NOBLE DRILLING INC. v. B.V

NOBLE DRILLING, INC.

v.M/V OSC VLISTDIEP FEEDERLINES B.V. and ASSURANCEFORENINGEN SKULD

CIVIL ACTION NO. 10-2865

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Dated: April 13, 2011

SECTION "D" (3)

ORDER AND REASONS

Before the Court are the following motions, to wit: (1) Motion to Dismiss Direct Action (Doc. 23) filed by Defendant, Assuranceforeningen Skuld (Skuld);¹ (2) Motion for Partial Summary Judgment (Doc. 19) filed by Plaintiff Noble Drilling, Inc., seeking declarations that the Harter Act supplies the applicable substantive law and that the Bill of Lading's exculpatory clause is void;² and (3) Motion to Dismiss Case Pursuant to Rule 12(b)(3) and, alternatively, on grounds of forum non conveniens (Doc. 24) filed by Defendants, Scheepvaartonderneming MS Vlistdiep C.V. Ltd (as claimant of the M/V OSC VLISDIEP), Feederlines B.V. and Assuranceforeningen Skuld.³ The matters, set for hearing on Wednesday, April 6, 2011, were deemed submitted on the briefs without oral hearing.⁴ Having considered the record, the submissions of the parties, the applicable law and, for the reasons set forth below, the court has determined that the Defendants' Rule 12(b)(3) Motion to Dismiss the Case (Doc. No. 24) has merit; therefore, the court need not address Skuld's Unopposed Motion to Dismiss Direct Action (Doc. No. 23) which is moot or Plaintiffs Motion for Partial Summary Judgment (Doc. No. 19), thus leaving the issues of choice of law to courts in The Netherlands.

I. Procedural Background and Relevant Undisputed Facts

Plaintiff in this cargo loss case is the consignee, Noble Drilling Inc., a Delaware Corporation with offices and places of business in Baton Rouge, Louisiana and Houston, Texas.⁵This case involves a dispute over cargo of 20 risers stowed on deck and, all but one, lost overboard during trans-Atlantic transit via the M/V OSC VLISDIEP en route from Rotterdam, The Netherlands (loading port) to Port Fourchon, Louisiana (destination).⁶ Only one of twenty (20) risers shipped from The Netherlands's (Dutch) port city, Rotterdam, was discharged in Port Fourchon, Louisiana, the balance (19) having been lost overboard in transit across the Atlantic Ocean. Suffice it to say, this is a cargo loss case - i.e., cargo lost at sea and never unloaded at any port (U.S. or foreign).

Defendants, Scheepvaartonderneming MS Vlistdiep C.V. Ltd (Scheepvaartonderneming), as claimant for the M/V OSC VLISTDIEP, Feederlines B.V. (Feederlines) and Assuranceforeningen Skuld (Skuld) filed an Answer and Third Party Complaint against Onega Shipping & Chartering (Onega), claiming that plaintiff failed to state a cause or right of action upon which relief can be granted, Louisiana's Direct Action Statute does not apply to this matter and the complaint fails to include necessary and indispensable parties, inter alia.⁷ Third Party Defendant, Onega, filed an Answer to Third Party Complaint claiming defenses under Fed. R. Civ. P. 12(b)(2), (3), (4), (5) and (6), that original plaintiff's and third-party plaintiff's claims against it must fail because the applicable bill of lading and other contracts of carriage are subject to a valid forum selection clause, a valid arbitration clause and/or choice of law and jurisdiction clause and that Onega will show that original Plaintiff, by its own custom and practice, was aware of the carriage of this type of cargo on deck, consented to, approved and was involved in arranging for same and thus any alleged damages/recovery should be barred and/or reduced accordingly, inter alia.⁸

It is further undisputed that the lost 19 out of 20 risers were being carried on deck under a Bimco Liner form Booking note and Bill of Lading, both signed in The Netherlands.⁹ The Booking Note dated December 18, 2009 was signed by the Dutch time charterer/carrier Onego Shipping and Chartering B.V, while Bill of Lading ( No. ONE VIO ROT 120901) was signed by GAC Netherlands Limited on behalf of the master of the OSC VLISDIEP.¹⁰ The terms and conditions of the Bill of Lading and the Booking Note are identical, both referring to the date of shipment of shipper's 20 risers as December 24, 2009. Noble Drilling Land (Nederland) BV (shipper) and Noble Drilling, Inc. (consignee) were parties to the aforesaid bill of lading. In fact, Noble signed page 2 of the Bill of Lading and appended the identical executed Bimco Liner form Bill of Lading to its own Motion for Partial Summary Judgment, authenticating it.¹¹ (Pltf's Exh. A/Doc. No. 19-2) The subject Bill of Lading No. ONE VLI ROT 120901 contained a forum selection, which provides:

"4. Law and Jurisdiction.

