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Kaisha v. Fil Lines USA Inc.

United States District Court, S.D. New York

October 18, 2013

NIPPON YUSEN KAISHA A.K.A. NYK LINE, Plaintiff,
v.
FIL LINES USA INC., Defendant

Page 344

[Copyrighted Material Omitted]

Page 345

For Nippon Yusen Kaisha, also known as NYK Line, Plaintiff: Joseph Francis De May, Jr, Cichanowicz, Callan, Keane, Vengrow & Textor, New York, NY.

For FIL Lines USA Inc., Defendant, ThirdParty Plaintiff: Thomas Michael Grasso, LEAD ATTORNEY, Law Offices of Thomas M. Grasso LLC, Cranford, NJ.

OPINION

Page 346

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiff Nippon Yusen Kaisha, a.k.a. NYK Line (" Nippon" or " NYK" ), brought this action against defendant FIL Lines USA Inc. (" FIL" ) to recover freight charges incurred in the transport of cargo from ports in India to Los Angeles and New York. Nippon now moves for summary judgment against FIL.[1] Nippon also seeks entry of a final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. The parties have consented to having this matter decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

I. BACKGROUND

A. Procedural History

Nippon filed the original complaint in this action on August 30, 2012. See Complaint, filed Aug. 30, 2012 (Docket # 1) (" Compl." ). After FIL answered, it filed a third-party complaint against LCL Shipping Services Pvt. Ltd. (" LCL" ) and Freight India Logistics Pvt. Ltd. (" Freight India" ), both of which FIL alleges are liable in indemnity and/or contribution for the amounts Nippon seeks. See Third Party Complaint Pursuant to Rule 14(c), filed March 29, 2013 (Docket # 8) (" Third Party Compl." ). To date, no affidavit of service has been filed as to either third-party defendant. Shortly after moving for summary judgment, Nippon filed an amended complaint that alleged additional charges that had accrued against FIL. See First Amended Complaint, filed June 11, 2013 (Docket # 18) (" Am. Compl." ).

B. Facts

The following facts are undisputed unless otherwise stated.

Nippon is an " an ocean common carrier of goods in the foreign commerce of the United States" and is licensed by the Federal Maritime Commission. Am. Compl. ¶ 2. FIL is a nonvessel operating common carrier and is also licensed by the Federal Maritime Commission. Def. 56.1 Stat. ¶ 6. There are 24 bills of lading at issue, which reflect the carriage of goods

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between ports in India and either Los Angeles or New York. See Bills of Lading (annexed as Ex. D to Bertot Decl.).[2] On each of the bills of lading, FIL's name is listed in the spaces labeled " Consignee." Id. FIL also appears in the space labeled " Notify Party." Id. In the space labeled " Shipper/Exporter," the name of either LCL or Freight India appears. Id.

Clause 23(6) on the reverse side of the bill of lading reads: " The parties defined herein as the Merchant shall be jointly and severally liable to the Carrier for payment of all freight and charges and for the performance of the obligation of each of them thereunder." See Reverse Side Terms and Conditions, (annexed as Ex. F to Bertot Decl.), Clause 23(6). The " Definition" section on the reverse side defines " Merchant" as " the Shipper, consignor, consignee, ...


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