United States District Court,

S.D. New York.

ALLIANZ CP GENERAL INSURANCE COMPANY LTD., Plaintiff,

v.

BLUE ANCHOR LINE, Transpac Container Systems Ltd., Kuehne & Nagel, Inc.,

Kuehne & Nagel, N.V., Kuehne & Nagel Thailand, Inc., Distribution Express,

Inc., Defendants.

May 7, 2004.

MEMORANDUM AND ORDER

BUCHWALD, J.

Plaintiff, Allianz CP General Insurance Company Ltd. (“Allianz”) brings this action against Blue Anchor Line (“Blue Anchor”), also sued herein as Transpac Container System Ltd., Kuehne & Nagel, Inc. (“K & N”), Kuehne & Nagel, N.V. (“K & N N.V.”), Kuehne & Nagel Thailand, Inc. (“K & N Thailand”) (collectively, the “K & N defendants”) and Distribution Express, Inc. (“Distribution Express”) (collectively, the “defendants”) alleging damage during the transportation from Bangkok, Thailand to Mt. Vernon, Ohio of a power turbine motor owned by its insured, Tractabel Engineering International (“Tractabel”). Presently before the Court is defendant Distribution Express’ motion to dismiss plaintiff’s amended complaint, defendant Distribution Express’ motion for summary judgment, and the K & N defendants’ and Blue Anchor’s motion for summary judgment (the “K & N motion”). For the reasons stated below, Distribution Express’ motion to dismiss is denied, its motion for summary judgment is granted, and the K & N motion is granted.

BACKGROUND

In December 2000, Tractabel, the assured of Allianz, entered into a freight forwarding contract with defendant K & N N.V. whereby K & N N.V. agreed to handle all of the transportation of various shipments to and from a power plant being built in Thailand by Tractabel. Tractabel and K & N N.V. thus entered into a transportation contract which consisted of a purchase order and an annexed Service Requisition, dated December 15, 2000.

The first shipment to be moved by K & N N.V. was a turbine power wheel that was being sent from the Thailand plant to Rolls-Royce in Mt. Vernon, Ohio. The shipment was sub-contracted by K & N N.V. to defendant Transpac Container System Ltd., which does business under the trade name Blue Anchor Line. Blue Anchor issued its own Combined Transport bill of lading (the “Bill of Lading”) covering the goods from Thailand to Ohio, inclusive.

The power wheel left Bangkok in a sealed container on December 25, 2000 on board the ocean vessel APL Garnet, which carried it to Los Angeles. When it arrived in Los Angeles, the power wheel was transferred back into the custody of K & N N.V., at which point K & N N.V. transferred the power wheel to an inland U.S. trucker, Distribution Express. Distribution Express then issued its own bill of lading covering the transportation from California to Ohio. Distribution Express designated seventy-two year old Keith Keeran as its driver for the journey.

On January 23, 2000, while en route from Los Angeles to Mt. Vernon, Mr. Keeran became ill and was involved in a traffic accident. Mr. Keeran contacted Steve Williams, the president of Distribution Express, approximately one hour before the accident and advised Mr. Williams that he was feeling ill. The parties are in dispute as to whether Mr. Keeran then voluntarily decided to continue driving. Plaintiff claims that Mr. Williams instructed Mr. Keeran to drive another 100 to 150 miles despite his illness, while Distribution Express alleges that Mr. Williams left to Mr. Keeran the decision of whether to pull over immediately or proceed to the closest truck stop to wait for a replacement driver and that Mr. Keeran stated he felt well enough to proceed to the nearest truck stop.

Whether Mr. Keeran offered to keep driving or was ordered to do so, he ultimately hit an overpass, and the truck and its contents were engulfed by fire. The power wheel was completely destroyed. Although it is not at issue in this case, Mr. Keeran died from the injuries he sustained in the accident.

Plaintiff paid its assured, Tractabel, $1,145,023.00 as a result of the accident and has now commenced this subrogated recovery action. On January 22, 2002, plaintiff filed its first complaint in relation to this accident and named Blue Anchor, the K & N defendants and Distribution Express as defendants. On February 27, 2002, by Notice of Discontinuance, plaintiff voluntarily dismissed its complaint pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”). Plaintiff filed a second complaint on March 21, 2002, but on February 4, 2003, the action was terminated with respect to defendant Distribution Express pursuant to a stipulation. On September 23, 2003, plaintiff filed a third complaint, which included Blue Anchor and the K & N defendants, as well as Distribution Express.

