LIBERTY WOODS INTERNATIONAL, INC. v. THE MOTOR VESSEL OCEAN QUARTZ et al
OPINION. Signed by Judge Noel L. Hillman on 11/9/2016. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LIBERTY WOODS INTERNATIONAL,
THE MOTOR VESSEL OCEAN
QUARTZ, her engines, tackle,
appurtenances, etc., in rem,
and DALIA SHIP HOLDING SA,
CRAIG SHAW ENGLISH
KENNEDY LILLIS SCHMIDT & ENGLISH
75 MAIDEN LANE
NEW YORK, NY 10038-4816
On behalf of plaintiff
CHARLES P. NEELY
RICHARD Q. WHELAN
PALMER BIEZUP & HENDERSON LLP
330 MARKET STREET
CAMDEN, NJ 08102
On behalf of defendants
HILLMAN, District Judge
Presently before the Court in this admiralty action is the
motion of defendants to dismiss plaintiff’s complaint.
Defendants premise their motion on a forum selection clause
contained in bills of lading for the shipment of plywood which
was damaged in transit.
For the reasons expressed below,
defendants’ motion will be granted.
Plaintiff Liberty Woods International, Inc. (“LWI”) filed
this action against defendant Dalia Ship Holding S.A., in
personam, and defendant vessel M/V OCEAN QUARTZ (“Ocean
Quartz”), in rem, for damage LWI claims occurred to cargo of
crates of plywood loaded aboard the Ocean Quartz in the ports of
Tanjung Manis, Malaysia; Bintulu, Malaysia; and Samarinda,
Indonesia in December of 2012, and discharged at the port of
Camden, New Jersey on February 14 through 21, 2013.
LWI was the receiver, consignee, and owner of the cargo
pursuant to bills of lading and contracts of carriage described
in Schedule A of the complaint.
Dalia was the owner of the
Ocean Quartz, which carried the cargo pursuant to the bills of
The bills of lading were issued by SK Shipping Co.,
Ltd., which served as the time charterer.
When the Ocean Quartz was again bound for Camden in April
2013, LWI notified counsel for the vessel that it intended to
arrest the Ocean Quartz to recover for its damaged cargo, unless
the vessel’s P&I Club posted a letter of undertaking. 1
of undertaking (“LOU”) is a substitute for the physical arrest
of a vessel.
An LOU is an agreement that the vessel will appear
in and defend an action in rem, and a guarantee of payment of
Protection and Indemnity Clubs are associations of ship owners
who band together to provide insurance.
any judgment up to an agreed amount, with the vessel being
permitted to continue its operations.
On May 10, 2013, Dalia
arranged for an LOU, which provided that a claim of owner and in
rem appearance by Dalia in this Court would be without prejudice
to all defenses available to Dalia and the Ocean Quartz.
After filing its complaint, LWI became aware that Dalia
bareboat chartered 2 the Ocean Quartz to another company, Star
Bulk Carrier, Co., S.A., and Dalia therefore has no liability
for the damaged cargo.
LWI has not filed suit against Star Bulk
Carrier or the time charterer, SK Shipping.
Thus, LWI’s only
claim in this action is against the Ocean Quartz, in rem. 3
Ocean Quartz has moved to dismiss LWI’s claim against it
based on a forum selection clause in the bills of lading.
forum selection clause in the bills of lading provides, “Any
claim, dispute, suit or action concerning goods carried under
this Bill of Lading, whether based upon breach of contract,
tort, or otherwise shall be brought before the Seoul District
Court in Korea.”
(Docket No. 13-4 at 1 ¶ 33.)
argues that LWI’s claim against it must be dismissed because the
forum selection clause does not permit LWI’s in rem claim to
LWI explains that an owner which bareboat charters a vessel
retains title to the vessel, but relinquishes all control and
responsibility for the vessel to the bareboat charterer.
This process is governed by Rule C(6) of the Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture.
proceed in this Court.
In opposition to the Ocean Quartz’s motion, LWI argues that
the forum selection clause is invalid because Korean law does
not allow for in rem actions against vessels.
