### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-1881
V ESUVIUS USA C ORPORATION , Plaintiff-Appellant ,

v.
A MERICAN C OMMERCIAL L INES LLC, Defendant-Appellee

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 17-cv-00022 — Sarah Evans Barker , Judge

.

____________________
S UBMITTED O CTOBER 23, 2018 *

— D ECIDED D ECEMBER 6, 2018

____________________

Before K ANNE , H AMILTON , and S T

. E VE , Circuit Judges

. K ANNE , Circuit Judge . This breach of contract action comes to us in admiralty jurisdicti on. Vesuvius US A Corporation contracted with American Commercial Lines LLC (now

* At the request of the parties, we have agreed to decide this case without oral argument becaus e the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. Fed. R. App. P. 34(a)(2)(c).2 No. 18-1881

known as American Commercial Barge Line LLC, or “ACBL”) to transport olivine sand by river barge from Louisiana toKentucky. But when one of those shipments arrived with apparent water damage, a dispute arose between the parties about who was to blame. After some back-and-forth, they seemed to drop the ma tt er. Two years later, however, Vesuvius brought this suit. Because the contract contains a clear limitations provision requiring the parties to bring disputes within four months of an incident, we a ffi rm the district court’s dismissal of the case.
I. B ACKGROUNDIn 2014, Vesuvius and ACBL entered into a shipping contract to transport olivine sand from New Orleans, Louisiana to Vesuvius’s facility in Wurtland, Kentucky by river barge. The January 2015 shipment arrive d at the discharge port in Wurtland on February 20. Vesuvius’s employees inspectedthe cargo upon arrival and found it damaged by excess moisture. They noti fi ed ACBL, and ACBL arranged for a surveyor to perform an inspection that same day. The surveyor found no structural defect in the barg e. Instead, he concluded that the sand was wet when it was load ed. In transit, some of that water evaporated, condensed on the overhead portion of the cargo space, and dripped back onto the sand. (R. 14-2 at 2.) The surveyor fi led his report with AC BL on February 23, and ACBL promptly contacted Vesuvi us to disclaim any liability.
There the ma tt er sat for two years. But on February 1, 2017, Vesuvius fi led suit to recover damages for its loss, allegingthat ACBL had breached the contract by providing an unseaworthy vessel. ACBL moved to dismiss the complaint, pointing to the limitations provision in the contract:No. 18-1881 3

22. MISCELLANEOUS: ... This Contract will be interpreted and enforced under the general maritimelaws of the United States and, to the extent applicable, the laws of the State of Indiana. The Parties agree that any action or proceeding arising out of or inconnection with this Contract will be brought exclusively in a state or federal court in Clark or Floyd County, State of Indiana[,] and [Vesuvius] consents to personal jurisdiction in such court. ... Unless otherwise provided hereunder, all disputes under this Contract

... must be brought within four (4) months of the act or occurrence giving rise to the claim. (R. 9-1 at 8) (emphasis added). Reading the plain language of this provision, the district court determined that the action was untimely and granted the motion to dismiss. This appeal followed.
II. A NALYSIS Original jurisdiction to hear this case stemmed from 28 U.S.C. § 1333, which authorizes federal district courts to hear“[a]ny civil case of admiralty or maritime jurisdiction.” Because the alleged breach occurred “on navigable waters,” neither party disputes federal jurisdiction. Weaver v. Hollywood Casino-Aurora, Inc. , 255 F.3d 379, 382 (7th Cir. 2001). We review a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) de novo , drawing all reasonable inferences in favor of Vesuvius, the non-moving party. Boucher v. Fin. Sys. of Green Bay, Inc. , 880 F.3d 362, 365 (7th Cir. 2018).This case turns on the interpretation of the limitations provision of the contract, and in particular on the meaning of the word “disputes.” Vesuvius argue s that the phrase is no more4 No. 18-1881

than a noti fi cation requirement: Vesuvius was required to notify ACBL of the problem within four months of its occurrence, and it provided that noti fi cation immediately upon discovery of the issue. The provis ion requires no more, becausea “dispute” is not necessarily a lawsuit, and a contractual requirement that the parties sue ea ch other within four months of an incident would force unne cessary litigation of disputes that the parties might work out between themselves given

su ffi cient time. In the alternative, Vesuvius contends that the language in the contract is at least ambiguous, and because its reading is just as plausible as any other reading, Vesuvius should get the bene fi t of the doubt at this stage in the litigation.ACBL, on the other hand, believes that the provision requires the parties to bring lawsuits within four months. While it concedes that the provision might appear ambiguous on its own, it insists that other language in the contract provides context and demonstrates that the parties intended to contract for a short limitations period for any potential legal actions. The parties selected Indiana law to govern their agreement. In Indiana, “[t]he general rules of contract interpretation are that, unless the terms of a contract are ambiguous, they will be given their plain and ordinary meaning.” Brockmann v. Brockmann , 938 N.E.2d 831, 834 (Ind. Ct. App. 2010). “Clear and unambiguous terms in a contract are deemed conclusive, and we will not construe an unambiguous contract orlook to extrinsic evidence, but will merely apply the contractual provisions.” Id. The “ultimate goal” of our analysis is to determine the “parties’ intent.” BRC Rubber & Plastics, Inc. v. Cont’l Carbon Co. , 804 F.3d 1229, 1231 (7th Cir. 2015) (citing Brockmann , 938 N.E.2d at 834–35).No. 18-1881 5

