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holding that the clause "any action thereunder shall be brought before the Tokyo District Court in Japan" means exactly what it says and that it does not mean "'may be brought before the Tokyo District Court in Japan' as well as anywhere else plaintiff might care to sue"
Summary of this case from Southeastern Construction v. Tanknology-Nde Int'l, Inc.Opinion
01 Civ. 9860 (LAK).
August 15, 2002
AMENDED ORDER
This is an action for damages allegedly incurred by plaintiff as a result of thawing and other mishaps that befell a cargo of chilled beef shipped aboard the M/V MOSEL BRIDGE from Oakland, California, to Osaka, Japan. The shipment was performed pursuant to a waybill issued by defendant Kawasaki Kisen Kaisha, Ltd. ("K Line") to defendant Nippon Express USA (Illinois), Inc. ("Nippon Express"). The other named defendant is Nippon Express USA, Inc., evidently an affiliate of Nippon Express. It appears that one or both of the Nippon entities was a non-vessel operating common carrier that booked the shipment on the K Line. In any case, they have cross-claimed against K Line for any liability they may have to the plaintiff. K Line now moves to dismiss the amended complaint and the Nippon cross-claim on the ground that a forum selection clause allegedly incorporated by reference into the way bill is mandatory and requires that any suit against it be brought in Japan.
The way bill provided in relevant part that "[u]nless otherwise set out on the face and back hereof, the Goods to be carried subject to the terms and conditions provided for on the back of Carrier's BILL OF LADING (Standard Form For Container Trades) and to the terms and conditions of Carrier's applicable tariff . . ." The form of bill of lading provided in relevant part that "[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 shall be brought before the Tokyo District Court in Japan, to whose jurisdiction Merchant irrevocably consents." (Johnson Decl. ¶¶ 6-7 Exs. A-B) (emphasis added).
Forum selection clauses such as this are presumptively valid and enforceable. E.g., Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528 (1995). Plaintiff nevertheless resists dismissal on two grounds unique to it and one shared by the Nippon entities.
Plaintiff's contention that the clause is unreasonable rests on the proposition that "there is a risk that the Japanese Court will interpret [certain] bill of lading clauses as limiting liability in violation of Section 1308(8) of COGSA" (Pl. Mem. 7), an utterly speculative supposition and one entitled to no weight here. This Court is entitled to, and does, assume that the courts of Japan will apply the applicable law in a balanced, appropriate manner.
The contention that the forum selection clause is permissive is irreconcilable with its plain language. "[S]hall be brought before the Tokyo District Court in Japan" means exactly what it says. It does not mean "may be brought before the Tokyo District Court in Japan" as well as anywhere else plaintiff might care to sue.
Plaintiff and the Nippon entities contend also that the forum selection clause in the way bill has been superseded by a 1999 service contract between K Line and Nippon Express, which recites that it "supersedes any other agreement and contains its own forum selection clause, which provides for arbitration under the Rules of the Society of Maritime Arbitrators before a single arbitrator appointed by this Court. The difficulties with this argument are clear.
The clause also contains a submission to the jurisdiction of this Court and permits confirmation of the award "in any court of competent jurisdiction."
To begin with, Article VIII of the service contract provides that: "[A]ll terms and conditions (front and back) of Carrier's applicable Bill of Lading form, as effective upon cargo receipt and as contained in Carrier's Tariff at the time of receipt, shall apply to all shipments hereunder, notwithstanding any term of this Contract." (Emphasis added) Thus, the service contract itself makes clear that any forum selection clause in any subsequently issued bill of lading would trump the one it contained itself.
The contention of plaintiff and Nippon Express would fail even if Article VIII were ignored. The way bill was issued in 2000; the service contract preceded it. The service contract therefore could not possibly have superseded the way bill. Indeed, "[a] second contract of a later date than an earlier contract containing the same subject matter, but containing terms inconsistent with the former contract, will supersede the former contract even though there is no express agreement that the new contract shall have that effect." Decca Records v. Republic Recording Co., 253 F.2d 360, 363 (6th Cir. 1956). Accord, GCIU Employer Retirement Fund v. Chicago Tribune Co., 66 F.3d 862, 866 (7th Cir. 1995); Wiley v. Dixie Oil Co., 43 F.2d 51, 52 (10th Cir. 1930); K V Scientific Co., Inc. v. Bayerische Motoren Werke Aktiengesellschaft ("BMW"), 164 F. Supp.2d 1260, 1263 (D.N.M. 2001); RESTATEMENT (SECOND) OF CONTRACTS § 279 and cmt. a. Accordingly, the forum selection clause in the way bill, which postdated and is flatly inconsistent with that in the service contract, would have superseded the latter with respect to the cargo at issue in this case even in the absence of Article VIII.
Finally, there is no basis for supposing that the 1999 service contract between K Line and Nippon Express binds plaintiff who, so far as the record discloses, was a stranger to that agreement.
For the foregoing reasons, the motion to dismiss the amended complaint and the cross-claims as against K Line is granted in all respects.
SO ORDERED.