BMW of North America LLC v. M/V Courage, in rem et al
OPINION AND ORDER: For the reasons stated above, GovLog's motions to dismiss on the grounds of a lack of personal jurisdiction, improper venue, and forum non conveniens were DENIED. SO ORDERED (Signed by Judge Jesse M. Furman on 5/19/2017) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BMW OF NORTH AMERICA LLC,
M/V COURAGE, her engines, tackle, boilers, etc. in rem, :
HDI GLOBAL SE a/s/o DAIMLER AG,
M/V COURAGE, her engines, tackle, boilers, etc. in rem, :
INTERNATIONAL AUTO LOGISTICS, INC.
M/V COURAGE, her engines, tackle, boilers, etc. in rem, :
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
On June 2, 2015 a fire broke out on board an American-bound vessel damaging or
destroying millions of dollars’ worth of motor vehicles. These three related cases are brought by
the owners and insurers of those motors vehicles: Axa Corporate Solutions Deutschland (“Axa”),
BMW AG (“BMW”), HDI Global SE, Daimler AG (“Daimler”), and International Auto
Logistics (“IAL”, collectively, with Axa, BMW, and Daimler, “Plaintiffs”). Specifically, each
brings suit against different arrays of the following entities: the shipper of the goods, GovLog
NV (“GovLog”); the time charterer/operator of the vessel, American Roll-Off Carrier LLC
(“ARC”); the registered owner of the vessel, Fidelio Limited Partnership, Inc. (“Fidelio”); the
technical manager of the vessel, Tote Service Inc. (“Tote”); a charterer of certain spaces on the
vessel, Wallenius Wilhelmsen Logistics (“WWL” and, together with ARC, Fidelio, and Tote,
the “Vessel Interests”); the owner of the vehicle suspected of causing the fire, Mary Smith, and
her employer, the United States; and the manufacturer of Smith’s vehicle, Ford Motor Company
(“Ford”). (See 16-CV-4063 Docket No. 77 (“Fifth Am. Compl.”); 16-CV-4125 Docket No. 53
(“Daimler Compl.”); 16-CV-4149 Docket No. 55 (“IAL Compl.”)). 1 As relevant here, both Ford
and the Vessel Interests, in turn, bring cross-claims against GovLog. (Docket No. 90 (“Ford
Crossclaims”) ¶ 169; Docket No. 91 (“Vessel Interest Crossclaims”) ¶¶ 194-200).
On January 20, 2017, GovLog moved, pursuant to Rule 12(b) of the Federal Rules of
Civil Procedure, to dismiss most (but not all) of the claims and cross-claims against it for lack of
personal jurisdiction, improper venue, and on forum non conveniens grounds. (Docket No. 84).
On May 15, 2017, the Court issued a “bottom-line” Order indicating that for reasons to be
provided in a forthcoming Opinion, GovLog’s motions were denied. (Docket No. 118). This is
Unless otherwise noted, all docket references are to Docket No. 16-CV-4063.
The relevant facts, taken from the pleadings and affidavits except as otherwise noted, are
viewed in the light most favorable to the non-moving parties — that is, Plaintiffs and CrossClaimants. See Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010).
GovLog is a Belgian corporation with headquarters in Antwerp that has contracted with
the United States Government to ship vehicles and other personal property of U.S. Government
employees to the United States. (Fifth Am. Compl. ¶¶ 9, 84-85; Vessel Interest Crossclaims
¶¶ 167-68, 171). In March 2015, a division of the U.S. Department of State issued a tender for
bids to perform logistics services for Government employees shipping goods to the United States
between May 2015 and April 2016. (Docket No. 115 (“Pls. Suppl. Ltr.”), at 2). GovLog bid on
the project and, in May 2015, it was awarded a contract to transport property between Europe
and New York, Baltimore, Miami, and Seattle. (Pls. Suppl. Ltr., Ex. 3). Soon thereafter,
GovLog approached ARC, the time charterer/operator of the M/V Courage — an ocean-going
“roll on roll off” car carrier flying the flag of the United States — to ship a 2002 Ford Escape
owned by Mary Smith, a U.S. Government employee, from Antwerp, Belgium, to Baltimore,
Maryland. (Fifth Am. Compl. ¶ 20; Vessel Interest Crossclaims ¶¶ 168-175; Docket No. 103
(“Santianna Decl.”) ¶¶ 2, 7). Plaintiffs allege that, during the M/V Courage’s voyage to the
United States in June 2015, Smith’s Ford Escape caused a fire to break out on board the vessel,
which caused damage to 187 BMW automobiles at a cost of $7.3 million; 757 Daimler vehicles
at a cost of $33.1 million; and 221 personally owned vehicles being shipped by IAL worth
approximately $4.75 million. (Fifth Am. Compl. ¶¶ 15, 18-20; Daimler Compl. ¶ 19; IAL
Compl. ¶ 66). In addition to the losses sustained by Plaintiffs, the Vessel Interests allege
damages to the ship (and other expenses as a result of the fire) in the amount of $35 million.
