, 

OCEAN NAVIGATOR EXPRESS LINE, OPINION

Plaintiffs,

v.BROOKS FITCH APPAREL GROUP, LLC

and JOSEPH E. SAfDIEH,

Defendants.

LINARES, Chief District Judge.

This case involves issues of breach of contract and indemnification arising out of the

purchase of goods by Defendant Brooks Fitch Apparel Group, LLC (“Brooks Fitch”) from various

Chinese manufacturers and the delivery of those goods to Brooks Fitch in New York. Plaintiffs

tntemational Transport Management Corporation (“IIMC”) and Ocean Navigator Express Line

(“ONEL”) filed the instant lawsuit against Brooks Fitch on April 5, 2011.’ (ECF No. 1). Plaintiffsfiled an Amended Complaint on September 16, 2014, adding Joseph E. Safdieh, the principal of

Brooks Fitch. (ECF No. 89). Plaintiffs alleged two counts of fraud against Defendants BrooksFitch and Safdieh, counts of conversion, breach of contract, embezzlement, replevin, imposition

of a constructive trust, exoneration, attachment, and indemnity against Brooks Fitch, and that

Brooks Fitch is the alter-ego of Safdieh. (ECF No. 89 ¶J 579—665). This case has a long and

complicated history, explained in more detail below, which culminated in a one-day bench trial

The parties mutually agreed that ITMC should be dismissed from the case for the purposes of the October 23, 2017

bench trial. (Trial Tr. 30:7—15).
Plaintiff ONEL is a corporation incorporated under the laws of Hong Kong, Special

Administrative Region ofthe People’s Republic of China. (ECF No. 189 (Pl.’s Proposed Findings

of Fact (“PFOF”)) ¶ 20). ONEL is a wholly-owned subsidiary of Cargo Services Far East Limited

and functions as an ocean transport intermediary operating as a non-vessel operating commoncarrier (“NVOCC”). (ECF No. 185 (“Trial Tr.”) 39:23—40:9, 41:8—9; ECF No. 131 (“Pls. 56.1”)

¶‘jJ 11—12; ECF No. 138 (“Def. 56.1”) ¶ 11—12). An NVOCC is a common carrier that does not

operate the vessel on which it provides ocean transportation. (Pis. 56.1 ¶ 14; Def. 56.1 ¶ 14).ONEL’s primary business is to transport goods from Asia to the United States, and does so by

operating through a network of agents. (Trial Tr. 40:3—9, 41:16—20).

Cargo Services far East Limited is a corporation incorporated under the laws of Hong

Kong, Special Administrative Region of the People’s Republic of China. (Exs. 3002, 3006).

Cargo Services Far East Limited provides logistics, supply chain, and international freight

forwarding services for air and ocean cargo. (Trial Tr. 35:16—19). Cargo Services Far East

Limited has another wholly-owned subsidiary called Cargo Services (China) Ltd. (“Cargo Services

China”). (Trial Tr. 36:9—11). Cargo Services China carries on the same business as Cargo Services

far East Limited, but in mainland China. (Trial Tr. 36:7—37:10, 38:23—39:6). These businesses

also have Chinese names, where Cargo Services translates to Jiahong. (Trial Tr. 10 1:20—22).

Brooks Fitch is a limited liability company organized under the laws of New York. (Pls.

2 The facts set forth herein are the Court’s findings of fact, which are based on the Court’s observations and credibility

determinations of the witnesses who testified and a thorough review of all the evidence admitted at trial.

2
¶J2l—22; Def. 56.1 ¶2l—22).

B. Procedural History

When Plaintiffs filed their initial Complaint on April 5, 2011, (ECF No. 1), this case was

before Judge Dennis Cavanaugh. Concurrent with the Complaint, ITMC filed a request for aTemporary Restraining Order seeking a permanent injunction against Brooks Fitch. (ECF No. 1-

3). Judge Cavanaugh denied ITMC’s request for a permanent injunction. (ECF No. 16). Plaintiffs

twice moved to amend the Complaint; however those motions were denied. (ECF Nos. 36, 44).

