Cooper Marine & Timberlands Corporation v. Bellmari Trading USA, Inc. et al

Filing 8

Order that plaintiff shall brief the Court by 3/16/2018 on issue of admiralty jurisdiction. The Court will withhold ruling on plaintiff's 5 MOTION to Appoint Substitute Custodian, 4 MOTION for Issuance of Arrest Warrant and Writ of Attachment, and Cooper Consolidated LLC's 7 MOTION to Intervene. Signed by Magistrate Judge Katherine P. Nelson on 3/9/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
COOPER MARINE
)
& TIMBERLANDS CORPORATION, )
Plaintiff,
)
)
v.
)
)
BELLMARI TRADING USA, INC.,
)
in personam
)
)
and
)
)
A CARGO OF 40,230 NET
)
TONS OF COAL
)
in rem
)
)
Defendants.
)

CIVIL ACTION NO. 1:18-CV-00101-N

ORDER
This matter is before the Court on Plaintiff Cooper Marine & Timberlands
Corporation’s1 “Verified Complaint for Attachment Under Rule B and/or Rule C
Arrest.” (Doc. 1).2 The Verified Complaint indicates that diversity, admiralty, and
supplemental jurisdiction are present pursuant to 28 U.S.C. §§ 1332, 1333, and 1367,
respectively. (Doc. 1 at 1, ¶ 1). The undersigned has reviewed the Verified Complaint
(Doc. 1) and, as discussed below, questions whether admiralty jurisdiction is present.
Accordingly, on or before Friday, March 16, 2018, CMT shall brief the Court on this
issue. The Court will withhold ruling on CMT’s Motion for Issuance of an Arrest
Warrant and Writ of Attachment (Doc. 4), Motion to Appoint a Substitute Custodian.

Cooper Marine & Timberlands Corporation is referred to as “CMT” herein.
Plaintiff’s references to Rules B and C are to the Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions.
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(Docs. 5), and Cooper Consolidated LLC’s3 Motion to Intervene (Doc. 7) pending a
determination as to this Court’s jurisdiction pursuant to 28 U.S.C. § 1333.
A.

The Verified Complaint

This action arises out of a dispute regarding the storage of roughly 40,000 tons
of coal. CMT’s Verified Complaint states:
6.
In August of 2017, at the request of the owners/operators of the
ocean going bulk vessel M/V GILLINGHAM, CMT entered into an
agreement for stevedoring services at CMT’s facility to transfer the coal
from the M/V GILLINGHAM onto the CMT dock to allow the coal to
dry for a short period after which time the coal was expected to be
reloaded onto the M/V GILLINGHAM for export.
7.
The Agreement provided, among other terms, storage charges
of $1,500 per day and all other costs related to the coal. CMT was told
that the coal would be ready for reloading on the M/V GILLINGHAM
for overseas shipment within a matter of days, once the excessive
moisture content in the coal which caused a stability concern, was
confirmed by testing to be within the approved level for transit.
8.
The owners/operators of the M/V GILLINGHAM paid CMT for
the stevedoring services and the initial storage but when the
moisture content of the coal did not meet the specifications for the
coal to be shipped overseas, the M/V GILLINGHAM sailed from Mobile,
leaving the coal on the CMT dock.
9.
At that point, Bellmari contracted with CMT to be responsible
for the storage and related charges and agreed to procure a substitute
vessel to complete the shipment to its customer.
10.
On November 20, 2017, CMT invoiced Bellmari for storage of
its coal from October 7 through November 30, 2017, which was paid by
Bellmari. Bellmari was told that the coal would have to be moved from
the dock if not shipped in the immediate future at Bellmari’s expense.
11.
When no vessel was provided by Bellmari to take the coal,
CMT had the coal moved from its dock for storage at a different location
on its terminal at the cost of $126,387.96. Although demand has been
Cooper Consolidated LLC represents that it is a distinct corporate entity from CMT. (Doc. 7 at 3, ¶
5).
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made on Bellmari to pay those costs, that invoice remains
outstanding. Bellmari has also refused to pay the storage charges
from December 1, 2017 through the present date, at the rate of $1,500
per day. Copies of statements from CMT to Bellmari for December and
January storage and the cost to move the coal from its dock are attached
hereto as Exhibit A.
12.
Because of the refusal of Bellmari to remove its coal from
CMT’s facility, the coal will have to be moved a second time in the
immediate future to another location on its terminal at an additional
cost.
(Doc. 1 at 2-3). The Verified Complaint contains claims for breach of maritime
contract, unjust enrichment, suit on open account, Rule B attachment, and Rule C
arrest of cargo. (Doc. 1 at 4-8). CMT has not provided a copy of the contract(s) at
issue. The dispute detailed in the Verified Complaint centers on Bellmari’s alleged
failure to pay for storage services.
B.

Jurisdiction Pursuant to 28 U.S.C. § 1333

This Court has an “independent duty to ensure admiralty jurisdiction exists
before applying admiralty law.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 899–900
(11th Cir. 2004)(internal citations omitted).4 The undersigned has reviewed the
Verified Complaint and questions whether the contract described in the Verified
Complaint provides a sufficient basis for admiralty jurisdiction.

