Opinion
CIVIL ACTION No. 00-3677 SECTION "A" (4)
December 2, 2002
ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 31) filed by third party defendant COSCO Guangzhou. Defendant, and third party plaintiff IMC, Inc. opposes the motion. The motion, set for hearing on October 9, 2002, is before the Court on the briefs without oral argument.
The facts giving rise to this dispute are detailed in the Court's Order and Reasons entered on October 1, 2002, (Rec. Doc. 34) and therefore will not be repeated here. For purposes of clarity, however, the Court points out that movant, COSCO Guangzhou, was third partied into this suit by defendant IMC, Inc. ("IMC"). COSCO Guangzhou is an agency or instrumentality of the People's Republic of China with its principal place of business in Guangzhou, China. At all times pertinent, COSCO Guangzhou was the owner of the M/V AN NING JIANG. COSCO Guangzhou chartered space on its vessel to defendant IMC for the carriage of plaintiff Foster Wheeler's goods. Bills of lading were issued by COSCO Guangzhou (through its agent COSCO Europe) to IMC. Those bills of lading contained the following forum selection clause:
Any dispute arising under this bill of lading shall be decided in the country where the carrier has his principal place of business, and the law of such country shall apply except as provided elsewhere herein.
Exhibit 2, cl. 3.
COSCO Guangzhou moves for dismissal arguing that venue in the Eastern District of Louisiana is improper because the forum selection clause mandates that IMC sue COSCO Guangzhou in China where its principal place of business is located. In opposition IMC argues that the forum selection clause is permissive and not mandatory. Therefore, IMC argues that it has merely agreed to submit to jurisdiction in China but has not waived its right to sue elsewhere.
The literal language of the forum selection clause leaves no other conclusion but that its terms are mandatory. The clause states that any dispute " shall be decided in the country where the carrier has his principal place of business." The statement couldn't be clearer and leaves no room for argument that venue is proper anywhere other than Guangzhou, China — COSCO Guarigzhou's undisputed principal place of business. None of the authorities cited by IMC persuade the Court otherwise. The Court also notes that IMC first filed the very same claims it now asserts against COSCO Guangzhou in Guangzhou, China. Thus, after dismissal of COSCO Guangzhou from this suit, IMC can freely pursue the suit it previously filed in China.
Accordingly;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 31) filed by third party defendant COSCO Guangzhou should be and is hereby GRANTED. All claims against third party defendant COSCO Guangzhou are DISMISSED WITHOUT PREJUDICE.