This cargo damage case is before the Court on venue issues raised by Defendant Oceaneering International, Inc. ("Oceaneering") in its Motion to Dismiss [Doc. # 4] ("Oceaneering's Motion"). Plaintiff Haratio Shipping Co., Ltd. ("Haratio") filed a Response [Doc. # 7], and Oceaneering filed a Reply [Doc. # 9]. On March 18, 2013, Oceaneering and Haratio each filed supplemental briefing. See Plaintiff's Supplemental Brief in Opposition to Oceaneering's Motion to Dismiss [Doc. # 16]; Oceaneering's Brief Concerning the Court's Authority to Decide Between Foreign Court and Arbitral Forums [Doc. # 17]. The Court has carefully reviewed the record, the parties' arguments, and the applicable law. The Court concludes that venue in Houston, Texas, is improper, that London is the proper forum for this case, and Oceaneering's Motion to Dismiss should be granted.
This case concerns legal issues regarding the interplay of several documents for the carriage of goods by sea among Oceaneering, Onego Shipping & Chartering BV ("Onego"), Haratio, and their respective agents.*fn1 Oceaneering sought to ship electrical cable and stainless steel tubing from Hamburg, Germany, to Panama City, Florida.*fn2 On February 2, 2007, Oceaneering entered into a Booking Note (the "Feb. 2007 Booking Note") with Onego, a vessel charterer.*fn3 Onego entered into a time charter with Haratio.*fn4 Haratio owned, and Plaintiff Internship Navigation Co., Ltd. operated, the M/V ONEGO MISTRAL, the vessel used to ship Oceaneering's cargo.*fn5 Onego issued bills of lading on behalf of the Master relating to the carriage.*fn6 Oceaneering filed this suit after the cargo allegedly sustained damage during the voyage from Germany to Florida.*fn7
The parties dispute whether venue is proper in the Southern District
of Texas in light of the different forum selection clauses in the
parties' documents. Three documents are involved in the parties'
dispute: (1) the Feb. 2007 Booking Note;*fn8 (2) an
email sent January 28, 2009 (the "Jan. 2009 Email");*fn9
and (3) Bills of Lading ONEGMISHAM060901 and ONEGMISHAM060902
dated June 25, 2009 ("2009 Bills of Lading").*fn10 The
Feb. 2007 Booking Note has three parts: (1) the front side of the
Booking Note (page 1); (2) the reverse side of the Feb. 2007 Booking
Note (page 2), which is labeled "Full Terms of the Carrier's Bill of
Lading Form" and contains Clauses 1 through 19 (the "2007 Bill of
Lading Form");*fn11 and (3) a typewritten addendum
containing clauses 20 through 33 (the "Addendum").*fn12
The page 1 of the Feb. 2007 Booking Note states that "[i]t is hereby agreed that this Contract shall be performed subject to the terms contained on Page [sic] 1 and 2 hereof which shall prevail over any previous arrangements and which shall in turn be superseded (except as to deadfreight and demurrage) by the terms of the Bill of Lading, the terms of which (in full or in exact) are found on the reverse side hereof."*fn13
The 2007 Bill of Lading, located on the reverse side of the Feb. 2007 Booking Note, contains a "Clause 3," labeled "Jurisdiction." Clause 3 states that "[a]ny dispute arising under this Bill of Lading shall be decided in the country where the carrier has his principal place of business and the law of such country shall apply except as provided elsewhere herein."*fn14 The effect of this clause, unless there is another venue "provided elsewhere" in the 2007 Booking Note, is that disputes regarding the shipment were to be resolved in Cyprus, because that is Onego's-the Carrier's- principal place of business.
The 2007 Booking Note contains, however, another segment, namely, the Addendum. The parties agree that the Addendum supersedes any conflicting terms in the 2007 Bill of Lading on the reverse side of the Feb. 2007 Booking Note.*fn15
In fact, page 1 of the Feb. 2007 Booking Note states that "[a]additional clauses 20-33, as attached, are fully incorporated in this booking note."*fn16
Clause 30 of the Addendum provides:
Carrier will issue "Conlinebill" Bill(s) of Lading and all terms of this Conline Booking note including all special terms/clauses agreed in these Rider clauses (addendum) shall prevail over any other terms/clauses as set out in all Conlinebill(s). The Master will deliver the cargo only upon presentation of these documents . . . .*fn17
The effect of this clause is to require application of the Addendum's provisions to all shipments under the auspices of the parties' Feb. 2007 Booking Note.
The Addendum also contains Clause 31 which provides: "This Contract shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Contract shall be referred to arbitration in London . . . ." The signatories to the Feb. 2007 Booking Note thus agreed that disputes arising out of or in connection with shipments under the Feb. 2007 Booking Note (and the 2007 Bill of Lading) as amended by the Addendum would be resolved by London arbitration.
The Feb. 2007 Booking Note provided for a minimum of seven shipments to be made during the 12 months following the signing date of the Feb. 2007 Booking Note. The parties shipped cargo under the terms of the Feb. 2007 Booking Note (as amended) during and after expiration of the one-year period in February 2008.*fn18
On January 28, 2009, American Shipping and Chartering sent an email on Onego's behalf to Rhodes (the Jan. 2009 Email) containing terms and conditions that altered the Feb. 2007 Booking Note for the shipment at issue.*fn19 That email identifies the specific cargo to be shipped, sets forth new pricing terms, and states that the terms are "[o]therwise as per COA." The parties agree that "COA" stands for ...