United States District Court, D. New Jersey.

INTERSTATE AERIALS, LLC, Plaintiff,

v.

GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Al Horgan General Contractor, Inc., Erie Insurance Group, and Fictitious Insurance Companies 1-10, Defendants.

Civil No. 07-3846.

Nov. 26, 2008.

OPINION

DONIO, United States Magistrate Judge.

Presently pending before the Court are the cross-motions for summary judgment filed by Plaintiff, Interstate Aerials, LLC (hereinafter, “Interstate Aerials”) [Doc. No. 40], and by Defendant Great American Insurance Company of New York (hereinafter, “Great American”)[Doc. No. 36] regarding an insurance policy issued by Great American.For the reasons set forth below, the Court grants Great American’s motion [Doc. No. 36] for summary judgment with respect to the claims by Interstate Aerials and denies Interstate Aerials’ cross-motion [Doc. No. 40].

The parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c)(1), Fed.R.Civ.P. 73(b), and Rule 73.1 of the Local Civil Rules for the United States District Court, District of New Jersey.

This declaratory judgment action relates to a policy of property insurance issued by Great American to Interstate Aerials for “Commercial Inland Marine” coverage for the period March 10, 2005 to March 10, 2006. (See Br. in Supp. of Cross Mot. for Summ. J. (hereinafter, “Pl.Br.”) Ex. E.) Subject matter jurisdiction is premised upon 28 U.S.C. § 1332 and is based upon diversity of citizenship of the parties and the amount in controversy allegedly exceeding $75,000.

The insurance issue in this action relates to an insurance claim filed by Interstate Aerials on December 7, 2005 with Great American seeking reimbursement for damages sustained to an aerial lift  owned by Interstate Aerials and leased by Al Horgan General Contractor (hereinafter, “Horgan”) on November 16, 2005. (See Great American’s Statement of Material Facts (hereinafter, “Great American SMF”) ¶¶ 3, 4, Exs. B, D.) The parties do not dispute that the lift was damaged in an accident on November 17, 2005 while being operated by an employee of Horgan’s subcontractor.(Id . at ¶ ¶ SI 3, 4; Statement of Material Facts in Supp. of Partial Opp’n of Def., Al Horgan Gen. Contractor, to Pl.’s Cross Mot. for Summ. J. ¶¶ 2, 3.) By letter dated December 29, 2005, Great American advised Interstate Aerials that it was disclaiming coverage for the damage to the lift on the ground that Interstate Aerials failed to comply with two conditions precedent set forth in the insurance policy. (Great American SMF, Ex. D.) Interstate Aerials, however, maintains that it “complied with all terms and conditions of coverage” and that Great American “has issued an invalid disclaimer of coverage.”(Am.Compl.4, ¶ 16.) Interstate Aerials thus instituted the present litigation seeking, inter alia, a “finding of first party property coverage under the policy issued by Great American … to the Plaintiff.”(Id. at 5, ¶ 1.)

The parties refer to the equipment at issue as a boom lift or an aerial lift. For purposes of this Opinion, the Court shall refer to the equipment as a lift.

Great American asserts that a subcontractor of Horgan was operating the lift to caulk the outside of windows on the sixth floor of a building and that the lift “tipped over, killing its operator and destroying the boom lift when it crashed to the ground.”(Great American’s Br. of Law in Supp. of Not. of Mot. for Summ. J. 3.) An action for the wrongful death of the lift operator was filed in the Court of Common Pleas, Philadelphia County, Pennsylvania under Case No. 3197.(Id. at 4.)

Great American and Interstate Aerials now cross-move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court heard oral argument on the motions on July 24, 2008 and reserved decision at that time.Thereafter, the parties advised the Court that all claims in this action have been settled other than the declaratory judgment action and, therefore, the Court shall address the cross-motions for summary judgment on the coverage issue only. A court may grant summary judgment when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”FED. R. CIV. P. 56(c); see  Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”  Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.”See id.Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

The Court notes the following appearances of counsel at oral argument: Mark B. Shoemaker, Esq. on behalf of Interstate Aerials, Richard S. Nichols, Esq. on behalf of Great American, Philip D. Priore, Esq. on behalf of Horgan, and Christopher J. Tellner, Esq. on behalf of Erie Insurance Exchange.

The moving party bears the initial burden of “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”  Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a moving party satisfies its burden, the party opposing summary judgment must then “ ‘set forth specific facts showing that there is a genuine issue for trial.’ “ Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (quoting FED. R. CIV. P. 56(e)). A non-moving party must do more than rely only “ ‘upon bare assertions, conclusory allegations or suspicions.’ “ Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985) (quotation omitted); see  Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202. Thus, if the non-moving party’s evidence is a mere “scintilla” or is “not significantly probative,” the court may grant summary judgment in favor of the moving party. Liberty Lobby, 477 U.S. at 249, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202.

The standard for granting summary judgment is the same when cross-motions for summary judgment are filed. See  Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir.1987). Cross-motions for summary judgment “ ‘are no more than a claim by each side that it alone is entitled to summary judgment [.]’ “ Transportes Ferreos de Venezuela II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir.2001) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968)). As noted in F.A.R. Liquidating Corp. v. Brownell:

“The fact that both parties make motions for summary judgment, and each contends in support of his respective motion that no genuine issue of fact exists, does not require the Court to rule that no fact issue exists. Each, in support of his own motion, may be willing to concede certain contentions of his opponent, which concession, however, is only for the purpose of the pending motion. If the motion is overruled, the concession is no longer effective.”

F.A.R. Liquidating Corp. v. Brownell, 209 F.2d 375, 380 n. 4 (3d Cir.1954) (quoting Begnaud v. White, 170 F.2d 323, 327 (6th Cir.1948)). If upon review of cross-motions for summary judgment the Court finds no genuine issue of material fact, then judgment should be entered “in favor of the party deserving judgment in light of the law and undisputed facts.”  Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.1998) (citing Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139, 145-46 (3d Cir.1998)).