LWI contends that
its inability to bring an action in rem against the vessel
violates the Carriage of Goods at Sea Act (“COGSA”), formerly 46
U.S.C. § 1300, et seq., currently 46 U.S.C.A. § 30701, et seq.,
Pub.L. 109-304, § 6(c), Oct. 6, 2006, 120 Stat. 1516.
In response to LWI’s argument, the Ocean Quartz contends
that the overwhelming authority on the issue has consistently
upheld such forum selection clauses, and that this Court should
follow that authority instead of a few outlier cases.
Subject matter jurisdiction
Admiralty or maritime claims within the meaning of Rule
9(h) of the Federal Rules of Civil Procedure and Rule F of the
Supplemental Rules for Admiralty and Maritime Claims and Asset
Forfeiture Actions, and are within the subject matter of this
Court by virtue of 28 U.S.C. § 1333(1).
The Court additionally
has jurisdiction over the subject matter of this action by
virtue of 28 U.S.C. § 1332(a)(2), as the matter in controversy
is between a citizen of the United States and citizens of a
foreign state and exceeds $75,000 exclusive of interest and
Standard for motions to dismiss for improper venue
The Ocean Quartz does not specify the Federal Rule of
Procedure upon which it bases its motion to dismiss for improper
Questions of venue are typically considered under the
standards of Rule 12(b)(3), but the Third Circuit has held that
dismissal pursuant to Rules 12(b)(6) is appropriate where a
forum selection clause designates a non-federal forum as the
exclusive forum for litigation.
Sahara Sam's Oasis, LLC v.
Adams Companies, Inc., 2010 WL 3199886, at *1 (D.N.J. 2010)
(citing Salovaara v. Jackson Nat'l Life Ins. Co., 246 F.3d 289,
298 (3d Cir. 2001).
Because the parties have submitted
documents outside of LWI’s complaint, the Court will consider
the Ocean Quartz’s motion under the Rule 12(b)(3) standard.
raising a 12(b)(3) challenge, the defendant bears the burden of
showing that venue is improper.
F.2d 716, 724 (3d Cir. 1982).
Myers v. Am, Dental Ass'n., 695
Where venue is proper but a forum
selection clause points to another venue, a court may dismiss
the claim pursuant to a Rule 12(b)(3) motion.
246 F.3d at 298.
LWI argues that the bills of lading issued by SK Shipping,
a Korean entity, are contracts of adhesion which contain a forum
selection clause that violates COGSA because it eliminates its
ability to bring its cargo damage claim against the Ocean Quartz
in rem since Korean law does not recognize actions against
vessels in rem.
The exact same position was advanced by the
plaintiff in Fireman's Fund Ins. Co. v. M.V. DSR Atlantic, 131
F.3d 1336 (9th Cir. 1997), cert. denied, 525 U.S. 921 (1998),
and rejected by the Ninth Circuit.
The Ocean Quartz argues that
the Court should follow Fireman’s Fund and its progeny, and not
the three “outlier” cases cited by LWI.
The Third Circuit has
not opined on Fireman’s Fund, and only three district court
cases in the Third Circuit have cited to it. 4
The resolution of
the Ocean Quartz’s motion to dismiss therefore rests on whether
the Court will follow Fireman's Fund and the dozens of cases
throughout the country that have applied the Ninth Circuit’s
reasoning, or reject Fireman’s Fund’s reasoning and instead
align with three courts that disagreed with the outcome of that
In Fireman’s Fund, a shipment of wine, insured by Fireman’s
Fund Insurance Co., arrived damaged.
Fireman’s Fund paid the
The only district court in the Third Circuit that has analyzed
substantively a forum selection clause under Fireman’s Fund
adopted the Ninth Circuit’s reasoning. See Union Steel America
Co. v. M/V Sanko Spruce, 14 F. Supp. 2d 682, 687–88 (D.N.J.
1998). The other two cases that cite to Fireman’s Fund simply
noted that forum selection clauses in bills of lading are
presumptively valid, and granted the defendants’ motions to
dismiss the actions because they should have been brought in the
forum specified in the forum selection clause. See CBJ, Inc. v.
