OPINION AND ORDER Defendant Marie S. Carew (“Carew”) does business under the name of her sole proprietorship, Holiday Shipping, an ocean-transportation intermediary based out of Georgia. From approximately 2015 through 2018, Carew entered into various agreements with Plaintiff Maersk Line A/S, an international shipping carrier, to transport her clients’ goods from the United States to Africa. Maersk has sued Carew to recover charges for the carriage that were incurred and invoiced, but allegedly not paid.1 Both parties have now filed motions. Carew moves to dismiss or transfer, arguing primarily improper venue and forum non conveniens. Maersk moves for summary judgment on its breach of contract claim, arguing that the undisputed evidence renders Carew liable for payments owed in connection with seventy-three international shipments. For the reasons that follow, the Court denies Carew’s motion to dismiss or transfer largely because of a forum selection clause in the shipment documentation that places venue in this District. The Court also grants Maersk’s motion for summary judgment in part and denies it in part. The Court grants summary judgment in favor of Maersk on its breach of contract claim with respect to all allegedly invoiced but unpaid charges, except for the “prepaid” freight charges. The current record precludes summary judgment as to whether Carew has in fact paid those freight charges. I. Background A. Facts2 Maersk is a Danish international cargo carrier. See Dkt. 56 (“Am. Complaint”) 2; Pl. 56.1 Stmt., Exh. 4 (“Service Contract”) at 1. Holiday Shipping — the name that Carew operates under — is a non-vessel-operating ocean common carrier (“NVOCC”) based in Georgia. Am. Complaint 3; Deft. Motion, Exh. A (“Carew Affidavit”)
1-3, 5. Carew “manage[s] and direct[s] all activities of Holiday Shipping.” Carew Affidavit 2. “An NVOCC acts as a middleman between shippers and ocean common carriers that arranges for shippers the transportation of cargo aboard a vessel.” MSC Mediterranean Shipping Co. SA v. Airlift Marine Servs. PVT Ltd., No. 18 Civ. 10788 (JPC), 2022 WL 123589, at *1 (S.D.N.Y. Jan. 13, 2022) (quotation, citation, and alteration omitted). Maersk and Holiday Shipping entered into a Service Contract, which set terms for Maersk’s carriage of goods for Holiday Shipping. See generally Service Contract.3 Among other things, the Service Contract obligated Holiday Shipping to “pay [Maersk] amounts required under the [Service] Contract or [Maersk]‘s Transport Document upon receipt of an invoice” without “further documentation.” Id. §4. The Service Contract contained a choice of law and forum selection clause in the event of disputes between Maersk and Holiday Shipping: The Contract shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country. Alternatively and at [Maersk]‘s sole option, [Maersk] may commence proceedings against [Holiday Shipping] at a competent court of a place of business of [Holiday Shipping]. Id. §11. The Service Contract also provided, however, that “in the event any provision in [Maersk]‘s Transport Document limit[ing] or govern[ing] its liability for damages to persons or property (including cargo), delays, [or] misdelivery” conflicts with the Service Contract, “or any other provision of the Transport Document mandated by applicable law is…in conflict with the [Service] Contract, the Transport Document shall prevail.” Id. §2. Maersk’s “bill of lading…or sea waybill” qualified as such a “Transport Document” under the Service Contract. Id. §1. As anticipated, Maersk and Holiday Shipping entered into various agreements for Maersk to carry shipping containers across the Atlantic Ocean from American to African ports. The Transport Documents — which covered seventy-three such shipments — had “received for shipment” dates of between November 15, 2015 and September 10, 2018. See Transport Documents. Some of the Transport Documents were identified as bills of lading, see, e.g., id. at 7, while others were identified as sea waybills, see, e.g., id. at 1. A bill of lading is a document issued by a carrier, like Maersk, to a shipper, like