The Court acknowledges that CMT has also pled diversity jurisdiction pursuant to 28 U.S.C. § 1332.
However, even if diversity jurisdiction is present, neither Rule B attachment or Rule C arrest are
available to CMT in the absence of admiralty jurisdiction. See e.g James v. M/V EAGLE EXP., No.
CA 12-423-MJ-C, 2012 WL 3068791, at *6 (S.D. Ala. July 27, 2012)(“Importantly, Rule B provides a
specific procedural remedy, not available in other federal civil cases, in cases that are within the
jurisdiction of the federal court because of their maritime nature. The availability of the remedy thus
turns on the nature of the federal jurisdiction over the case. Accordingly, if a court determines that a
plaintiff's claim is not maritime in nature, the attachment remedy afforded by Rule B is not
available.”)(internal citations, quotations, and emphasis omitted).
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With regard to contracts and admiralty jurisdiction, the Court of Appeals for
the Eleventh Circuit has held:
In order for a contract to fall within the federal admiralty jurisdiction,
it must be wholly maritime in nature, or its non-maritime elements
must be either insignificant or separable without prejudice to either
party. To qualify as maritime, moreover, the elements of a contract must
pertain directly to and be necessary for commerce or navigation upon
navigable waters.... The test we apply in deciding whether the subject
matter of a contract is necessary to the operation, navigation, or
management of a ship is a test of reasonableness, not of absolute
necessity.
Inbesa Am., Inc. v. M/V Anglia, 134 F.3d 1035, 1036 (11th Cir. 1998) (internal
quotations and citations omitted).
The United States Supreme Court has held, “To ascertain whether a contract
is a maritime one, we cannot look to whether a ship or other vessel was involved in
the dispute, as we would in a putative maritime tort case.... Instead, the answer
depends upon ... the nature and character of the contract, and the true criterion is
whether it has reference to maritime service or maritime transactions.” Norfolk
Southern Railway Co. v. Kirby, 543 U.S. 14, 23-24 (2004)(internal quotations and
citations omitted). Additionally, Court of Appeals for the Fifth Circuit has observed:
A maritime contract is one in which the “primary objective is to
accomplish the transportation of goods by sea....” Norfolk Southern Ry.
Co. v. Kirby, 543 U.S. 14, 24, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). “It
is well-established that such a sale of goods by itself would not be
‘maritime’ merely because the seller agrees to ship the goods by sea to
the buyer.” Lucky–Goldstar Int'l (America) Inc. v. Phibro Energy Int'l
Ltd., 958 F.2d 58, 59 (5th Cir.1992) (internal citation omitted). As
summarized in a leading treatise:
In order to be considered maritime, there must be a direct and
substantial link between the contract and the operation of the
ship, its navigation, or its management afloat, taking into account

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the needs of the shipping industry, for the very basis of the
constitutional grant of admiralty jurisdiction was to ensure a
national uniformity of approach to world shipping.
1 Benedict on Admiralty § 182 (2010) (emphasis added). A contrary rule
would expand admiralty jurisdiction to include nearly every contract
involving the sale of goods transported by ship. Luckenbach S.S. Co. v.
Gano Moore Co., 298 F. 343, 344 (S.D.N.Y.1923) (Hand, J.), rev'd on
other grounds, 298 F. 344 (S.D.N.Y.1924).
Alphamate Commodity GMBH v. CHS Europe SA, 627 F.3d 183, 187 (5th Cir. 2010).
If a contract is not exclusively maritime, the contract may be what is referred
to as a mixed contract, meaning it contains both maritime and non-maritime
components. “A mixed contract may create maritime jurisdiction in only two limited
circumstances. The court may consider a mixed contract maritime if the contract is
primarily maritime and the non-maritime elements of the contract are incidental to
that primary purpose. Alternatively, if a contract's maritime obligations are
separable from its non-maritime aspects and can be tried separately without
prejudice to the other, admiralty jurisdiction will support trial of the maritime
obligations.” Id. at 187 (internal quotations and citations omitted).
Though stevedoring is mentioned in the Verified Complaint, it seems the
contract concerns storage of coal on land, and the alleged breach concerns nonpayment of the costs associated with that storage. The Verified Complaint states,
“The Agreement provided, among other terms, storage charges of $1,500 per day.”
(Doc. 1 at 1, ¶ 7). Those “other terms” are unknown to the Court. See also e.g.
Brocsonic Co. v. M/V ""MATHILDE MAERSK'', 120 F. Supp. 2d 372 (S.D.N.Y. 2000),
aff'd sub nom. Brocsonic Co. v. M/V Mathilde Maersk, 270 F.3d 106 (2d Cir.

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2001)(Holding that storage of cargo on land was not sufficiently related to maritime
activity to invoke federal admiralty jurisdiction and discussing, inter alia, admiralty
jurisdiction and mixed contracts); Nehring v. Steamship M/V Point Vail, 901 F.2d
1044, 1048 (11th Cir.1990)(“Not every contract that somehow relates to a ship or its
business is considered maritime.”).
C.

Conclusion
Upon consideration of the foregoing, on or before Friday, March 16, 2018,

CMT shall brief the Court regarding the presence of admiralty jurisdiction.
DONE and ORDERED this the 9th day of March 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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