documents within thirty days of today [March 27, 2002]. This extension shall be
considered expired and the claim absolutely time barred as of July 7, 2002 unless
further extension is granted.

Continental sent something to Fednav on April 3. What is in dispute is whether this was

“complete claims supporting documents.” The cover letter sent by Continental had a section

called Claim Detail. It read:

Vessel: DAVIKEN Dated: 15-Mar-01
Bill of Lading: SP 502-566 Port of Discharge: | Burns Harbor
Port of Shipment: Gent Consignee: J &F Steel
Shipment: Steel Coils Shipper: Transaf
Nature of Loss: Rust & Physical

Your File: AG/49/01

Our File: 71000968

Attached to the cover letter were a series of documents. A letter from a marine surveyor
suggested $700,000 in damage and indicated that more damage may arise from the damage to 19
unused coils, and there are other letters and documents that refer to the damage. The documents
do not detail the number of damaged coils, the time or location that damage was discovered or its
extent, the loss per coil or, for that matter, the identity of the damaged coils. Moreover, the
damage claim is now $834,939.87 instead of $700,000.

More specific information was sent April 8, arguably enough to constitute complete claim
information, but it was accompanied by a cover letter that referred to a separate and much smaller
claim for other steel coils, The defendants say that these materials therefore do not count, and I
agree. No one disputes that, for good reasons, Fednav assigns different claim numbers to
different claims even when they arise from the same shipment. I have no doubt that Fednav
examined both the April 3 and the April 8 papers, but they were not obliged to consider the April

8 papers in connection with the April 3 claim, which bore a different number. It is not


addressed in Cote and in Hapaniewski v. City of Chicago Heights, 883 F.2d 576 (7" Cir. 1989) is
arguably more fundamental than the flaw here. In those cases the filing was in a court which
lacked personal jurisdiction over defendant. Here, the flaw is failure to honor a forum selection
clause. But I think the reasoning in Cote must apply to filings in breach of forum selection
clauses, particularly in a case in which all parties are commercially sophisticated and familiar

with the forms of litigation in which they engage.

The motion to dismiss is granted.

TER:

|. 63 SA

Jameg B. Sa
Unjted States Distajct Sud
DATE: | @ Lh. 2003



understanding of its meaning. Fednav itself did not defend its position on the meaning of the
phrase. Its correspondence blamed its own insurers for the position it took and weakly said “we
see no reason to disagree with our insurer’s position.” And, though the plaintiff here extends this
argument to an unconvincing extreme, the fact remains that defendants here had several different
definitions of “complete claim documents” over a period of time. I accept the proposition that
the phrase here was ambiguous.

The next phase of the argument is the disagreement over who should bear the
consequences of this ambiguity. There is, of course, the doctrine of contra preferentum which
cuts against the defendants because it is they who insisted on “complete claims documents,” but
the ambit of this doctrine is quite narrow-it is a last step tie breaker to be used only after all other
attempts at correct interpretation have failed, and there is no better tie breaker.

One tie breaker suggested by the defendants is that plaintiff knew what the phrase meant
because it provided complete claims documents in another claim case filed at about the same
time. It never asked Fednav if it considered the documents complete. And it did have complete
claims documents (by Fednav’s reckoning) in its possession well before the thirty-day filing
period ended.

The plaintiff uses the mirror image of this argument by asserting that Fednav never told it
that it had any problem with the documents. It simply kept silent until it was too late to repair
whatever defects Fednav thought were present.

By my understanding of the law, the plaintiff should lose this argument. It was the
claimant, and it had the obligation to determine that it had met the conditions set by
defendants—particularly in a case where the defendants had the legal right to refuse to extend the

limitations period and remit plaintiff to filing the suit. Interestingly enough, case law articulating

6



unreasonable to impose on Continental the burden of specifying clearly what papers are to be
considered in connection with what claims.

But the parties do not, in the end, part company on this issue. The reason that it is raised
is that defendants moved to strike an affidavit on the grounds, among others, that it was an
attempt to mislead the court into thinking that the April 8 documents were crucial. I do not think,
in the context of this case, it was designed to or could reasonably be expected to mislead, so I
deny the motion to strike and disregard those portions of the affidavit that express merely legal
conclusions. What Continental sought to do in its opening brief was to rely upon the later filed
documents but it lost, and to my eye, concedes that it lost, that point. Making an argument that
fails is not an attempt to mislead the court.

Continental is thus stuck with its April 3 response, but it argues that defendants cannot
rely on the alleged shortcomings of the documents because they never defined what it was that
they wanted. In short, “complete claims documents” is an ambiguous term. If Fednav had
wanted more, it should have said so if it was dealing fairly and in good faith as it was required by
law to do. So the questions are whether the phrase is ambiguous, and if so, whether the duty to
deal in good faith required Fednav to clarify it since it was the author of the phrase.

