In April 2003, Toshiba American Information Systems contracted with CEVA for door-to-door delivery of its products. The two firms agreed their transportation agreement would be “governed by and interpreted in accordance with the laws of the State of California, excluding California’s conflict of law provisions that direct application of another jurisdiction’s laws.” They expressly consented to the jurisdiction of federal and state courts located in Orange County, Calif.
The agreement was expanded to include ocean shipments from the Far East to Mexico. Toshiba also alleged the agreement required CEVA to procure cargo insurance payable directly to it and its insurance underwriter.
A shipment of Toshiba laptop computers from China that CEVA was delivering in Mexico City was stolen and never recovered.
According to CEVA, Toshiba’s insurer, Nipponkoa, hired surveyor RTS International to investigate the theft. RTS issued a report stating that although the laptops had a security escort, the shipment was hijacked at gunpoint by unknown assailants. The report also stated that Mexican police investigated the hijacking, but noted “in Mexico, third parties are not allowed to verify or request information about events where they are not the affected parties.”
Nipponkoa filed a lawsuit in the U.S. District Court for the Southern District of New York and it was transferred to California on July 2, 2012.
The defendants moved to dismiss this case on grounds of forum non-conveniens, but the court denied the motion (Nipponkoa Insurance Company, Ltd. v. CEVA Logistics U.S. Inc. et. al. C.D California. No. CV 12-5801-CAS. Sept. 10.) after hearing testimony from an expert who said if the transportation agreement was applicable, a Mexican Court would reject jurisdiction over the case because the parties had expressly consented to the jurisdiction of the federal and state courts located in Orange County in the event of any litigation.
The expert added his conclusion was not certain as the transportation agreement did not contain a clear renouncement or waiver of jurisdiction in Mexico, and under Mexican case law this fact could lead a court to conclude that the transportation agreement does not meet the Mexican Commercial Code’s requirements for express agreements on jurisdiction.
The court also found dismissal was inappropriate because the insurer could face time — bar defenses in Mexico that would not apply in California.
The court said CEVA did not address this argument in its reply, and “has not given the court any assurance that it would not pursue a defense based on statute of limitations if this action were dismissed and re-filed in Mexico.”
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