DISCUSSION

I. Distribution Express’ Motion to Dismiss

A. Motion to Dismiss Standard

In considering a motion to dismiss, we accept as true all material factual allegations in the complaint. Levy v. Southbrook Int’l Invs., Ltd., 263 F.3d 10, 14 (2d Cir.2001). We may grant the motion only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Still v. DeBuono, 101 F.3d 888, 891 (2d Cir.1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In addition to the facts set forth in the complaint, we may also consider documents attached thereto and incorporated by reference therein, Automated Salvage Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 67 (2d. Cir.1998), as well as matters of public record. Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998).

B. Rule 41(a)(1)

Rule 41 of the Federal Rules of Civil Procedure provides that a voluntary dismissal “operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.” Fed.R.Civ.P. 41(a)(1). Distribution Express argues that since plaintiff voluntarily dismissed its first complaint on February 27, 2002, plaintiff’s second and subsequent dismissal of Distribution Express on February 4, 2003 operates as an adjudication upon the merits in favor of Distribution Express and that it must therefore be dismissed from the current action. Plaintiff argues that the “two dismissal rule” which Distribution Express advocates does not apply where one of the dismissals is by stipulation.

Under Rule 41(a)(1), a plaintiff may dismiss an action without prejudice only when a notice of dismissal is filed before the defendant files an answer or motion for summary judgment, and only if plaintiff had never previously dismissed an action based on or including the same claim. See Cooter & Gell v. Hartmarx Corporation, 496 U.S. 384, 394, 110 S.Ct.2447, 2455 (1990). If the plaintiff invokes Rule 41(a)(1) a second time in an action based on or including the same claim, the action must be dismissed with prejudice. See id.

In the present case, plaintiff’s first dismissal was unilaterally made by notice by the plaintiff, and the second dismissal was pursuant to a stipulation. The plain language of Rule 41(a)(1) makes clear that the “two dismissal rule” applies only when the second dismissal is a dismissal by notice under Rule 41(a)(1)(i). See Fed.R.Civ.P. 41(a)(1). The third action will thus not be barred where the second dismissal was pursuant to a stipulation under Rule 41(a)(1)(ii), as it was in this case. [FN1] See Poloron Prods, Inc. v. Lybrand Russ. Bros. & Montgomery, 534 F.2d 1012, 1017 (2d Cir.1976) (stating that the two dismissal rule does not apply where one of the first two dismissals is not unilateral); [FN2] Cornell v. Chase Brass & Copper Co., 48 F.Supp. 979, 981, aff’d, 142 F.2d 157 (2d Cir.1944)(stating that even three dismissals, where stipulated to be “without prejudice” do not trigger the two dismissal rule; nothing prevents the parties from agreeing to dismiss multiple times without prejudice).

FN1. Federal Rule of Civil Procedure 41(a)(1)(ii) states that an action may be dismissed by the plaintiff without an order of the court by “filing a stipulation of dismissal signed by all parties who have appeared in the action.”

FN2. Distribution Express argues that Poloron, 534 F.2d 1012 (2d Cir.1976) is inapposite because in that case, it was the first dismissal, rather than the second that was by stipulation. This argument is flawed, however, as the reasoning behind Poloron is that the risk of abuse is reduced where one of the two dismissal is pursuant to a stipulation.

Because the second dismissal in this case was pursuant to a stipulation under Rule 41(a)(1)(ii), the two dismissal rule does not apply, and Distribution Express’ motion to dismiss on this ground is denied.

II. Defendants’ Motions for Summary Judgment

In addition to Distribution Express’ motion to dismiss the amended complaint, also before the Court are the following additional motions: (1) Distribution Express’ motion for summary judgment dismissing all claims against it based on the bill of lading that governed transportation of the power wheel; (2) motions by Blue Anchor and Distribution Express to limit any liability they are found to possess to $500 per package for plaintiff’s loss to cargo; and (3) a motion on behalf of the K & N defendants to dismiss the claims against them entirely.