On May 17, 2013, this matter was reassigned to Judge Faith Hochberg. (ECF No. 58). Then, onOctober 10, 2013, this Court took over these proceedings. (ECF No. 72).

On November 22, 2013, Plaintiffs moved to amend the Complaint once more. (ECF No.

73). On September 10, 2014, Magistrate Judge Joseph A. Dickson granted Plaintiffs’ motion to

amend, (ECF No. 88), and on September 16, 2014, Plaintiffs filed the operative AmendedComplaint, (ECF No. 89), adding a direct claim against Safdieh by seeking to pierce Brooks Fitch’scorporate veil. Over two years passed before this case reached the summary judgment stage,

during which the Court and the parties negotiated various scheduling orders and conducted statusconferences. On November 1, 2016, the parties filed simultaneous briefing on two motions forsummary judgment. (ECF Nos. 129—146). The Court heard oral argument on the summary

judgment motions on March 16, 2017. (ECF No. 150). The Court denied Plaintiffs’ summaryjudgment motions. (ECF No. 151). The Court set this matter for a bench trial date of October 23,

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law. (ECF No. 183). They did so on December 15, 2017. (ECF Nos. 188, 189). Below are the

Court’s findings of fact and conclusions oflaw.

II. FINDINGS Of FACT

The Court has considered the testimony and assessed the credibility of all the witnesses

who testified and has also considered the documentary evidence presented at trial, and finds as

follows.

from 2009 to 2011, Brooks Fitch purchased shipments of apparel from various Chinese

manufacturers. (ECF No. 167 (Joint Statement of Stipulated Facts (“JSSf”)) ¶ 31). The contractsbetween Brooks Fitch and these Chinese manufacturers were free on Board or “F.O.B.” contracts,

meaning that the Chinese manufacturers perfonried under the contract once they delivered the

purchased goods to the vessel or vessels in China that Brooks Fitch nominated for carriage to theUnited States. (JSSF ¶ B3). To get the goods to the United States, Brooks Fitch contracted withITMC such that ITMC acted as Brooks Fitch’s freight forwarding agent. (JSSF ¶ B4). The purpose

of an international freight forwarding agent is to arrange shipments to and from the United Statesin international trade. (Trial Tr. at 111:22—112:3). ITMC then entered into an agreement withONEL under which ONEL acted as the NVOCC for the shipments of the goods to the United

States. (JSSF ¶ 34). The parties agree that ITMC was acting as an agent for ONEL in this capacity.

(PFOF ¶ 59; ECF No. 188 (Defendant’s Findings of Fact (“DFOF”)) ¶ 53). ONEL thus arranged

for the transportation ofthe goods from China to the United States. (JSSF ¶ B5).

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2131, 2141, 2151). ONEL then gave the ocean bill of lading to the respective Chinese

manufacturer as a receipt and document of title. (JSSF ¶ B5). ONEL issued these bills of lading

to the Chinese manufacturers through Cargo Services China (for mainland China manufacturers)

and through Cargo Services Far East Limited (for the Hong Kong manufacturer). (Exs. 2001,2006,2009,2012,2015,2021,2024,2027,2032, 2041,2050,2061, 2065, 2069, 2072, 2075, 2081,

2085,2088,2091,2102, 2106,2111,2113, 2121, 2123,2131,2141,2151). Thesebillsofladingare stamped such that they state that either Cargo Services China or Cargo Services Far East

Limited issued the bill oflading “as agent for” either “Carrier” or “Ocean Navigator Express Line.”

(Id.).

This case concerns shipments from 14 different manufacturers with a combined value of

$4,362,113.50. (JSSF ¶ B2). The shipments are broken out in the table below:

Chinese Manufacturer Dollar Value (USD)

Pearl Touch Industrial Co. $302,386.20

Wujiang First Import and $39,600.00

Export Co.

Wuxi Hongrui Habit Co. $158,100.00

Jiangsu Saintek $169,620.00

Join Action $100,248.00

Xiamen Unibest $229,335.00

Dragonway Garment Ltd. $1,061,054.58

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Xiamen Jiasheng $129,600.00

Jiangyin Weiyu Textile $45,264.00

Zhangzhou Sin Lane $70,968.00

TOTAL $4,362,113.50

(JSFF ¶ B2).

