Opinion
Case Number. 05-23097-CIV-MOREN.
May 3, 2006
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
THIS CAUSE came before the Court upon Defendant CMA CGM (Caribbean), Inc.'s Motion to Dismiss for Improper Venue, Enforcing Forum Selection Clause (D.E. No. 5), filed on December 12, 2005. Plaintiff filed its response on January 23, 2006, and the Defend ant filed its reply on January 31, 2006. For the reasons set forth below, Defendant's motion to dismiss is GRANTED.
1. Background
Plaintiff Anchor Seafood, Inc., ("Anchor") purchased 1,207 boxes of frozen fish from Delta Pescados, a Brazilian supplier. Delta Pescados hired the Defendant, CMA CGM (Carribean), Inc., ("CMA CGM"), a company engaged in the business of cargo transportation, to ship the fish to Anchor. CMA CGM (Carribean), Inc. is a branch of a foreign corporation organized under the laws of France and headquartered in Marseille. Anchor alleges that atleast 164 cases of the delivered fish arrived in spoiled condition due to CMA CGM's negligence, and seeks to recover damages from the common carrier.
II. Legal Standard
A court will not grant a motion to dismiss unless the plaintiff fails to allege any facts that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir. 1986). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiffs well-pleaded facts as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986).
III. Analysis
A. Consignee is Bound by the Terms of the Contract on Which it Sues
As a common carrier doing business in the United States, CMA CGM is required to publicly notice all its standard tariff terms including the terms and conditions pertaining to its bills of lading and transportation agreements. See 46 U.S.C. App. § 1707(a)(1). Specifically, such terms and conditions appear on the Defendant's website, www.cma-cgm.com, as do CMA CGM (Caribbean) Inc.'s bills of lading and transportation agreements. In this case, the front side of CMA CGM's bill of lading issued in connection with the shipment made to Anchor states, in bold print, that "All claims and disputes arising under or in connection with this bill of lading shall be determined by the COURTS of MARSEILLE to the exclusion of the courts of any other country." This forum selection clause is also set forth in Clause 30 on the reverse side of the relevant bill of lading.
Despite the mandatory language of this clause, Plaintiff argues that since it was simply the consignee and not the party that hired CMA CGM to ship the goods, it is not bound by CMA CGM's publicly-noticed standard terms nor by the conditions present on the bill of lading. In its opposition to transfer, Anchor states that it is not bound by the clause because it was never in privity with CMA CGM and did not negotiate the bill of lading with the Defendant.
The case law is clear, however, that where, as here, a consignee brings an action not against its vendor but against the vendor's carrier, arguing in effect that the consignee is a third party beneficiary of the contract between the vendor and the carrier, the consignee is bound by all the terms of the contract on which it sues. See, e.g., Mitsui Co. (USA) Inc. v. Mira M/V, 111 F.3d 33, 36 (5th Cir. 1997) ("by filing a lawsuit for damages under the bill of lading, Mitsui has accepted the terms of the bill of lading, including the unnegotiated forum selection clause"); see also Ana Distribution, Inc. v. CMA-CGM (America) Inc., 329 F.Supp.2d. 565, 567 (S.D.N.Y. 2004). Accordingly, Anchor's claim that the forum selection clause was not freely negotiated is without merit. Anchor was alerted to the choice of law and forum by language present on the front and back of the bill of lading, as well as on the Defendant's website. By filing a lawsuit against carrier CMA CMG for cargo damages under the bill of lading, Anchor, a named consignee, is subject to the forum selection clause providing for jurisdiction exclusively in the courts of Marseille, France. See Southern Pacific Transportation Co. v. Commercial Metals Co., 456 U.S. 336, 342-43, 352 (1982) (stating that a bill of lading is the basic transportation contract between cargo interests and the carrier and its terms and conditions bind cargo interests and the carriers); Crowley America Transport, Inc. v. Richard Sewing Machine Co., 172 F.2d 781, 783 n. 2 (11th Cir. 1999) (explaining that an ocean bill of lading is a contractual agreement between the carrier, shipper, consignee, and merchant for the carriage of goods and is synonymous with the term "contract of carriage."); Birdsall, Inc. v. Tramore Trading Co., Inc., 771 F.Supp. 1193, 1194-95 (S.D. Fla. 1991) (finding consignee liable under a contract of carriage and subject to its terms and conditions by accepting shipment).