(Vessel Interest Crossclaims ¶ 200).
GovLog has been shipping cargo with ARC for over twenty years and, since 2003, has
shipped approximately 450 vehicles a year with ARC. (Santianna Decl. ¶ 5; see also Vessel
Interest Crossclaims ¶ 168). Each shipment, including the shipment of the Escape, is governed
by a Bill of Lading and ARC’s standard terms and conditions, which have not changed since
1999. (Santianna Decl. ¶¶ 8-10). Significantly, the Bill of Lading governing the Escape
shipment includes a jurisdictional clause pursuant to which the parties agreed that “[a]ny dispute
arising under this [Bill of Lading] shall be decided in the U.S. Federal Court in the City of New
York to the exclusive jurisdiction of which the Carrier and the Merchant submit themselves.”
(Fifth Am. Compl. ¶ 21; Santianna Decl. Ex. 3 (“Bill of Lading”) Clause 5). The Bill of Lading
defines “Merchant” to include GovLog (as the “Shipper”) and “Carrier” to include both ARC
and Fidelio (as the “owner of the ship”). (Bill of Lading, Clause 2). Notably, the Bill of Lading
also includes a so-called “Himalaya Clause,” which protects the Carrier’s agents and servants to
the same extent that the Carrier is protected. (Id., Clause 15 (providing that “every exemption,
limitation, condition and liberty herein contained and every right, exemption from liability,
defense and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is
entitled hereunder shall also be available and shall extend to protect every such Servant or Agent
of the Carrier”)). Finally, to the extent relevant here, the Bill of Lading includes a provision
regarding “Dangerous Cargo,” which states that “the Merchant (whether aware of their nature or
not) shall be liable for all damages and expenses directly or indirectly arising out of or resulting
from such shipment.” (Id., Clause 20).
Plaintiffs assert claims against (1) the Vessel Interests, for breach of the contract of
carriage, relying upon the provisions of the Carriage of Goods by Sea Act (“COGSA”), 46
U.S.C. § 1300 et seq.; (2) the United States, as Mary Smith’s employer, pursuant to the Suits in
Admiralty Act, 46 U.S.C. § 30901, et seq., alleging breaches under COGSA and for negligence;
(3) Ford, for product liability and negligence; and (4) GovLog, for violations of COGSA and for
negligence. (Fifth Am. Compl. ¶¶ 41, 46, 51, 55, 61, 68, 79, 83, 105). Both Ford and the Vessel
Interests, in turn, bring cross-claims against GovLog. Each asserts cross-claims for contribution
or indemnity; in addition, the Vessel Interests seek recovery for their direct damages as a result
of the fire. (Ford Crossclaims ¶¶ 169-70; Vessel Interest Crossclaims ¶¶ 161-203). As noted,
GovLog moves, pursuant to Rule 12(b), to dismiss all claims against it for a lack of personal
jurisdiction, improper venue, and on forum non conveniens grounds. Plaintiffs, Ford, and the
Vessel Interests all oppose GovLog’s motion.
In the absence of discovery or an evidentiary hearing, a plaintiff seeking to defeat a
motion to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for absence
of personal jurisdiction or pursuant to Rule 12(b)(3) for improper venue need only make a prima
facie showing that jurisdiction exists and venue is proper. See, e.g., Gulf Ins. Co. v.
Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). Such a showing “entails making ‘legally
sufficient allegations . . . ,’ including ‘an averment of facts that, if credited[,] would suffice’” to
establish that jurisdiction exists and venue is proper. Penguin Grp. (USA) Inc. v. Am. Buddha,
609 F.3d 30, 35 (2d Cir. 2010) (quoting In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204,
206 (2d Cir. 2003) (per curiam)). See generally Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A.,
722 F.3d 81, 84-85 (2d Cir. 2013). A court must “view all facts in the light most favorable to
the non-moving party.” TradeComet.com LLC v. Google, Inc., 647 F.3d 472, 475 (2d Cir. 2011).