Under nornial industry practice, Brooks Fitch was supposed to pay the Chinese

manufacturers for the shipments. and in return, Brooks Fitch would receive the original bills oflading from the Chinese manufacturers. (JSSF ¶ 36). Brooks Fitch would then present the bills

of lading to ONEL in the United States, which would allow ONEL to release the goods to BrooksFitch. (JSSF ¶ B6). That did not happen here. With the exception of partial payments of

$40,000.00 to Join Action and $20,000.00 to Xiamen Unibest, Brooks Fitch never paid for those

shipments. (JSSF ¶ B7, B9; PFOF ¶ 85).

Despite never paying for the shipments and thus not having possession ofthe original bills

of lading, Brooks Fitch was able to obtain possession of the goods. (JSSF ¶ B$). ITMC releasedthe goods to Brooks Fitch after Brooks Fitch entered into three indemnity agreements with ITMC

and provided ITMC with numerous collateral checks referencing specific shipments totaling$3,343,356.26. (JSSF ¶ Cl—3; PFOF ¶ 97 & n.l). The indemnity agreements covered the

shipments from Pearl Touch Industrial Co., Xiamen Jiasheng. and Shiandong Textiles. (JSSF ¶

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For ten dollars ($10.00) and other good and valuable consideration, receipt ofwhich

is hereby acknowledged, Brooks Fitch and its successors and assigns agree to

indemnify, hold harmless and defend Ocean Navigator Express Line Ltd.,

International Transport Management Corp. and Cargo Services Far East Limited,

and their respective parents, subsidiaries and affiliates, and their respective officers,

directors and employees from and against any actual or alleged claims, liabilities,losses, demands, causes of action, judgments, settlements and expenses (including

without limitation, settlement costs and legal, accounting and other expenses in

connection therewith), or other damages of any kind or nature arising out of or

connected with the following shipments of apparel .

(Exs. 2004. 2052, 2116). The indemnity agreements also state that they will be governed by New

York law. (Exs. 2004, 2052, 2116).

With respect to the collateral checks, the table below shows the check number, the amount

ofthe check, the invoice due to the shipper, and the corresponding shipper for which Brooks Fitch

submitted the check as collateral.

Manufacturer Invoice Amount Check Number Check Amount

Pearl Touch Industrial $302,386.20 6439 $58,893.00

Co.

659$ $104,940.00

6694 $138,552.60

Wujiang First Import $33,600.00 6931 $6,300.00

and Export Co.

7137 $27,971.50

Wuxi Hongrui Habit $158,100.00 627$ $123,120.00

Co.

6925 $6,300.00

7137 $27,971.50

7
Dragonway Garment $1,061,054.58 $388 $120,326.39

Ltd.

J

8389 $171,197.508394 $367,938.538395 $295,084.62

8453 $160,507.54

Famous Design $559,763.28 $393 $110,733.00

4 $196,804. 6$

8390 $126,523.20

$125,702.40

Shanghai Win-Wing $725,155.68 8578 $564,782.70

Shiandong Textiles $335,482.20 85 $0 $171,666.00

$579 $93,811.20

foshanHeJun $435,536.86 No check No check

Xiamen Jiasheng $129,600.00 7126 $129,600.00

Jiangyin Weiyu $44,364.00 No check No check

Textile

F Zhangzhou Sin Lane $70,968.00 No check No check

(JSSF ¶ C3; PFOF ¶ 97).

The checks served as collateral for ITMC and ONEL to release the goods to Brooks Fitch

in the event that Brooks Fitch did not end up paying the Chinese manufacturers. (Trial Tr. 131:11—

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mainland China. (Exs. 1000—02, 1010—11, 1016, 1018, 1020, 1022, 1024, 1029, 1031, 1033—37,

1040, 1046—47, 1051, 1055, 1060).

• Xiamen Unibest filed suit in the Xiamen Maritime Court against Cargo Services China

on June 28, 2010. (Ex. 1031).

• Wujiang First Import and Export Co. filed two suits in the Shanghai Maritime Court

against Cargo Services China on August 13, 2010. (Exs. 1010—11).