Both parties contend that the term “disputes” is unambiguous. ACBL points to legal dict ionaries and various cases to demonstrate that the verb “t o bring,” when coupled with “claim” or “dispute,” usually refers to fi ling suit in court. See, e.g. , Bring an Action , Black’s Law Dictionary (10th ed. 2014). Inturn, Vesuvius cites other cases and statutes in which “dispute” had a broader meaning than simply a lawsuit, also encompassing a mere disagreement that may be resolved through negotiation or alternative dispute resolution. See, e.g. , City of New Albany v. Cotner, 919 N.E.2d 125, 132 (Ind. Ct. App.2009) (determining that the contractual phrase “sewer fee dispute” was ambiguous). But “[t]erms are not ambiguou s merely because the parties disagree as to the proper interpretation of those terms.” Brockmann , 938 N.E.2d at 835. While we might get bogged down in an argument over dictionary de fi nitions if we con fi ne the scope of our analysis to the provision alone, under Indiana law, we must “construe the contract as a whole and consider all provisions of the contract, not just the individual words, phrases, or paragraphs.” Bhd. Mut. Ins. Co. v. Michiana Contracting, Inc. , 971 N.E.2d 127, 131 (Ind. Ct. App. 2012). As the district court correctly noted, the other provisions contained in ¶ 22 relate to choice of law, choice of forum and venue, and consent to personal jurisdiction . Viewed in that context, an obligation to bring “disputes” se ems more likely to refer to the lawsuits to be brought under the other rules established in the same paragraph. Vesuvius, acknowledging this po int, looks to linguistic inconsistencies within the paragraph. If “disputes” are lawsuits, it asks, then why does ¶ 22 also refer to a lawsuit as an “action or proceeding?” Fair enough, bu t when we expand our scope6 No. 18-1881

once more, we see that the sent ence at issue cannot be a mere noti fi cation requirement. Paragraph 9 of the contract includes just such a noti fi cation requirement: “[Vesuvius] will immediately notify [ACBL] in writin g if a barge is reasonably determined to be unsuitable. Such noti fi cation will include the reason such barge is unsuitable.” (R. 9-1 at 6.) If we were to read the limitations provision in ¶ 22 as a requirement for Vesuvius to notify ACBL of a prob lem with its barg e within four months, then the noti fi cation provision in ¶ 9 would be superfl uous. The more logical conclusi on is that the parties knew how to write a noti fi cation requirement, and they inserted it in ¶ 9. Likewise, they knew how to write a limitations provision, and they inserted it in ¶ 22, right next to the other provisions spelling out how and where to bring suit in court. Vesuvius failed to comply with that unambiguous contractual obligation, and its suit is untimely.
On a fi nal note, Vesuvius points to dicta in the district court’s order dismissing its case in which it alleges that the district court improperly drew an inference against it: We might fi nd Vesuvius’s argument more persuasive if there had not been so long a time-lapse between ACBL’s denial of responsibility for the cargo damage and its fi ling of this lawsuit. ... The reasonable inference from such silence is that Vesuvius hadelected to acquiesce in, or at least chose not to contest, ACBL’s rejection of their complaint about the condition of the cargo. (R. 22 at 7.) As we noted above, when considering a motion to dismiss under Rule 12(b)(6), a court must draw all reasonable inferences in favor of the non-moving party. Boucher, 880 F.3d atNo. 18-1881 7

365. In this case, it appears that the district court drew at least one inference against the non-moving party.But any error was harmless. First, the district court had already stepped through the correct contractual analysis and made its conclusion before any discussion of inferences todraw from the parties’ behavior after the incident had occurred. Second, and more import antly, even if we were to draw the opposite inference in Vesuvius’s favor, it would make no di ff erence. We might infer that Vesuvius genuinely believed that it had complied in full with its obligations under ¶ 22 by notifying ACBL of the problem on February 20, 2015. Vesuvius might then have genuinely believed that it had all the time in the world to bring suit, and it did so two years later. But because we fi nd that the contract is not ambiguous,the parties’ actions after they signed the contract are irrelevant to the meaning of the contract itself. Regardless of whether we were to infer from Vesuvius’s actions that it genuinely believed its own position or whether it knew that its suit was untimely, the meaning of the contract is the same.
III. C ONCLUSION Standing on its own, perhaps the limitations provision of the contract might be ambiguous. But read in context with the rest of the contract, there is no question that Vesuvius was required to fi le suit no later than four months after it discovered the damage. Because Vesuvius waited two years to bring its claim, the district court properly dismissed it as untimely. Accordingly, we AFFIRM the judgment of the district court.