UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-----------------------------------------------------------x 

NIPPON EXPRESS U.S.A. (ILLINOIS), INC., 

 

Plaintiff, 

 06 Civ. 694 (PKC) 

 -against- 

 MEMORANDUM 

AND ORDER

 

M/V CHANG JIANG BRIDGE and YANG 

MING MARINE TRANSPORT 

CORPORATION, 

Defendants. 

-----------------------------------------------------------x 

P. KEVIN CASTEL, District Judge: 

Plaintiff Nippon Express U.S.A. (Illinois), Inc. (“Nippon Express”) alleges 

that it hired defendants Yang Ming Marine Transport Corp. (“Yang Ming”) and M/V 

Chang Jiang Bridge (“Vessel”) to transport 8,400 ink toner cartridges (the “Shipment”) 

from Oakland, California to Tokyo, Japan. Plaintiff further alleges that the Shipment was 

not properly cared for during transport, causing it to suffer damage in excess of $500,000. 

Plaintiff’s complaint, which was filed on January 30, 2006, seeks damages for breach of 

contract and negligence and also seeks indemnification and contribution. Defendant 

Yang Ming’s answer asserts several affirmative defenses and the existence of a 

mandatory London forum selection clause in the bill of lading issued to Nippon Express 

by Yang Ming. Yang Ming now moves to dismiss Nippon Express’s complaint against it 

based on the forum selection clause. 

In opposition, Nippon Express contends that the bill of lading containing 

the London forum selection clause has been superseded by a stevedore contract which 

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calls for disputes to be addressed through arbitration in Los Angeles, California. For the 

reasons discussed below, defendant’s motion will be granted and the complaint will be 

dismissed as to Yang Ming. 

I. Factual Background

In September 2004, Nippon Express, a non-vessel operating common 

carrier (also known as an intermediate cargo carrier), was hired by non-party Canon 

USA, Inc. (“Canon”) to transport the Shipment from Oakland, California to Tokyo, 

Japan. Nippon Express, in turn, hired Yang Ming to do the actual transpacific shipping. 

On September 25, 2004, Yang Ming issued bill of lading # YMLUW160067969 (“Bill of 

Lading”) to Nippon Express covering “8,400 CTNS”of printer cartridges “on 200 

pallets.” (Maloof Decl., Exh. A.) The total value of the Shipment exceeded $1 million. 

After the cartridges were shipped to the TransBay Container Terminal 

(“Terminal”) in Oakland, but before the Shipment began its ocean voyage, Nippon 

Express was notified by Canon that because temperatures inside shipping containers can 

exceed 140 degrees Fahrenheit during transpacific voyages, the Shipment should be 

refrigerated during its journey to Japan lest it suffer heat damage. On September 23, 

2004, Nippon Express sent an “urgent” request to Yang Ming to “dray off” or remove the 

Shipment from the other cargoes being loaded so that proper refrigerated containers could 

be used. (Id., Exh. C.) Yang Ming informed the Terminal of the “dray-off” order, yet, 

due to an oversight, the Shipment was not separated from the rest of the cargoes and the 

Terminal placed the Shipment into five unrefrigerated containers, four of which were 

positioned in the top row of containers on the Vessel’s deck and exposed to direct 

sunlight during transport. (Id., Exh. D.) Shortly after the Vessel set sail for Japan, Yang 

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Ming emailed Nippon Express and stated that due to “our terminal’s negligence” the 

dray-off order was not followed. (Id., Exh. F.) 

When the Shipment arrived in Japan, a sample of the cartridges was tested 

by a licensed Japanese cargo surveyor. The test revealed that there had been a 

deterioration of ink quality in the black-ink cartridges. (Id., Exh. D.) The surveyor 

concluded that the cause of the deterioration was excessive heat during transport and 

noted that black ink is more sensitive to heat than other ink colors, undergoing chemical 

change at 40 degrees Celsius (104 degrees Fahrenheit). (Id.) All 4,620 black ink 

cartridges in the Shipment were deemed irreparable and of no value. 

Canon looked to its insurer, non-party Sompo Japan Insurance Co. 

(“Sompo”), to pay for the damage done to the Shipment and, in June 2006, Canon 

received ¥60,618,321 (approximately $525,000) from Sompo to cover the loss. 