• Wuxi Hongrui Habit Co. filed three suits in the Shanghai Maritime Court against Cargo

Services China on August 13, 2010. (Exs. 1016, 1018, 1020).

• Jiangsu Saintek filed two suits in the Shanghai Maritime Court against Cargo Services

China on August 13, 2010. (Exs. 1022, 1024).

• Pearl Touch Industrial Co. filed three suits in the Shanghai Maritime Court against

Cargo Services China on September 21, 2010. (Exs. 1000—02).

• Join Action filed suit in the District Court of Hong Kong against Cargo Services Far

East and ONEL on October 15, 2010. (Ex. 1029).

• Xiamen Jiasheng filed suit in the Shanghai Maritime Court against Cargo Services

China on December 20, 2010. (Ex. 1060).

• Dragonway Garment Ltd. filed five suits in the Shanghai Maritime Court against Cargo

Services China on May 31, 2011. (Exs. 1033—37).

• Foshan He Jun filed two suits in the Shanghai Maritime Court against Cargo Services

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Services China on October 10, 2011. (Exs. 1046—47).

• Famous Design filed suit in the Shanghai Maritime Court against Cargo Services China

onApril 2$, 2012. (Ex. 1040).

• Two companies, Jiangyin Weiyu Textile and Zhangzhou Sin Lane, sent letters to Cargo

Services China, demanding payment for the goods under the bills of lading.3 (Exs.

1062, 1065).

The following table lays out the amounts paid as a result ofthese lawsuits and demands for

payment.

Claimant Amount Paid Source

Pearl Touch Industrial Co. $228,697.96 Exs. 1007—09

Wujiang first Import and $39,964.93 Exs. 1026, 102$, 1029

Export Co.

Wuxi Hongrui Habit Co. $160,613.49 Exs. 1026, 102$, 1029

Jiangsu Saintek $166,718.00 Exs. 1026, 102$, 1029

Join Action $55,000.00 Ex. 1030

XiamenUnibest $85,000.00 Ix. 1030

Shanghai Benyi Hongyuan $2,398,133.66 Exs. 1033—50

Clothing Import and Export

Co. (Dragonway Garment

Ltd.; famous Design;

Shanghai Win-Wing)

Zhangzhou Sin Lane’s letter was also addressed to ONEL.

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Zhangzhou Sin Lane $151,280.31 Exs. 1030, 1067

Fees allotted to Shanghai $17,028.91 Exs. 1026,1028,1029

Goodwin law firm

TOTAL $4,155,006.50

ONEL now claims that Brooks Fitch should indemnify it for the losses arising from the

payments in the table above or that it is liable for that amount as a result of its breach of contract.

III. CONCLUSIONS OF LAW

The legal issue at the center of this trial was whether ONEL actually suffered any

damages. Brooks Fitch argues that ONEL has not suffered any damages, since the judgments and

settlements paid out in the Chinese lawsuits were paid by Cargo Services China or Cargo Services

Far East Limited. (Trial Tr. 25:10—26:7). ONEL contends that it is in fact the real party in interest

and has standing to recover on an indemnity claim in this case because Cargo Services China andCargo Services Far East Limited were acting as agents for ONEL. (ECF No. 189 (P1.’s Proposed

Conclusions of Law (“PCOL”)) at 45).

The parties dedicated much time at trial and space in their pre- and post-trial papers to

arguing whether ONEL was in fact in a principal-agent relationship with Cargo Services China

ONEL claims that it settled this claim for $40,000; however, there is no exhibit indicating payment of a settlement

in that amount to Jiangyin Weiyu Textile. The Court notes, however, that on page 30 of Exhibit 1030, there is a

$40,000 payment to a Lin-Lin fashion Int’l Co. with a payment tirneline following the demand letter from JiangyinWeiyu’s lawyers. If ONEL can submit additional proof that this is indeed the $40,000 payment to Jiangyin Weiyu,

the Court will amend its judgment.

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able to find any law that stated that the damages paid out by agents in lawsuits with third-parties

are attributable to a principal. However, that is not fatal to Plaintiffs case, nor must the Court

make a finding as to whether ONEL, Cargo Services China and Cargo Services Far East Limited

were in a principal-agent relationship as a matter of law.