Defendant Distribution Express argues that under the bill of lading that governed the transportation of the power wheel, plaintiff is precluded from suing it and may only proceed against the K & N defendants. Further, Distribution Express argues, if plaintiff is permitted to proceed with its claims, the amount plaintiff may recover, if any, is limited by the bill of lading which was entered between Blue Anchor and Tractabel (the “Bill of Lading”) to $500 per package. Defendant Blue Anchor echos the argument by Distribution Express that any recovery plaintiff may obtain is limited under the governing bill of lading as described by Distribution Express. Finally, the K & N defendants assert that plaintiff has no basis to bring this suit against them because the amended complaint does not allege that the K & N defendants had any role in the damage to the goods, nor does it demonstrate a basis for personal jurisdiction over them.

A. Summary Judgment Standard

Summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Federal Rules of Civil Proceduremandate the entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial .”Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the record, we must assess “the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party.” Frito- Lay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10 F.3d 944, 957 (2d Cir.1993). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). An issue is “genuine … if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248 (internal quotation marks omitted).

B. Maintaining Claims Against Distribution Express

Distribution Express argues that the Bill of Lading, which was entered into between Blue Anchor and Tractabel expressly prevents Allianz from pursuing any claims against it. Plaintiff responds that any limitation of liability in the Bill of Lading is preempted by the Carmack Amendment to the Interstate Commerce Act of 1887, 49 U.S .C. § 14706, which provides shippers with a statutory right to recover for the actual loss to their property caused by any of the carriers of their shipment.

1. Application of the Carmack Amendment

“The Carmack Amendment governs the liability of common carriers for goods lost or damaged during a shipment in interstate commerce.” See Ford v. Allied Van Lines, Inc., No. 96 Civ. 2598, 1997 WL 317315 at *2 (D. Conn. June 3, 1997). It also applies to determine motor truck carrier liability involving transportation between “the United States and a place in a foreign country to the extent the transportation is in the United States.” 49 U.S.C. § 13501. Where a shipment involves transportation from a foreign country, “the domestic leg of the journey will be subject to the Carmack Amendment as long as the domestic leg is covered by a separate bill or bills of lading.” Swift Textiles v. Warkin Motor Lines, 799 F.2d 697, 701 (11th Cir.1986), cert. denied, 480 U .S. 935 (1987). However, where the bill of lading governing the shipment is a “through bill of lading,” the Carmack Amendment is inapplicable. SeeInsurance Co. of North America v. S/S Transworld Bridge, No. 92 Civ. 7375, 1994 WL 75249 at *7 n. 6 (S.D.N.Y. Mar. 7, 1994) (stating that “[w]hether the terms of a bill of lading apply to inland carriage turns in part on whether the bill is a through bill of lading. If so, the Carmack Amendment, and the regulations promulgated pursuant to it, do not apply.”); Capital Converting Equipment, Inc. v. Lep Transport, Inc., 965 F .2d 391, 394 (7th Cir.1992) (stating that “[b]ecause such a ‘through’ bill of lading includes no separate domestic segment …, the Carmack Amendment is inapplicable.”).

A “through bill of lading is one which governs the entire course of transport and applies to the connecting carriers despite the fact that they are not parties to the contract.” Toshiba Internat’l Corp. v. M/V “Sealand Express”, 841 F.Supp. 123, 128 (S.D.N.Y.1994) (citing Capital Converting, 965 F.2d at 394); see also Missouri K. & T.R. Co. v. Ward, 244 U.S. 383 (1917) (defining a “through bill of lading” as “a bill of lading with the final delivery destination of the goods noted thereon, although transportation of the goods may extend over the lines of connecting carriers.”). “A bill of lading issued in a foreign country to govern a shipment throughout its transportation from abroad to its final destination in the United States is termed a ‘through bill of lading.” Capital Converting, 965 F.2d at 394. Whether a bill of lading is a through bill of lading is predominantly factual question. See Insurance Co. of North America, 1994 WL 75249 at *7. In making this determination, “the relevant indicia include whether the final destination is designated thereon, the method by which the connecting carriers are compensated and, more generally, the conduct of those carriers.” Toshiba Internat’l., 841 F.Supp. at 128.

