10-2924-cv
St. Paul Travelers Insurance Co. v. Wallenius Wilhelmsen Logistics A/S

                                    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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 20th day of May, two thousand eleven.

PRESENT:

          JOSÉ A. CABRANES,
          CHESTER J. STRAUB,
          REENA RAGGI,
                 Circuit Judges.

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ST. PAUL TRAVELERS INSURANCE COMPANY LIMITED,

                               Plaintiff-Appellant,



          v.                                                                               No. 10-2924-cv

WALLENIUS WILHELMSEN LOGISTICS A/S, WALLENIUS
WILHELMSEN LOGISTICS AMERICAS LLC, PARSIFAL
SHIPPING LIMITED, in personam, PACIFIC RO RO
STEVEDORING, and OST TRUCKS AND CRANES INC.,

                               Appellees.*

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          *
              The Clerk of Court is directed to amend the caption to read as shown above.

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FOR APPELLANT:                          WILLIAM R. BENNETT, III, Bennett, Giuliano, McDonnell &
                                        Perrone, LLP, New York, NY.

FOR APPELLEES:                          PETER A. JUNGE (Armand P. Mele, on the brief), Junge & Mele
                                        LLP, New York, NY, for appellees Wallenius Wilhelmsen
                                        Logistics A/S, Wallenius Wilhelmsen Logistics Americas
                                        LLC, and Parsifal Shipping Ltd.

                                        JAMES W. CARBIN, Duane Morris LLP, Newark, NJ, for
                                        appellee Pacific Ro Ro Stevedoring, LLC.

                                        THADDEUS J. ROZANSKI, Kral Clerkin Redmond Ryan Perry
                                        & Van Etten, LLP, Melville, NY, for appellee OST Trucks and
                                        Cranes, Inc.

        Appeal from a March 31, 2010 order and a June 30, 2010 judgment entered in the United
States District Court for the Southern District of New York (John G. Koeltl, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.

        Plaintiff-appellant St. Paul Travelers Insurance Company Limited (“St. Paul”) is the subrogee
insurer of a 2006 Sunseeker Predator 72 yacht that was badly damaged when a crane toppled over
while offloading the yacht at a port in California. St. Paul, seeking to recover the payout of the
$4,179,938 insurance claim, brought claims of damage to goods in transit, negligence,
unworkmanlike performance, conversion, negligent entrustment, and breach of contract against the
ocean carrier (Wallenius Wilhelmsen Logistics A/S, Wallenius Wilhelmsen Logistics Americas LLC,
and Parsifal Shipping Ltd.—jointly “WWL”), the crane owner and operator (OST Trucks and
Cranes Inc.), and the discharging stevedore (Pacific Ro Ro Stevedoring, LLC). The defendants
moved for summary judgment on the theory that the bill of lading precluded suit against any
defendants other than WWL and furthermore capped WWL’s liability at $500. The District Court
found this argument persuasive, and, accordingly, dismissed the claims against Pac Ro Ro and OST
and directed that judgment be entered against WWL in the amount of $500. St. Paul now appeals.
We assume the parties’ familiarity with the facts, procedural history, and legal issues currently before
us.

         We review de novo a district court’s grant of summary judgment, drawing all factual inferences
in favor of the non-moving party. Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir.
2008). “Summary judgment is appropriate only ‘if 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.’” Sousa v. Roque, 578 F.3d 164 , 169 (2d
Cir. 2009) (quoting Fed. R. Civ. P. 56). Having conducted a de novo review, we hold, for substantially
the reasons stated by the District Court in its thorough and well-reasoned opinion, St. Paul Travelers
Ins. Co. v. M/V Madame Butterfly, 700 F. Supp. 2d 496 (S.D.N.Y. 2010), that (a) the bill of lading does
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indeed govern the terms of this dispute between the parties, and (b) the bill of lading precludes St.
Paul from pursuing legal claims against Pac Ro Ro or OST in connection with the damaged yacht
and caps WWL’s liability at $500.

        As the District Court properly recognized, the service contract between WWL and Peters &
May, Ltd (Sunseeker’s freight forwarder) did not cover the yacht in question because the bill of
lading for the yacht did not include the service contract number—as the service contract itself
requires for it to be applicable—and failed to specify a freight rate for this particular yacht.
Tellingly, St. Paul’s complaint relies exclusively on the bill of lading to assert jurisdiction in the
Southern District; according to the service contract that St. Paul insists is controlling here, all
disputes with WWL must be settled through arbitration in London. Further, because we conclude
that the service contract and bill of lading are unambiguous, there is no need to consult extrinsic
evidence such as Gerald Price’s declaration to determine the parties’ intent. See generally Garza v.
Marine Transp. Lines, Inc., 861 F.2d 23, 26-27 (2d Cir. 1988) (“In the absence of ambiguity, the effect
of admitting extrinsic evidence would be to allow one party to substitute his view of his obligations
for those clearly stated.” (quotation marks omitted)).

         St. Paul also argues that the Himalaya Clause1 in the bill of lading cannot cover OST, a lessor
of a mobile crane, who, at least according to St. Paul, (a) did not assist with the contract of carriage,
(b) held no unique relationship with the carrier, and (c) was not an intended beneficiary of the
contract of carriage. We need not reach this argument, however, because, as the District Court held,
St. Paul’s claims against Pac Ro Ro and OST are precluded by an independent, covenant-not-to-sue
clause contained in the bill of lading. St. Paul forfeited any challenge to the validity of this clause by
failing to raise it below. Moreover, it abandoned the issue on appeal, see Order, St. Paul Travelers Ins.
Co. v. Wallenius Wilhelmsen Logistics A/S, No. 10-2924-cv (2d Cir. Dec. 23, 2010), and cannot resurrect
the claim by post-argument filings.

         The bill of lading also explicitly incorporated the Carriage of Goods by Sea Act (“COGSA”),
46 U.S.C. § 30701 note, which serves to limit WWL’s liability in this case to $500. To the extent St.
Paul has not waived its argument that the yacht did not constitute a single “package” under COGSA,
see Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs
are considered waived and normally will not be addressed on appeal), it is without merit. In the
absence of any contrary evidence, the bill of lading’s unambiguous statements that the “No. of units
or packages” is “1” and that the “Total no. of containers or packages received by the Carrier” was
also “One” evidences the parties’ intent that the yacht was to be treated as a single package. See




         1
            A Himalaya Clause is a contractual provision extending to third parties the defenses, immunities, limitations
or other protections a law or a bill of lading confers on a carrier. See Royal & Sun Alliance Ins., PLC v. Ocean World Lines,
Inc., 612 F.3d 138, 142 & n.9 (2d Cir. 2010).
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Seguros “Illimani” S.A. v. M/V Popi P, 929 F.2d 89, 94 (2d Cir. 1991); accord Monica Textile Corp. v. S.S.
Tana, 952 F.2d 636, 640 (2d Cir. 1991).

                                       CONCLUSION
       We have considered each of St. Paul’s arguments on appeal and find them to be without
merit. For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.


                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court




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