In its post-trial brief ONEL argues that it can recover for damages as the real party in

interest under Federal Rule of Civil Procedure 17. The Court agrees with ONEL. The original

Advisory Note to Rule 17 states:

A recurring factual situation in maritime cases may lead to injustice if the

requirement as to real party in interest is rigidly applied. When there are claims to

be asserted on behalf of maritime cargo some or all ofthe following conditions maybe present: (1) There are numerous lots of cargo and hence numerous potential

claimants. (2) The true owner or other person entitled to sue cannot be readily

determined. This results in part from the employment of diverse commercial

instruments giving rise to problems of the passing of title. These may involve

problems in the conflict of laws, including the laws of foreign countries. Questions

also arise as to when the rights of an insurer as subrogee have been perfected. (3)

The time for filing suit is short, either because of a short limitation period, such as

the one-year period of the Carriage of Goods by Sea Act, or because the onlypracticable remedy is arrest or attachment of a vessel whose departure is imminent.

Unilever (Raw Materials) LtcL v. M/T Stolt Rod, 77 F.R.D. 384, 389 (S.D.N.Y. 1977) (quoting 7A

Moore’s Federal Practice P 0.55(3), at 403). Furthermore, under traditional admiralty practice,

“equitable principles rather than technical rules and forms should be the paramount consideration

and. . . the objective is to do substantial justice between the parties.” Id. at 3 89—90 (quoting Esso

Standard (‘Switz.) v. The Steamship Arosa Sun, 184 F. Supp. 124, 127 (S.D.N.Y. 1960)). The

Unilever Court also noted that Rule 17(a) “derives ...from the special needs of the maritime

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the consignee was Unilever, the parent corporation of Lever. Id. The complaint was amended to

substitute Unilever as the plaintiff for Lever. Id. The Unilever Court denied the defendants’

motion to dismiss the amended complaint as time barred under the Caniage of Goods by Sea Act

afier the substitution of the plaintiff Id. The Court reasoned that:

The facts ofthis case simply do not demonstrate prejudice to the defendant accruing

from having to defend against Unilever instead of Lever. In fact, the opposite

conclusion is all but inescapable: there is simply no reason to pennit a windfall for

the defendants because the vagaries of corporate structure and maritime instruments

of title misled the shipper into believing that it sued in behalf of its own loss. One

cargo shortage is at issue; the cargo was shipped in the care ofthe defendants; there

are only three “parties” in the action the shipper, the carriers and the consignee.

Technical niceties of relationship or lack thereof between the shipper and the

consignee ought not to obscure the facts that the defendant is exposed to only one

kind and amount of liability no matter which plaintiff sues; that a loss plainly has

occurred; and that a party who was no stranger to the business transaction initiated

suit within the time limit in the not unreasonably mistaken belief that it had

sustained the loss.

Id. at 390—91.

Other courts have applied similar reasoning when faced with the scenario where a corporate

plaintiff is suing in place of its affiliate, which actually suffered damages. In Frevor-Mavorsohn

Caribbean, Inc. v. P.R. Marine Mgmt., Inc., the first Circuit addressed a case involving damage

to thirteen trailer loads of produce shipped on vessels owned by the defendant. 620 F.2d 1, 2 (1st

Cir. 1980). During trial, the president of Prevor Mayorsohn Caribbean (“PMC”) testified that

Prevor Mayorsohn International (“PMI”), of which PMC was a wholly-owned subsidiary, actually

owned the produce as principals and that PMC sold the produce as agents for PMI and received a

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construed to accommodate the somewhat flexible rules that have developed in theadmiralty practice defining the parties who may properly commence an action for

damage to cargo. See general/v 2A Benedict on Admiralty, § 53 (7th ed. 1977).