Contrary to plaintiff’s assertions, the Carmack Amendment does not apply to the shipment because the Blue Anchor Bill of Lading, which governed the entire shipment, was a through bill of lading. The Blue Anchor Bill of Lading designated Ohio as the final destination, as well as the point of origin, Bangkok, Thailand. Additionally, the terms of the Bill of Lading contemplated the inland transportation of the goods to Ohio. Plaintiff’s insured paid the ocean carrier for all transportation charges and did not enter into a separate agreement with Distribution Express providing for separate consideration for the inland transportation. The combination of these facts supports the conclusion that the Blue Anchor Bill of Lading was a through bill of lading which governed the entire transportation of goods and applied to all connecting carriers even though they were not parties to the contract. See Commercial Union Insurance Co. v. Forward Air, Inc., 50 F.Supp.2d 255 (S.D.N.Y.1999).

In response, plaintiff argues that because Distribution Express issued its own inland bill of lading, the Carmack Amendment applies to the interstate portion of the shipment. Plaintiff has pointed to case law holding that where a shipment originates in a foreign country, the “domestic leg of the journey will be subject to the Carmack Amendment as long as the domestic leg is covered by a separate bill or bills of lading.” New York Marine & General Insurance Co. v. S/S Ming Prosperity, 920 F.Supp. 416, 425 (S.D.N.Y.1996). However, this same case also explains that “[t]he [Carmack] Amendment, however, does not apply where a through bill of lading covers the entire course of an international journey.” Id.; see also Sompo Japan Insurance of America v. Union Pacific Railroad Company, No. 03 Civ. 1604, 2003 WL 22510361 at *1 (S.D.N.Y. Nov. 5, 2003) (upholding limitation of liability found only in the through bill of lading, with respect to the inland carrier, despite the fact that a separate bill of lading was issued for the inland portion of the carriage).

Moreover, “unless the connecting carrier has received consideration for the bill of lading in addition to that which flowed under the bill of lading issued by the initiating carrier, the Carmack Amendment makes such second bill of lading void.” Mexican Light & Power Co. v. Texas Mexican Ry. Co., 331 U.S. 731 (1947); S.C. Johnson v. Louisville & Nashville Railroad Co., 695 F.2d 253 (7th Cir.1982) (finding bill of lading which was issued by connecting carrier, in addition to the through bill of lading, void for lack of consideration). Given that the shipper here, Tractabel did not enter a separate agreement with Distribution Express providing for separate consideration from the shipper to Distribution Express, it is evident that the Blue Anchor Bill of Lading governed the entire transportation.

2. Liability of Distribution Express Under the Terms of the Blue Anchor Bill of Lading

Because the Carmack Amendment does not apply to the shipment in this case, the Court must decide whether, under the governing Bill of Lading, Distribution Express is relieved of potential liability to the shipper or its subrogee. Distribution Express relies on the following language in paragraph 17(c) of the Bill of Lading for the proposition that it is not amenable to suit by plaintiff: “[t]he Merchant undertakes that no claim shall be made against any Participating Carrier, against any servant, agent or subcontractor of the Carrier … which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods….” See Declaration of Barbara Sheridan (“Sheridan Decl.”) Ex. I. Plaintiff did not, however, address the effect of paragraph 17(c) of the Bill of Lading as an alternative to its argument that the Carmack Amendment does not apply to this case.

The Bill of Lading defines “Participating Carrier” as “any other water carrier, including those performing transshipment or relay, feeder or towage services, or any land carrier or air carrier performing any stage of the carriage provided for herein.” Id. at ¶ 1.3. Under the definition in the Bill of Lading, Distribution Express, a land carrier that performed a stage of the transportation provided for in the Bill of Lading, qualifies as Participating Carrier. As a Participating Carrier in the subject transportation, Distribution Express is entitled to the benefit of the limitation of liability in paragraph 17(c) of the Bill of Lading. Under paragraph 17(c), plaintiff is prevented from “impos[ing] or attempt[ing] to impose upon any [Participating Carrier] any liability whatsoever in connection with the Goods.” Id. Plaintiff thus may not proceed with its claims against Distribution Express and Distribution Express’ motion for summary judgment is granted with respect to all claims asserted against it. [FN3]

FN3. Plaintiff argues that public policy should prevent Distribution Express from benefitting from any limitation of liability because Distribution Express engaged in seriously culpable conduct when it allowed or instructed an ill, elderly employee to continue driving despite his physical state. However, plaintiff has failed to present any admissible evidence supporting its contention. Rather, plaintiff cites only inadmissible hearsay testimony to support its allegations of intentional conduct.