(Id., Exh. E.) Nippon Express, anticipating a claim against it by Sompo as Canon’s 

subrogee, filed the instant action against Yang Ming and the Vessel “primarily to protect 

[against] a potential time bar.” (3/9/06 Endorsed Ltr., Docket #7.) 

In May 2006, Nippon Express made an application to this Court to place 

the action on the Court’s suspense docket for six months because no lawsuit had yet been 

filed against Nippon Express and it hoped that “this protective lawsuit for indemnity and 

filed as a precaution” could be withdrawn or amicably resolved. (5/24/06 Endorsed Ltr., 

Docket # 8.) Nippon Express’s application was granted and the matter was placed on the 

suspense docket, subject to dismissal if it was not restored to the active calendar by 

November 30, 2006. In late November 2006, Nippon Express requested that the matter 

remain on the suspense docket until May 30, 2007 because it was in the process of 

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“negotiating with Japanese interests to resolve the underlying cargo claim.” (11/27/06 

Endorsed Ltr., Docket # 9.) Again, the Court granted Nippon Express’s application. (Id.) 

In December 2006, Nippon Express’s insurer, non-party NipponKoa, 

settled with Sompo for $55,000 and Sompo assigned to NipponKoa all remaining claims 

it had related to the damaged Shipment. (Maloof Decl., Exh. G.) Four months later, 

Nippon Express notified the Court that it had “resolved its underlying cargo claim with 

Japanese interests” and requested that the matter be placed on the Court’s active calendar. 

(4/27/07 Endorsed Ltr., Docket # 10.) The case was reinstated to the active calendar on 

April 26, 2007. (Id.) Thereafter, Nippon Express requested permission to move the 

Court to substitute as plaintiff its insurer, NipponKoa. Yang Ming, thereafter, made the 

instant motion to dismiss on the basis of the London forum selection clause. Pending the 

outcome of this motion, the Court preserved plaintiff’s substitution motion and 

defendant’s right to move for a transfer of venue to California. (5/11/07 Minute Entry.) 

On June 1, 2007, Nippon Express made an application for a two-week 

extension to file its opposition to Yang Ming’s motion to dismiss because, among other 

reasons, it “learned that there is more than one contract of carriage which may be 

implicated by the claims at issue” and it was “still attempting to understand the 

implications of that contract.” (6/4/07 Endorsed Ltr., Docket 16.) Nippon Express’s 

application for an extension was granted and its opposition papers were filed on June 12, 

2007. Yang Ming filed its reply papers on June 19, 2007 and Nippon Express submitted 

a sur-reply on June 22, 2007. On July 5, 2007, Yang Ming filed a rejoinder 

memorandum in response to Nippon Express’s sur-reply. On November 20, 2007, the 

Court was informed by the parties that the wrong stevedore contract had been produced 

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during discovery by Yang Ming. (11/20/07 Endorsed Ltrs., Docket 23, 24.) The correct 

stevedore contract was produced by Yang Ming and filed by Nippon Express on 

November 28, 2007. (2d Maloof Decl., Docket 25.) 

II. Discussion

A. Legal Standards 

Yang Ming fails to state the procedural rule under which it makes its 

motion to dismiss. That omission is not surprising since there is no Federal Rule of Civil 

Procedure tailored to address the enforcement of a forum selection clause. See New 

Moon Shipping Co. v. Man B&W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997) (“[T]here is 

no existing mechanism with which forum selection enforcement is a perfect fit.”) 

(citation omitted). Neither the Supreme Court nor the Second Circuit has “designated a 

single clause of Rule 12(b) as the ‘proper procedural mechanism to request dismissal of a 

suit based upon a valid forum selection clause . . . .’” Asoma Corp. v. SK Shipping Co., 

467 F.3d 817, 822 (2d Cir. 2006) (quoting New Moon, 121 F.3d at 28). Courts in this 

Circuit appear to prefer Rule 12(b)(3) as the procedural device used to enforce a forum 

selection clause. See Zurich Ins. Co. v. Prime, Inc., 419 F. Supp. 2d 384, 386 (S.D.N.Y. 