Not only has an exclusive interest in the damaged goods not been required in all

cases, but courts have ofien looked to the practicalities of the situation in assessing

the likelihood that a carrier might ultimately be exposed to a double recovery and,when satisfied that double recovery is not a threat, and that the plaintiff has a proper

interest in maintaining the action, have allowed that plaintiff to maintain theaction. See Elia Satzman Tobacco Co. v. SSMormacwind, 371 f.2d 537, 540 (2d

Cir. 1967) (the fact all other possible claimants to the damages were libelants and

that their libels had been dismissed protected defendant against any possible double

recovery); Levcttino Co. v. M/S Helvig Torm, 295 F.Supp. 725, 72$ n. 4 (S.D.N.Y.

196$) (since shippers were time barred from instituting new and separate action,

possibility of double recovery was eliminated). Here the fact that Prevor and itsparent company are clearly “all part of a single operation,” Salzman, supra at 539,

and further, as PRMM itself urges, that any new proceeding by Prevor International

would be time ban-ed, demonstrate that PRMM is amply protected against thepossibility of exposure to subsequent suit. Where the carrier is thus “protected

against double recovery, (it) has no concern with any equities between the owner

or consignee and others.” Salzman, suprct at 540.

Prevor-Mayorsohn, 620 F.2d at 4—5.

The reasoning applicable here and set forth in Unilever and Prevor-Mayorsohn is not

limited to maritime commerce. See Global Aerospace, Inc. v. Platinum Jet Mgmt., LLC, No. 09-60756, 2011 WL 2530943, at *7 (S.D. Fla. June 23, 2011) (stating that, in the context of an

insurance dispute related to a plane crash, an agent can sue on behalf of its injured principal andciting to the reasoning behind Rule 17); fried, Krupp, GmbfrL Krupp Reederei Und Brennstoff

Handet-Seeschtffarht v. Solidarity Carriers, Inc., 674 F. Supp. 1022, 1026 n.l (S.D.N.Y. 1987)

(noting that there is judicial authority “recognizing the ability of corporate entities to assert theiraffiliates’ claims . . . under a ‘real party in interest’ analysis”); Mitsui & Co. (USA.) v. P.R. Water

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were sustained by another, he claims no financial interest in the transaction or litigation, and even

though he did not have title to, or more than a transient possessory or custodial interest in, the

property forming the subject of the dispute.”); Bache & Co. v. hit ‘1 Controls Corp., 324 F. Supp.

998, 1004—05 (S.D.N.Y. 1971) (pennitting stock broker to sue on behalf of its customers whose

shares it tendered to buyer who refused to pay and arguing that there is no prejudice to defendant

because there is no chance of double recovery).

The Court finds the logic espoused in the aforementioned cases particularly applicable

here. Over the course of the long and tortured history ofthis case, the Court has made a concerted

effort to streamline the issues and parties before it. That ONEL remains as Plaintiff is of no

prejudice to Defendant and should not result in a windfall for Defendant. This is akin to the

situation in Unilever where “defendant is exposed to only one kind and amount of liability no

matter which plaintiff sues; that a loss plainly has occurred; and that a party who was no strangerto the business transaction initiated suit within the time limit in the not unreasonably mistaken

beliefthat it had sustained the loss.” 77 F.R.D. at 391. Nor is Brooks Fitch at risk of being subject

to a double recovery. ITMC was dismissed from this action at trial, (Trial Tr. 30:7—1 5), and evenif either of the Cargo Services entities were not barred by the “special res judicata principles”

associated with Rule 17(a), Prevor-Mayoiohn, 620 F.2d at 4, any contract or fraud claims brought

by the Cargo Services entities would be time barred. See Kaufman v. i-Stat Corp., 165 N.J. 94,

127 (2000) (stating that the statute of limitations for common law fraud is six years); Binder v.

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shareholder of Cargo Services Far East Limited—that in this case ONEL, Cargo Services Far East

Limited, and Cargo Services China are “all part of a single operation” and thus Brooks Fitch is

“amply protected against the possibility of exposure to subsequent suit.” Prevor-Mayorsohn, 620F.2d at 5.

Based on the above, the Court finds that ONEL can properly bring this claim for damages

against Brooks Fitch.