As noted, GovLog moved to dismiss all claims against it for a lack of personal
jurisdiction, improper venue, and on forum non conveniens grounds. The Court will address
each of GovLog’s arguments in turn.
A. Personal Jurisdiction
Stray language in its briefing aside, GovLog effectively concedes that personal
jurisdiction exists with respect to ARC’s contract claims. (Docket No. 86 (“GovLog Mem.”), at
24). That is for good reason: The Bill of Lading between GovLog and ARC contains a forum
selection clause in which GovLog agreed that the federal courts in New York City would be the
“exclusive jurisdiction” for “[a]ny dispute arising under this [Bill of Lading].” (Bill of Lading,
Clause 5). GovLog does not argue, and the Court sees no basis to find, that this forum selection
clause is invalid or inapplicable. See M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10
(1972) (holding that forum selection clauses in the admiralty context “are prima facie valid and
should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under
the circumstances”); Bluefire Wireless, Inc. v. Cloud9 Mobile Commc’ns, Ltd., No. 09-CV-7268
(HB), 2009 WL 4907060, at *3 (S.D.N.Y. Dec. 21, 2009) (“The Second Circuit has endorsed an
expansive reading of the scope of forum selection clauses, in keeping with the policy favoring
their use.”). It follows that there is plainly personal jurisdiction with respect to ARC’s contract
claims. See, e.g., D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 103 (2d Cir. 2006) (“Parties
can consent to personal jurisdiction through forum-selection clauses in contractual
agreements.”); Am. S.S. Owners Mut. Prot. & Indem. Ass'n, Inc. v. Am. Boat Co., LLC, No. 11CV-6804 (PAE), 2012 WL 527209, at *2 (S.D.N.Y. Feb. 17, 2012) (noting that if a forum
selection clause is both valid and applicable, “it is not necessary to analyze jurisdiction under
New York’s long-arm statute or federal constitutional requirements of due process”).
In light of the fact that a plaintiff (or cross-claimant) “must establish the court’s
jurisdiction with respect to each claim asserted,” Sunward Elecs., Inc. v. McDonald, 362 F.3d 17,
24 (2d Cir. 2004), however, GovLog does challenge the rest of the claims brought against it in
these cases — namely, ARC’s tort claims and the other parties’ claims and cross-claims.
(GovLog Mem. 4-9). With respect to ARC’s other claims, the Second Circuit has held that a
contract-oriented forum selection clause does extend to tort claims between the parties if the
claims “ultimately depend on the existence of a contractual relationship between the signatory
parties.” Magi XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d 714, 724 (2d Cir. 2013)
(internal quotation marks omitted). Put another way, “[c]ontract-related tort claims involving the
same operative facts as a parallel claim for breach of contract should be heard in the forum
selected by the contracting parties.” Id. at 724-25. With respect to the claims against GovLog
brought by the other parties, the law is clear that “a broad forum selection clause governing ‘all’
claims arising under [a] bill of lading” — like the forum selection clause here — “extends to
non-signatories connected to the carriage even where those claims arise outside the four corners
of the contract itself (i.e., tort or bailment liability).” AIG Mexico Seguros Interamericana, S.A.
de C.V. v. M/V ZAPOTECA, 844 F. Supp. 2d 440, 442 (S.D.N.Y. 2012); see also Thyssen Inc. v.
M/V Markos N, No. 97–CV–6181, 1999 WL 619634, at *4 (S.D.N.Y. Aug. 16, 1999) (Mukasey,
J.) (“[C]ourts have held consistently that a ‘broad’ arbitration clause governing ‘all disputes’
arising under the charter covers even a dispute involving a nonsignatory.”). Significantly,
however, “[i]n order to bind a non-party to a forum selection clause, the party must be ‘closely
related’ to the dispute such that it becomes ‘foreseeable’ that it will be bound.” Nanopierce
Techs., Inc. v. Southbridge Capital Mgmt., No. 02-CV-0767 (LBS), 2003 WL 22882137, at *5
(S.D.N.Y. Dec. 4, 2003). “A non-party is closely related to a dispute if its interests are
completely derivative of and directly related to, if not predicated upon the signatory party’s
interests or conduct.” Weingard v. Telepathy, Inc., No. 05-CV-2024, 2005 WL 2990645, at *5
(S.D.N.Y. Nov. 7, 2005) (Mukasey, J.) (internal quotation marks omitted).