Anchor's negligence claim is ultimately grounded in the existence of the relationship and concomitant duties created by the bill of lading.
B. The Forum Selection Clause is Not Fundamentally Unfair
Anchor also argues that the forum selection clause in this case is "fundamentally unfair," and therefore unenforceable. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972) (finding that forum selection clauses are "prima facie" valid and should enforced unless such enforcement is "unreasonable and unjust or that the clause was invalid for such reasons as fraud or overreaching . . ."); see also Carnival Cruise Lines v. Shute, 499 U.S. 585, 595 (1991) (holding a forum selection clause valid even though it was contained in a form contract); In re Ricoh Corp., 870 F. 2d 570, 573 (11th Cir. 1989) (emphasizing that "a valid forum selection clause [should be] given controlling weight in all but the most exceptional cases.") (quoting Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J., concurring)). Anchor alleges that the Defendant purposefully complicated matters by hiring surveyors from Miami, Florida to inspect and investigate Anchor's claim in Virginia Beach, Virginia, all the while knowing that it would seek to litigate the case in France. According to Anchor, CMA CGM's selection of Miami-based surveyors "has virtually guaranteed Anchor's inability to bring these witnesses to Court in France to testify as to the condition of the damaged Product." Anchor Seafood's Opposition to Defendant's Motion to Dismiss, p. 5.
The Supreme Court has consistently held forum-selection and choice-of-law clauses presumptively valid, and instructed American courts to enforce such clauses in the interests of international comity and out of deference to the to the integrity and proficiency of foreign courts. See Vimar Segurosy Reaseguros, S.A. v. M/V SKYREEFER, 515 U.S. 526, 539 (1995); Shute, 499 U.S. at 595; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 629 (1985); Bremen, 407 U.S. at 9. This presumption of validity, however, may be overcome by a showing that the clause is "unreasonable under the circumstances." Bremen 407 U.S. at 10. The burden of proving unreasonableness is a heavy one, carried only by a showing that the clause results from fraud or overreaching, that it violates a strong public policy, or that enforcement of the clause deprives the plaintiff of his day in court. Id. at 12-13, 15, 18; see also Shute, 499 U.S. at 595 (holding that respondents must satisfy a "heavy burden of proof" to set aside a forum selection clause on grounds of inconvenience).
In this case, the fact Anchor and its witnesses may have to travel to France to testify in a French court does not establish serious inconvenience or unfairness. See, e.g., SKY REEFER, 515 U.S. at 536 (finding that increased cost and inconvenience are insufficient reasons to invalidate foreign forum-selection clauses); see also Shute, 499 U.S. at 603. There is no evidence to indicate that Anchor is financially incapable of pursuing this litigation in France, and it is clear that the courts of Marseille are an accepted forum capable of properly adjudicating this case. See, e.g., Ana Distribution, 329 F.Supp. 2d at 568. Furthermore, the forum selection clause in the bill of lading was not procured through unfair or unjust means, and transferring the case to France would not violate strong public policy or deprive Anchor of its day in court.
IV. Conclusion
The Court finds that pursuant to the valid mandatory forum selection clause present in the Defendant's bill of lading, this cause of action should be adjudicated by the Courts of Marseilles, France. Therefore, it is
ADJUDGED that Defendant CMA CGM (Caribbean), Inc.'s Motion to Dismiss for Improper Venue, Enforcing Forum Selection Clause (D.E. No. 5), filed on December 12, 2005, is GRANTED. Accordingly, it is
ADJUDGED that this action is DISMISSED. It is also
ADJUDGED that all pending motions in this case are DENIED as moot.
DONE AND ORDERED.