No one offers much evidence (but we are only at the motion to dismiss stage) that
“complete claims documents” has a standard meaning within this area of commercial practice. A
federal regulation defines supporting documents as “affidavits, correspondence, bills of lading,
paid freight bills, export declaration, dock or wharf receipts, or of such other documents as, the
judgment of the claimant, tend to establish the claim.” 46 C.F.R. § 502.1. But I am not sure it
applies in the context where the carrier of goods is asked to extend the time for suit-a decision

remitted solely to the carrier. There is evidence that Fednav itself may not have had a clear

5



Court having admiralty jurisdiction at the USA port of discharge. All the documents said the port
of discharge was Burns Harbor (neé Burns Ditch) which I take judicial notice is located in
Indiana. Burns Harbor is, by Executive Order, located within the Port of Chicago and
Continental argues that suit in this District is fine. This depends in turn on reading the term
“USA port of discharge” to be ambiguous. What Continental suggests is that the clause should
have read “District Court having admiralty jurisdiction at the USA port of discharge in the State
of Indiana.” This is an argument against the standardized bills of lading used in this and other
transactions. The carrier would have to fill in a blank representing the expected state of
jurisdiction of the intended port of discharge and, of course, leave uncovered the issue of where
suit should be brought if, as it sometimes happens, the intended port of discharge is not the actual
port of discharge. The fact that the forum selection clause could have been hore specific does
not mean it is ambiguous. I think the meaning here is clear and the clause required the suit to be
brought in Indiana. I would not regard the useful legal and commercial fiction that Burns Harbor
is in Chicago as rendering the plain vanilla language of the bill of lading ambiguous.

The only way that the 4391 and 4392 suits can survive is if the appropriate remedy for
filing in the wrong court is disinissal which ends the suits because the time for filing has expired
or transfer to the proper venue which would allow the suits to survive.

I think that transfer is unjustified. There was nothing so obscure about which forum
should have been selected here that would justify giving plaintiffs a second chance to proceed in
the correct court. At the very least, it could have filed suits both here and in Hammond, Indiana
just a few miles from this courthouse and sorted out venue later. What happened here was the
kind of incorrect filing from the consequences of which plaintiffs should not be excused under

jurisprudence of Cote v. Wadel, 796 F.2d 981, 984-85 (7" Cir. 1986). I recognize the filing flaw

8



United States District Court, Northern District of Illinois

WY name of Assigned Judge James B. Zagel Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 4390 DATE 2/18/2003
CASE CONTINENTAL INSURANCE CO. vs. M/V DAVIKEN, ET AL
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
(1) 0 Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due __
(3) im Answer brief to motion due. . Reply to answer brief due
(4) im] Ruling/Hearing on set for at
(5) ia) Status hearing[held/continued to] [set for/re-set for] on set for at _
(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) a Trial[set for/re-set for] on at
(8) Oo (Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) C Local Rule 41.1 CFRCP41(a)(1) COFRCP41(a)(2).
ao [Other docket entry] Defendants motion (4-1, 5-1, 16-1) to dismiss is granted. Motion (33-1)
to strike is denied. Enter amended memorandum opinion and order.
al) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices required. Number
Notices mailed by judge’s staff.
Notified counsel by telephone.
v/ Docketing to mail notices.
V | Mail AO 450 form.
waaay par
Copy to judge/magistrate judge. e071!
courtroom c Ht
pw deputy's Shik tid bf
initials
() .. Dale/time received in
Sentral Clerk's Office snaling depeay initials



this appears not to exist, the absence of which could very well be indicative of its obvious
correctness. However, there is also a holding from the Fifth Circuit that works against the
plaintiff, which is that the burden lies with the claimant “to say exactly what it seeks, rather than
for the carrier, against its self-interest, to say what the claimant deserves.” Salzstein y. Bekins
Van Lines, Inc., 993 F.2d 1187, 1190 (5" Cir. 1993).

To escape this position, Continental argues that it was prevented from complying with the
condition precedent by the conduct of Fednav. When one is prevented from compliance by the
entity that laid down the condition, the courts will excuse non-compliance. It is too much of a
reach to characterize Fednav as preventing anything here. To fail to warn Continental that it is
not in compliance is not to prevent it from complying with the condition. “Failure to apprise,” to
use Continental’s phrase, is not to prevent Continental from doing anything. Had Continental
asked Fednav if it thought it had complete claims documents and Fednav had said yes, there
would be a good argument under the prevention doctrine, perhaps even more so, if Fednav had
said it did not know, although a prudent claimant would, upon receiving that answer, file every
piece of paper it had with Fednav (and perhaps have filed suit anyway).