In the present case, the parties do not dispute that under the Great American insurance policy at issue, coverage for leased property is provided by way of an endorsement titled “LEASED PROPERTY-CONTINGENT INTEREST FORM,” which is identified as Form F 930. (Pl. Br. 7, Ex. E; Great American Br. of Law in Supp. of Not. of Mot. for Summ. J. (hereinafter, “Great American Br.”) 2.) The Form F 930 expressly provides on Page 1 under the title “DESCRIPTION OF PROPERTY COVERED” the following language: “Personal property consisting principally of EQUIPMENT USUAL TO AREIAL [sic] LIFT OPERATION.”(Id.; see also Great American May 22, 2008 Letter Reply Br. (hereinafter “Great American Reply Br .”) Ex. 3.) Page 1 of the Form F 930 also sets forth the following in the “LIMITS OF LIABILITY” section:

LIMITS OF LIABILITY:

A. Property leased to others. $200,000. in the custody of any one lessee not specified below….

(Great American Reply Br., Ex. 3 at 1.) Likewise, Page 2 of the Form F 930 states that leased property is covered under the insurance policy. Specifically, Page 2 of the Form 930 provides as follows:

A. PROPERTY COVERED

This policy insures personal property of the insured, as described in the Schedule, which is:

(a) leased or rented to others; and

(b) intended for lease or rental to others.

Such property is covered wherever located within the continental limits of the United States (excluding Alaska) and Canada including while temporarily located on premises of the Insured for repairs, adjustment or redistribution.

(Id. at 2.)

There is no dispute that the Form F 930 provides coverage for leased property. Rather, the dispute relates to whether Interstate Aerials was required to satisfy certain contingencies on Page 2 of the Form F 930, and, if so, whether those contingencies have been met. The contingencies are set forth in Section E on Page 2 of the Form F 930 under the heading “CONTINGENT COVERAGE.” This provision states:

E. CONTINGENT COVERAGE

When property is in the custody of lessee(s), this insurance applies only if the Insured has obtained:

1. A signed lease/rental agreement which requires the lessee to: (a) be fully responsible for all loss or damage; (b) provide insurance, no less broad as respects perils than that provided by this policy, covering the property to be leased; and

2. Evidence of such physical damage insurance, which names the Insured (lessor) as loss payee, when the value of property leased to any one customer exceeds $50,000.

(Id.) It is this provision, Section E, upon which Great American disclaimed coverage for the lift. Specifically, Great American denied coverage based upon its finding that Interstate Aerials did not obtain a signed rental agreement from Horgan, the lessee of the lift, and did not provide evidence of physical damage insurance naming Interstate Aerials as a loss payee. (Great American SMF, Ex. D at 2.) Interstate Aerials asserts that this clause is not enforceable because it is a “technicality buried at the end of voluminous insuring documents in a manner that is inconsistent with the coverage indicated on the Declarations page,” and, consequently, the conditions for coverage were not within the reasonable expectations of the insured, i.e., Interstate Aerials. (Pl.Br.10.)

Under New Jersey law, it is well settled that insurance policies are contracts of adhesion and, as such, are to be afforded “special scrutiny.” Zacarias v. Allstate Ins. Co., 168 N.J. 590, 594-95, 775 A.2d 1262 (2001) (citing Gibson v. Callaqhan, 158 N.J. 662, 669, 730 A.2d 1278 (1999)). When there is ambiguity in the policy of insurance, the policy should be interpreted “to comport with the reasonable expectations of the insured, even if a close reading of the written text reveals a contrary meaning.”  Id. at 595, 775 A.2d 1262 (citing Gibson, 158 N.J. at 671, 730 A.2d 1278). An ambiguity exists when “the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage.”  Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247, 405 A.2d 788 (1979). However, words of an insurance policy “are to be given their plain, ordinary meaning” and, in the absence of ambiguity, “ ‘courts should not write for the insured a better policy of insurance than the one purchased.’ “ Zacarias, 168 N.J. at 595, 775 A.2d 1262 (quoting Gibson, 158 N.J. at 670, 730 A.2d 1278).

Interstate Aerials and Great American both contend that New Jersey law is controlling on the issues presented on the parties’ cross-motions, and the Court shall apply New Jersey law to the coverage issues.

In Zacarias, the New Jersey Supreme Court held that in enforcing an insurance policy, a court should only “depart from the literal text” and apply the reasonable expectations doctrine “if the text appears overly technical or contains hidden pitfalls, cannot be understood without employing subtle or legalistic distinctions, is obscured by fine print, or requires strenuous study to comprehend.”  Zacarias, 168 N.J. at 601, 775 A.2d 1262 (citations omitted). Moreover, “the plain terms of the contract will be enforced if the ‘entangled and professional interpretation of an insurance underwriter is [not] pitted against that of an average purchaser of insurance, or the provision is not so ‘confusing that the average policyholder cannot make out the boundaries of coverage.’ “  Id. (citations omitted).

In this case, Interstate Aerials asserts that its “reasonable expectation” was to have unconditional coverage in the amount of $200,000 for property leased to others, notwithstanding the contingency language in the Form F 930, because such language is not contained on the first page of the form. (Pl.Br.8-10.) In support of its argument, Interstate Aerials cites Lehrhoff v. Aetna Ca. Ins. Co., 271 N.J.Super. 340, 347, 638 A.2d 889 (App.Div.1994), for the proposition that the Declarations Page of an insurance contract “ ‘must be deemed to define coverage and the insured’s reasonable expectation of coverage.’ “ (Pl.Br.8) (quoting Lehrhoff, 271 N.J.Super. at 347, 638 A.2d 889). Interstate Aerials urges that the “Contingent Coverage” clause on Page 2 of the Form F 930 is merely “a technicality buried at the end of voluminous insuring documents in a manner that is inconsistent with the coverage indicated on the Declarations page.” (Id. at 10.)In this regard, Interstate Aerials contends that “a review of the [Form F 930] would provide absolutely no indication to the insured of any … contingency.” (Id. at 7.) Great American argues, however, that the doctrine of reasonable expectations does not apply in this case because the language of the policy is unambiguous. (Great American Reply Br. 7.) Moreover, Great American asserts that summary judgment is appropriate because the undisputed facts demonstrate that Interstate Aerials, under the plain and unambiguous terms of the insurance policy, failed to satisfy both of the conditions precedent set forth in the Form F 930. (Great American Br. 7-8.)