2005) (“[C]ourts of this circuit have made clear that courts do possess the ability under 

either Rule 12(b)(3) or § 1406(a) to dismiss a case upon a motion that a forum selection 

clause renders venue in a particular court improper.”) (citations omitted). I therefore 

deem the instant motion made pursuant to Rule 12(b)(3) because, among other reasons, 

that rule “allows courts to consider materials [such as a contractual forum selection 

clause] outside the pleadings.” Jockey Int’l Inc. v. M/V Leverkusen Express, 217 F. 

Supp. 2d 447, 450 (S.D.N.Y. 2002). 

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In deciding a motion to dismiss based on a forum selection clause, the 

plaintiff is entitled to “have the facts viewed in the light most favorable to it” and to be 

heard before any disputed facts are resolved against it. New Moon, 121 F.3d at 29. The 

plaintiff bears the burden of overcoming a presumption of the forum selection clause’s 

enforceability. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972) (forum 

selection clauses are prima facie valid unless enforcement is shown by resisting party to 

be unreasonable under the circumstances). The Second Circuit has endorsed a four-part 

analysis to determine whether to dismiss a claim based upon the existence of a valid 

forum selection clause. See Phillips v. Audio Active Ltd., 494 F.3d 378, 383-84 (2d Cir. 

2007). The court first considers whether “the clause was reasonably communicated to the 

party resisting enforcement” Id. (citation omitted). Second, the court considers whether 

the clause is mandatory. Id. (citation omitted). Third, it considers whether the claims 

and parties are subject to the clause. Id. (citation omitted). In the fourth and final step, 

the court determines “whether the resisting party has rebutted the presumption of 

enforceability by making a sufficiently strong showing that ‘enforcement would be 

unreasonable or unjust, or that the clause was invalid for such reasons as fraud or 

overreaching.’” Id. (quoting M/S Bremen, 407 U.S. at 15). 

B. Facts Applied to Law

The forum selection clause at issue states as follows: 

Except as otherwise provided specifically herein any claim or dispute 

arising under the Bill of Lading shall be governed by the laws of England 

and determined in English courts sitting in the city of London to the 

exclusion of the jurisdiction of the courts of any other place. In the event 

this clause is inapplicable under local law, then jurisdiction and choice of 

law shall lie either in the port of loading or port of discharge at Carrier’s 

option. 

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(Bill of Lading, § 26.) Here, there is no dispute with respect to the first two prongs of the 

four-part test. As to the first prong, the forum selection clause was printed on the Bill of 

Lading issued by Yang Ming to Nippon Express and thus was reasonably communicated. 

As to the second prong, the clause is mandatory by virtue of its use of the word “shall” 

and because London jurisdiction is to “the exclusion of . . . any other place.” See John 

Boutari & Son, Wines & Spirits, S.A. v. Attiki Importers & Distribs. Inc., 22 F.3d 51, 52-

53 (2d Cir. 1994) (forum selection clause mandatory when venue and jurisdiction 

specified with exclusive or mandatory language). 

The third prong—whether the claims and parties are subject to the 

clause—is contested. Because the dispute involves a question of law, i.e. whether 

Nippon Express’s claims and the parties are subject to the clause, no hearing is required. 

See New Moon, 121 F.3d at 29. Nippon Express argues that the claims and parties are 

not subject to the Bill of Lading’s forum selection clause because another provision of the 

Bill of Lading has been implicated that directs the terms and conditions of an underlying 

carrier contract to be incorporated into the Bill of Lading. The Bill of Lading provision 

that Nippon Express relies upon states in relevant part: 

Notwithstanding the foregoing, in the event there is a private contract of 

Carriage between the Carrier and any Underlying Carrier, such 

Mulitmodal Transportation will be governed by the terms and conditions 

of said contract which shall be incorporated herein as if set forth at 

length . . . . 

(Bill of Lading, Section 7(B)(2).) 

Nippon Express asserts that the stevedores selected by Yang Ming to load 

and unload cargo are “[u]nderlying [c]arrier[s].” It argues that the terms of the contract 

between Yang Ming and non-party TransBay Container Terminal Inc (“TransBay”), the 

stevedoring company that loaded the Shipment onto the Vessel, has superseded the terms 

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of the Bill of Lading issued to Nippon Express by Yang Ming. The stevedore contract 

between Yang Ming and TransBay (the “Stevedore Contract”) is entitled “Container 

Stevedoring and Service Agreement” and provides that disputes are to be governed by 

California law and are to be arbitrated in California. (Stevedore Contract, §§ 10-11.) 

