United States District Court, S.D. New York
ALLIANZ GLOBAL CORPORATE & SPECIALTY, as subrogee and assignee of SOUTHERN TELECOM INC., Plaintiff,
OPINION AND ORDER
RONNIE ABRAMS, District Judge.
Plaintiff Allianz Global Corporate & Specialty ("Allianz") brings this admiralty case as the subrogee and assignee of Southern Telecom Inc., seeking recovery for electronic accessories shipped from China to New York and allegedly damaged by flooding from Hurricane Sandy. Before the Court is a motion to dismiss by Defendant Trans Global Logistics LLC ("Trans Global") on the basis of an exclusive forum selection clause in the bills of lading that Trans Global's affiliate issued for the insured shipment. For the reasons stated below, the motion to dismiss is granted.
Allianz's claims arise out of a shipment of internet tablets and tablet cases shipped to New York on the "CHISWICK BRIDGE" ocean carrier and discharged at the Port Newark Container Terminal in New Jersey on or about October 27, 2012-two days before Hurricane Sandy struck New Jersey. (Compl. ¶¶ 10-12.)
Allianz alleges that the shipment was damaged by "wetness" from the hurricane as a result of the negligence of Trans Global, Kawasaki Kisen Kaisha Co. Ltd. and "K" Line America, Inc., Port Newark Container Terminal, Ports America, Hua Feng (USA) Logistics Inc., and the "CHISWICK BRIDGE, " her engines, tackle, boilers, etc., in rem. (Id. ¶ 13.) Defendants, Allianz claims, knew or should have known about the "well predicted and highly publicized impact" of the hurricane, including expected storm surges, rising water levels, heavy wind, and rain. (Id. ¶¶ 14-15, 17.) In addition, because Defendants allegedly agreed to perform services and act as a carrier or bailee of the shipment, Allianz seeks to hold them liable for the breach of that agreement and of their obligations as carriers of goods for hire and/or bailees "under applicable contracts or law." (Id. ¶ 24.)
Allianz sues Trans Global for its handling of the shipment. According to the Complaint, Trans Global and co-Defendant Hua Feng (USA) Logistics Inc. failed to exercise "proper care, custody, and control of the subject cargo, " involving but not limited to the selection of carrier, coordination and scheduling of pickup and delivery, and management of subject cargo. (Id. ¶ 16.) Trans Global purportedly acted as an agent and subcontractor for its affiliate, TGL Container Lines, the non-vessel operating common carrier for the shipment. (Trans Global Memorandum in Support of Motion to Dismiss ("Def. Mem.") at 1; Wang Declaration (Wang Decl.) ¶ 5.)
TGL Container Lines issued two house bills of lading ("TGL. Bills of Lading") for the shipment, numbered SZX210001NYC and SZX210002NYC. (Wang Declaration ¶ 5; Plaintiff's Opposition to Trans Global's Motion to Dismiss ("Pl. Opp.") at 1.) The TGL Bills of Lading identify Allianz's insured, Southern Telecom, as the consignee for the shipment. (Wang Decl. Ex. A.) The terms and conditions on the reverse side of the bills include a forum selection clause and a choice of law clause. (Id.) The forum selection clause provides:
Any dispute arising out of or in connection with the contract contained in or evidenced by the transportation agreement shall be referred to the exclusive jurisdiction of the Hong Kong Courts. Save as aforesaid the Merchant shall not commence any action or legal proceedings (including but not limited to proceedings commenced for the purpose of obtaining security in respect of any claim).
(Id.) The accompanying choice of law clause provides that Hong Kong law governs the contract of carriage. (Id.)
On October 25, 2013, Allianz filed the Complaint in this case. (Dkt. 1.) Trans Global answered on December 30, 2013 and asserted an affirmative defense based on the forum selection clause in the TGL Bills of Lading. (Dkt. 10.) On February 11, 2014, Trans Global filed the instant motion to dismiss, arguing that the forum selection clause mandates that any claim against Trans Global be brought in Hong Kong. (Dkt. 29.)
Until last year, it was unclear what the proper procedural mechanism was for filing a motion to enforce a forum selection clause. The Supreme Court resolved this uncertainty in Atlantic Marine Constr. Co. v. United States District Court for the Western District of Texas, holding that a party seeking to enforce a forum selection clause designating a foreign forum should do so by way of a motion to dismiss for forum non conveniens. 134 S.Ct. 568, 580 (Dec. 3, 2013). The Court will thus construe Trans Global's motion as one to dismiss the Complaint based on the doctrine of forum non conveniens. In deciding the motion, the Court may rely on the pleadings and affidavits submitted in connection with the motion, but cannot resolve any disputed material fact in the movant's favor unless an evidentiary hearing is granted. Martinez v. Bloomberg LP, 740 F.3d 211, 216-17 (2d Cir. 2014); see also Midamines SPRL Ltd. v. KBC Bank NV, No. 12 Civ. 8089 (RJS), 2014 WL 1116875, at *2, n. 5 (S.D.N.Y. Mar. 18, 2014).
The enforceability of the forum selection clause is governed by federal law. Martinez, 740 F.3d at 217; Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590 (1991). Under the doctrine of forum non conveniens, a valid forum selection clause must be given "controlling weight in all but the most exceptional cases." Atlantic Marine, 134 S.Ct. at 581. In the admiralty context, forum selection clauses "are prima facie valid and should be enforced" unless the resisting party meets the "heavy burden" of showing that enforcement would be unreasonable under the circumstances. M/S Breman v. Zapata Off-Shore Co., 407 U.S. 1, 10, 17 (1972).
Courts in this Circuit employ a four-part analysis to determine the validity of a forum selection clause. Phillips v. Audio Active. Ltd., 494 F.3d 378, 383-84 (2d Cir. 2007). First, the Court must determine: (1) whether the clause was "reasonably communicated" to the party resisting enforcement, (2) whether the clause is mandatory or permissive, and (3) whether the claims and parties involved in the suit are subject to the clause. Id. at 383. If these three requirements are met, the forum selection clause is presumptively enforceable. Id . (citing Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1362-63 (2d Cir. 1993)). The final step of the analysis is for the Court to ascertain whether the resisting party has rebutted the presumption of enforceability by showing that ...