The Court finds that the terms of the Great American insurance policy are clear and unambiguous, and do not warrant “depart[ure] from the literal text.”  Zacarias, 168 N.J. at 601, 775 A.2d 1262. The Form F 930 contains plain, easily understandable language that specifically requires as conditions for coverage of property leased to others that the insured enter into a signed lease/rental agreement and provide evidence of physical damage insurance naming the insured as a loss payee. (Great American Reply Br., Ex. 3 at 2.) While Page 1 of the Form F 930 sets forth the general coverage under the policy, indicating that coverage up to $200,000 is available for property leased to others, it also expressly states that it is the first page of a three-page document. (Id. at 1.) The language on Page 2 at Section E, entitled “CONTINGENT COVERAGE,” expressly states that coverage for property leased to others is contingent upon the satisfaction of the conditions described therein. (Id. at 2.) This language, including the two contingency provisions, in the Court’s view does not require an “entangled and professional interpretation to be understood.”  Zacarias, 168 N.J. at 601, 775 A.2d 1262. Nor is the phrasing of the policy “so confusing that the average policyholder cannot make out the boundaries of coverage.”  Weedo, 81 N.J. at 247, 405 A.2d 788. Moreover, the Form F 930 is not the type of “overly technical” policy referred to in Zacarias.The Form F 930 does not “contain[ ] hidden pitfalls,” can be understood “without employing subtle or legalistic distinctions,” is not “obscured by fine print,” and does not require “strenuous study to comprehend.” Zacarias, 168 N.J. at 601, 775 A.2d 1262 (citations omitted). Accordingly, the Court rejects Interstate Aerials’ argument that the Form F 930 is ambiguous or contradictory.

For this reason, Gerhardt v. Continental Ins. Co., 48 N.J. 291, 225 A.2d 328 (1966), cited by Interstate Aerials, is distinguishable. In Gerhardt, the plaintiff purchased a homeowner’s policy that excluded a worker’s compensation claim by a residence employee. 48 N.J. at 292, 225 A.2d 328. The Court concluded that the plaintiff’s reasonable expectation of coverage for a worker’s compensation claim should be fulfilled. Id. at 300, 225 A.2d 328. The Court noted that “the exclusionary clause in the policy before us was neither conspicuous nor plain and clear…. [O]nly a very hardy soul would have plowed through all of the fine print here in an effort to understand the many terms and conditions…. As far as the plaintiff here was concerned, nowhere was there any straightforward and unconditional statement that the policy was not intended to protect the insured against a workmen’s compensation claim [.]”  Id. at 298-99, 225 A.2d 328. In the present case, unlike Gerhardt, the contingency clause is not hidden among fine print or layers of cross-references, nor does it require “plow[ing] through” fine print to understand the terms and conditions.

Interstate Aerials urges a contrary conclusion, arguing that the policy’s “Declarations Page” does not expressly state that coverage for property leased to others is contingent upon the satisfaction of certain conditions precedent. The Court notes that New Jersey courts have recognized the importance of a single declarations page in an insurance policy and its role in defining the reasonable expectations of an insured. In Lehrhoff, relied upon by Interstate Aerials, the wording of an insurance policy’s declarations page was determinative. In that case, the Appellate Division concluded that the reasonable expectations of the insured, formed on the basis of the declarations page, could not be defeated by the boilerplate language contained elsewhere in the policy. Lehrhoff, 271 N.J.Super. at 347, 638 A.2d 889. However, in Zacarias, the New Jersey Supreme Court declined to interpret Lehrhoff as requiring an insurer to include exclusions on a declarations page in all cases. Zacarias, 168 N.J. at 602, 775 A.2d at 1269. The Court in Zacarias found that in the case before it, there was no ambiguity, inconsistency, or contradiction between the declarations page and the body of the insurance policy at issue. Zacarias, 168 N.J. at 602, 775 A.2d 1262. Rather, the declarations page “alert[ed] the insured that the coverages and limits of liability are subject to the provisions of the policy,” and the exclusionary provision in the policy was “written in direct and ordinary terms.”  Id. at 602-03, 775 A.2d 1262. As noted in Zacarias, “an insurance contract is not per se ambiguous because its declarations sheet, definition section, and exclusion provisions are separately presented.”  Id. at 603, 775 A.2d 1262.

