The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Maurice Oparaji brings this action against Atlantic Container Line ("ACL") and Penbroke Marine Services, Inc. ("Penbroke"), alleging that ACL and Penbroke breached a maritime contract by failing to deliver three vehicles to the parties' agreed-upon destination port. Plaintiff also asserts state law claims for breach of fiduciary duty, unfair trade and unfair business practices, civil conspiracy, deceptive and negligent misrepresentation, fraud, and defamation. Plaintiff's initial action was filed in the Superior Court of the State of New Jersey, Union County. The action was subsequently removed to the United States District Court for the District of New Jersey, which transferred the case to this Court. Defendants move for summary judgment dismissing all claims, and plaintiff cross-moves for summary judgment as to the breach of contract and defamation claims. For the reasons set forth below, defendants' motions will be granted, and plaintiff's motion will be denied.
The facts set forth below are essentially undisputed, except as otherwise noted.
I. The Shipping Arrangements
Plaintiff Maurice Oparaji is an importer/exporter of cars. (P. 56.1 Stmt.*fn1 ¶ 3; ACL 56.1 Stmt. ¶ 1; Compl.*fn2 ¶ 6.) In the fall of 2005, plaintiff engaged Penbroke to arrange for the transport of six vehicles from New York, New York to Lagos, Nigeria. (Brennan Decl. ¶ 2; P. Mem. Exs. M, U.) The six vehicles consisted of: (1) a 2000 Kia Sephia, (2) a 2000 Honda Civic, (3) a 1997 Nissan Altima, (4) a 1993 Mazda MPV, (5) a 2001 Toyota Precis, and (6) a 1998 Kia Sephia. (P. 56.1 Stmt. ¶¶ 4, 7; P. Mem. Exs. A-F.) In accordance with plaintiff's request, Penbroke arranged for shipment of the vehicles through ACL. (Brennan Decl. ¶¶ 2-3.) ACL ultimately subcontracted the portion of carriage from Italy to Nigeria to a non-party carrier named Grimaldi Compagnia di Navigazione, S.p.A. ("Grimaldi"), which in turn subcontracted that portion of carriage to RoRo Oceanic Shipping Services ("RoRo Lagos").*fn3 (Heslin Decl. ¶ 9.) Thus, ACL transported plaintiff's vehicles from New York to Italy, and RoRo Lagos, acting on behalf of Grimaldi, transported plaintiff's vehicles from Italy to Nigeria. (Cf. ACL Mem. Exs. K-L.)
Penbroke did not issue a bill of lading for the shipment (Penbroke 56.1 Stmt. ¶ 13; Brennan Decl. ¶ 2), nor did it play any role in the actual transport of the vehicles. (Mariano Dep. 120:19-22.) However, it did issue an invoice on October 28, 2005 that memorialized the details of the parties' transaction and "refer[red plaintiff] to the [carrier's] bill of lading" for the "[t]erms of [s]hipping." (P. Mem. Ex. M.) The invoice also itemized the ocean freight charges for each of the six vehicles. (Id.) Between October 28, 2005 and November 3, 2005, plaintiff prepaid the ocean freight charges for all six vehicles and, in accordance with Penbroke's instructions, delivered the vehicles to Maher Terminal, Berth 64, where they would be loaded for transport. (P. 56.1 Stmt. ¶¶ 8-9; P. Mem. Exs. G-L; Oparaji Dep. 46:10-15.) At that time, plaintiff received dock receipts for each of the vehicles. (P. Mem. Exs. G-L.) Among other things, each dock receipt listed the names of the shipper and consignee, the origination and destination ports, the date the vehicles were received, a description of the vehicles (including the year, make, model, and VIN), and confirmation that plaintiff prepaid the freight charges. (Id.) The receipts also included the following notice:
Received the above described goods or packages subject to all the terms of the undersigned's regular form of dock receipt and bill of lading which shall constitute the contract under which the goods are received, copies of which are available from the carrier on request and may be inspected at any of its offices.