M/V HANJIN HONG KONG, 2000 WL 33258660, at *2 (D.N.J. 2000)
(Korea); Agricola Raimapu S.A. v. M/V/ APL MANAGUA, 2010 WL
31744, at *1 (E.D. Pa. 2010) (Japan).
owner and consignee of the wine for the damage, and brought suit
in the United States District Court for the Northern District of
California against the shipper, Cho Yang, a Korean corporation,
which issued the bills of lading, in personam, and in rem
against the vessel.
The bills of lading contained a forum
selection clause that required that any claim arising out of the
bills of lading be governed by Korean law and resolved by the
courts in Seoul and no other courts.
The parties agreed that in
rem proceedings were unavailable under Korean law.
defendants moved to dismiss Fireman’s Fund’s claims for lack of
jurisdiction based on the forum selection clause.
Fund, 131 F.3d at 1337.
The Ninth Circuit reversed the district court, which
refused to enforce the forum selection clause and denied the
defendants’ motion to dismiss.
In doing so, the Ninth Circuit
first noted that a forum selection clause is “prima facie valid
and should be enforced unless enforcement is shown by the
resisting party to be unreasonable under the circumstances, and
that enforcement is unreasonable where it would contravene a
strong public policy of the forum in which suit is brought.”
Id. (quoting The Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10,
15 (1972)) (internal quotation marks omitted).
Circuit then went on to reject several of Fireman’s Fund’s
arguments for why the forum selection clause was unenforceable:
Enforcement of the forum clause would not be
unreasonable, because Fireman’s Fund did not meet its heavy
burden of proof of showing that litigating in Korea might
represent a serious inconvenience to it.
Id. at 1338 (quoting
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)).
The forum selection clause did not contravene a strong
public policy of the forum in which suit is brought:
Although litigating in Korea will deprive FFIC of its right
to proceed in rem against The Atlantic, the loss of that
right is insufficient to invalidate the forum clause on
public policy grounds. The right to proceed in rem — based
on the legal fiction of vessel as wrongdoer — certainly has
a long and important history. See, e.g., the China, 74
U.S. (7 Wall.) 53, 68, 19 L. Ed. 67 (1868) (in rem
admiralty proceedings have their source “in the commercial
usages and jurisprudence of the middle ages”).
Nevertheless, “in the light of present-day commercial
realities and expanding international trade we conclude
that the forum clause should control. . . .” The Bremen,
407 U.S. at 15. Moreover, “the legal fiction of vessel
apart from owner has not been applied when it would
frustrate” other compelling interests. See All Pacific
Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427, 1431
(9th Cir. 1993) (listing cases). We therefore hold that
the inability to proceed in rem is not sufficient to
require us to set aside the forum clause on public policy
The forum selection clause should not be invalidated
even if the bill of lading was considered a contract of
The U.S. Supreme Court upheld an arbitration clause
in a bill of lading in Vimar Seguros y Reaseguros, S.A. v. M/V
Sky Reefer, 515 U.S. 528, 534 (1995), and upheld a “non-
negotiated forum-selection clause” that appeared in a “form
ticket contract” in Carnival Cruise Lines, 499 U.S. at 593.
Even though some courts have found that bills of lading are
contracts of adhesion which should be strictly construed against
the carrier and any ambiguity in the bill of lading construed in
favor of the shipper and against the carrier, the bill of lading
“at issue in this case unambiguously mandates that ‘the courts
in Seoul and no other courts’ are to adjudicate ‘any claim or
dispute’ that arises,” and therefore “we find no ambiguity in
the forum clause, whether or not the bill of lading is a
contract of adhesion is of no relevance to the result we reach
in this matter.”
Id. at 1338-39.
The forum selection clause did not violate the
Carriage of Goods by Sea Act (“COGSA”).
Id. at 1339.
cargo shipments carried by sea to or from the United States are
subject to COGSA, which provides in section 3(8) that “[a]ny
clause . . . in a contract of carriage relieving the carrier or
the ship from liability for loss or damage . . . or lessening
such liability . . . shall be null and void and of no effect.”
(citing 46 U.S.C. § 1312, § 1303(8)). 5
The Ninth Circuit
noted that prior to Sky Reefer, most courts followed Indussa
Corp. v. S.S. Ranborg, 377 F.2d 200 (2d Cir. 1967) (en banc),
As discussed below, COGSA was amended in 2006, with its
provisions renumbered and reworded.
which held that COGSA § 3(8) prevented enforcement of foreign
forum selection clauses in bills of lading.