The Court does not find Lehrhoff controlling under the circumstances presented in this case. First, the document relied upon by Interstate Aerials for purposes of defining its reasonable expectations-the Form F 930-is not the Declarations Page for the Great American policy at issue, but is rather an Endorsement.(See Pl. Br. 8.) In addition, the Declarations Page, Form CM 76 04, in bold and capitalized font, clearly directs the policy holder to certain forms and endorsements made a part of the policy. (Pl.Br., Ex. E.) The specific language is as follows: “FORMS AND ENDORSEMENTS applicable to all Coverage Parts and made part of this policy at time of issue are listed on the attached Forms and Endorsements Schedule CM 88 01 (11 85).”(Id.)The attached Schedule CM 88 01 is a BusinessPro FORMS AND ENDORSEMENT SCHEDULE, which lists the Form F 930-the Endorsement titled “LEASED PROPERTY-CONTINGENT INTEREST FORM”-as one of the forms and endorsements made part of the policy. The Court finds that the cross-reference from the Declarations Page to the Form F 930 does not create ambiguity, inconsistency or contradiction, or create reasonable expectations that conflict with the text of the policy sufficient to invalidate the terms of the policy. Cf.  Zacarias, 168 N.J. at 603, 775 A.2d 1262 (“A rule of construction forcing insurers to avoid all cross-referencing in policies would require them to reprint the entire definition section on each page of the policy, or to define each term every time it is used. That proliferation of fine print would itself demand strenuous study and run the risk of making insurance policies more difficult for the average insured to understand.”); Continental Cas. Co. v. Gamble, No. Civ. A. 05-5189, 2007 WL 1657107, at(D.N.J. June 5, 2007) (“[T]he Court determines that the Declarations Page is unambiguous in its reference to the Endorsement and does not alter the validity of the Policy and Endorsement…. [T]he Declarations Page clearly directs the policyholder to certain forms and endorsements made a part of the Policy by the use of bold and capitalized font…. The Court finds that this is sufficient, especially given that the Endorsement itself is written in such direct and ordinary terms.”). Consequently, the Court rejects Interstate Aerials’ argument that as a result of the Declarations Page the Great American policy covers the loss at issue in this case, i.e., the lift leased to Horgan.

The Declarations Page for the policy at issue is an “EQUIPMENT DEALERS DECLARATIONS” form, identified as Form CM 76 04. (Great American Reply Br., Ex. 1.) This Declarations Page states that only the premises at “2188 Route 322, Woolwich Twp, NJ” are covered under the policy. (Id.) Interstate Aerials thus cannot assert that based on the Declarations Page it had a reasonable expectation of coverage for property leased to others, because the Declarations Page indicates that the insurance policy covered only the real property in Woolwich Township, New Jersey.

In addition, the Court rejects Interstate Aerials’ argument that Page 1 of the Form F 930 should be construed as a Declarations Page that alone defines the reasonable expectations of the insured. Even if the Court considers Page 1 of the Form F 930 as a Declarations Page, the form is unambiguous and is clearly a three-page document in which Page 2 expressly provides for exclusions and contingent coverage. Interstate Aerials’ argument disregards the property excluded, the perils excluded, and the contingent coverage provisions set forth on Page 2 of the form. The Court finds no basis to disregard these provisions, which are clear and unambiguous, solely because they are not contained on the first page of the form. Cf.  Zacarias, 168 N.J. at 603, 775 A.2d 1262 (requiring insurer to place all terms on one page will result in the “proliferation of fine print” that will “demand strenuous study and run the risk of making insurance policies more difficult for the average insured to understand.”). The Court thus concludes that the first page in the Form F 930-the “LEASED PROPERTY-CONTINGENT INTEREST FORM”-whether deemed a Declarations Page or an Endorsement, does not alone define the reasonable expectations of the insured. Consequently, the Court finds that the “Contingent Coverage” clause is applicable in this case.

Having found that Interstate Aerials was required to comply with the “Contingent Coverage” clause in the Form F 930, the Court must now determine whether Interstate Aerials in fact complied with that provision. With respect to the requirement that Interstate Aerials obtain a lease/rental agreement from the lessee of the lift, Interstate Aerials “admits that it did not obtain such an agreement .”(Pl.Br.1.) Interstate Aerials takes the position that it nonetheless “is in substantial compliance” with the requirement in that it “had a binding agreement with [the lessee,] Al Horgan General Contractor notwithstanding the failure to obtain a signature on the rental agreement.”(Id.) At oral argument, however, counsel for Interstate Aerials conceded that a genuine issue of material fact exists on the issue of contract formation with Horgan.The Court need not address in the context of the present motions whether a binding contract was formed between Interstate Aerials and Horgan or whether such contract, if any, would satisfy the “Contingent Coverage” provision in the policy, because Interstate Aerials does not dispute that it failed to comply with a second requirement for coverage, that is, obtaining evidence of physical damage insurance held by Horgan naming Interstate Aerials as loss payee. (Pl. Br. Ex. E; Great American Reply Br. Ex. 3.) Great American asserts in its Statement of Material Facts that:

Horgan filed opposition to Interstate Aerials’ motion for summary judgment on the issue of whether the contractor, Horgan, and Interstate Aerials had a binding rental agreement, asserting in part that a question of material fact existed on this issue.

To effectuate property insurance coverage as to its property leased to others, Interstate was required to have obtained evidence of property insurance held by the lessee (Horgan) covering the leased property.

(Great American SMF ¶ 2.) Interstate Aerials does not address, let alone dispute, Great American’s assertion.Nor does Interstate Aerials address, or dispute, Great American’s assertion that “Plaintiff did not obtain a Certificate of Insurance listing itself as a loss payee, for the lift, under Horgan’s insurance coverage, in effect on November 17, 2005[.]”(Id. at ¶ 6.)0 Because it is undisputed that Interstate Aerials failed to obtain evidence of physical damage insurance by Horgan naming Interstate Aerials as loss payee on the date of the loss, the Court finds that Interstate Aerials did not comply with at least one of the two conditions set forth in Section E required to effectuate coverage for the lift. In light of Interstate Aerials’ failure to comply with such condition, the Court concludes that under the policy issued by Great American, Interstate Aerials is not entitled to coverage for the value of the lift.

The Court notes that this second requirement under the “Contingent Coverage” provision in Section E of the Form F 930, requiring Interstate Aerials to provide evidence of physical damage insurance naming Interstate Aerials as a loss payee, applies only “when the value of property leased to any one customer exceeds $50,000.”(Great American Reply Br. Ex. 3 at 2.) Plaintiff filed suit in this Court asserting that the amount in issue exceeded $75,000. (Am.Compl.2, ¶ 9.) The Court further notes that attached as Exhibit B to Great American’s motion for summary judgment is a document titled “Internal Claim Notes Report,” which reflects that the lift was worth between $100,000 and $105,000. (Great American Br., Ex. B.) The Court finds that Interstate Aerials was obligated to comply with this second contingent condition set forth in Section E of the Form F 930.

