1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 09-3222-cv(L), 09-3377-cv(XAP) Kelso Enterprises Limited v. M/V Diadema 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential e ffect. 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 summ ary 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 serv e a copy of it on any party not represented by counsel. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St reet, in the City of New York, on the 27 th day of April, two thousand ten. PRESENT: JOHN M. WALKER, JR., CHESTER J. STRAUB, DEBRA ANN LIVINGSTON, Circuit Judges

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_________________________________________________ KELSO ENTERPRISES LIMI TED, PACIFIC FRUIT LIMITED, Plaintiffs-Appellees-Cross-Appellants , -v.- Nos. 09-3222-cv(L), 09-3377-cv(XAP) A.P. MOLLER-MAERSK A/S, MAERSK LINE, MAERSK DEL ECUADOR C.A., Defendants-Appellants-Cross-Appellees , M/V DIADEMA, her engines, boi lers, etc., M/V ROTTERDAM, her engines, boilers, etc., CW SCHIFFAHRTS GMBH & CO KG, JMS SCHIFFAHRTSGES MBH & CO KG MS “Antares J, ” SEASON CORP., in personam, Defendants , M/V MARYSTON, her engines, boilers, etc., Defendant-In-Rem

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_________________________________________________2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 John R. Keough, III (Peter C. Dee, on the brief ), Waesche, Sheinbaum & O’Regan, P.C., New York, NY, for Plaintiffs-Appellees-C ross-Appellants. James L. Ross (Manuel A. Molina, on the brief ), Freehill Hogan & Mahar LLP, New York, NY, forDefendantsAppellants-Cross-Appellees. UPON DUE CONSIDERATION, it is hereby ORDE RED, ADJUDGED, AND DECREED that the judgment of th e district court be AFFIRMED. Defendants-Appellants-Cross-Appellees A.P M oller-Maersk A/S, Maersk Line, and Maersk Del Ecuador C.A. (“Maersk”) a ppeal from a June 3, 2009, order of the United States District Court for the Sout hern District of New York (Scheindlin, J. ) insofar as it granted the motion of Pl aintif fs-Appellees-Cross-Appellants Kelso Enterprises Limited and Pacific Fruit Limited (“Kelso”) to com pel arbitration. Maersk argues that the scope of the arbitration provi sion does not encompass actions for damage to cargo like the one at hand. Kelso cross- appeals from the same order insofar as it granted Maersk’s motion to dismiss on the grounds of improper venue, arguing that, in granting the improper venue motion, the cour t decided a choice of law question that should have been left to ar bitration. W e assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal. We review de novo both the granting of a m otion to compel arbitration and the granting of a motion to dismiss on the ground of i mproper venue due to a forum selection clause. See Phillips v. Audio Active Ltd. , 494 F.3d 378, 384 (2d Cir. 2007) (im proper venue); Abram Landau Real Estate v. Bevona , 123 F.3d 69, 72 (2d Cir. 1997) (compelling arbitration). Generally, when interpreting a contract or m ultiple contracts in a transaction, we strive to give effect to all of the terms of the relevant documents, reading them together.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Paneccasio v. Unisource Worldwide, Inc. , 532 F.3d 101, 111 (2d Cir. 2008). If there is an inconsistency between two provisions, how ever, specific language w ill prevail over more general language. ABN Amro Verzekeringen BV v. Geologistics Ams., Inc. , 485 F.3d 85, 102 (2d Cir. 2007). Moreover, “[r]eview of arbitrability questions is subject to [an] important presumption[]: . . . ‘the federa l policy in favor of ar bitration requires that “any doubts concerning the scope of arbitrab le issues” be reso lved in favor of arbitration.’” Telenor Mobile Comm’ cns AS v. Storm LLC , 584 F.3d 396, 406 (2d Cir. 2009) (quoting Shaw Group Inc. v. Triplefine Int’l Corp. , 322 F.3d 115, 120 (2d Cir. 2003) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24-25 (1983))). We agree with the district court that Clause 7 of the service contract, which governs conflicts between the se rvice contract and the bill of lading, is am biguous on its face. The second sentence of the clause stat es that the arbitration provision, found in the service contract, cannot be overr idden by the bill of lading, w hile the third