of law, a memorandum of law with exhibits attached thereto ("Memorandum"), an affidavit of Rose Austin with an exhibit attached thereto ("Austin Affidavit"), and an affidavit of Alexander F. Vitale ("Vitale Affidavit"). Austin is an employee of Maersk, and Vitale is the attorney representing the plaintiff in this action.

  The plaintiffs submissions aver that it is entitled to $108,808.65 in damages for breach of contract, as well as prejudgment interest, reasonable attorney fees, and costs.

  The only response to the Court's directives by any defendant was a letter from G. Gilbert to the undersigned, denying all allegations made in the complaint in this action, and requesting that his "name be removed from this case."*fn1

  For the reasons set forth below, I recommend that plaintiff be awarded $103,128.91 in contract damages and prejudgment interest on that amount, to be computed in the manner described below. Page 3

  II. BACKGROUND AND FACTS

  Based on submissions by the plaintiff, the complaint filed in the instant action — the factual allegations of which, perforce of defendants' default, must be accepted as true, except as they relate to damages, see Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) — and the Court's review of the entire court file maintained in this action, the following findings of fact are made:

  Maersk is a New York corporation with an office located in this judicial district. It is a common carrier of goods by ocean transport, ICTS is a corporation with an office in Alabama, organized under the laws of either Alabama or Washington. A. Gilbert and G. Gilbert are ICTS's majority shareholders and serve as its president and vice-president, respectively.

  On several occasions between September 1999 and February 2000, ICTS contracted with Maersk to transport paper between various ports around the world. A bill of lading setting forth shipping charges was generated for each shipment. Maersk transported the cargos accordingly, but ICTS refused the plaintiffs demands for payment. Thereafter, the plaintiff filed this action in July 2001, seeking to recover $108,808.65, the aggregate of unpaid shipping charges. In addition to this amount, the plaintiff also seeks to recover prejudgment interest, and the attorney fees and costs it incurred in bringing this action, $3,473.14.

  In support of its request for damages, the plaintiff has submitted, inter alia: 1) copies of the bills of lading, attached as an exhibit to its Memorandum; 2) the Austin Affidavit, with a report summarizing unpaid shipping charges attached ...


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