Applying those standards here, there is plainly personal jurisdiction with respect to
ARC’s tort claims against GovLog as they involve “the same operative facts” as ARC’s contract
claim. Magi XXI, 714 F.3d at 724. Similarly, the Court easily concludes that Fidelio and Tote
— two of the other Vessel Interests — are entitled to rely on the forum selection clause in the
Bill of Lading. Fidelio is the registered owner of the vessel, and thus falls within the express
definition of “Carrier” in the Bill of Lading, entitling it to invoke the forum selection clause.
(See Bill of Lading, Clause 2 (including “the owner of the ship” as part of the definition of
“Carrier”); Bill of Lading, Clause 16 (“The defenses and limits of liability provided for in this
B/L shall apply in any action against the Carrier whether the action be found in contract or in
[t]ort.”)). And the Bill of Lading’s “Himalaya Clause,” which brings all agents of the Carrier
within the protections afforded in the Bill of Lading (see Bill of Lading, Clause 15), granted
Tote, which was hired to assist in crewing the vessel, the right to enforce the forum selection
terms of the agreement to the same extent as ARC and Fidelio. See, e.g., Atl. Container Line AB
v. Volvo Car Corp., No. 14-CV-1811 (CM), 2014 WL 4730152 (S.D.N.Y. Sept. 22, 2014)
(noting, with respect to a similar Himalaya Clause, that the “expansive contract language shows
that various persons and entities would be involved in its performance” and that a party that “was
an intended beneficiary of [the Himalaya Clause] is entitled — indeed, required — to sue in this
district per the forum selection clause”); Salis v. Am. Exp. Lines, 566 F. Supp. 2d 216, 224
(S.D.N.Y. 2008) (analyzing a nearly identical Himalaya Clause and concluding that a Carrier’s
agent was subject to the Bill of Lading’s forum selection clause), aff’d in part, vacated in part on
other grounds, 331 F. App’x 811 (2d Cir. 2009). Accordingly, ARC, Fidelio and Tote may
invoke the forum selection clause to establish jurisdiction over GovLog.
Whether Plaintiffs can rely on the forum selection clause to establish personal jurisdiction
over GovLog is a closer question. But the Court need not, and does not, reach that question,
because personal jurisdiction is established with respect to Plaintiffs’ claims, not to mention the
claims of Ford and WWL, pursuant to Rule 4(k)(2) of the Federal Rules of Civil Procedure.
“This Rule, which is commonly known as the federal long-arm statute, permits federal courts to
exercise personal jurisdiction over a defendant that lacks contacts with any single state if the
complaint alleges federal claims and the defendant maintains sufficient contacts with the United
States as a whole.” Havlish v. Royal Dutch Shell PLC, No. 13-CV-7074 (GBD), 2014 WL
4828654, at *4 (S.D.N.Y. Sept. 24, 2014). Rule 4(k)(2) establishes personal jurisdiction “where
(1) the claim arises under federal law, (2) the defendant is not subject to jurisdiction in any
state’s courts of general jurisdiction, and (3) exercising jurisdiction is consistent with the United
States Constitution and laws.” Id. (internal quotation marks and footnote omitted). To
determine whether “[d]ue process permits a court to exercise personal jurisdiction over a nonresident,” a court must “ask whether the defendant has sufficient minimum contacts with the
forum to justify the court’s exercise of personal jurisdiction . . . . and consider whether the
assertion of personal jurisdiction is reasonable under the circumstances of the particular case.”
Porina v. Marward Shipping Co. Ltd., 521 F.3d 122, 127 (2d Cir. 2008) (internal quotation
marks omitted). That calls for an inquiry into “the quality and nature of the defendant’s contacts
with the forum state under a totality of the circumstances test,” and into whether “the defendant
purposefully availed itself of the privilege of doing business in the forum and could foresee
being haled into court there.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161,
170 (2d Cir. 2013). Notably, the operative question under Rule 4(k)(2) is whether GovLog “has
sufficient affiliating contacts with the United States in general, rather than with New York in
particular.” Porina, 521 F.3d at 127.
Assuming that GovLog is correct and that it is not subject to jurisdiction here on any
other basis with respect to the remaining claims, the first two prongs of Rule 4(k)(2) are easily
satisfied. First, these cases are brought under maritime law and, thus, “‘arise under federal
law’ for the purposes of Rule 4(k)(2).” Porina, 521 F.3d at 127. Second, “[b]y arguing that it
has no presence in the United States and did not engage in transactions in New York sufficiently
related to the instant dispute to constitute ‘transacting business’ jurisdiction,” GovLog “has in
fact established the [second] necessary predicate for personal jurisdiction pursuant to Fed. R.