0. To the extent Interstate Aerials asserts that compliance with this requirement should be excused because of an agreement between Interstate Aerials and Horgan requiring Horgan to obtain the requisite insurance coverage and supply a Certificate of Insurance naming Interstate Aerials as loss payee (Pl.Br.12), any such agreement does not abrogate the express provision in the Form F 930 that Interstate Aerials obtain evidence of the property insurance “which names the Insured (lessor) as loss payee [.]” (Great American Reply Br., Ex. 3 at 2.)

Consequently, the Court shall grant Great American’s motion for summary judgment as to the claims asserted by Interstate Aerials, and deny Interstate Aerials’ cross-motion for summary judgment.

An appropriate Order shall be entered.

United States District Court, S.D. New York.

A.P. MOLLER-MAERSK A/S d/b/a Maersk Sealand, Plaintiff,

v.

OCEAN EXPRESS MIAMI; Carga Global, Sociedad Anonima; Caniz International Corporation; Caniz Logistica, Sociedad Anonima; and Comercializadora De Calidad, Sociedad Anonima (a.k.a. Quality Print), Defendants.

No. 06 Civ. 2778.

Dec. 5, 2008.

Freehill, Hogan & Mahar, LLP, by: Eric E. Lench, Esq., William J. Pallas, Esq., New York, NY, for Plaintiff.

OPINION

SWEET, District Judge.

A.P. MOLLER MAERSK A/S (“Plaintiff” or “Maersk”) has moved for an order (1) for partial summary judgment enforcing the COGSA $500 package limitation defense; and (2) enjoining Comercializadora de Calidad, Sociedad Anonima (“Defendant” or “Quality Print”) from proceeding with litigation on the merits relating to the shipment at issue in this case in any forum other than the United States District Court for the Southern District of New York, in accordance with the forum selection clause incorporated in the contract of carriage. For the reasons stated below, Maersk’s motion will be granted.

I. PRIOR PROCEEDINGS

On April 10, 2006, Maersk filed its complaint. On August 22, 2006, Maersk filed an amended complaint and on August 31, 2006, an order of attachment was signed in the amount of $650,000. On April 24, 2007, Maersk filed a Second Amended Complaint (“SAC”).

On August 9, 2007, Quality Print moved to vacate the attachment obtained by Maersk and to dismiss the SAC for lack of subject matter jurisdiction and failure to state a claim. That motion was denied on April 25, 2008.

The instant motion was filed May 29, 2008. On June 9, 2008, counsel for Quality Print moved to withdraw due to Quality Print’s failure to pay outstanding attorneys’ fees. That motion was granted by this Court’s Order of June 13, 2008, and Quality Print was granted twenty days from the date of the Order to engage new counsel and file papers in opposition to the instant motion. The twenty days has expired, and there is no record of Quality Print having engaged counsel or filing opposition papers.

II. FACTUAL BACKGROUND

In 2005, Quality Print, a Guatemalan corporation, purchased a used Heidelberg SpeedMaster 102-SP & L Series No. 533138 (the “Printing Machinery”) from Webster Synge Corporation (“Webster”), an American company based in Miami, Florida. The Printing Machinery was located in Milwaukee, Wisconsin.

Quality Print arranged for the carriage of the Printing Machinery through Caniz International Corp. (“Caniz”), which in turn booked the shipment with Maersk through the freight forwarder Ocean Express Miami (“Ocean Express”).

The Printing Machinery was packed for shipping in four containers provided by Maersk identified by the following numbers: (i) Container No. MSKU 8502736; (ii) Container No. TRIU 8932686-0; (iii) Container No. GSTU 2608422 (collectively, the “Guatemala Containers”); and (iv) Container No. MSKU 9065081 (the “New Orleans Container”).

The Guatemala Containers were trucked from Milwaukee to Chicago and carried by rail to New Orleans, arriving at the Maersk sea terminal between August 16th and 17th, and loaded on board the M.V. MAERSK FREMANTLE (the “FREMANTLE”) for carriage to Guatemala. The New Orleans Container containing the electronic unit that operates the Printing Machinery did not arrive at the New Orleans rail container terminal until August 23, 2005, and was not delivered to the Maersk sea terminal until August 25, 2005. The FREMANTLE had a cargo loading cut-off date of August 22, 2005.

On August 24, 2005, the FREMANTLE set sail from New Orleans to Guatemala with three Guatemala Containers aboard, which were discharged in sound condition at Santo Tomas de Castilla, Guatemala, on August 26, 2005.

On August 29, 2005, Hurricane Katrina made landfall in New Orleans, resulting in severe flooding and damaging the Maersk sea terminal, which subsequently had to discontinue operations for several weeks. The New Orleans Container therefore remained in New Orleans.

By mutual agreement, the New Orleans Container was picked up to permit Quality Print’s cargo underwriters to determine the extent of any damage. An initial joint survey took place on November 9, 2005, at the Cajun Distribution facility in Jefferson, Louisiana. The survey did not reveal any obvious damage to the electronic components of the Printing Machinery. The surveyors jointly recommended that the components be assembled with those in the three containers in Guatemala, at which time the press should be run and tested for damage.

On or about October 26, 2005 and October 27, 2005, respectively, Quality Print filed two actions in the Second Maritime Court of Panama (the “Panamanian Actions”) for damages incurred for failure to deliver the New Orleans Container to the Port of St. Thomas of Castilla in Guatemala. On October 30, 2006, Quality Print commenced an action in Guatemala relating to the same loss and citing the Booking Note.

The facts of this dispute were laid out in greater detail in A.P. Moller-Maersk A/S v. Ocean Express Miami, 550 F.Supp.2d 454 (S.D.N.Y.2008) (the “April 25 Opinion”). Familiarity with that Opinion is assumed.

