High Protection v. Professional Air Transportation et al
Filing
37
MEMORANDUM DECISION AND ORDER Allowing Discovery and Requiring Supplemental Briefing. Signed by Judge Tena Campbell on 8/9/16 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
HIGH PROTECTION COMPANY,
Plaintiff,
vs.
PROFESSIONAL AIR
TRANSPORTATION, LLC;
RADIANT LOGISTICS, INC.;
ADCOM WORLDWIDE; RADIANT
GLOBAL LOGISTICS, INC.; FELIPE
LAKE; RUBENS CORREA; and
DOES 1–100,
MEMORANDUM DECISION AND
ORDER ALLOWING DISCOVERY
AND REQUIRING SUPPLEMENTAL
BRIEFING
Case No. 2:14-cv-00466-TC-BCW
Defendants.
Plaintiff High Protection Company (High Protection) filed this lawsuit in
Third Judicial District Court for the State of Utah. Defendants removed the action
to federal court. (ECF No. 2.) On June 24, 2016 the court requested simultaneous
briefing on whether the court has subject-matter jurisdiction. (ECF No. 32.)
At the August 5, 2016 hearing on that question, a factual dispute arose about
whether the terms and conditions of the bill of lading, which was attached to the
High Protection’s complaint, represented the agreement between the parties.
High Protection contends that the bill did not memorialize their agreement and,
accordingly, the bill’s forum-selection clause is not enforceable. The parties agree
that discovery is necessary to determine whether the terms and conditions are
binding on the parties.
In addition to that issue, Defendants argue that the bill incorporates the oneyear statute of limitations that is part of the Carriage of Goods by Sea Act
(COGSA), 49 Stat. 1207, as amended, note following 46 U.S.C § 30701 (2012).
While section 13 of COGSA allows a shipper and carrier to extend the statute’s
force to shipments between ports of the United States, it does not authorize parties
to extend its force over those shipments between foreign ports. 49 Stat. 1212–13;
see also Royal Ins. Co. of Am. v. Orient Overseas Container Line, LTD, 525 F.3d
409, 418–419 (6th Cir. 2008); Foster Wheeler Energy Corp. v. An Ning Jiang MV,
383 F.3d 349, 354–56 (5th Cir. 2004); In re Damodar Bulk Carriers, Ltd., 903 F.2d
675, 680 (9th Cir. 1990); Joe Boxer Corp. v. Fritz Transp. Int’l, 33 F. Supp. 2d
851,855 (C.D. Cal. 1998).
The shipment here originated in Aqaba, Jordan. Everyone intended the
goods to be delivered to Afghanistan, but the actual, final destination was Karachi,
Pakistan. At no point did the shipment touch a port of the United States. If
COGSA is not applicable by its own force as a federal statute, but instead by
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contractual force, then there is a possibility that other substantive maritime law (for
example, the Hague Rules, Hague-Visby Rules, SDR Protocol, or Hamburg Rules)
compulsorily supersedes the contractual terms. That might affect whether (1) the
High Protection’s claims are time-barred and (2) the court has subject-matter
jurisdiction under 18 U.S.C. § 1331.
ORDER
The court directs the parties to undergo more discovery on these issues. If a
party wants a deadline for discovery, it may stipulate or move the court to set one.
The Defendants, who bear the burden to establish subject-matter jurisdiction, must
file a memorandum that addresses these issues on or before January 17, 2017.
High Protection’s response memorandum is due on or before February 17, 2017. If
Defendants wish to reply, they may on or before March 3, 2017. If parties need
more time, they may move for an extension. All memoranda should include legal
authority and statements of fact that are supported with admissible evidence.
DATED this 9th day of August, 2016.
BY THE COURT:
TENA CAMPBELL
U.S. District Court Judge
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