Civ. P. 4(k)(2).” Peterson v. Islamic Republic of Iran, No. 10-CV-4518 (KBF), 2013 WL
1155576, at *17 (S.D.N.Y. Mar. 13, 2013). Finally, the Court finds that there are sufficient
minimum contacts between GovLog and the United States for it to exercise jurisdiction over the
remaining parties’ claims. These cases arise out of a fire allegedly caused by a vehicle belonging
to an American citizen and manufactured by an American company that GovLog agreed to ship,
pursuant to a contact with the U.S. Government, to the United States on a U.S.-flagged vessel,
using a Bill of Lading in which GovLog agreed to the exclusive jurisdiction of a U.S. court. The
fact that the cargo was destined for the United States was not “fortuitous,” or based solely on a
“unilateral decision by [Mary] Smith,” as GovLog claims. (GovLog Mem. 3, Docket No. 106, at
9). Instead, Smith’s Ford Escape was shipped to the United States aboard the M/V Courage
because that is where GovLog, as the vehicle’s shipper, had contractually committed to send it
after successfully bidding for a contract to ship goods to the United States in a tender process
conducted by the U.S. Government. (Vessel Interest Crossclaims ¶¶ 167-72, 189-91; Fifth Am.
Compl. ¶ 21; see also Pls. Suppl. Ltr., Ex. 3). Put simply (and only slightly facetiously), the only
way in which these cases could be more closely tied to the United States is if the shipment had
involved apple pie rather than vehicles.
Additionally, the Court finds that “the assertion of personal jurisdiction is reasonable
under the circumstances” present here. Porina, 521 F.3d at 127 (internal quotation marks
omitted). In assessing the reasonableness of a court’s exercise of specific jurisdiction, relevant
factors to consider include “(1) the burden that the exercise of jurisdiction will impose on the
defendant; (2) the interests of the forum state in adjudicating the case; [and] (3) the plaintiff’s
interest in obtaining convenient and effective relief.” Licci, 732 F.3d at 170. Notably, a
defendant must present “a compelling case that the presence of some other considerations would
render jurisdiction unreasonable.” Id. at 173. GoLov cannot carry that “heavy burden” here.
Tymoshenko v. Firtash, No. 11-CV-2794 (KMW), 2013 WL 1234943, at *5 (S.D.N.Y. Mar. 27,
2013). First, although GovLog is a foreign company, “[t]he mere fact that a defendant is foreign
and would have to travel to New York is insufficient to defeat a finding of reasonableness” —
particularly where, as here, the defendant has already consented to a United States court’s
exclusive jurisdiction. Peterson, 2013 WL 1155576, at *15. Second, the United States has a
significant interest in litigation concerning a U.S.-flagged vessel bound for the United States that
was the result of a tender process involving the United States Government. And finally,
“bringing [GovLog] before this court will enable efficient resolution of [all parties’] claims . . .
in a single proceeding.” Peterson, 2013 WL 1155576, at *18. Thus, the Court finds that the
exercise of personal jurisdiction is reasonable and comports with the requirements of due
None of the cases relied upon by GovLog calls for a different result. For example, while
the Supreme Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) found that
“fortuitous” contacts and the “unilateral activity of another party or a third person” were
insufficient to establish jurisdiction, it concluded that “where the contacts proximately result
from actions by the defendant himself,” jurisdiction is proper if those contacts “create a
‘substantial connection’ with the forum.” Here, as noted above, GovLog’s contacts with the
United States with respect to the underlying controversy were neither fortuitous nor merely the
product of another party’s actions. Instead, GovLog pursued specific actions directed at the
United States — including bidding for business directed at ports in the United States, contracting
with the U.S. Government for the shipment of property that included the Ford Escape, agreeing
to litigate in the United States, and electing to ship the vehicle aboard a U.S.-flagged vessel. In
so doing, it “purposefully availed itself of the privilege of doing business” in the United States.
Licci, 732 F.3d at 170. For similar reasons, the Second Circuit’s decision in Porina is also
consistent with the Court’s analysis and conclusion. There, the Court found insufficient contacts
for the defendant under the “more stringent” general jurisdiction standard because a third party,
not the defendant, was solely responsible for each of the vessel’s trips to the United States.
