     09-3222-cv(L), 09-3377-cv(XAP)
     Kelso Enterprises Limited v. M/V Diadema


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
     after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
     this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
     party must cite either the federal appendix or an electronic database (with the notation “summary
     order”). A party citing a summary order must serve a copy of it on any party not represented by
     counsel.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held
 2   at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
 3   New York, on the 27th day of April, two thousand ten.
 4
 5   PRESENT:
 6               JOHN M. WALKER, JR.,
 7               CHESTER J. STRAUB,
 8               DEBRA ANN LIVINGSTON,
 9                                 Circuit Judges.
10   _________________________________________________
11
12   KELSO ENTERPRISES LIMITED, PACIFIC FRUIT
13   LIMITED,
14             Plaintiffs-Appellees-Cross-Appellants,
15
16            -v.-                                            Nos. 09-3222-cv(L),
17                                                            09-3377-cv(XAP)
18
19   A.P. MOLLER-MAERSK A/S, MAERSK LINE,
20   MAERSK DEL ECUADOR C.A.,
21              Defendants-Appellants-Cross-Appellees,
22
23   M/V DIADEMA, her engines, boilers, etc., M/V ROTTERDAM,
24   her engines, boilers, etc., CW SCHIFFAHRTS GMBH & CO KG,
25   JMS SCHIFFAHRTSGES MBH & CO KG MS “Antares J,”
26   SEASON CORP., in personam,
27                  Defendants,
28
29   M/V MARYSTON, her engines, boilers, etc.,
30               Defendant-In-Rem.
31   _________________________________________________
32




                                                      1
 1                                 John R. Keough, III (Peter C. Dee, on the brief), Waesche,
 2                                 Sheinbaum & O’Regan, P.C., New York, NY, for
 3                                 Plaintiffs-Appellees-Cross-Appellants.
 4
 5                                 James L. Ross (Manuel A. Molina, on the brief), Freehill
 6                                 Hogan & Mahar LLP, New York, NY, for Defendants-
 7                                 Appellants-Cross-Appellees.
 8
 9
10          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

11   DECREED that the judgment of the district court be AFFIRMED.

12          Defendants-Appellants-Cross-Appellees A.P Moller-Maersk A/S, Maersk Line,

13   and Maersk Del Ecuador C.A. (“Maersk”) appeal from a June 3, 2009, order of the

14   United States District Court for the Southern District of New York (Scheindlin, J.)

15   insofar as it granted the motion of Plaintiffs-Appellees-Cross-Appellants Kelso

16   Enterprises Limited and Pacific Fruit Limited (“Kelso”) to compel arbitration. Maersk

17   argues that the scope of the arbitration provision does not encompass actions for damage

18   to cargo like the one at hand. Kelso cross-appeals from the same order insofar as it

19   granted Maersk’s motion to dismiss on the grounds of improper venue, arguing that, in

20   granting the improper venue motion, the court decided a choice of law question that

21   should have been left to arbitration.      We assume the parties’ familiarity with the

22   underlying facts, procedural history, and specification of the issues on appeal.

23          We review de novo both the granting of a motion to compel arbitration and the

24   granting of a motion to dismiss on the ground of improper venue due to a forum selection

25   clause. See Phillips v. Audio Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007) (improper

26   venue); Abram Landau Real Estate v. Bevona, 123 F.3d 69, 72 (2d Cir. 1997)

27   (compelling arbitration).

28          Generally, when interpreting a contract or multiple contracts in a transaction, we

29   strive to give effect to all of the terms of the relevant documents, reading them together.
                                                  2
 1   Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 111 (2d Cir. 2008). If there is

 2   an inconsistency between two provisions, however, specific language will prevail over

 3   more general language. ABN Amro Verzekeringen BV v. Geologistics Ams., Inc., 485

 4   F.3d 85, 102 (2d Cir. 2007). Moreover, “[r]eview of arbitrability questions is subject to

 5   [an] important presumption[]: . . . ‘the federal policy in favor of arbitration requires that

 6   “any doubts concerning the scope of arbitrable issues” be resolved in favor of

 7   arbitration.’” Telenor Mobile Comm’cns AS v. Storm LLC, 584 F.3d 396, 406 (2d Cir.

 8   2009) (quoting Shaw Group Inc. v. Triplefine Int’l Corp., 322 F.3d 115, 120 (2d Cir.

 9   2003) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25

10   (1983))).