sentence of the clause requires that “in the event any provi s ion in [Maersk’s] bill of lading which limits or governs its liability for damages to persons or property (including cargo) . . . is . . . in conflict with the Contract, the b ill of lading shall prevail.” Maersk contends that this third sentence carves out an ex ception under which the bill of lading provisions control in cargo damage cases, but this does not accord with the tex t of the clause. The clause is not conditioned on the type of case, but rather on whether a provi sion in the bill of lading “which limits or governs [Maersk’s] liability for damages to persons or property” is in conflict with the se rvice contract. Given the ambiguity in Clause 7, we rely, as the district court did, on the presumption of arbitrability. “[T]he existen ce of a broad ag reement to arbitrate creates a4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 presumption of arbitrability which is onl y overcome if it may be said with positive assurance that the arbitration cl ause is not susceptible of an interpretation that covers the dispute.” Bank Julius Baer & Co. v. Waxfield Ltd. , 424 F.3d 278, 284 (2d Cir. 2005) (quoting WorldCrisa Corp. v. Armstrong , 129 F.3d 71, 72 (2d Cir. 1997) (internal quotation marks omitted)) (alteration in original). Certainly the arbitration clause here is susceptible of an interpretati on that covers the dispute --- that it covers all disputes “arising under or related to” the service contract and cannot be overridden by the bill of lading. “Moreover, we ‘cannot nullify an ar bitration clause unless the forum selection clause specifically pr ecludes arbitration.’” Id. (quoting Pers. Sec. & Safety Sys. v. Motorola , 2 97 F.3d 388, 396 n.11 (5th Cir. 2002)). The forum selection clause in the bill of lading, Clause 26, does not specifically preclude arbitration, nor does Clause 7 provide a “positive assurance” that this dispute is not governed by the arbitration provision. Id. We therefore find that the pa rties are bound to arbitrate thei r cargo dam age claim. In its cross-appeal, Kelso asks u s to review the decision of the district court on the choice of law question, arguing th at the applicability of COGSA is a question that must be left to the arbitrator under the strictures of the Federal Arbitration Act. Kelso Br. 24 (citing Vimar Seguros y Reaseguros , S.A. v. M/V Sky Reefer , 515 U.S. 528, 541 (1995)). We need not reach the merits of this issu e, however, becau se Kelso explicitly requested in its memorandum of law that the district court decide Maersk’s m otion to dismiss, a decision necessarily requiring a COGSA analys is, before considering Kelso’s m otion to compel arbitration: Based on the request by Maersk ’s counsel to proceed in this Court, Kelso has not further pursued the arbitration commenced on the same day as this action. Maersk has failed to appoint its arbitrator as required by the Service Contract and is in default.5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 However, if the Court finds that Kelso’s action maynot proceed further in this Court, Kelso respectfully crossmoves to compel arbitration ba sed on the broad arbitration clause in the Service Contract and to stay this proceeding pending such arbitration. After the order, moreover, Kelso did not move for reconsideration or otherwise m ake its concern about the COGSA decision known to the district court. The “error . . . alleged now was induced by appellant’s position be low and hence it cannot com plain.” Dir. Gen. of India Supply Mission v. S.S. Maru, 459 F.2d 1370, 1377 (2d Cir. 1972); see also van Nijenhoff v. Bantry Transp. Co. , 791 F.2d 26, 28 (2d Cir. 1986) (ref using to “allow appellant to try the case anew on a theory st eadf astly avoided until after the verdict” for strategic reasons); R emington Rand, Inc. v. United States , 202 F.2d 276, 278 (2d Cir. 1953) (“A party may not secure a reversal resulting in prol onging the litigation by reliance upon an error for which it was responsib le.”). Because Kelso induced the alleged error it now protests, we decline to review it at Kelso’s urging. We have considered all of the parties’ rem aining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby affirm ed.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk