A Miami court found that a forum selection clauses in an ocean bill of lading trumped arguments for a more convenient location for the litigation.
In March 26, 2015, common carrier Interocean received a cargo shipment of computer equipment for ocean transportation from Miami, Fla., to Callao, Peru. Maxima International, S.A. was the consignee on the bill of lading.
Interocean delivered the cargo to the APMT terminal in Callao on April 10, but the cargo was subsequently lost or stolen, purportedly by a third party.
On April 7, 2016, Maxima filed a claim against Interocean alleging damages under the Carriage of Goods by Sea Act (Maxima International, S.A. v. Interocean Lines, Inc. U.S. District Court, Southern District of Florida. No. 16-CV-21233. Jan. 24).
Maxima said the case should be heard in Florida, citing the forum selection clause in Interocean’s bill of lading, which read, “All disputes in any way relating to this Bill of Lading, including claims for loss, damage, or delay, shall be determined by the United States District Court for the Southern District of Florida, in Miami, Fla., to the exclusion of the jurisdiction of any other courts or tribunals in the United States or any other country. The laws of the United States of America shall govern any such proceeding.”
Interocean moved to dismiss the suit based on the doctrine of forum non conveniens, arguing that Peru was a more convenient location for the litigation.
The district court said it typically evaluates such a motion by considering whether:
• An adequate alternate forum is available;
• Private interest factors favor the alternate forum, with a strong presumption in favor of plaintiffs’ initial choice of forum;
• Public interest factors favor the alternate forum;
• And the plaintiff can reinstate the suit in the alternate forum without undue inconvenience or prejudice.
The court pointed to an 11th Circuit decision from 2009, Pierre-Louis v. Newvac Corp. (584 F.3d 1052, 1056), which noted a court with venue may “decline to exercise its jurisdiction when the parties’ and the court’s own convenience, as well as the relevant public and private interests, indicate the action should be tried in a different forum.”
But it also cited a 2013 U.S. Supreme Court decision, Atlantic Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Tex. (134 S. Ct. 568, 581), that held, “The calculus changes, however, when the parties’ contract contains a valid forum selection clause.”
The court found Interocean’s bill of lading did in fact have a valid forum selection clause, meaning that, according to the Atlantic Marine decision, “a district court may consider arguments about public-interest factors only,” and these will “rarely defeat a transfer motion.”
Here, Interocean “half-heartedly” argued that there were “two conflicting forum selection clauses in the bill of lading—one man- dating the Southern District of Florida and one permitting arbitration in New York—and that, therefore, there is no enforceable forum selection clause,” an argument the court found to be “without merit.”
“As evidenced in Maxima’s response to the motion to dismiss, Interocean’s counsel expressly acknowledged that any claim ‘under the Bill of Lading must be brought exclusively in the United States District Court for the Southern District of Florida,’” the court said.
Still, the court engaged what it called “a modified forum non conveniens analysis, evaluating whether Peru is an adequate alternative forum and whether the public interest factors weigh in favor of this action remaining in the Southern District of Florida or proceeding in Peru.”
Because Interocean had stipulated it would submit to the jurisdiction of a Peruvian court and the forum need only provide the potential for relief for the plaintiff, the Miami court found Peru was an available and adequate alternative forum.
The court said that although public interest factors rarely defeat a forum non conveniens motion, it would still consider them. And in this instance, it found that “many of the public interest factors weigh in favor of litigating in Peru,” noting that there was “little connection between the alleged loss of the cargo and Florida, aside from Maxima and Interocean, both foreign companies, doing business here.”
“On the other hand, Peru likely has an interest in having this controversy, involving its ports and port employees, decided in its own courts,” the district court said. “Indeed, there will potentially be a parallel action in Peru against third parties for the loss,” although it noted the possibility of parallel actions “is not in itself sufficient to merit forum non conveniens dismissal.”
“Despite these public interest factors weighing in favor of Peru, the court does not find that the facts of this case are so ‘unusual’ such that the forum selection clause should not be enforced enforced,” it said.
As such, the court declined to dismiss the case on the grounds that the forum selection clause in the bill of lading was clear, and “the parties agreed to litigate this action in the Southern District of Florida, and United States law applies.”