Porina, 521 F.3d at 128-29. Crucial to the Porina Court’s holding was that the defendant ship
owner in the case, unlike GovLog here, had no discretion regarding whether to avail itself of the
United States as a forum. Id. Moreover, aside from visits by the vessel to the United States, the
defendant in Porina had none of the other connections to the United States that establish
jurisdiction over GovLog here. See id.; see also Nuovo Pignone, SpA v. STORMAN ASIA M/V,
310 F.3d 374, 379 (5th Cir. 2002) (finding personal jurisdiction in Louisiana where the carrier
“agree[d] to secure a vessel with a satisfactory onboard loading crane that it knew would be used
to unload cargo in Louisiana” as the carrier “reasonably should have anticipated that its failure to
meet its contractual obligations might subject it to suit there.”).
In short, the Court concludes that it has personal jurisdiction over GovLog for all claims
that have been asserted against it in these actions.
B. Venue and Forum Non Conveniens
GovLog’s remaining arguments — that the claims against it should be dismissed either
for improper venue or on forum non conveniens grounds (GovLog Mem. 16-22) — are easily
rejected. First, as the non-moving parties observe (Docket No. 97, at 16; Docket No. 99, at 19;
Docket No. 101, at 22) — and GovLog does not particularly dispute in its reply — venue is
plainly proper pursuant to Title 28, United States Code, Section 1391(b)(3), which provides that
a case may be brought in “any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b)(3) (emphasis added).
Second, the forum non conveniens doctrine is a discretionary device that permits a court, “in rare
instances,” to dismiss an action “even if the court is a permissible venue with proper jurisdiction
over the claim.” Carey v. Bayerische Hypo–und Vereinsbank AG, 370 F.3d 234, 237 (2d Cir.
2004). Where, as here, there is a valid forum selection clause, the analysis turns on “whether
there are public interest considerations” — such as, “the administrative difficulties flowing from
court congestion[,] the local interest in having localized controversies decided at home[, and] the
interest in having the trial of a diversity case in a forum that is at home with the law” — “that
weigh against its enforcement.” Midamines SPRL Ltd. v. KBC Bank NV, No. 12-CV-8089 (RJS),
2014 WL 1116875, at *3, 6 (S.D.N.Y. Mar. 18, 2014). These factors “will rarely defeat . . . a
motion to dismiss under forum non conveniens, and thus the practical result is that forumselection clauses should control except in unusual circumstances.” Id. at *6 (brackets and
internal quotation marks omitted).
These cases do not present any sort of “unusual circumstances” that would override the
forum selection clause to which GovLog agreed. In fact, the public interest factors mostly weigh
against transferring the case to Belgium, GovLog’s preferred forum. First, the Court has
exclusive jurisdiction over the ARC-GovLog dispute pursuant to the Bill of Lading. Because
“that part of the litigation must remain in New York, it would be quite inconsistent with the
purposes of forum non conveniens to dismiss the remaining claims under that doctrine.” Aguas
Lenders Recovery Group LLC v. Suez, S.A., 585 F.3d 696, 700 (2d Cir. 2009). Second, “[a]s a
number of the issues in these actions are and would be overlapping . . . the risk of inconsistent
judgments arises” if the other claims were brought in a different forum. LaSala v. Bank of
Cyprus Pub. Co., 510 F. Supp. 2d 246, 267 (S.D.N.Y. 2007). And third, there is little question
that United States law will govern in these cases. See, e.g., Nippon Fire & Marine Ins. Co. v.
M.V. Tourcoing, 167 F.3d 99, 100-01 (2d Cir. 1999) (“COGSA . . . applies ex proprio vigore to
all contracts for carriage of goods by sea between the ports of the United States and the ports of
foreign countries. Accordingly, because in this case the cargo was shipped from Japan to the
United States, COGSA applies.” (citation and footnote omitted)); Carbotrade S.p.A. v. Bureau
Veritas, 99 F.3d 86, 90 (2d Cir. 1996) (noting the “importance of the law of the flag, which
overbears most other connecting events in determining applicable law” (internal quotation marks
omitted)). Accordingly, GovLog falls well short of showing that these cases should be dismissed
on forum non conveniens grounds.
For the reasons stated above, GovLog’s motions to dismiss on the grounds of a lack of
personal jurisdiction, improper venue, and forum non conveniens were DENIED.
Dated: May 19, 2017
New York, New York
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