11          We agree with the district court that Clause 7 of the service contract, which

12   governs conflicts between the service contract and the bill of lading, is ambiguous on its

13   face. The second sentence of the clause states that the arbitration provision, found in the

14   service contract, cannot be overridden by the bill of lading, while the third sentence of the

15   clause requires that “in the event any provision in [Maersk’s] bill of lading which limits

16   or governs its liability for damages to persons or property (including cargo) . . . is . . . in

17   conflict with the Contract, the bill of lading shall prevail.” Maersk contends that this

18   third sentence carves out an exception under which the bill of lading provisions control in

19   cargo damage cases, but this does not accord with the text of the clause. The clause is not

20   conditioned on the type of case, but rather on whether a provision in the bill of lading

21   “which limits or governs [Maersk’s] liability for damages to persons or property” is in

22   conflict with the service contract.

23          Given the ambiguity in Clause 7, we rely, as the district court did, on the

24   presumption of arbitrability. “[T]he existence of a broad agreement to arbitrate creates a

                                                   3
 1   presumption of arbitrability which is only overcome if it may be said with positive

 2   assurance that the arbitration clause is not susceptible of an interpretation that covers the

 3   dispute.” Bank Julius Baer & Co. v. Waxfield Ltd., 424 F.3d 278, 284 (2d Cir. 2005)

 4   (quoting WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 72 (2d Cir. 1997) (internal

 5   quotation marks omitted)) (alteration in original). Certainly the arbitration clause here is

 6   susceptible of an interpretation that covers the dispute --- that it covers all disputes

 7   “arising under or related to” the service contract and cannot be overridden by the bill of

 8   lading. “Moreover, we ‘cannot nullify an arbitration clause unless the forum selection

 9   clause specifically precludes arbitration.’” Id. (quoting Pers. Sec. & Safety Sys. v.

10   Motorola, 297 F.3d 388, 396 n.11 (5th Cir. 2002)). The forum selection clause in the bill

11   of lading, Clause 26, does not specifically preclude arbitration, nor does Clause 7 provide

12   a “positive assurance” that this dispute is not governed by the arbitration provision. Id.

13   We therefore find that the parties are bound to arbitrate their cargo damage claim.

14          In its cross-appeal, Kelso asks us to review the decision of the district court on the

15   choice of law question, arguing that the applicability of COGSA is a question that must

16   be left to the arbitrator under the strictures of the Federal Arbitration Act. Kelso Br. 24

17   (citing Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 541 (1995)).

18   We need not reach the merits of this issue, however, because Kelso explicitly requested

19   in its memorandum of law that the district court decide Maersk’s motion to dismiss, a

20   decision necessarily requiring a COGSA analysis, before considering Kelso’s motion to

21   compel arbitration:

22                          Based on the request by Maersk’s counsel to
23                  proceed in this Court, Kelso has not further pursued the
24                  arbitration commenced on the same day as this action.
25                  Maersk has failed to appoint its arbitrator as required by the
26                  Service Contract and is in default.

                                                    4
 1                           However, if the Court finds that Kelso’s action may
 2                    not proceed further in this Court, Kelso respectfully cross-
 3                    moves to compel arbitration based on the broad arbitration
 4                    clause in the Service Contract and to stay this proceeding
 5                    pending such arbitration.
 6
 7   After the order, moreover, Kelso did not move for reconsideration or otherwise make its

 8   concern about the COGSA decision known to the district court. The “error . . . alleged

 9   now was induced by appellant’s position below and hence it cannot complain.” Dir. Gen.

10   of India Supply Mission v. S.S. Maru, 459 F.2d 1370, 1377 (2d Cir. 1972); see also van

11   Nijenhoff v. Bantry Transp. Co., 791 F.2d 26, 28 (2d Cir. 1986) (refusing to “allow

12   appellant to try the case anew on a theory steadfastly avoided until after the verdict” for

13   strategic reasons); Remington Rand, Inc. v. United States, 202 F.2d 276, 278 (2d Cir.

14   1953) (“A party may not secure a reversal resulting in prolonging the litigation by

15   reliance upon an error for which it was responsible.”). Because Kelso induced the alleged

16   error it now protests, we decline to review it at Kelso’s urging.

17          We have considered all of the parties’ remaining arguments and find them to be

18   without merit.

19          For the foregoing reasons, the judgment of the district court is hereby affirmed.
20
21
22                                                         FOR THE COURT:
23                                                         Catherine O’Hagan Wolfe, Clerk
24
25




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