United States District Court, E.D. Louisiana
Decided July 27, 2015.
For Gic Services, LLC, Plaintiff: Bassey Otu Akpaffiong, LEAD ATTORNEY, PRO HAC VICE, Law Firm of Alton C. Todd, Friendship, TX; Desherick Boone, LEAD ATTORNEY, Boone Law Firm, LLC, New Orleans, LA.
For Freightplus USA Inc., Defendant, Third Party Plaintiff, Third Party Defendant, Counter Defendant: Kevin Patrick Walters, LEAD ATTORNEY, Chaffe McCall LLP (Houston), Houston, TX; Katharine Rachael Colletta, Chaffe McCall LLP (New Orleans), New Orleans, LA.
For Industrial Maritime Carriers, L.L.C., -, Third Party Defendant, Third Party Plaintiff, Counter Claimant: Jason P. Waguespack, LEAD ATTORNEY, David N. Loria, Frederick William Swaim, III, Galloway, Johnson, Tompkins, Burr & Smith (New Orleans), New Orleans, LA.
HON. Helen G. Berrigan, UNITED STATES DISTRICT JUDGE.
This case concerns the shipment of a tugboat to Warri, Nigeria rather than Lagos, the destination intended by its shipper. The Court held a bench trial on May 11 and May 12, 2015. Having considered
the testimony and evidence at trial, the arguments of counsel, and the applicable law, the Court now enters the following findings of facts and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).
I. FINDINGS OF FACT
The plaintiff, GIC Services, LLC (" GIC" ), is a limited liability company located in Houston, Texas that procures equipment on behalf of its parent company, GIC Oil and Gas Services, Ltd. (" GIC Oil and Gas" ). GIC Oil and Gas is based in Nigeria and specializes in waste management and road construction. Sogie Ebolo is the managing director of GIC as well as one of the directors of GIC Oil and Gas and testified on GIC's behalf at trial. She has previously shipped over fifteen pieces of heavy equipment, including cranes, a truck, generators, compressors, and other pieces of heavy equipment to Lagos.
Freightplus (USA), Inc. (" Freightplus" ) operates as a " middleman" in the shipping industry, connecting shippers to ocean carriers. At trial, Lisa Keel, Freightplus's vice president, testified that Freightplus receives inquiries from shippers looking to move cargo and locates a vessel and secures a freight rate on behalf of the shipper. Freightplus has filed a surety bond with the Federal Maritime Commission as a non-vessel operating common carrier (NVOCC) and maintained a license to operate as a freight forwarder and an NVOCC at the time of the events at issue.
Industrial Maritime Carriers, L.L.C. (" IMC" ) is a vessel owner and operator. It does not employ its own staff. Instead, it engages agent companies such as Intermarine, LLC (" Intermarine" ), whose staff run its day-to-day operations.
On or about December 15, 2012, GIC contacted Freightplus over the phone on or about December 15, 2012 to inquire about rates for shipping the M/V REBEL (" REBEL" ), a tugboat, to Lagos, Nigeria. Lisa Keel, acting on behalf of Freightplus, approached several carriers to solicit quotes for the shipment, including the carrier Yacht Path. After negotiation, GIC and Freightplus agreed to a rate of $111,000. Ms. Ebolo testified that prior to reaching this agreement with Freightplus, she also solicited a quote from the company Africa 2000 for $68,000. However, she ultimately selected Freightplus because Freightplus could ship the REBEL to Lagos by mid-January to be used in service of a contract that GIC Oil and Gas had secured, whereas Africa 2000 could not guarantee a mid-January arrival date. GIC subsequently paid Freightplus the agreed upon rate in full.
Meanwhile, after being contacted by Freightplus, Yacht Path contacted Intermarine, the agent for IMC. Intermarine agreed to ship the REBEL aboard IMC's vessel, the M/V INDUSTRIAL DESTINY (" INDUSTRIAL DESTINY" ). On December 20, Yacht Path sent Freightplus an invoice for the shipment of the REBEL showing Lagos as the tugboat's destination. On the same day, unbeknownst to GIC or Freightplus, IMC generated a carrier booking note showing Warri, not Lagos, as the destination port.
Despite this discrepancy in IMC's booking note, documents exchanged between Yacht Path, Freightplus, and GIC continued to show Lagos as the REBEL's destination. On December 21, Gail Ryan, an employee of Yacht Path, emailed Ms. Keel of Freightplus a draft bill of lading showing Lagos as the port of discharge. Freightplus also sent forwarding instructions to Yacht Path on December 21, again showing Lagos as the REBEL's destination.
On December 26, Freightplus issued three copies of a " House Bill of Lading" marked " original" (" Freightplus bill of lading" ). The Freightplus bill of lading represented that the REBEL had been shipped on board the INDUSTRIAL DESTINY from Houston, Texas on December 26, that the REBEL's destination was Lagos, and that freight had been prepaid. The bill of lading was issued " clean" , meaning that no damage was noted on the REBEL at the time of loading.
