Chubb Seguros Peru S.A. v. M/V As Fortuna, her engines, boilers, etc.

Background

The plaintiffs were Chubb Seguros Peru S.A., Ingram Micro SAC, Saint-Gobain Peru, S.A., and Intcomex Peru SAC. The opinion describes them as cargo owners or insurers of cargo carried aboard the M/V As Fortuna. The defendants relevant to the motions were Shipco Transport, Inc. and JAS Forwarding Services (Ireland) Limited doing business as Blue World Line. The opinion describes both as non-vessel-operating common carriers, or NVOCCs—companies that arrange ocean transportation but do not operate the vessels carrying the cargo.

The vessel grounded near Ecuador on September 13, 2018. The cargo was not physically damaged. The plaintiffs instead sought to recover the insurers’ share of salvage expenses paid to the salvor that recovered the cargo. Their amended complaint asserted claims involving unseaworthiness, common-law indemnity based on negligence and common-carrier status, and breach of general maritime law. The plaintiffs later withdrew their claim under the International Maritime Dangerous Goods Code.

Motions and governing standards

Shipco and JAS Ireland moved for judgment on the pleadings, summary judgment, and dismissal for failure to join an indispensable party. A motion for judgment on the pleadings asks whether the pleaded facts state a legally sufficient claim. Summary judgment is proper when there is no genuine dispute about a material fact and the moving party is entitled to judgment under the law.

The court considered material outside the pleadings and therefore treated the motions as motions for summary judgment. Because it granted the motions for summary judgment in their entirety, it did not address the arguments about failure to join an indispensable party.

Reasons for ruling on the NVOCC defendants

The plaintiffs raised claims under the federal Carriage of Goods by Sea Act (COGSA) for the first time in their opposition papers. The court held that COGSA did not apply because the case involved salvage damages rather than physical loss of or damage to the goods. The court stated that the plaintiffs’ requested relief therefore had to be addressed through a contract between the parties, but the plaintiffs had not pleaded a contract claim.

The court also stated that, even if COGSA applied, Shipco and JAS Ireland would not be liable for unseaworthiness. As NVOCCs, they did not control the vessel and therefore did not have the duty to make it seaworthy that applies to the relevant vessel-operating carrier.

The court further held that the NVOCC defendants were not liable under common-law maritime indemnity. The plaintiffs had not made the required showing that the NVOCC defendants were at fault for the grounding. The amended complaint did not establish the defendants’ actual fault.

Other defendants and disposition

The court dismissed As Fortuna Opco B.V., the vessel owner, because the plaintiffs had not served it within the required period. The opinion states that the plaintiffs acknowledged that the vessel owner could not be served through that court and that the 90-day service period had expired. The court did not add a prejudice qualifier to this dismissal.

Onboard Logistics USA Inc. had been served but had not appeared, and the plaintiffs had not moved for default. The court ordered the plaintiffs to show cause, by written response filed within 14 days, why Onboard should not be dismissed without prejudice for failure to prosecute. The court stated that failing to make the required showing would result in dismissal without prejudice.

Order

The court granted Shipco Transport, Inc. and JAS Forwarding Services (Ireland) Limited doing business as Blue World Line’s motions. It also dismissed As Fortuna Opco B.V., directed the plaintiffs to show cause regarding Onboard Logistics USA Inc., and directed the Clerk to terminate the pending motions and the three specified defendants. Judge Andrew L. Carter, Jr. signed the order on March 31, 2022.