III. THE MOTION FOR PARTIAL SUMMARY JUDGMENT IS GRANTED

A. Applicable Standard

Summary judgment is granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c); see  Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir.2004). The courts do not try issues of fact on a motion for summary judgment, but rather determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

“The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish [its] right to judgment as a matter of law.”  Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995). Summary judgment is appropriate where the moving party has shown that “little or no evidence may be found in support of the nonmoving party’s case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.”  Gallo v. Prudential Resid. Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994) (citations omitted).

In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See  Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002). However, “the non-moving party may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that its version of the events is not wholly fanciful.”  Morris v. Lindau, 196 F.3d 102, 109 (2d Cir.1999) (quotation omitted).

If an opposition party fails to respond to a motion for summary judgment, “summary judgment should, if appropriate, be entered against the party.”Fed.R.Civ.P. 56(e)(2).See also  Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). However,

even where a non-moving party fails to respond to a motion for summary judgment, a court may not grant the motion without first examining the moving party’s submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial. If the evidence submitted in support of the summary judgment motion does not meet the movant’s burden of production, then summary judgment must be denied even though no opposing evidentiary matter is presented.

D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 109-110 (2d Cir.2006) (internal quotations and citations omitted). Thus, even unopposed motions for summary judgment must “fail where the undisputed facts fail to show that the moving party is entitled to summary judgment as a matter of law.”  Vermont Teddy Bear Co., 373 F.3d at 244.

B. Maersk Is Entitled to Partial Summary Judgment

Maersk has moved for partial summary judgment limiting Quality Print’s damages, if any, to $2,500 pursuant to the $500 package limitation under the United States Carriage of Goods by Sea Act, 46 U.S.C. § 30701 note (“COGSA”).

Clause 6 of the Maersk Sealand Bill of Lading (the “Bill of Lading”) sets forth the circumstances under which Maersk will be liable for loss or damage during the carriage of goods. The Court has already determined that Quality Print is bound by the Bill of Lading. See April 25 Opinion, 550 F.Supp.2d at 462-63;see also  Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 33, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (holding that cargo owner’s recovery against carrier is limited by liability limitation to which an intermediary and the carrier agree). Section 6.2 states that liability of the carrier when the stage of the carriage during which loss or damage occurred is known shall be determined:

6.2(b) in case of shipments to or from the United States of America by the provisions of U.S. COGSA if the loss or damage is known to have occurred during Carriage by sea to or from the USA or during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading or of Discharge in ports of the USA ….

See April 25 Opinion, 550 F.Supp.2d at 458. Maersk has established that the alleged damage to the goods in the New Orleans Container took place under such circumstances. As such, pursuant to section 6.2 of the Bill of Lading, COGSA is applicable. Id. at 468.

Section 4(5) of COGSA provides that

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. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.

46 U.S.C.A. § 30701 note.

The purpose of the COGSA “package limitation” is to present the shipper “with a choice to accept the liability limitation in exchange for a lower rate for shipping, or to declare a higher value and pay a higher rate.”  Starrag v. Maersk, Inc., 486 F.3d 607, 612 (9th Cir.2007). Accordingly, “[o]nly by granting shippers a fair opportunity to choose between paying a greater or lesser charge to obtain correspondingly more or less protection for its goods may a carrier limit its liability to an amount less than the loss actually sustained.”  Gen. Elec. Co. v. MV Nedlloyd, 817 F.2d 1022, 1028 (2d Cir.1987). Thus, the COGSA package limitation is inapplicable where the shipper “was never afforded a fair opportunity to comply with s 4(5) of COGSA by declaring the actual value of the goods and inserting it in the bill of lading.”  Gen. Elec. Co. v. M.V. Lady Sophie, 458 F.Supp. 620, 622 (S.D.N.Y.1978); see also  Royal Ins. Co. v. M.V. ACX RUBY, 97 Civ. 3710(MBM), 1998 WL 524899, at(S.D.N.Y. Aug. 21, 1998) (“Although courts have sometimes inquired into a shipper’s degree of sophistication in determining whether it had fair opportunity to declare excess value, they have done so only after the carrier has made a prima facie showing that it had provided notice of the $500 per package limitation and how to avoid it.”). The Court of Appeals has held that a bill of lading provides sufficient notice where it incorporates by reference the COGSA limited liability provision and “a space on the front of the bill of lading provid[es] an opportunity for the declaration of excess value ….“ Binladen B5B Landscaping v. M.V. Nedlloyd Rotterdam, 759 F.2d 1006, 1017 n. 12 (2d Cir.1985); see also  Nippon Fire & Marine Ins. Co. v. M.V. Tourcoing, 167 F.3d 99, 101 (2d Cir.1999) (language incorporating COGSA’s provisions and space for declaring excess value of cargo were sufficient notice of limitation of liability provision and means of avoiding it); Gen. Elec. Co. v. MV Nedlloyd, 817 F.2d at 1029 (same). District court cases have not interpreted these requirements formalistically, but rather require a showing that, in some manner, the bill of lading provided notice of the liability limitation and the opportunity to avoid it. See  St. Paul Fire and Marine Ins. v. Thypin Steel Co., 95 Civ. 4439(MBM), 1999 WL 639718, at(S.D.N.Y. Aug. 23, 1999) (noting that “the courts in this Circuit have found the fair opportunity notice requirement satisfied by a variety of bill of lading provisions in an array of combinations,” and listing cases); Union Carbide Corp. v. M/V Michele, 764 F.Supp. 783, 786 (S.D.N.Y.1990) (“We find no indication in [Gen. Elec. Co. v. M/V Nedlloyd ] that the presence of a space on the front of the bill of lading was the crucial factor in that court’s decision. It is more important that the plaintiff knew that COGSA governed the transaction and that the defendant’s bill of lading specifically discussed the declaration of excess value ….”).