Yang Ming argues that the Stevedore Contract has not been incorporated into the Bill of 

Lading because that contract is not “a private contract of Carriage between the Carrier 

and an[] Underlying Carrier” as defined by the Bill of Lading. A stevedore is not an 

underlying carrier, Yang Ming contends, because carriers transport passengers or 

property while stevedores move cargo around port terminals and onto vessels. Nippon 

Express espouses a much broader view of who is to be considered an underlying carrier 

under the Bill of Lading and takes the position that any subcontractor engaged in any 

aspect of the transportation of the shipment is an underlying carrier as that term is defined 

in the Bill of Lading. 

As an initial matter, I note that the complaint pleads breach of the Bill of 

Lading and makes no mention of a stevedoring contract. In fact, the only other contract 

specifically mentioned in the complaint is the waybill issued by Nippon Express to 

Canon, the owner of the Shipment. Nevertheless, I will address the merits of Nippon 

Express’s contractual arguments. 

As the parties have framed the issue, if TransBay, acting as stevedore, is 

an “[u]nderlying [c]arrier” pursuant to the Bill of Lading, then the Stevedore Contract’s 

terms and conditions govern and the London forum selection clause is inapplicable. If 

TransBay is not an “[u]nderlying [c]arrier” pursuant to the Bill of Lading, then the claims 

and the parties are subject to the mandatory and exclusive London forum selection clause 

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and the third prong of the Second Circuit’s test has been satisfied; i.e. the claims and the 

parties are subject to the clause. See Phillips, 494 F.3d at 383. For the reasons that 

follow, I conclude that the Stevedore Contract between Yang Ming and TransBay is not a 

“private contract of carriage between the carrier and any Underlying Carrier” and has not 

been incorporated into the Bill of Lading pursuant to its section 7(B)(2). Thus, the 

exclusive forum selection clause requiring disputes under the Bill of Lading to be heard 

by English courts sitting in London is applicable. 

“Underlying Carrier” is defined in the Bill of Lading as “Any water, rail, 

motor, air or other carrier utilized by the Carrier for any part of the transportation of the 

shipment covered by this Bill of Lading.” (Bill of Lading, § 1.) The Bill of Lading does 

not define “stevedore” and, in fact, it appears that contextual definitions of that term are 

rare. The Oxford English Dictionary defines it as “[a] workman employed either as 

overseer or labourer in loading and unloading the cargoes of merchant vessels.” Oxford 

English Dictionary (2d ed. 1989). This definition comports with the meaning ascribed by 

case law and legislation. For example, as noted by the Eighth Circuit, “the term 

‘stevedore’ and longshoreman’ seem to be used interchangeabley [by the Supreme Court] 

. . . Webster’s Dictionary defines both ‘stevedore’ and longshoreman’ as workers who 

load and unload vessels.” Reed v. ULS Corp., 178 F.3d 988, 991 n.3 (8th Cir. 1999) 

(citing Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 156-57 (1981)). 

The Waterfront Commission Compact between the States of New York and New Jersey 

defines “stevedore” as “a contractor (not including an employee) engaged for 

compensation pursuant to a contract or arrangement with a carrier of freight by water, in 

moving waterborne freight carried or consigned for carriage by such carrier on vessels of 

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such carrier berthed at piers, on piers at wich such vessels are berthed or at other 

waterfront terminals.” N.J. Stat. Ann. § 32:23-6. The Third Circuit has interpreted this 

definition to describe “contractors who provide loading services for others.” Waterfront 

Com’n of New York Harbor v. Elizabeth-Newark Shipping, Inc., 164 F.3d 177, 185 (3d 

Cir. 1998). Although stevedores presumably “transport” cargo on and off ships and to 

and from nearby terminal holding facilities or trucks, the element of “transportation” is de

minimus and incidental to the stevedore’s main function of loading and unloading 

vessels. See Nippon Fire & Marine Ins. Co. v. Skyway Freight Systems, Inc., 235 F.3d 

53, 60 (2d Cir. 2000) (“[T]he fact that an air carrier temporarily may have stored the 

goods does not render the carrier a warehouseman, subject to common law 

warehouseman’s duties, so long as the storage was only temporary and incidental to the 

primary goal of interstate shipment.”) (citation omitted). 

