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Indemnity Insurance Co. of North America v. M/V "Easline Tianjin

February 13, 2008

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, PLAINTIFFS,
v.
M/V "EASLINE TIANJIN," HER ENGINES, BOILERS, ETC. KAWASAKI KISEN KAISHA, LTD., CHINA UNITED TRANSPORT INC., C.U. TRANSPORT INC., AND JC TRANS LOGISTICS, INC. DEFENDANTS.
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, AS SUBROGOR OF G-III APPAREL GROUP, LTD.. PLAINTIFF,
v.
M/V "EASLINE TIANJIN," HER ENGINES, BOILERS, ETC. AND KAWASAKI KISEN KAISHA, LTD. DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION AND ORDER

Both of these actions are admiralty claims for loss of cargo aboard the M/V Easline Tianjin during a voyage from Xingang, China, to ports in the United States. Plaintiff, Indemnity Insurance Company of North America ("Indemnity"), as the subrogated insurer of the cargo, filed a complaint in 07CV959 on February 9, 2007, and a complaint in 07CV6008 on June 25, 2007. Kawasaki Kisen Kaisha, Ltd. ("K-Line") was named as a Defendant in both actions. C.U. Transport Inc. and China United Transport Inc. (collectively known as "C.U. Transport") were named as Defendants only in 07CV959.

On July 31, 2007, Defendants K-Line and C.U. Transport filed motions to dismiss the complaints for lack of jurisdiction, K-Line arguing that its Bill of Lading contains a mandatory and exclusive Japanese forum selection clause requiring all suits to be brought before the Tokyo District Court, and C.U. Transport stating that its Bill of Lading contains a mandatory and exclusive forum selection clause requiring suit to be brought in the People's Republic of China. On December 5, 2007, Plaintiff filed a Memorandum of Law in Opposition to C.U. Transport's Motion to Dismiss the Complaint. The Court has received no opposition to K-Line's motion from Plaintiff. For the reasons set forth below, Defendants' motions in both cases are granted.

I. BACKGROUND

A.The K-Line Waybills and Bills of Lading

On July 7, 2006, K-Line issued four non-negotiable waybills to Eddie Bauer, Inc., naming Eddie Bauer, Inc. as consignee. The K-Line waybills state: "MERCHANT SPECIFICALLY AGREES THAT ITS ATTENTION HAS BEEN DRAWN TO AND THAT IT HAS ACCEPTED THE 'K' LINE COMBINED TRANSPORT BILL OF LADING" (emphasis in original) (Waybills, Johnson Decl., Ex. I.). The K-Line Bill of Lading states: "In accepting this bill of lading, Merchant agrees to be bound by all the stipulations, exceptions, terms and conditions on the face and back hereof." (Johnson Decl., Ex. G.) In the section entitled "Governing Law and Jurisdiction," the K-Line Bill of Lading states:

"[t]he contract evidenced by or contained in this Bill of Lading shall be governed by Japanese law except as may be otherwise provided for herein, and any action thereunder or in connection with Carriage of Goods shall be brought before the Tokyo District Court in Japan, to whose jurisdiction Merchant irrevocably consents." (Johnson Decl., Ex. K at ¶ 2 (emphasis added).)

K-Line's Bill of Lading states that the United States Carriage of Goods by Sea Act shall apply to shipments to or from the United States. (Id. at ¶ 4.)

B. C.U. Transport's Bill of Lading

The C.U. Transport Bill of Lading was issued on July 8, 2006. In a section entitled "Jurisdiction," the C.U. Transport Bill of Lading states, "[a]ny dispute arising under and/or in connection with the Bill of Lading shall be determined by the court in the People's Republic of China." (Vengrow Decl., Ex. B.)

II. DISCUSSION

When bills of lading contain a contractual clause designating a forum for resolution of dispute, "the burden [is] on the plaintiff, who brought suit in a forum other than the one designated by the forum selection clause, to make a 'strong showing' in order to overcome the presumption of enforceability." New Moon Shipping Co. v. MAN B&W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997) (quoting M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 15 (1972)). See also Vimar Seguros Y Reaseguros v. M/V Sky Reefer, 515 U.S. 528 (1995); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985).

"A party challenging a contractual forum selection clause can demonstrate the unreasonableness of the clause only by demonstrating that: (i) the selection of forum in the contract was the result of fraud or overreaching; (ii) he or she will be effectively deprived of a 'day in court' due to the grave inconvenience or unfairness of the selected forum, Bremen; (iii) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (iv) if the clauses contravene a strong public policy of the forum state." Insurance Corp. v. Latino Americana de Reaseguros, S.A., 868 F. Supp. 520, 529 (S.D.N.Y. 1994) (relying on M/S Bremen at 10, 12-13, 15, 18). See also Roby v. Corporation of Lloyd's, 996 F.2d 1353, 1363 (2d Cir. 1993). Here, Plaintiff has not made any response to K-Line's motion. Accordingly, the motion to dismiss the complaints against K-Line is granted.*fn1

With regard to C.U. Transport's motion, Plaintiff has filed a Memorandum of Law in Opposition arguing that 1) the jurisdiction clause is permissive and does not exclude litigation in this Court; and 2) the actions should remain in this Court in the interests of fairness and judicial economy of the related actions. (Pl.'s Mem. in Opp'n at ...


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