“Hearsay” is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Riisna v. ABC, Inc., 219 F.Supp.2d 568 (S.D.N.Y.2002). For its allegations that Distribution Express engaged in culpable conduct, plaintiff relies exclusively on the testimony of Mr. Keeran’s two daughters, neither of whom was present during the subject trip nor privy to conversations between Mr. Keeran and Distribution Express. Because their testimony is based solely on conversations with others and it is offered to prove the truth of the matters asserted therein, it constitutes hearsay. For the purpose of a summary judgment motion, hearsay is inadmissible and may not be considered. See Federal Rule of Civil Procedure 56(e). Since plaintiff is thus unable to prove the conduct alleged, its argument that public policy prohibits limiting Distribution Express’ liability is without merit.

C. Limitation of LiabilityBlue Anchor

While Blue Anchor concedes that it is not entirely shielded from liability under the Bill of Lading like Distribution Express, it has moved to limit any liability it is found to possess to $500 per package, as described in the Bill of Lading. Blue Anchor argues that in addition to the terms laid out in the Bill of Lading, the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 1300 et. seq . also applies to the entire shipment at issue to limit its liability. Plaintiff argues that there can be no such limitation of liability because the obligations of Blue Anchor are governed by the Carmack Amendment, rather than the Bill of Lading or COGSA.

The Carriage of Goods by Sea Act typically governs maritime shipments occurring from port to port. See id.;Watermill Export, Inc. v. MV Ponce, 506 F.Supp. 612, 613 (S.D.N.Y.1981) (stating that COGSA applies to “contracts of carriage relating to shipments between United States ports and foreign ports.”). Parties may, in addition, contractually agree to make COGSA the governing body of law for the inland portion of a multi-modal transport. See Toshiba International Corp. v. M/V Sea-Land Exp., 841 F.Supp. 123, 125 (stating, “the provisions of COGSA may contractually be extended past the time of discharge of the cargo from the ship…. It is also well-settled that the protections of COGSA and other provisions of the bill of lading may contractually be extended to third party agents of the carrier, such as inland carriers”) (citations omitted); Russell Stover Candies, Inc. v. Double VV, Inc., No. 97 Civ. 2144, 1997 WL 809205 at *11 (D.Kan. Dec. 30, 1997) (finding that bills of lading at issue extended provisions of COGSA to inland carrier who carried goods to final destination).

One method by which parties may extend the applicability of COGSA is through the inclusion of a “U.S. Clause” in their contract, which specifically states that COGSA shall govern the entire transportation. See Sompo Japan Insurance of America v. Union Pacific Railroad Company, No. 03 Civ. 1604, 2003 WL 22510361 at *2-3 (S.D.N.Y. Nov. 5, 2003); see also Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 314 (2d Cir.1983) (stating that the provisions of COGSA may contractually be extended past the time of the discharge of the cargo from the ship). The parties included a U.S. Clause in the Bill of Lading in this case. Paragraph 28.1 of the Bill of Lading reads:

If this Express Cargo Bill covers the Carriage of Goods to or from ports of United States of America this Express Cargo Bill shall be subject to United States Carriage of Goods by Sea Act (USA COGSA), which shall be incorporated herein, and the provisions of said Act shall govern before loading and after discharge and throughout the entire time the Goods are in the custody of the Carrier.

Sheridan Decl. Ex. I at ¶ 28.1. Plaintiff argues that although the Bill of Lading has a U.S. Clause, this clause is contractually secondary to General Provision 1.1 of the Bill of Lading. Clause 1.1, plaintiff argues, mandates that any compulsory national law, in this case the Carmack Amendment, be applied to the shipment at issue, notwithstanding anything inconsistent in the Bill of Lading. Plaintiff’s interpretation is unsupported. In fact, a recent decision, Sompo Japan Insurance of America v. Union Pacific Railroad Company, No. 03 Civ. 1604, 2003 WL 22510361 at *1 (S.D.N.Y. Nov. 5, 2003), held to the contrary. In Sompo, the plaintiff argued that clause 5 of the applicable bill of lading, which stated that provisions in national or international law which “cannot be departed from,” overrode the contract’s U.S. Clause and thus rendered the Carmack Amendment, rather than COGSA applicable to the shipment at issue. The Court there stated:

It is clear from the plain meaning of Clause 5(1)(b)(1) that only provisions in national or international law that “cannot be departed from” are applicable to this carriage. The Carmack Amendment is not such a law. Indeed, numerous cases recognize that the Carmack Amendment may be departed from by contract and supplanted by the COGSA to the detriment of the merchant.

