United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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:
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.
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
to shipping, Dimond signed a booking note (“Booking
Note”) which also contained a copy of the terms and