Contrary to the Freightplus bill of lading's representations, the INDUSTRIAL DESTINY actually sailed a day later on December 27. On that day, IMC issued its own bill of lading (" IMC bill of lading" ). The bill was marked as " not negotiable" , and therefore could not have been used to claim the cargo at its destination. Unlike the Freightplus bill of lading, the IMC bill of lading listed Warri as the port of discharge and was not " clean" , instead noting that the REBEL showed scratches, rusting, dents, and paint deterioration. Finally, the IMC bill of lading represented that freight had been prepaid and that the REBEL had been loaded on board on December 27. In addition to the bill of lading, IMC generated a manifest that listed Warri as the port of discharge.
While the INDUSTRIAL DESTINY was en route to Nigeria, correspondence between the vessel, Intermarine, and Yacht Path shows that there was confusion over the REBEL's final destination. Between January 2 and January 3, 2013, Kyle Branting, an employee of Intermarine, emailed Kevin Cummings of Yacht Path whether Intermarine had the option of discharging the REBEL as well as a second tugboat aboard the INDUSTRIAL DESTINY in either Lagos or Warri. Mr. Cummings confirmed that the " small boat" , referring to the REBEL, desired a Lagos discharge. Mr. Branting replied, " Have to pump the breaks a little, getting some incentive to discharge in Warri."  At trial, Mr. Branting testified that he did not recall what the " incentive" for discharging in Warri referred to. On January 4, Berend Bosman, an employee of Supermaritime acting as the vessel agent and responsible for handling cargo clearance emailed the captain of the INDUSTRIAL DESTINY stating that he had been under the mistaken impression that Warri would be the INDUSTRIAL DESTINY's " first and only port in Nigeria."  On January 9, Mr. Cummings of Yacht Path clarified in an email to Cedric Chauvet and Mr. Branting of Intermarine that the REBEL was to discharge at Lagos. However, Mr. Chauvet subsequently replied that Warri was " where both boats will be discharged" and asked that " data"
be shared with Mr. Cummings on this point. On January 10, Mr. Cummings sent an email to Mr. Chauvet, Mr. Branting, Mr. Bosman, and others, once again stating that both boats would be discharged at Lagos.
In spite of these indications of a discrepancy in the final destination, no one at Yacht Path, Intermarine, or aboard the Industrial Destiny took steps to rectify the mistake. On the morning of January 10, Mr. Cummings emailed Ms. Keel of Freightplus to provide the contact information for Berend Bosman, who Mr. Cummings explained was the vessel agent and also would " handle the cargo clearing process," which he pointed out " can be a hassle." Mr. Cummings wrote:
I suggest the that [sic] you have the client contact the agent and start the process of collecting the cost for local charges and have them paid ASAP so the boat can be collected as soon as its discharged.
Please advise me when the receiver [GIC has made contact with the agent so I know the link has been established.
The current ETA of the vessel to Lagos is Jan 17th.
Despite Mr. Cummings's recommendation that she notify GIC to contact Mr. Bosman to arrange payment " ASAP" , Ms. Keel did not forward Mr. Bosman's contact information to GIC upon receiving Mr. Cummings's email. Ms. Ebolo also testified, and the Court finds credible, that Freightplus did not at this time or earlier inform GIC of the need to complete any pre-clearance procedures.
Beginning on the morning of January 15, Ms. Ebolo emailed Ms. Keel three times to provide the contact information for GIC's clearing agent, Patricia Ugwunnah, ask for the vessel agent's contact information, and inquire about next steps. At 9:03 a.m. on January 16, Ms. Keel replied to Ms. Ebolo sharing the contact information for Mr. Bosman, the INDUSTRIAL DESTINY's vessel agent which Mr. Cummings had provided her six days earlier. Ms. Keel further stated, " We have given them The [sic] name of your clearing agent. It can't change."  Although informing GIC that its clearing agent could not change, at 3:36 p.m., Ms. Keel changed the details of the vessel agent, emailing Ms. Ebolo that the new agent was Desmond Balendra.
At 10:46 p.m. on January 16, Mr. Cummings emailed Mr. Balendra, the vessel agent for the INDUSTRIAL DESTINY and an employee of MGM Logistic Solutions Services Ltd. (" MGM" ), explaining that there was a " small tug boat" in the INDUSTRIAL DESTINY that was manifested to Warri, and that " There was some confusion during the booking of this boat and it needs to be discharged in Lagos." This email, coming the night before the REBEL was to arrive at Lagos, was the first time anyone at Yacht Path or IMC discussed the need for changing the REBEL's destination. Mr. Cummings asked
Mr. Balendra to contact the receiver (Patricia Ugwunnah) and asked, " Can you advise if it is possible to discharge the tug and hold in custody at the terminal as you have done for our past shipments in Port Harcourt. The receiver can then complete payments for local charges and also for customs clearance." Mr. Cummings also stated, " I would be very grateful if you can help my desperate situation." 
Despite Mr. Cummings' imploring, the vessel agent informed him that a last minute change of destination was not possible. At 4:44 a.m. on January 17, Ikechukwu Isang, an employee of MGM, replied that they would not be able to discharge the REBEL in Lagos " as the information is coming way too late." Mr. Isang added, " ...