On November 21, 2005, ACL generated a bill of lading for the transport of plaintiff's vehicles. (ACL 56.1 Stmt. ¶ 3; ACL Mem. Ex. C Bill of Lading No. ACLU 5324S1332594 ("bill of lading"); Brennan Decl. ¶ 3; cf. Compl. ¶¶ 13, 25-32.) Plaintiff denies ever receiving the bill of lading. (P. 56.1 Stmt. ¶ 10; Compl. ¶ 13; P. Suppl. 56.1 Stmt.*fn4 ¶¶ 3-4.) However, plaintiff did receive two emails generated by ACL and forwarded by Penbroke, each of which contained a bill of lading reference number for three of the six vehicles, and both of which appear to have attached the ACL and Grimaldi bills of lading corresponding to the carriage from New York to Italy and from Italy to Nigeria. (P. Suppl. 56.1 Stmt. ¶ 3; P. Mem. Exs. P-Q.) The ACL bill of lading for the three missing vehicles provides a description of the vehicles and identifies plaintiff as the consignee and Cartainer Ocean Line (Penbroke) as the "forwarder." (ACL Mem. Ex. C.) It also contains the following provisions pertinent to resolution of the current dispute:
3. Carrier's Responsibility - Paramount Clause
(1) For U.S. Trade Route: This bill of lading shall take effect subject to the provisions of the U.S. Carriage of Goods by Sea Act, 1936 (COGSA) insofar as it is compulsorily applicable. Further, it is agreed that COGSA, including all its limitations and defenses, and the U.S. Pomerene Act, 1916, shall apply by contract to all shipments to or from the United States before loading and after discharge from the time the goods are received by the Carrier at the Place of Recipt or Port of Loading until delivered by the Carrier at the Port of Discharge or Place of Delivery, as applicable.
11. Matters Affecting Performance
(2) The liability of the Carrier in respect of the goods shall cease on the delivery or other disposition of the goods in accordance with the orders or recommendations given by any government or authority or any person acting or purporting to act as or on behalf of such government or authority. (Id. at 000050.)
III. Arrival of the Goods
The RoRo Lagos vessels carrying plaintiff's vehicles arrived at the Port of Lagos in December 2005 and January 2006. (ACL Mem. Exs. E-F.) Although the three missing vehicles were spread among two different vessels, tally sheets kept by RoRo Lagos and the NPA show that all three of plaintiff's missing vehicles were present at the time of the vessels' arrivals. (Id.) Following arrival at Lagos, plaintiff's vehicles were discharged into the custody of the Nigerian Port Authority ("NPA"), which eventually transferred the vehicles to the NPA car park. (ACL 56.1 Stmt. ¶ 5; ACL Mem. Ex. F.) The NPA is an agency of the Nigerian Government that is charged by law with controlling the discharge of cargo from vessels docking at the Port of Lagos. (ACL 56.1 Stmt. ¶ 6; Atoyebi Decl. ¶¶ 17-18; id. Ex. B, at Pt. I.) Stevedores hired and controlled by the NPA discharge all imported cargo, at which point the NPA assumes sole control over the care, custody and delivery of the cargo. (ACL 56.1 Stmt. ¶¶ 7-10; Heslin Decl. ¶¶ 7-8; Atoyebi Decl. ¶¶ 18-19, 22; cf. id. Ex. B, at Pt. II 7(b), 8(e), 8(h).) By law and custom, shipowners and ocean carriers destined for the Port of Lagos have no control over the NPA or its hired stevedores. (Atoyebi Decl. ¶¶ 21-22.) Indeed, neither ACL nor Penbroke employed any personnel at the Port of Lagos or at the NPA car park. (Brennan Decl. ¶ 5; cf. ACL 56.1 Stmt. ¶¶ 6-10.)
On or about December 22, 2005, plaintiff visited the office of RoRo Lagos. (P. 56.1 Stmt. ¶ 12.) Upon presenting his American passport, Nigerian passport, and driver's license, he obtained three of the six vehicles transported by ACL, via Grimaldi and RoRo Lagos. (Id.) However, after failing to locate or receive the remaining three vehicles -- a 2000 Kia Sephia, a 2000 Honda Civic, and a 1997 Nissan Altima -- plaintiff contacted Penbroke and returned to the United States. (P. 56.1 Stmt. ¶¶ 13-14.)
IV. The Bakreen and Tanimowo Emails
On July 5, 2006, following his return to the United States, plaintiff received a telephone call from one Alli Hitman, an individual whom plaintiff met while searching for his three missing vehicles in the NPA car park. (P. 56.1 Stmt. ¶ 15.) According to plaintiff, Hitman informed him that two of his three missing vehicles had been located. (Id.) On July 6, 2006, plaintiff emailed various Penbroke, ACL, Grimaldi, and RoRo Lagos employees, informing them of this news and advising them not to release the vehicles to anyone until further notice. (P. 56.1 Stmt. ¶ 15; P. Mem. Ex. R; ACL Mem. Ex. H.) In response, Semiu Bakreen ("Bakreen") and Thomas Tanimowo ("Tanimowo"), employees of RoRo Lagos, distributed emails (collectively, the "Bakreen and Tanimowo emails") commenting on plaintiff's predicament to various Penbroke, ACL, Grimaldi, and RoRo Lagos employees.*fn5 (P. Mem. Exs. S-T; ACL Mem. Exs. G-H.)
The email authored by Bakreen stated, in relevant part:
Ref. to your below message, we hereby wish to state that we have carried out our investigations and discovered that you fraudulently arranged with your contacts at NPA/Clearing agent to take delivery of the vehicles by not releasing from our Agency.
Pls note that your contacts have confirmed that you are fully aware of all transactions relating ...