Progress Bulk Carriers v. American Steamship Owners Mutual Protection & Indemnity Ass'n

939 F. Supp. 2d 422, 2013 A.M.C. 1628, 2013 WL 1570525, 2013 U.S. Dist. LEXIS 55593
District Court, S.D. New York·Decided April 15, 2013·No. No. 12 Civ. 264(ALC)(FM)·Published·Cited by 5 cases

Opinion

MEMORANDUM DECISION & ORDER

FRANK MAAS, United States Magistrate Judge.

This ease arises out of an insurance coverage dispute. Plaintiff Progress Bulk Carriers (“Progress Bulk”) charters and operates ocean-going vessels. Defendant American Steamship Owners Mutual Protection and Indemnity Association (“American Club” or “Club”) is a protection and indemnity association that provides marine insurance coverage to vessel owners and charterers, including Progress Bulk. In this action, Progress Bulk contends, and the American Club denies, that the Club improperly declined to indemnify Progress Bulk for liabilities that it had incurred after cargo being transported aboard a ship chartered by Progress Bulk was rejected in a Chinese port.

The rules applicable to such claims contain a section concerning “Disputes” (“Disputes Provision”), which requires that any dispute regarding coverage be brought in the first instance before the Club’s Board of Directors (“Board”). The Club contends that this Disputes Provision limits this Court’s review of the Board’s decision to deny coverage to Progress Bulk to the record that was before the Board at the time it reached its decision. Accordingly, the Club has moved, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, for a protective order (1) limiting the scope of discovery to the record that was before the Board, and (2) affording Progress Bulk only a single deposition of a specified witness. For the reasons explained below, that motion is granted in part and denied in part.

I. Background1

A. Rules Governing Claims Before the American Club

The American Club is a non-profit mutual protection and indemnity association (commonly referred to as a “P & I Club”), which differs from, a traditional insurance provider in that its members operate both as the insurers and the insureds. (Aff. of George Tsimis, sworn to on October 4, 2012 (ECF No. 16) (“Tsimis Aff.”), ¶¶2-3). In exchange for the payment of premiums and assessments, the American Club’s members “collectively agree to mutually indemnify each other” for liabilities arising out of the operation of insured vessels. (Id. ¶ 3).

A member’s right to coverage is governed by the American Club’s By-Laws and Rules. (Id. ¶ 4). Included among the Rules is a Disputes Provision which states, in relevant part:

If any difference or dispute shall arise between a Member and the [Club] concerning the construction of these Rules, or the insurance afforded by the [Club] under these Rules, or any amount due from the [Club] to the Member, such difference or dispute shall in the first instance be referred to and adjudicated by the [Board], No Member shall be entitled to maintain any action, suit or other legal proceedings unless and until the same has been submitted to the [Board].... Any such suit against the [425]*425[Club] shall be brought in the United States District Court for the Southern District of New York.

(Id. Ex. B at 40-41).

The Rules further contain a section regarding waiver, which states that:

No act, omission, course of dealing, forbearance, delay or indulgence by the [Club] in enforcing any of these Rules or any contractual terms and conditions shall prejudice or affect the rights and remedies of the [Club] under these Rules or under such contracts, and no such matter shall be treated as any evidence of waiver of the [Club’s] rights thereunder, nor shall any waiver of a breach by a Member of such Rules or contracts operate as a waiver of any subsequent breach thereof. The [Club] shall at all times and without notice be entitled to insist on the strict application of these Rules and on the strict enforcement of its contracts.

(Id. at 39) (“Anti-Waiver Provision”).

In addition, the Rules contain a choice of law provision, which mandates that the “Rules and any contract of insurance between the [Club] and a Member shall be governed by and construed in accordance with the law of the State of New York.” (Id. Ex. B at 41).

Section 7 of the Rules limits a member’s right to recover when a claim relates to an antedated bill of lading. That section reads in relevant part:

c. Claims Payable Only at the Discretion of the [Board]
Unless and to the extent that the [Board] in [its] discretion otherwise decide[s] there shall be no recovery from the [Club] in respect of liabilities, costs or expenses arising out of:
in. the issue of an antedated or postdated bill of lading, waybill or other document ... recording the loading or shipment or receipt for shipment on a date prior or subsequent to the date on which the cargo was in fact loaded, shipped or received....

(Id. at 53).

B. Factual Background

In 2002, Progress Bulk chartered a vessel from the Far East Shipping Company (“FESCO”). (Am. Compl. ¶23). Thereafter, in 2003,. Progress Bulk subchartered the vessel to the Schuyler Line Navigation Co., another Club member, which sent it to Venezuela to transport a cargo of steel products to Minmetals, an importer in China. (Id. ¶¶ 24, 26, 28). Between the vessel’s departure and its arrival in the Chinese port, however, the market for steel plummeted. (Id. ¶ 32). As a result, on June 26, 2003, the Shipowners. Claims Bureau, Inc. (“SCB”), which acts as a manager for the'-American Club, issued a bulletin alerting Club members that, because of the drop in steel prices, Chinese importers had been attempting to avoid paying for steel shipments on the basis of alleged defects in the bills of lading, such as misdescribed shipment dates. (Id. ¶¶ 33-35; see also Decl. of William R. Bennett, III, sworn to on Oct. 19, 2012 (“Bennett Deck”) (ECF No. 17), Ex. 5).. According to Progress Bulk, this is precisely what Minmetals sought to do by commencing an -action against FESCO in a local Chinese Court, in which it claimed that the steel cargo had not been loaded by the date indicated on the bills of lading. (Id. ¶¶ 35-36). Min-metals claimed to have suffered an extensive loss due to the antedated bills of lading. (Id. ¶ 36). The Chinese court agreed and entered judgment against FESCO for nearly $500,000. (Id. ¶38). FESCO appealed the judgment but, for reasons that are unknown, several years passed without a ruling from the appellate court. (Id. ¶ 40). Five - years later, on [426]*426August 15, 2008, FESCO settled the case for $150,000. (Id.).

FESCO then commenced an arbitration proceeding in London against Progress Bulk, seeking indemnity for the amounts paid in connection with the settlement of the Chinese suit. (Id. ¶¶ 43-44). On July 5, 2010, the London tribunal issued an award in favor of FESCO. (Id. at’ ¶ 46). In its decision, the tribunal found that, contrary to the Chinese court’s determination, “crucial cargo documents were not inaccurate as to the date by which the cargo had been loaded,” and that there consequently was “no inaccuracy in the Bills of Lading that would have justified a valid rejection of the goods under the sale and purchase contract.” (Id.

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Progress Bulk Carriers v. American Steamship Owners Mutual Protection & Indemnity Ass'n, 939 F. Supp. 2d 422, 2013 A.M.C. 1628, 2013 WL 1570525, 2013 U.S. Dist. LEXIS 55593 (S.D.N.Y. 2013).

939 F. Supp. 2d 422 (Progress Bulk Carriers v. American Steamship Owners Mutual Protection & Indemnity Ass'n) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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