Disputes arising out of or in connection with this Bill of Lading shall be exclusively determined by the courts in accordance with the law of the place where the Carrier has his principal place of business, as stated on page 1, except as provided elsewhere herein."¹²

The following facts regarding the subject vessel, lost cargo, and business records/documents evidencing carriage are not genuinely disputed:

The Vessel/ M/V OSC VLISDIEP

• is a Netherlands (Dutch) flagged vessel;

• owned by Dutch entity, Scheepvaartonderneming MS Vlistdiep C.V. Ltd;

• managed by Dutch entity, Feederlines, B. V.; and • chartered by Dutch entity Onego Shipping and Chartering B.V.

The 19 Lost Risers and Cradle ("Packing")

• were manufactured or fabricated by Dutch entities;¹³

• were shipped by Dutch entity, Noble Drilling (Nederland) B.V. (shipper);

• were loaded in the Dutch port Rotterdam by Dutch nationals;

• were lost at sea approximately 200 miles off the coast of Spain and never delivered to any port;¹⁴

• their loading/stowage on deck was surveyed in Rotterdam, Netherlands by Dutch surveyor, H.G.C. Van Der Poel Marine Consultancy BV, on behalf of Noble Drilling;

• freight forwarding payments were made by Dutch entity, Noble Drilling (Nederland) B.V. to its Dutch freight forwarder CEVA Freight Holland B.V.; and

• the lost cargo was carried under a Bimco Liner form booking note/Bimco Liner form Bill of Lading ONE VLI ROT 120901.¹⁵

Bimco Liner Bill of Lading ONE VLI ROT 120901/booking note dated 12/18/09:

• were both signed in The Netherlands;

• the Booking Note was signed by time charterer Onego Shipping and Chartering B.V.; • the Bill of Lading was signed by GAC Netherlands Ltd. on behalf the master of the OSC VLISTDIEP and referred to a document dated December 18, 2009, which is the date of the Booking Note;

• the Bill of Lading was signed on page 2 (where the forum selection clause appears) by Noble's representative and stamped with Noble's seal.¹⁶

Defendant, Assuranceforeningen Skuld (a Dutch entity), is the marine insurer which provided protection and indemnity (P & I) coverage to shipowners. In 2009, the OSC VLISTDIEP was entered for P & I coverage with Skuld on behalf of her owner, Scheepvaartonderneming. Documents evidencing coverage in this matter were prepared in Norway and delivered to the parties at their principal place of business in The Netherlands. None of the paperwork or policies were written or delivered in the State of Louisiana.¹⁷

Noble Drilling sued Assuranceforeningen Skuld directly as a defendant in the above captioned matter, claiming Skuld, as the liability insurer of the vessel, is liable to Noble Drilling for damages it in incurred as a result of the lost risers.¹⁸ Assuranceforeningen Skuld filed a Motion to Dismiss Direct Action which is unopposed.¹⁹

II. Defendants' Motion to Dismiss Case

Defendants' motion seeks an order from this court dismissing Noble Drilling, Inc.'s (Noble's) case either based on a forum selection clause, Clause 4, contained in the subject bill of lading pursuant to Rule 12(b)(3) and, alternatively, on grounds of forum non conveniens. Noble argues that the forum selection clause (Clause 4) on Page 2 of the Bill of Lading, which it signed and sealed, is not "mandatory" because the parties failed to specify the "carrier's name/principal place of business" on Page 1 of the Bill of Lading and, otherwise, fails to meet the standard for enforceability citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972).²⁰

Defendants counter that, regardless of what appears in a box on the front of the bill of lading and considering the undisputed facts of this case, the forum selection/choice of law clause is "mandatory," "exclusive," and unambiguous. In this regard, defendants note the precise language provided in bill of lading, which states that any dispute "shall be exclusively determined" in the "place where the carrier has its principal place of business."²¹ As to the parties intentions, Defendants argue that they are clear and unmistakable, to wit: (1) the Bimco Liner Bill of Lading specifically refers to a document dated December 18, 2009, incorporating all of its terms and conditions; (2) the Bimco Liner Booking Note issued with respect to the subject cargo dated December 18, 2009 indicates the full name and address of time charterer/carrier Onega Shipping and Chartering, BV, Spui 24, 3161 ED Rhoon, Netherlands;²² and (3) the bill of lading, signed by Noble, also specifically refers to the Vessel (MV "OSC VLISTDIEP) and the particular cargo - i.e., 20 risers loaded in Rotterdam, Netherlands. Essentially, defendants contend that Clause 4 is "mandatory" and not conditioned upon defendants having actually filled in the box on Page 1 of the Bill of Lading, as Noble contends.²³ More particularly as to the parties intentions, Defendants highlight that it cannot be genuinely disputed that Noble Drilling Land (Nederland) B.V.'s representative was well-aware of the fact that Onego and the vessel as well as her owners/managers were all Dutch entities. Both Noble Drilling Inc (consignee) and its representative Noble Drilling Land (Nederland) B.V. were parties to the bill of lading signed by Noble, inter alia. Defendant's position is that competent undisputed evidence demonstrates that The...