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Dimond Rigging Co., LLC v. BDP International, Inc.

United States District Court, N.D. Ohio, Eastern Division

June 22, 2018




         This matter is before the Court on Motions to Dismiss by Defendants BDP International, Inc. (“BDP”) and Logitrans International, Inc. (“Logitrans”) (ECF DKT # 9, 21). For the following reasons, the Court grants Defendants' Motions and dismisses the above-captioned case.

         According to Plaintiff Dimond Rigging Co., LLC (“Dimond”), Defendants BDP and Logitrans performed international shipping on behalf of Dimond without having proper licenses and qualifications, resulting in increased shipping delays and expenses. Plaintiff's Complaint alleges Breach of Fiduciary Duty: Agent/Principal, Fraudulent Non-Disclosure, Intentional Fraud, Breach of Agreement: Failure to Perform and Illegality of Contract and Unjust Enrichment.

         Background Facts

         Plaintiff Dimond's claims concern the shipment of several tons of used manufacturing equipment consisting of 132 individual pieces (the “Equipment”) from the port of Cleveland, Ohio to the port of Xingang, China (the “Shipment”). Compl. ¶ 36. Dimond was inexperienced in international shipment, especially considering the size and weight of the Equipment. Compl. ¶ 10. Dimond alleges that, while the project was in initial stages during “late spring/early summer of 2011, ” Dimond received an unsolicited call from BDP, who offered to “assume and perform... each and every aspect of the shipment.” Compl. ¶¶ 9, 12-15. Dimond hired BDP to perform the Shipment. Compl. ¶ 24. Plaintiff contends that BDP failed to disclose that it was not a properly licensed Ocean Transportation Intermediary (“OTI”) and that it was illegal for BDP and Logitrans to perform the Shipment since neither BDP nor Logitrans was a licensed OTI or Non Vessel Operating Common Carrier (“NVOCC”). Compl. ¶¶ 18, 44.

         Shortly thereafter, BDP informed Dimond that they had obtained a ship on Dimond's behalf and sent a “con line booking note” to Dimond to execute, even though the Equipment had not been fully disassembled and weighed. Compl. ¶ 25. Dimond created what they believed was “a preliminary and estimated packing list” (emphasis original). Compl. ¶ 26. BDP allegedly provided this preliminary list, which underestimated the weight of the Equipment and misstated how many pieces the Equipment was when obtaining quotes from third-party contractors, including stevedores who would load the Equipment onto the ship. Compl. ¶¶ 27, 29, 33.

         The next month BDP informed Dimond that the initial ship had fallen through and that Logitrans, which BDP allegedly misrepresented as a licensed NVOCC, would be the replacement. Compl. ¶ 30. Dimond alleges that BDP and Logitrans were actually scrambling to find a replacement ship at this late stage and finally selected the Gisele Scan, operated by Scan-Trans, Inc. (“Scan-Trans”), without disclosing to Dimond that they had contracted with Scan-Trans. Compl. ¶¶ 31, 39. According to Dimond, the Gisele Scan was not equipped to handle the Shipment's volume and BDP and Logitrans failed to exercise due diligence in choosing the Gisele Scan for the job. Compl. ¶ 32. On November 17, 2011, Dimond paid BDP $898, 000 for the Shipment. Compl. ¶ 104. BDP acknowledged its receipt of this payment on December 9, 2011. Compl. ¶ 105.

         In connection with hiring the Gisele Scan, BDP prepared a new Bill of Lading, which “errantly identified only 75 pieces of Equipment and only 3, 100 revenue tons.” Compl. ¶ 33. This Bill of Lading identified Dimond as the merchant, Logitrans as the carrier, Scan-Trans as the agent/shipbroker and BDP as the merchant's representative. The Bill of Lading contained terms and conditions, including the following:

         U.S. Trade. Period of Responsibility.

(a) In case the Contract evidenced by this Bill of Lading is subject to the Carriage of Goods by Sea Act of the United States of America, 1936 (U.S. COGSA), then the provisions stated in said Act shall govern before loading and after discharge and throughout the entire time the cargo is in the Carrier's custody and in which event freight shall be payable on the cargo coming into the Carrier's custody.

         The Bill of Lading also contained the following provision, which the parties refer to as the “Himalaya Clause”:

(a) It is hereby expressly agreed that no servant or agent of the Carrier (which for the purpose of this Clause includes every independent contractor from time to time employed by the Carrier) shall in any circumstances whatsoever be under any liability whatsoever to the Merchant under this Contact of carriage for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, negligent or default on his part while acting in the course of or in connection with his employment.
(b) Without prejudice to the generality of the foregoing provision of this Clause, every exemption from liability, limitation, condition and liberty herein contained and every right, defense and then and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled, shall also be available and shall extend to protect every such servant and agent of the Carrier acting as aforesaid.

         Prior to shipping, Dimond signed a booking note (“Booking Note”) which also contained a copy of the terms and ...

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