Nippon Express places great weight on the phrase “for any part of the 

transportation” found in the definition of “[u]nderlying [c]arrier” and invites the Court to 

adopt its conclusion that stevedores are “[u]nderlaying [c]arrier[s]” because “moving 

cargo around a terminal and onto vessels is a critical part of the transportation.” (Pl. 

Mem. at 6.) However, even if the stevedore’s moving of cargo is part of the 

transportation, stevedores must first be carriers before they can be deemed “[u]nderlying 

[c]arriers” because the definition is limited to “water, rail, motor, air or other carrier[s]” 

who provide part of the transportation. (Bill of Lading, § 1(l) (emphasis added).) 

The Bill of Lading’s definition of “Carrier” is limited to “Yangming 

Marine Transport Corporation” and is therefore unhelpful. (Bill of Lading, § 1(b).) The 

United States Carriage of Goods Act (“COGSA”), however, defines it as “the owner 

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manager, charters or master of a vessel [which] includes the owner or the charterer who 

enters into a contract of carriage with a shipper.” 46 U.S.C. § 30701. Nothing in that 

definition indicates an intent to include stevedores and, indeed, case law makes clear that 

stevedores are not covered by this definition. See De Laval Trubine, Inc. v. West India 

Industries, Inc., 502 F.2d 259, 264 (2d Cir. 1974) (“The term ‘carrier’ . . . is defined as 

including ‘the owner or charterer who enters into a contract of carriage with a shipper. . . 

. stevedores and agents do not fit within this definition. . . .”) (citing Robert C. Herd & 

Co., Inc. v. Krawill Machinery Corp., 359 U.S. 297, 302 (1959)); accord Generali v. 

D’Amico, 766 F.2d 485, 487 (11th Cir. 1985). 

Stevedores do not contract to transport passengers or goods. They 

contract to load and unload ship cargoes and are therefore not carriers as that term is 

understood, both generally and in the technical context of admiralty. Had the defined 

term “Underlying Carrier” been meant to include stevedores under the Bill of Lading, 

then, at minimum, the definition would have included references to subcontractors of 

carriers. See Cabot Corp. v. S.S. Mormacscan, 441 F.2d 476, 478-79 (2d Cir. 1971) 

(“[A]n intention to extend benefits of [a Himalaya clause] to the stevedore would most 

naturally have been expressed by the addition of the term ‘stevedore’ to the long list of 

various persons under the definition of ‘carrier . . . .’”) (citations omitted). As defined by 

the Bill of Lading, “‘Subcontractor’ includes owners and operators of Vessels (other than 

the Carrier), slot chartered owners, stevedores, terminal and group age operators, 

Underlying Carriers and any independent contractor employed by the Carrier in the 

performance of the Carrier.” (Bill of Lading, § 1(k) (emphasis added).) It is significant 

that the Bill of Lading separately lists “stevedores” and “Underlying Carriers” in the 

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single definition of “Subcontractors” because it indicates an intent to ascribe a separate 

and distinct meaning to those two words. Moreover, it shows that the contracting parties 

knew how to include stevedores when such inclusion was intended. 

I will now address the fourth and final prong of the Second Circuit test, 

“whether the resisting party has rebutted the presumption of enforceability by making a 

sufficiently strong showing that enforcement would be unreasonable or unjust, or that the 

clause was invalid for such reasons as fraud or overreaching.” Phillips 494 F.3d at 383-

84 (citation and internal quotation marks omitted). Nippon Express does not argue that 

enforcement of the clause “would be unreasonable or unjust” or that the clause is invalid 

due to “fraud or overreaching.” Id. In a footnote, however, it notes that there are no 

witnesses or documents in the United Kingdom and that the claims “are now almost 

certainly time-barred there.” (Pl. Mem. at 7.) That a claim may be time-barred in a 

foreign jurisdiction should not dictate the result of motion to dismiss an action based on 

the existence of a valid forum selection clause. See New Moon, 121 F.3d at 33 

(“[C]onsideration of a statute of limitations [in deciding a motion to dismiss on the basis 

of a forum selection clause] would create a large loophole for the party seeking to avoid 

enforcement of the forum selection clause. That party could simply postpone its cause of 

action until the statue of limitations has run in the chosen forum and then file its action in 

a more convenient forum.”); American Home Assur. Co. v. M/V Jaami, 06 Civ. 287 

(LBS), 2007 WL 1040347, *3 (S.D.N.Y. April 4, 2007) (“Courts in this district have held 

repeatedly that a time bar in a foreign jurisdiction is not a basis for invalidating a forum 

selection clause.”) (citations omitted). 