Here, the Maersk Bill of Lading clause 7.2 states, in relevant part:

Save as provided in clause 7.3: … (b) Where Carriage includes Carriage to, from or through a port in the United States of America and U.S. COGSA applies by virtue of clauses 5.1 or 6.2(b) neither the Carrier nor the Vessel shall in any event be or become liable in an amount exceeding US$500 per Package or customary freight unit.

Clause 7.3 states:

The Merchant agrees and acknowledges that the Carrier has no knowledge of the value of the Goods and higher compensation than that provided for in this bill of lading may be claimed only when, with the consent of the Carrier, the value of the Goods declared by the Shipper upon delivery to the Carrier has been stated in the box marked “Declared Value” on the reverse of this bill of lading and extra freight paid. In that case, the amount of the declared value shall be substituted for the limits laid down in this bill of lading. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.

These clauses provide sufficient notice of the COGSA limited liability provision and the opportunity to avoid it. This is so notwithstanding the fact that there is no evidence that the Bill of Lading, incorporated by reference in the booking confirmation and available on the internet, was actually sent to Defendants. See  Delphi-Delco Elec. Sys. v. M/V NEDLLOYD EUROPA, 324 F.Supp.2d 403, 425-26 (S.D.N.Y.2004) (holding that fair opportunity doctrine is satisfied where “the contract of carriage incorporates the terms of a standard form bill of lading that is on file with the Federal Maritime Commission and available both on the internet and at the offices of the carrier and its agents”).

The Court must next determine whether Maersk has demonstrated that there were five (or fewer) packages. The term “package” as used in COGSA was left undefined by Congress, which has created significant difficulties for the courts, particularly in light of the development of new methods for preparing and assembling goods for shipment. See  Allied Int’l Am. Eagle Trading Corp. v. S.S. “Yang Ming,” 672 F.2d 1055, 1064 (2d Cir.1982). First resort in interpreting the term must be to the parties’ contract, as set forth in the bill of lading. Binladen, 759 F.2d at 1012. Here, clause 1 of the Bill of Lading defines “package” as “where a Container is loaded with more than one package or unit, the packages or other shipping units enumerated on the reverse hereof as packed in such Container and entered in the box on the reverse hereof entitled ‘Carrier’s ‘Receipt’ [sic] are each deemed a Package.”Because the Bill of Lading was an online document incorporated by reference in the booking confirmation, there are no “shipping units enumerated on the reverse.”The definition, though not a model of clarity, seems to indicate that in the absence of such enumeration, each individual unit within a container should be considered a separate “package.” The New Orleans Container contained five separate palletized units, or “skids,” each containing components of the printing press. See Cairns Decl. at ¶ 2. Other than treating the entire container as a “package,” there is no sensible alternative construction of the term in the present context, Maersk does not argue that the container was the package, and in any event, ambiguity in a bill of lading, which is a contract of adhesion, must be construed against the issuing carrier. See  Allied Chem. Int’l Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476, 486 (2d Cir.1985). The pallets will therefore be treated as separate “packages” under COGSA.

Maersk is therefore entitled to summary judgment on its Fifth Cause of Action. Maersk’s liability for damages related to the New Orleans Container is limited under COGSA § 4(5) to $2,500.

IV. THE INJUNCTION IS GRANTED

Maersk has also sought an order enjoining Quality Print from continuing its pending actions in Panama and Guatemala as they relate to the merits of this dispute and from filing any further actions in those or any jurisdiction beyond this Court.

A. Applicable Standard

“The power of federal courts to enjoin foreign suits by persons subject to their jurisdiction is well-established.”  China Trade and Dev. Corp. v. M.V. CHOONG YONG, 837 F.2d 33, 35 (2d Cir.1987); see also  Farrell Lines Inc. v. Ceres Terminals Inc., 161 F.3d 115, 117 (2d Cir.1998) (recognizing authority of admiralty courts to issue injunctions, including, in the appropriate cases, anti-suit injunctions). However, “because such an order effectively restricts the jurisdiction of the court of a foreign sovereign, an anti-foreign suit injunction should be ‘used sparingly,’ and should be granted ‘only with care and great restraint.’ “ China Trade, 837 F.2d at 35-36 (quoting U.S. v. Davis, 767 F.2d 1025, 1038 (2d Cir.1985) and Canadian Filters (Harwich) v. Lear-Spiegler, 412 F.2d 577, 578 (1st Cir.1969)).

To determine whether to enjoin foreign litigation, the courts of this Circuit have adopted a two-step analysis. As a threshold matter, (A) the parties must be the same in both matters, and (B) resolution of the case before the enjoining court must be dispositive of the action to be enjoined. Paramedicas Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645 (2d Cir.2004); China Trade, 837 F.2d at 35.

When these threshold requirements are met, five factors are suggested in determining whether the foreign action should be enjoined: (1) frustration of a policy in the enjoining forum; (2) the foreign action would be vexatious; (3) a threat to the issuing court’s in rem or quasi in rem jurisdiction; (4) the proceedings in the other forum prejudice other equitable considerations; or (5) adjudication of the same issue in separate actions would result in delay, inconvenience, expense, inconsistency, or a race to judgment.

Am. Home Assur. Co. v. Ins. Corp. of Ireland Ltd., 603 F.Supp. 636, 643 (S.D.N.Y.1984); see also  China Trade, 837 F.2d at 35. The Second Circuit has cautioned that, in due regard for the interests of comity, the first and third factors, i.e. “whether the foreign action threatens the jurisdiction of the enjoining forum” and “whether strong public policies of the enjoining forum are threatened by the foreign action” take on “much greater significance.” China Trade, 837 F.2d at 36.

B. Maersk Is Entitled to an Anti-Suit Injunction

Here, the threshold requirements are met. The two Panamanian Actions and the Guatemalan Action both involve the same parties, and the resolution of this action will be dispositive of all three. See Decl. of Carlos Fernando Fernandez Garcia ¶¶ 2-10 (Aug. 7, 2007); Decl. of Jose Estuardo Luna ¶¶ 2-5 (Aug. 21, 2007).