Holiday Shipping. See MSC Mediterranean Shipping Co. S.A., 2022 WL 123589, at *1. “Bills of lading record that a carrier has received goods from the party that wishes to ship them, state the terms of carriage, and serve as evidence of the contract for carriage.” Saray Dokum ve Madeni Aksan Sanyani Turizm A.S. v. MTS Logistics, Inc., No. 17 Civ. 7495 (JPC), 2021 WL 1199470, at *1 (S.D.N.Y. Mar. 30, 2021) (cleaned up). While bills of lading may appear in both negotiable and non-negotiable forms, the bills of lading in this case are non-negotiable. See Deft. 56.1 Stmt. 3; Dkt. 77 (“Second Palazzo Decl.”) 4; Transport Documents at 7 (noting that to be negotiable, the bill of lading must list the consignee in a particular way, which was not done on the Transport Documents). A sea waybill is “basically the same as a non-negotiable bill of lading in the United States.” Chester D. Hooper, Carriage of Goods and Charter Parties, 73 Tul. L. Rev. 1697, 1728 (1999). The reverse sides of the Transport Documents were the same for all the documents relevant to this case, and featured Maersk’s Terms for Carriage. Pl. 56.1 Stmt. 3; id., Exh. 3 (“Terms for Carriage”); Carew Affidavit 8. Like the Service Contract, the Terms for Carriage also contained a choice of law and forum selection clause: For shipments to or from the U.S. any dispute relating to this bill of lading shall be governed by U.S. law and the United States Federal Court of the Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof. In all other cases, this bill of lading shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the court of another country. Alternatively and at [Maersk]‘s sole option, [Maersk] may commence proceedings against [Holiday Shipping] at a competent court of a place of business of [Holiday Shipping]. Terms for Carriage §26. Also like the Service Contract, the Terms for Carriage obligated Holiday Shipping to pay Maersk for the trans-Atlantic carriage. “All sums payable to [Maersk] [were] due on demand” and “in full.” Id. §16.3. The freight was to “be paid without any set off, counter claim, deduction or stay of execution.” Id. §16.5. Even if Maersk accepted directions from Holiday Shipping “to collect Freight, duties, fees, demurrage/detention and costs and expenses” from another party, if the third party failed to pay, “[Holiday Shipping]…remain[ed] responsible for [such amounts]…o[n] demand.” Id. §16.7. All “Merchant[s],” including Holiday Shipping as the Shipper,4 were “jointly and severally liable to [Maersk] for the due fulfillment of all obligations undertaken by the Merchant.” Id. §§1, 15.1. And the Terms for Carriage also obligated “[Holiday Shipping to] comply with all regulations or requirements of customs, port and other authorities,” and to “bear and pay all duties, taxes, fines, imposts, expenses or losses…incurred or suffered by reason of any failure to” do so. Id. §15.3. Maersk invoiced Holiday Shipping for various charges related to the seventy-three shipped containers, including “basic ocean freight, detention, demurrage, per diem charges, inland haulage, low Sulphur surcharges, congestion fees, shifting expenses, bunker fees, port dues, documentation fees, and associated and incidental customs duties, fees, taxes, costs, charges, and expenses accrued on the containers.” Pl. 56.1 Stmt. 6; see also id., Exh. 5 (“Invoices”). “In maritime parlance, freight is the compensation which the shipowner is to receive for carrying the goods.” Energy Transp., Ltd. v. Sebastian, 269 F. Supp. 2d 416, 417 n.1 (S.D.N.Y. 2003) (quotation omitted). Demurrage is a type of charge for delays. See Demurrage, Black’s Law Dictionary (11th ed. 2019). Payment on the Invoices was due at various times between November 24, 2015 and October 8, 2018. See Invoices. Each Invoice listed the bill of lading and container numbers for the shipments justifying the charges and the calculations underlying the charges. Pl. 56.1 Stmt. 7; Invoices. In a declaration submitted by Maersk in support of summary judgment, Palazzo attests that Carew did not pay invoiced charges totaling $146,313.00. Pl. 56.1 Stmt.
