United States District Court, E.D. Louisiana
AGRIBUSINESS UNITED DMCC, et al.
BLUE WATER SHIPPING CO., INC.
NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT COURT CHIEF
before this Court is Defendant Blue Water Shipping Company,
Inc.'s (“Defendant”) “Motion for
Partial Summary Judgment Dismissing Claims of Agribusiness
United North America Corp.” In this litigation,
Plaintiffs Agribusiness United DMCC (“AU Dubai”)
and Agribusiness United North America Corp. (“AU North
America”) (collectively, “Plaintiffs”), who
were charterers/shippers of a vessel, allege that Defendant,
a company Plaintiffs hired to arrange services for cargo to
be loaded onto the vessel, failed to obtain certain necessary
certificates and documents, causing a 10-day delay in the
vessel's schedule. Accordingly, Plaintiffs brought claims
against Defendant for (1) breach of contract; (2) fraudulent
misrepresentation; (3) negligence; and (4) gross
negligence. This Court subsequently dismissed the
fraudulent misrepresentation, negligence, and gross
negligence claims. In the instant motion, Defendant argues
that AU North America has not sustained any damages. Having
considered the motion, the memoranda in support and
opposition, and the applicable law, the Court will grant the
complaint, Plaintiffs allege that in or about October 2012,
Plaintiffs were charterers/shippers of the M.V. FENGLI 11
(the “Vessel”). Plaintiffs allege that they hired
Defendant as a Freight Forwarder to arrange services for
cargo to be loaded onto the Vessel at Savannah, Georgia, and
Myrtle Grove, Louisiana. Plaintiffs aver that in connection with
those services, Plaintiffs provided Documentary Instructions
to the Defendant on or about November 1, 2012, requiring
Defendant to arrange for, inter alia, issuance of
bills of lading, phytosanitary certificates, fumigation
certificates, and numerous other documents.
about December 5, 2012, Plaintiffs aver, the Vessel arrived
at Savannah, Georgia, and began loading operations the
following day. However, according to Plaintiffs,
Defendant did not arrange for a Federal Grain Inspection
Service (“FGIS”) inspection of the
holds. According to Plaintiffs, Defendant also
failed to obtain a phytosanitary certification prior to
loading and did not arrange for the FGIS surveyor to be
present at commencement of loading.
aver that loading operations commenced without the needed
surveyor.According to Plaintiffs, “when
nearly two Vessel holds were already loaded, ” they
learned that no one from USDA/FGIS was present, and,
therefore, no official phytosanitary certificate would be
issued. As a result, Plaintiffs aver, they had
to order that the cargo be unloaded, and then reloaded in the
presence of the surveyor, and cargo already loaded had to be
shifted. According to Plaintiffs, this caused a
ten day delay in the Vessel's schedule.
allege that as a result, Plaintiffs sustained losses in
Vessel demurrage, extra costs incurred for failure to timely
inspect holds, shortages of cargos, and extension penalties
incurred at the second loading port. Plaintiffs aver that on
or about June 2, 2014, Plaintiffs demanded Defendant pay
$636, 234.61 in damages plus interest and
costs. According to Plaintiffs, Defendant
rejected the claim, and, to date, has failed to pay
Plaintiffs any amount for their losses.
October 28, 2016, Plaintiffs filed a complaint in this
Court. On May 23, 2017, Defendant filed a
motion to dismiss. On June 27, 2017, Plaintiffs filed an
opposition. On July 7, 2017, with leave of Court,
Defendant filed a reply. On March 26, 2018, the Court issued
an order denying the motion to dismiss and granting
Plaintiffs leave to amend their complaint within fourteen
days to address deficiencies in regards to their claims for
fraudulent misrepresentation, negligence, and gross
negligence. On April 19, 2018, Defendant filed a
motion to dismiss the claims for fraudulent
misrepresentation, negligence, and gross negligence, as
Plaintiffs had still not amended the complaint. On April 24,
2018, the Court granted Defendant's motion and dismissed
Plaintiffs claims for fraudulent misrepresentation,
negligence, and gross negligence.On November 6, 2018,
Defendant filed the instant motion for summary
judgment. On November 29, 2018, Plaintiffs filed
an opposition. On December 12, 2018, with leave of
Court, Defendant filed a reply.
Defendant's Arguments in Support of the Motion for
motion, Defendant argues that AU North America “has not
sustained damages as a result of any alleged breach of
contract by [Defendant], ” and thus AU North
America's breach of contract claim should be dismissed
with prejudice. Defendant argues that after conducting
discovery it became clear that “all of the damages
alleged were admittedly borne by AU Dubai, ” not AU
North America. In support of this argument, Defendant
relies on the deposition testimony of Plaintiffs' owner,
managing director and primary witness, Mr. Abderrahim Abou El
Ouafa, during which the following exchange occurred:
Q. Who suffered the damages claimed in this lawsuit?
A. [AU Dubai].
Q. So North America didn't suffer any damages?
A. Well, North America Corporation was providing the services
to Agribusiness United DMCC, but also were acting as agent to
Agribusiness United DMCC, so one or the other of them.
Q. But for the 780-odd thousand dollars that is being
claimed, best I can tell from looking at the invoices and the
payment slips, every invoice was directed at DMCC, not North
America. Is that fair?
A. Yes, that is fair. And -- go ahead.
Q. I don't want to cut you off. Go ahead.
A. And even if it was sent to Agribusiness United North
America Corporation, it was paid on behalf of DMCC.
Q. Well, I haven't seen anything that says Agribusiness
United North America paid any of the invoices or any of
awards or anything like that. Is that accurate?
A. It is.
Q. But even if they had, then DMCC would ultimately be
on these statements, Defendant argues there is no dispute as
to whether AU North America suffered any damages and thus the
claim against AU North America should be
Plaintiffs' Arguments in Opposition to the Motion for
opposition, Plaintiffs' argue that AU North America acted
as an agent for AU Dubai and made arrangements on AU
Dubai's behalf. Plaintiffs recognize that the damages
were ultimately suffered by AU Dubai, but they assert that AU
North America “was added to this suit to eliminate any
arguments regarding proper party
plaintiffs.” For instance, Plaintiffs note that
certain invoices may have been sent to AU North America yet
paid by AU Dubai. Therefore, Plaintiffs state that they
simply want to preserve all rights to claim these damages and
not be met with an objection that an invoice directed to AU
North America was not incurred by AU Dubai.
then states that “North America offers this limited
opposition only noting that the Declaration of El Ouafa, and
the cited testimony by Defendant in its motion, establish
that North America was acting for and providing services to
[AU Dubai]. As such, communications between North America and
Blue Water, and other parties, are communications on behalf
of [AU Dubai].”Plaintiffs request that instead of
dismissal, the Court enters a stipulation that AU North
America was acting for and providing services to AU
Defendant's Arguments in Further Support of the Motion
for Summary Judgment
reply, Defendant argues that “AU North America, acting
as agent for the disclosed principal AU Dubai, has no claim
for damages against [Defendant] and has presented no evidence
they are entitled to make any such
claim.” Defendant claims that AU North America,
which is admittedly an agent acting on the behalf of AU Dubai
in this transaction, cannot point to any evidence that it
suffered damages. Further, Defendant argues that despite a
proposal of a stipulation by the Plaintiffs, they have not
submitted any such stipulation on the record.
Legal Standard ...