United States Court of Appeals,

Second Circuit.

AMERICAN HOME ASSURANCE COMPANY, Plaintiff–Appellant,

v.

WALLENIUS WILHELMSEN LINES A.S., Wallenius Wilhelmsen Logistic A.S ., Wallenius Wilhelmsen Logistics Americas, LLC, Wilhelmsen Lines Shipowning, Wilhelmsen Ship Management Singapore, in personam, Defendants–Cross Claimants–Cross Defendants–Appellees,

Garrison Shipping Co. Ltd., in persona, M/V BLSE Endurance, in rem, M/V Tampa, in rem, M/V Taronga, in rem, M/V Tapiola, in rem, Defendants.

 

No. 10–4846–cv.

Oct. 6, 2011.

As Amended Oct. 7, 2011.

 

Appeal from a judgment of the United States District Court for the Southern District of New York (Crotty, J.).

Matthew T. Loesberg, Marshall, Dennehey, Warner, Coleman & Goggin, New York, NY, for Plaintiff–Appellant.

 

Garth S. Wolfson, Mahoney & Keane, LLP, New York, NY, for Defendants–Appellees.

 

Present JOHN M. WALKER, JR., DENNY CHIN and RAYMOND J. LOHIER, JR ., Circuit Judges.

 

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED.

 

Plaintiff-appellant American Home Assurance Company, a subrogee of Caterpillar, Inc., appeals from the district court’s March 16, 2010 opinion and order limiting defendants-appellees’ potential liability to $2,000. Judgment was entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure on November 5, 2010. We assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our decision to affirm.

 

On September 9, 2009, American Home Assurance commenced this action seeking $170,729.16 for damage to four vehicles shipped by defendants on behalf of Caterpillar on separate ocean voyages between ports in Savannah, Georgia, Australia, Germany, and Japan. Defendants moved for partial summary judgment, pursuant to the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 30701 note, to limit liability to $500 per unpackaged vehicle.

 

We review an order granting partial summary judgment de novo to determine whether the district court properly concluded that there were no genuine issues of material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). “In determining whether there are genuine issues of material fact, we are required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.”   Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted). After reviewing the record, we conclude, for substantially the reasons set forth by the district court, that defendants’ liability is capped at $2,000.

 

The parties agree that the four vehicles were shipped pursuant to bills of lading that included Clause 10 that provided as follows:

 

[i]f U.S. COGSA applies to the contract evidenced by this bill of lading, the carrier’s liability is limited to U.S. $500 per package, or for Goods not shipped in packages, per customary freight unit, unless a higher value is declared in the Declared Value box on the face of the bill of lading and a higher freight is paid. Each unpackaged vehicle or other piece of unpackaged cargo on which freight is calculated constitutes, one customary freight unit.

 

The purpose of COGSA is to “limit liability of common carriers for damage to cargo where the value of the cargo is not known to the carrier.” Gen. Motors Corp. v. Moore–McCormack Lines, Inc., 451 F.2d 24, 26 (2d Cir.1971) (per curiam). COGSA provides that neither the carrier nor the ship shall be liable for any loss or damage to goods in an amount over $500 per package, or in the case of goods not shipped in packages, per customary freight unit (the “CFU”), unless the nature and value of the goods have been declared by the shipper before shipment and inserted in the bill of lading. 46 U.S.C. § 30701 note.

 

If a company such as Caterpillar wants to avoid the $500 limit, it can declare a higher value for its cargo, thereby “alerting the carrier of its potential liability and allowing it to charge extra freight, if appropriate.”   Moore–McCormack Lines, Inc., 451 F.2d at 26. Caterpillar did not make such a declaration here.

 

In fact, each of the three bills of lading submitted has a section labeled “Declared Value,” next to which is a section labeled “Extra Charge.” Nothing was written in the Declared Value section, and the word “none” was typed in the Extra Charge section. For the fourth shipment, American Home Assurance submitted a dock receipt and the shipper’s packing list. These documents do not indicate a declared value for the shipment, and American Home Assurance does not challenge defendants’ assertion that the bills of lading do not recite a higher value for the cargo.

 

The parties agree that: COGSA applies; the vehicles were shipped unpackaged; and the freight for each was calculated by cubic meter. The single question on appeal is whether the CFU for each of the four vehicles shipped is an unpackaged vehicle or a cubic meter, the unit used to calculate the freight rate. If the CFU is each vehicle, liability is capped at $2,000. If the CFU is a cubic meter of volume, as American Home Assurance suggests, liability would be higher.