Maersk has also satisfied the 5-factor test for an anti-foreign suit injunction. First, the foreign actions threaten an important public policy of the forum and the jurisdiction of this Court. It has already been determined that Quality Print is bound by the forum selection clause in the Bill of Lading. See April 25 Opinion, 550 F.Supp.2d at 462-66. That clause provides for exclusive jurisdiction in this Court over any disputes arising under the Maersk Bill of Lading where U.S. COGSA applies. “New York has a well-established public policy of enforcing forum selection agreements.”  Int’l Fashion Prods. V. Calvin Klein, Inc., 95 Civ. 982(JFK), 1995 WL 92321, at(S.D.N.Y. March 7, 1995) (issuing preliminary injunction enjoining plaintiff from prosecuting a subsequently filed injunction application in the District Court of Amsterdam, the Netherlands, in light of contract’s designation of New York as forum for all disputes); see also  Farrell Lines, 161 F.3d 115 (affirming issuance of injunction enjoining plaintiff from further pursuing pending litigation in Italy in light of New York forum selection clause).See generally  M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (holding that forum selection clause was valid and should be enforced by the courts absent some compelling reason making enforcement unreasonable).“Indeed, the justification for an anti-suit injunction ‘crests’ when a party seeks the aid of a foreign proceeding ‘in a blatant attempt to evade the rightful authority of the forum court.’ “ Int’l Equity Invs., Inc. v. Opportunity Equity Partners Ltd., 441 F.Supp.2d 552, 563 (S.D.N.Y.2006) (quoting Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 20 (1st Cir.2004)).See also  Software AG, Inc. v. Consist Software Solutions, Inc., 08 Civ. 389(CM)(FM), 2008 WL 563449, at (S.D.N.Y. Feb. 21, 2008).

Maersk has also made a compelling showing that the secondary factors weigh in its favor. Specifically, Maersk has demonstrated that the three foreign actions filed by Quality Print have great potential to be vexatious and pose significant risk of delay, inconvenience, expense, inconsistency, and a race to judgment.

The similarity between the facts of the instant case and those of Farrell Lines is worthy of note. In Farrell Lines, plaintiff issued a bill of lading reflecting shipment of a printing press, which was to be transported by ship from Livorno, Italy, and discharged at Norfolk, Virginia, with a final destination of Columbus, Ohio. 32 F.Supp. at 122.In Norfolk, the vessel’s stevedore off-loaded the printing press and lashed it to a chassis. The driver of the chassis made a sharp turn from the pier apron onto the main roadway in the container yard causing the cargo to tip over and hit the ground. Id. at 123.The press was insured by a group of four insurance companies. After an exchange of correspondence, plaintiff brought suit against the insurers, shipper and the stevedore, seeking declaratory and injunctive relief. The insurers then brought suit in Livorno, Italy, seeking recovery of damage to the press. Id. Plaintiff moved for partial summary judgment declaring its liability for any damage to the cargo limited to $500 pursuant to COGSA, and seeking an injunction prohibiting defendants from proceeding with litigation in any other forum, including Italy. Id.

After holding that the COGSA liability limitation did apply and that the forum selection in the bill of lading was binding on the shipper and its insurers, see id. at 125-27, the Honorable Michael B. Mukasey issued the injunction. Judge Mukasey held that it had been shown that defendants sought to frustrate two important public policies of this forum through the Italian action: first, defendants filed suit in Italy to avoid the United States policy favoring enforcement of forum selection clauses, and second, defendants filed suit in Italy to avoid the effect of COGSA’s liability limitation provisions.Id. at 130.Judge Mukasey’s conclusions were based on a defense attorney’s certification that admitted these to be the reasons for bringing suit in Italy. See id.Judge Mukasey also noted that, although enjoining the parties from proceeding in Italy was justified under this strict standard, a more lenient standard should be applied because he had decided the merits of plaintiff’s declaratory judgment claim, and the standard for enjoining foreign litigation after the domestic court reaches judgment is lower. Id. at 131.See also  Paramedicas Electromedicina, 369 F.3d at 655 (“[W]here one court has already reached a judgment-on the same issues, involving the same parties-considerations of comity have diminished force.”). The Court of Appeals affirmed “[f]or substantially the same reasons as those stated by the district court in its thoughtful and well-reasoned Opinion and Order ….“ Farrell Lines, 161 F.3d at 116.

There are distinctions between Farrell Lines and the instant case. Here, the Panama Actions were filed before the instant action, and there are no express admissions on record that Quality Print brought the Panama and Guatemala Actions in order to defeat public policies of this forum. However, these inconsistencies do not change the ultimate determination that an injunction is necessary to protect the Court’s jurisdiction and the public interest in enforcing the forum selection clause. Panama has no significant relationship to this dispute. The shipment did not originate or end there, neither Quality Print nor Maersk reside there, and the alleged damage to the shipment did not occur in Panama. It is simply a choke point through which vessels carrying goods from the United States Gulf to the West Coast of Central and South America must pass. With regard to the explicit admissions in Farrell Lines, such admissions are not necessary to demonstrate that Quality Print, by bringing multiple suits outside this District in violation of the forum selection clause, seeks to defy the New York’s interest in enforcing the forum selection clause and this Court’s jurisdiction.

Accordingly, Quality Print, its agents and underwriters will be enjoined from proceeding with litigation on the merits relating to the shipment at issue in this case in any forum other than the United States District Court for the Southern District of New York, in accordance with the forum selection clause incorporated in the contract of carriage.

V. CONCLUSION

For the reasons stated above, Plaintiff’s motion for partial summary judgment is granted and Quality Print is enjoined from maintaining suit against Plaintiff related to damage to the shipment at issue in this case in any forum other than the United States District Court for the Southern District of New York.

It is so ordered.