Id. at *3. [FN4] Accordingly, through the U.S. Clause, Blue Anchor extended the terms of COGSA to the inland portion of the shipment in this case, and the limitation of liability therein applies to limit the liability of Blue Anchor to $500 per package. [FN5] Therefore, to the extent they exceed $500 per package, plaintiff’s claims against Blue Anchor are dismissed.

FN4. It is worth noting that the plaintiff in Sompo was represented by the same counsel that represents plaintiff in this case. Plaintiff’s counsel now attempts to make the same argument that it unsuccessfully advanced before the same court in Sompo, yet plaintiff omitted any reference to the Sompo decision in its Memorandum. Where a lawyer knows of controlling legal authority directly adverse to the position of the client, the lawyer should inform the tribunal of its existence unless the adversary has done so. See United States v. Gaines, 295 F.3d 293, 302 (2d Cir.2002) (citing N.Y. Comp.Codes R. & Regs. tit. 22, § 1200.37(b)(1) [DR 7-106].

FN5. COGSA states: (5) Amount of liability; valuation of cargo. Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading….

46 U.S.C. § 1304. Plaintiff’s insured, Tractabel, had an opportunity to declare a value on the front of the Bill of Lading but declined to do so. The face of the Bill of Lading explicitly states, “NO VALUE DECLARED.” See Sheridan Decl. Ex. I. Additionally, Louis Loosens, a former Tractabel employee who arranged the shipment in this case, testified that he intended that no value be declared on the Bill of Lading because Tractabel had its own insurance for the cargo. See Delcaration of Ernest H. Gelman (“Gelman Decl.”) Ex. B at 23:5-24:13. Accordingly, the limitation of liability in COGSA applies to this shipment.

D. Liability of K & N Defendants

Plaintiff has conceded that this action should be dismissed as to K & N, Inc. and K & N Thailand, Inc. because “discovery has shown that … [they] merely acted in this matter only as agents of Kuehne & Nagel N.V.” Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motions for Summary Judgment (“Pl.Mem.”) at 8. With respect to K & N N.V., plaintiff argues that the issue of liability is governed by the contract that was entered between K & N N.V. and Tractabel, under which K & N N.V. agreed to be “fully responsible” for all cargo losses. K & N N.V. responds that plaintiff’s claim against it is futile because plaintiff has provided no basis for this Court to exercise personal jurisdiction over it with respect to the contract at issue.

New York law controls the issue of personal jurisdiction in this case. See United Trading Co. v. M.V. Sakura Reefer, No. 95 Civ. 2846, 1996 WL 374154 at *3 (S.D.N.Y. July 2, 1996) (stating that in determining whether a federal district court has personal jurisdiction over a party in a maritime case, the law of the forum state applies) (citations omitted). Under New York C.P.L.R. § 301, “a foreign corporation is subject to general jurisdiction in New York if the corporation is ‘doing business’ in the state.” Jacobs v. Felix Bloch Erban Verlag Ver Bunhe Film und Funk KG, 160 F.Supp .2d 722, 731 (S.D.N.Y.2000). K & N N.V. is a Belgian entity which alleges that it has no presence in New York state or even the United States. It was neither the carrier nor the carrier’s agent on the Bill of Lading. Moreover, plaintiff has suggested no basis on which jurisdiction exists, nor has it even addressed K & N N.V.’s jurisdictional defense. Finally, there is no evidence in the record that K & N N.V. is doing or has done any business in New York state. Accordingly, even if plaintiff has a viable contract claim against K & N N.V., it cannot be asserted in this Court. Therefore, plaintiff’s claims against the K & N defendants are dismissed.

Conclusion

For the reasons stated above, Distribution Express’ motion to dismiss is denied and the motions of all defendants for summary judgment are granted. Plaintiff is directed to submit a judgment on notice. [FN6]

FN6. The only claim in this case which has not been made the subject of one of the pending motions is a cross-claim for contribution by defendant Blue Anchor against cross-defendant Distribution Express. In light of the resolution of plaintiff’s claims against defendants, Blue Anchor is directed to inform the Court whether it intends to actively pursue its cross-claim against Distribution Express or whether the parties can resolve this issue on their own.

IT IS SO ORDERED.