The end result is that I do not reach contra proferentum. However ambiguous the terms
may have been, it was open to Continental to clarify them and to comply with them or to file suit
within the one-year statutory limitation period. As claimant, it was its burden to pursue these
avenues. It may be true that it would have received contradictory answers from Fednav and, had
this been the case, its legal arguments here may well have carried the day, but this is a hypothesis,
not a fact, so I do not address it.

This brings us to the argument that the suit is filed in the wrong place—the sole grounds
for dismissal in 4391 and 4392. The contract provided that suit should be filed in the District

7


No appearance has been filed on behalf of the vessel and jurisdiction over the vessel is
denied.
02 C 4392
The case is brought, under admiralty and maritime jurisdiction, by Continental over
claimed damage to steel coils shipped aboard the M/V Orsula from Ghent, Belgium to Burns
Harbor, Indiana. The shipment, pursuant to several bills of lading, arrived on April 23, 2001, and
was discharged from the vessel on that and the following day. FIL argues that the case must be
dismissed for filing in the wrong court. The Bills of Lading had a forum selection clause denoting
the District having admiralty jurisdiction of the port of discharge (or the port of loading, but this
is not relevant here) as the only place where suit could be brought. Thus, the case should have
been brought in the Northem District of Indiana.
No appearance has been filed on behalf of the vessel and jurisdiction over the vessel is
denied. In addition, no appearance has been filed for another defendant Atlant Adria Corp.
Motions to Dismiss
A single response is filed to all motions to dismiss.
Continental asked for and received an extension of suit time. The heading of the Fednav
Ltd. (the agent of defendants who seek dismissal) document contains the following:
Re: M/V DAVIKEN, Voy 4/01
At Burns Harbor April 7-8, 2001
Bs/L SP502-566
Alleged rust and physical damage to steel coils
Amount of claim: US$700,000.00 estimated.
The document from Fednav states that:
[oJn behalf of vessel owner and Fednave International Ltd. as time chartere, we

agree to extend time, on a strict without prejudice basis, up to and including
July 6, 2002, subject to your providing us with complete claims supporting

3



Jurisdiction of the port of discharge (or the port of loading, but this is not relevant here) as the
only place where suit could be brought. Thus, the case should have been brought in the Northern
District of Indiana. In short, FIL argues that the case should be dismissed because it was filed
late and in the wrong court.

Defendant Viken Lakers A/S (“Viken”) makes the same argument and adds the ground
that it entered into no contracts of the carriage of goods, acted solely as a disclosed agent for and
on behalf of a disclosed principal FIL and therefore, cannot be liable.

No appearance has been filed on behalf of the vessel and jurisdiction over the vessel is
denied.

02 C 4391

The case is brought, under admiralty and maritime jurisdiction, by Continental over
claimed damage to steel coils shipped aboard the M/V Federal Rideau from Ghent, Belgium to
Burns Harbor, Indiana. The shipment, pursuant to several bills of lading, arrived on July 2, 2001,
and was discharged from the vessel on that day and the following three days.

FIL moves to dismiss because it says the complaint was filed in the wrong court. The
Bills of Lading had a forum selection clause denoting the District having admiralty jurisdiction of
the port of discharge (or the port of loading, but this is not relevant here) as the only place where
suit could be brought. Thus, the case should have been brought in the Northern District of
Indiana.

Federal Oceans Ltd. (“FOL”) makes the same argument and adds the ground that it
entered into no contracts of the carriage of goods, acted solely as a disclosed agent for and on

behalf of a disclosed principal FIL and therefore, cannot be liable.



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOGKE TED

CONTINENTAL INSURANCE COMPANY FEB 2 0 2003
as Subrogee OF J&F STEEL °
CORPORATION,
Plaintiff, No. 02 C 4390 (Consolidated with
02 C 4391 and 02 C 4392)
v.
M/V DAVIKEN, her engines, boilers, etc., Judge James B. Zagel
FEDNAV INTERNATIONAL LTD.,

FEDNAV LTD., and VIKEN LAKERS A/S,

Defendants.

AMENDED MEMORANDUM OPINION AND ORDER

Three cases are consolidated here.

02 C 4390

The case is brought, under admiralty and maritime jurisdiction, by Continental Insurance
Company (“Continental”) (as subrogee of J & F Steel Corporation) over claimed damage to steel
coils shipped aboard the M/V Daviken from Ghent, Belgium to Burns Harbor, Indiana. The
shipment, pursuant to several bills of lading, arrived on April 7, 2001, and was discharged from
the vessel on that and the following day.

Fednav International, Ltd. (“FIL”) moves to dismiss because it says the complaint comes
too late. The Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300, has a one-year statute
of limitations which starts running on the day of delivery. The Bills of Lading specifically
subjected the shipment to COGSA where the port of discharge was in this country and set forth
the one-year limit. This suit was filed on June 19, 2002-over one year after delivery. Moreover,

" the Bills of Lading had a forum selection clause denoting the District having admiralty