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Here, Nippon Express had notice of the forum selection clause well prior 

to bringing suit in New York, thus there is no reason to depart from the usual rule. See

LPR, SRL v. Challenger Overseas, LLC., 99 Civ. 8883 (JGK), 2000 WL 973748 at *7 

(S.D.N.Y. July 13, 2000) (granting motion to dismiss on basis of mandatory forum 

selection clause despite plaintiff’s contention of prejudice because its action was timebarred in Italy leaving it without a forum). As noted by Judge Koeltl, “[t]here is no 

reason to depart from this usual rule in this case because the plaintiff had sufficient notice 

of the forum selection clause. It chose to bring the action in this Court in the face of a 

clear forum selection clause.” Id. In addition, Nippon Express’s passing mention that no 

witnesses or documents are located in the United Kingdom does not rise to the level of a 

“clear showing” that enforcing the clause would be unreasonable or unjust. See Roby v. 

Corporation of Lloyd's, 996 F.2d 1353, 1363-65 (2d Cir. 1993). 

As an alternative argument, Nippon Express contends the Bill of Lading is 

ambiguous with respect to choice of law and choice of forum. First, it argues there is 

ambiguity because the Bill of Lading provides that the rights and obligations of the 

parties with regard to cargo damage shall be governed by COGSA while, at the same 

time, providing for English law to apply. Section 7(A)(2) of the Bill of Lading states: 

“Notwithstanding anything contained in the preceding provision, in the event that this 

Bill of Lading covers shipments to or from the United States, than [sic] . . . COGSA shall 

be compulsorily applicable . . . .” That provision and the English choice of law 

provision, however, are not mutually exclusive and create no ambiguity because the 

choice of law provision makes clear that English law applies to disputes under the Bill of 

Lading “[e]xcept as otherwise specifically provided herein . . .” (Bill of Lading, ¶ 26.) 

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This means English law applies to the extent it is not specifically displaced by other Bill 

of Lading provisions, such as the one requiring U.S. COGSA to apply in the context of 

cargo damage or loss. See M/V Jaami, 2007 WL 1040347 at *2 (bill of lading not 

ambiguous even though forum selection and choice of law clause provide for Japanese 

law “except as otherwise provided herein” while another provision requires application of 

COGSA). 

Nippon Express also points to section 7(E) of the Bill of Lading which 

states: “In the event the Carriage covered by this Bill of Lading is subject to two or more 

compulsory national laws, then the national law of the jurisdiction in which any action is 

brought shall be applicable.” (Bill of Lading, § 7(E).) Nippon Express contends this 

creates ambiguity because it attempts to ensure that any forum selected will only be 

interpreting its country’s own law in contradiction to the mandatory London forum 

selection clause and the call for U.S. COGSA to apply to cargo loss or damage. Under 

these facts, however, section 7(E) is not even implicated as the Bill of Lading is not 

subject to two compulsory national laws. The English counterpart of COGSA (known as 

the “Hague-Visby Rules”) is likely inapplicable because it is compulsory only where the 

port where the shipment was loaded or the place where the Bill of Lading was issued is in 

a country that has adopted the Hague-Visby Rule, or where the Bill of Lading chooses the 

Hague-Visby Rules as the law governing cargo damage or loss. See The Carriage of 

Goods by Sea Act 1971 [of England] (1971 c. 19 at 1-2) available at

http://www.opsi.gov.uk/acts/acts1971/pdf/ukpga_19710019_en.pdf. Thus, the conditions 

requiring compulsory application of Hague-Visby Rules are seemingly lacking where the 

cargo was loaded in the United States and the Bill of Lading specifically deems U.S. 

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