Circuit explained that Sky Reefer rejected that reasoning, and
held that increased litigation costs did not invalidate a forum
selection clause under COGSA § 3(8).
515 U.S. at 534).
Id. (citing Sky Reefer,
The Ninth Circuit continued,
Although Sky Reefer concerned a foreign arbitration
clause — whereas Indussa concerned a “true” foreign forum
selection clause — Sky Reefer makes clear that “foreign
arbitration clauses are but a subset of foreign forum
selection clauses in general.” [Sky Reefer] at 534; see
also id. at 535 (“Nothing in [COGSA § 3(8)] suggests that
the statute prevents the parties from agreeing to enforce
[the requirements of COGSA] in a particular forum.”). We
agree with appellants that the Sky Reefer holding applies
equally to forum selection clauses and arbitration clauses.
Id. (other citations omitted).
The Ninth Circuit also disagreed with the district court’s
determination that the unavailability of in rem rights in Korea
clearly lessened liability in violation of COGSA:
In applying COGSA, the question is not whether the
foreign forum will apply COGSA itself, but “whether the
substantive law to be applied will reduce the carrier's
obligations to the cargo owner below what COGSA
guarantees.” Sky Reefer, 515 U.S. at 538. COGSA
“guarantees” that the carrier will: “exercise due diligence
to ... [m]ake the ship seaworthy”; “[p]roperly man, equip
and supply the ship”; “[m]ake the ... parts of the ship in
which goods are carried ... fit and safe”; “properly and
carefully load, handle, stow, carry, keep, care for, and
discharge the goods carried”; and, “issue to the shipper a
bill of lading” with specified contents. 46 U.S.C.App. §
1303 (1)—(3). According to Sky Reefer, “[t]hese are the
substantive obligations and particular procedures that §
3(8) prohibits a carrier from altering to its advantage in
a bill of lading.” 515 U.S. at 537.
Thus, the mere unavailability of in rem proceedings
does not constitute a “lessening of the specific liability
imposed by [COGSA]”; rather, it presents a “question of the
means . . . of enforcing that liability.” Id. Appellants
have presented uncontroverted evidence that Korean law will
be at least as favorable as COGSA to FFIC; Korean law
therefore will not “reduce the carrier's obligations ...
below what COGSA guarantees.” Id. at 538.
Id. at 1339-40.
The Ninth Circuit concluded that the district
court erred in finding that litigation in Korea would lessen the
defendants’ liability to Fireman’s Fund, and held that the
foreign forum selection clause was enforceable.
Id. at 1440.
In this case, LWI argues that Fireman’s Fund is based on
First, LWI contends that the Ninth Circuit’s
reliance upon The Bremen is misplaced because that case was not
relevant to the “lessening of liability” issue that this case
presents – i.e., LWI’s inability to bring an action in rem
against the vessel in Korea.
Second, LWI argues that the Court
should follow three cases that have rejected Fireman’s Fund.
Third, LWI argues that in rem rights encompass more than
obtaining security for the payment of damages to cargo, where a
cargo owner can recover for cargo damages proceeding in rem
against a vessel even if the vessel owner is not liable in
personam for the cargo damage.
Thus, LWI argues that COGSA §
3(8) prohibits the carrier or the ship from contracting out of
in rem liability.
The Court is not persuaded by LWI’s arguments.
primary matter, COGSA was amended in 2006, and § 3(8) was
Prior to 2006, § 3(8) of COGSA provided:
“Any clause, covenant, or agreement in a contract of carriage
relieving the carrier or the ship from liability for loss or
damage to or in connection with the goods, arising from
negligence, fault, or failure in the duties and obligations
provided in this section, or lessening such liability otherwise
than as provided in this chapter, shall be null and void and of
Sky Reefer, 515 U.S. at 534 (quoting 46 U.S.C.App.
The current iteration of § 3(8) provides:
A carrier may not insert in a bill of lading or shipping
document a provision avoiding its liability for loss or
damage arising from negligence or fault in loading,
stowage, custody, care, or proper delivery. Any such
provision is void.
. . .
(a) Prohibition.--A carrier may not insert in a bill of
lading or shipping document a provision lessening or
avoiding its obligation to exercise due diligence to-(1) make the vessel seaworthy; and
(2) properly man, equip, and supply the vessel.
(b) Voidness.--A provision described in subsection (a) is
46 U.S.C.A. §§ 30704, 30705, Pub.L. 109-304, § 6(c), Oct. 6,
2006, 120 Stat. 1516.
The current version of COGSA defines the
term “carrier” to mean “the owner, manager, charterer, agent, or
master of a vessel.”
46 U.S.C.A. § 30701.
The 2006 amendment to COGSA is significant because it
eliminates “the ship” from the obligations previously set forth
in § 3(8).
This change undermines LWI’s arguments in several
In 1936, Congress enacted COGSA to embody the American
version of an international convention known as the Hague Rules.
Wemhoener Pressen v. Ceres Marine Terminals, Inc., 5 F.3d 734,
741 (4th Cir. 1993).
“COGSA is the culmination of a
multilateral effort to establish uniform ocean bills of lading
to govern the rights and liabilities of carriers and shippers
inter se in international trade.”
Sky Reefer, 515 U.S. at 537
When Congress enacted COGSA, it is assumed
“that Congress [was] aware of existing law when it passes
Miles v. Apex Marine Corp., 498 U.S. 19, 32
Thus, for example, Congress “could have eliminated the
negligence cause of action for damage to cargo through COGSA,
but it did not.”
Associated Metals and Minerals Corp. v.
ALEXANDER'S UNITY MV, 41 F.3d 1007, 1016 (5th Cir. 1995) (citing
Miles, 498 U.S. at 29-30) (holding that although “COGSA provides
certain parameters under which any claim for cargo must operate,
the Act does not abrogate the long-standing rule of admiralty
allowing certain cargo claims to sound both in tort and in
Similarly, and relevant to the case here, “COGSA assumes
the existence of the in rem proceeding rather than creates it.”
Man Ferrostaal, Inc. v. M/V Akili, 704 F.3d 77, 83 (2d Cir.
“The very title of Section 3 thus assumes that [United
States’] maritime law supplies in rem liability coextensive with
carrier liability” under COGSA.
“[E]ven if a vessel is not
a ‘carrier’ within the meaning of COGSA, maritime law renders
vessels liable in rem for a carrier's violations of its
Therefore, while COGSA, if applicable, may affect
or alter a carrier's obligations and thereby determine the
outcome of an in rem proceeding against a carrier's vessel, the
in rem remedy is a creature of maritime law, not COGSA.”
Congress was aware of existing law when it passed the
current version of COGSA, and it removed the reference to “the
ship” contained in § 3(8).
Therefore, it is evident from the
plain language of COGSA that “the carrier” may not limit its
liability through provisions inserted into a bill of lading.
U.S.C.A. §§ 30704, 30705.
requirement of “the ship.”
Congress did not make the same
Indeed, recognizing that many
countries do not allow for actions in rem, it would defeat
COGSA’s purpose of establishing uniform rules for international
trade if the United States’ version provided a remedy not agreed
to by other countries participating the rules governing the
international shipment of goods. 6
Thus, to the extent that COGSA could have ever been read to
prevent a bill of lading from containing a provision that would
eliminate the availability of an action in rem against a vessel, 7
See, e.g., Union Steel America Co. v. M/V Sanko Spruce, 14 F.
Supp. 2d 682, 691 (D.N.J. 1998) (“[M]any countries have enacted
carriage of goods on the sea acts which, like COGSA, are lifted
from the Hague Rules or which reflect the principles of carrier
liability embodied in COGSA. The Korean Commercial Code fits in
the latter category. A principal theme in Sky Reefer is respect
for foreign tribunals and their laws. . . [I]t stretches § 3(8)
of COGSA too far to say that it flatly invalidates a forum
selection clause simply because there exists the potential that
the foreign forum will apply its own law to the detriment of the
shipper's COGSA rights.”); Reed & Barton Corp. v. M.V. Tokio
Exp., 1999 WL 92608 (S.D.N.Y. 1999) (rejecting plaintiffs’
argument that the forum selection clause would deprive them of
their substantive rights guaranteed by COGSA because German law
does not recognize in rem actions, and explaining, “German law
dictates that the Hamburg courts will apply an international
convention and amending protocols together known as the HagueVisby Rules, a fraternal equivalent of COGSA. The Hague-Visby
Rules contain a provision, similar to COGSA 3(8), which forbids
“[a]ny clause in a contract of carriage relieving the carrier or
the ship from liability or lessening such liability shall be
null and void.“ See Hague-Visby Rules, Art. III, (8).