 

COGSA does not define the term “customary freight unit.” Accordingly, this Court has explained that “[t]o determine the customary freight unit for a particular shipment, the district court should examine the bill of lading, which expresses the ‘contractual relationship in which the intent of the parties is the overarching standard.’ “ FMC Corp. v. S.S. Marjorie Lykes, 851 F.2d 78, 80 (2d Cir.1988) (quoting Allied Int’l. v. S.S. Yang Ming, 672 F.2d 1055, 1061 (2d Cir.1982)). In short, the intent of the parties, as discerned from the bill of lading, controls. Id. at 81. “Absent any ambiguity” in the bill of lading, “the inquiry is ended, and both parties are bound to the freight unit therein adopted.” Id.

 

The most natural reading of the relevant part of Clause 10—“[e]ach unpackaged vehicle or other piece of unpackaged cargo on which freight is calculated constitutes, one customary freight unit”—is that each unpackaged vehicle is a CFU, regardless of whether the vehicle’s freight charge is determined by reference to its volume. See FMC Corp., 851 F.2d at 81 (holding each fire engine shipped to be a CFU for COGSA purposes); see also Vision Air Flight Serv., Inc. v. M/V Nat’l Pride, 155 F.3d 1165, 1170 (9th Cir.1998) (“Each unpackaged refueling truck is properly defined as a customary freight unit under COGSA, and the district court therefore did not err in holding that the bill of lading properly invoked COGSA’s liability limitation.”); Caterpillar Overseas, S.A. v. Marine Transp. Inc., 900 F.2d 714, 723 (4th Cir.1990) (“[W]e have no difficulty in concluding that the tractor in this case qualified as a ‘customary freight unit’ under Section 1304(5)”). In so concluding, we rely on the plain, express language of the bill of lading.

 

In addition, none of the cases American Home Assurance relies upon has held that the CFU was the unit of measurement used to calculate the freight rate when there was, as here, a contrary CFU definition in the bill of lading. Furthermore, the phrase “on which freight is calculated” makes clear that the parties intended the CFU to be each unpackaged vehicle. Accordingly, defendants’ liability is limited to $500 per unpackaged vehicle.

 

We have considered American Home Assurance’s other arguments and conclude they are without merit. Accordingly, the judgment of the district court is AFFIRMED.

District Court of Appeal of Florida,

Third District.

AMERICAN SAFETY CASUALTY INSURANCE COMPANY, Appellant,

v.

MIJARES HOLDING COMPANY, LLC, et al., Appellees.

 

No. 3D10–3150.

Oct. 5, 2011.

 

An Appeal from a non final order from the Circuit Court for Miami–Dade County, John Schlessinger, Judge.Kubicki Draper and Caryn L. Bellus and Christopher J. Bailey, for appellant.

 

Aran Correa Guarch & Shapiro, and Craig B. Shapiro; Hunter, Williams & Lynch, and Christopher J. Lynch, for appellees.

 

Before RAMIREZ, and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

 

RAMIREZ, J.

American Safety Casualty Insurance Company appeals from an order denying its motion to dismiss on the basis of improper venue. We reverse because the two insurance contracts which form the basis of the claims against American contain mandatory and enforceable Georgia forum selection clauses.

 

Appellee Mijares Holding Company, LLC is a Florida company which conducts business in Miami–Dade County. Mijares owns Bulk Express Transport Inc., which provides specialty trucking services within this state. In 2004, Mijares purchased commercial motor vehicle liability insurance from American and allegedly co-defendant Odyssey American Reinsurance Corporation.

 

In July 2007, during the 2007–2008 coverage periods, a Bulk Express Transport vehicle was involved in an accident. Mijares allegedly settled the resulting personal injury claims with the consent and knowledge of both American and Odyssey. Despite the accident and resulting settlement, Mijares signed another release form with American and Odyssey at the end of the 2008 coverage period in consideration for another policy renewal. According to American, in executing the 2008 release, Mijares acknowledged in writing that it had reported no claims during the 2007–2008 policy period and agreed to indemnify American for any claims which it could have reported during that same period.

 

Mijares subsequently sought reimbursement from American and Odyssey. Mijares alleges that both carriers rejected its reimbursement claim on the $1 million settlement. Subsequently, Mijares sued and brought a total of ten counts against American and Odyssey. The counts against American included: count I, rescission of the American policies; count II, declaratory judgment against American (seeking a declaration that the American policies are void as against Florida public policy); and count VI, breach of contract against American.