As to the grounds on which the Court finds Brooks Fitch liable, the indemnity agreements

Brooks Fitch signed with respect to Pearl Touch Industrial Co., Xiarnen Jiasheng, and Shiandong

Textiles are broad enough to indemnify ONEL for damages paid out by Cargo Services Far East

Limited. Indemnity agreements are “strictly construed to avoid reading into it a duty which the

parties did not intend to be assumed.” Jeanetti v. Caster Masorny, Inc., 133 A.D.3d 1339, 1340

(N.Y. App. Div. 2015). The language of the indemnity agreement “should not be extended toinclude damages which are neither expressly within its terms nor of such character that it is

reasonable to infer that they were intended to be covered under the contract.” Id. (quoting Niagara

frontier Transp. Auth. v. Tn -Delta Constr. Corp., 107 A.D.2d 450, 453 (N.Y. App. Div. 1985)).

In this case, the indemnity agreements at issue for the Pearl Touch Industrial Co., Xiamen

Jiasheng, and Shiandong Textiles agreements clearly cover losses incurred as a result of

settlements or judgments from lawsuits. (Exs. 2004, 2052, 2116 (covering “any actual or allegedclaims, liabilities, losses, demands, causes of action, judgments, settlements and expenses

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This Court finds that they do. The language of the indemnity agreements is quite broad. Those

agreements state:

For ten dollars ($10.00) and other good and valuable consideration, receipt ofwhichis hereby acknowledged, Brooks Fitch and its successors and assigns agree toindemnify, hold harmless and defend Ocean Navigator Express Line Ltd.,International Transport Management Corp. and Cargo Services Far East Limited,and their respective parents, subsidiaries and affiliates, and their respective officers,directors and employees from and against any actual or alleged claims, liabilities,losses, demands, causes of action, judgments, settlements and expenses (including

without limitation, settlement costs and legal, accounting and other expenses in

connection therewith), or other damages of any kind or nature arising out of orconnected with the following shipments of apparel. .

(Exs. 2004, 2052, 2116). As written, the indemnity agreements indemnify ONEL and its

“respective parents [and] subsidiaries” from losses or damages of any kind “arising out ofor connected with” the shipments of apparel. This language indicates the kind of clear and

unmistakable intent that New York courts require to enforce indemnity agreements. See,

e.g., Bank ofAm. Corp. v. Lemgritber, 385 F. Supp. 2d 200, 227 (S.D.N.Y. 2005) (applying

New York law and upholding indemnity agreement which stated that the indemnitor “will

indemnify [the indemnitees] and their ‘affiliates’ . . . for ‘any loss, liability, claim, damage

•

, expense. . . , or diminution ofvalue”). The Court thus reads the indemnity agreements

to indemnify ONEL from losses incurred by Cargo Services Far East Limited and Cargo

Services China in connection with litigation arising out of the shipments of goods from

Pearl Touch Industrial Co., Xiamen Jiasheng, and Shiandong Textiles.

Even if the indemnity agreements do not indemnify ONEL for damages incurred

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ofthe shipments under a breach of contract theory. To establish a breach of contract claim,

ONEL must prove that it entered into a contract with Brooks Fitch, ONEL performed under

the terms of the contract while Brooks Fitch did not, and Brooks Fitch’s breach caused

ONEL damages. Pollack v. Quick Quality Rests., Inc., 452 N.J. Super. 174, 188 (App. Div.

2017) (citing Globe Motor Co. v. Igdatey, 225 N.J. 469, 482 (2016)).

Here, the parties entered into an agreement when Brooks Fitch offered ITMC

collateral checks in order to release the goods from the Chinese manufacturers without

providing the bills oflading. ONEL was a party to this agreement as the disclosed principal

ofits release agent, ITMC. ITMC, after getting confinnation from ONEL, agreed to release

the goods to Brooks Fitch once it received the collateral. Brooks Fitch did not perform

under this agreement, because the collateral checks were worthless and so did not fulfill

their purpose of providing security to ONEL in the event that Brooks Fitch never paid the

Chinese manufacturers. As a result of Brooks Fitch’s failure to pay the Chinese

manufacturers and the worthless nature of the collateral provided, ONEL was exposed to

liability across the various lawsuits detailed above.

IV. CONCLUSION

For the reasons stated above, the Court will enter judgment in favor of Plaintiff in the

amount of $4,155,006.50. An appropriate Order and Judgment accompanies this Opinion.

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