Plaintiffs have not shown that application of the Hague-Visby
Rules will in any way “reduce the carrier's obligations below
what COGSA guarantees.”); T.C. Huang, Provisional Remedies in
Admiralty Taiwan, 4 U.S.F. Mar. L.J. 285 (1992) (“Under the
maritime law of the Republic of China (ROC), an action against a
marine vessel is in theory an action against the shipowner
personally. The notion of suing the ship itself has no meaning
in the strict sense. An action in rem is unavailable under ROC
law. The shipowner must therefore be named as the party against
whom the claim is asserted. A ship is simply an item of
property belonging to the shipowner. Thus, the grounds and
procedures for arrest of a vessel and attachment of the
shipowner's other property are identical.”).
One of the “outlier” cases that LWI asks the Court to follow,
International Marine Underwriters CU v. M/V Kasif Kalkavan, 989
which proposition Fireman’s Fund and dozens of other cases
rejected, the 2006 amendments to COGSA make clear that the
unavailability of in rem proceedings in the selected forum does
not constitute a lessening of the specific liability imposed by
F. Supp. 498, 499 (S.D.N.Y. 1998) based its reasoning on §
3(8)’s inclusion of “the ship”:
It is true that the remaining difficulty, viz., plaintiff's
inability under Korean law to bring an in rem action
against the vessel, would appear to deprive plaintiff of
one of the substantive rights expressly guaranteed by §
3(8). That section forbids “[a]ny clause ... in a contract
of carriage relieving the carrier or the ship from
liability ... or lessening such liability,” 46 U.S.C. app.
§ 1303 (emphasis added), a clear reference to an in rem
proceeding. That language would be rendered meaningless if
an in rem action were viewed simply as a procedural device
not protected under § 3(8) as interpreted by Sky Reefer.
Nor is the Court persuaded by the Ninth Circuit's recent
decision in Fireman's Fund Insurance Company v. Cho Yang
Shipping Company, Ltd., 131 F.3d 1336 (9th Cir. 1997),
which reached the opposite conclusion, for the court there
appears wholly to have ignored the above-quoted statutory
language that refers to the ship's own liability.
International Marine, 989 F. Supp. at 499. Aside from the issue
of whether the presence of “the ship” in § 3(8) actually
prohibited a bill of lading from including a term that
effectively eliminated the availability of an action in rem, the
holding in International Marine has been abrogated by the 2006
amendments to COGSA that removed the reference to “the ship.”
See, e.g., CBJ, Inc. v. M/V HANJIN HONG KONG, 2000 WL 33258660,
at *2 (D.N.J. 2000) (citations omitted) (explaining that courts
have found that the Korean Commercial Code affords at least the
same protections as United States law); Union Steel Am. Co. v.
M/V Sanko Spruce, 14 F. Supp. 2d 682, 692 (D.N.J. 1998)
(“Several post-Sky Reefer cases have rejected various claims
that Korean law reduces carrier liability below what COGSA
Based on the foregoing, the Court does not feel compelled
to depart from the reasoning of the Fireman’s Fund line of cases
and read into COGSA a provision that prohibits a shipper from
choosing a forum for disputes that does not recognize in rem
Accordingly, the Court finds that the forum selection
clause in this case is valid and enforceable. 9
For the reasons expressed above, defendants’ motion to
dismiss plaintiff’s complaint based on a valid forum selection
clause must be granted.
An appropriate Order will be entered.
November 9, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Under the bills of lading’s forum selection clause, LWI could
have instituted suit to recover for its damaged cargo in Seoul,
Korea against SK Shipping and Star Bulk Carrier. LWI did not
choose that avenue, and time has expired for LWI to advance such
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