 

American moved to dismiss, asserting that Georgia was the proper venue for any claims relating to the rights and obligations of the insurance policy. American’s motion was based on section III of the Coverage Form for the 2007–2008 policy agreement, in which American alleged Mijares specifically and expressly agreed that the Superior Court of Cobb County, Georgia “shall have jurisdiction and venue” in determining the parties’ respective rights and obligations under the agreement. The trial court denied American’s motion to dismiss.

 

The interpretation of a contractual forum selection clause is a question of law, such that our standard of review is de novo. See Celistics, LLC v. Gonzalez, 22 So.3d 824, 825 (Fla. 3d DCA 2009); Weisser v. PNC Bank, N.A., 967 So.2d 327, 330 (Fla. 3d DCA 2007).

 

We agree with American that the trial court improperly denied American’s motion to dismiss on the basis of improper venue. Florida courts have long recognized that “[f]orum selection clauses are presumptively valid.” Corsec, S.L. v. VMC Intern. Franchising, LLC, 909 So.2d 945, 947 (Fla. 3d DCA 2005). They “provide a degree of certainty to business contracts by obviating jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation.” Manrique v. Fabbri, 493 So.2d 437, 439 (Fla.1986). Forum selection clauses reduce litigation over venue, thereby conserving judicial resources, reducing business expenses and lowering consumer prices. See America Online, Inc. v. Booker, 781 So.2d 423, 425 (Fla. 3d DCA 2001).

 

Florida law presumes that the forum selection clauses in a plaintiff’s contracts are valid and enforceable, and requires the plaintiff to establish that their enforcement would be unjust or unreasonable. See Corsec, 909 So.2d at 947; Manrique, 493 So.2d at 440, n. 4. The enforcement is unreasonable and unfair only when the designated forum amounts to “no forum at all.” Corsec, 909 So.2d at 947. Mijares has not shown that the forum selection clause is unreasonable or unjust. Mijares freely bargained for and contracted with American with full knowledge of this forum selection clause.

 

“The polestar guiding the court in the construction of a written contract is the intent of the parties,” and where “the language used is clear and unambiguous the parties’ intent must be garnered from that language [.]” ‘ TECO Barge Line, Inc., 15 So.3d 863, 865 (Fla. 2d DCA 2009). The 2007–2008 policy states, “the Named Insured … agrees that such court shall have jurisdiction and venue for the purposes of determining all rights and obligations under this agreement.” This language is clear and unambiguous. In addition, Mijares conceded that the clause in the 2008 release was clear and mandatory.

 

Mijares asserts that litigation in Georgia might produce results inconsistent with the litigation remaining in Miami and that this constitutes a compelling reason to keep the litigation in Miami. We conclude that the compelling reasons exception applies to interstate commercial contracts. The cases cited by Mijares address only Florida’s venue statutes, purely intra-state disputes or tort claims not governed by forum selection clauses. See e. g., Taurus Stornaway Invest’s, LLC v. Kerley, 38 So.3d 840, 842–43 (Fla. 1st DCA 2010) (stating that contractual forum selection provisions supersede Florida’s venue statutes); Assiff v. Carnival Corp., 930 So.2d 776, 778 (Fla. 3d DCA 2006) (stating that section 47.122, Florida Statutes (2005), is “inapplicable” to contractual forum selection disputes). These cases are inapplicable to the instant case because they do not address the issue of enforcement of the mandatory forum selection clauses which require litigation in another state.

 

Mijares also asserts that, by litigating in both Florida and Georgia, it would be forced to split its causes of action. Additionally, Mijares argues that the Georgia forum selection clauses do not govern two of its three claims against American. Mijares concedes, however, that the clauses apply to the third claim, breach of contract, because they govern all suits seeking to enforce or interpret the contracts. We conclude that the validity of an entire contract must be submitted to the forum chosen by the parties in the contract.   Bovis Homes, Inc. v. Chmielewski, 827 So.2d 1038, 1039 (Fla. 2d DCA 2002) (“We further conclude … that the mandatory venue selection provision of the contract applies to the Chmielweskis’ fraudulent misrepresentation claim as well.”). Furthermore, we disagree with the trial court’s interpretation of the forum selection clauses and conclude that American’s forum selection clauses are clear and mandatory, and they require a Georgia forum for all of the claims against American.

 

We therefore reverse and remand with directions to dismiss American from this action because the forum selection clause expressly stipulates that jurisdiction be had in Cobb County, Georgia.

 

Reversed and remanded with directions.