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Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co.

April 25, 2008


The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court

Hon. Harry D. Leinenweber


Plaintiffs Kawasaki Kisen Kaisha, Ltd. ("KL") and K Line America ("KAM") (hereinafter, the "Plaintiffs") have brought suit against Defendants Plano Molding Company ("Plano") and CMT International, Inc. ("CMT") (hereinafter, the "Defendants"), alleging negligence and breach of contractual assurances in the packing of two steel molds. Both Plano and CMT now bring individual Motions to Dismiss. For the reasons stated below, the motions are denied.


In ruling on a motion to dismiss, the Court accepts the well-pleaded allegations of the complaint as true and draws all reasonable inferences in favor of the Plaintiffs. See Brown v. Budz, 398 F.3d 904, 908 (7th Cir. 2005). Despite their professed understanding of this rule, all parties devote substantial portions of their briefs arguing what they believe to be the true facts of this case, instead of focusing on the legal sufficiency of the complaint as pled. Although the Court may properly consider the Bills of Lading referenced in and essential to Plaintiffs' complaint, see McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006), further factual contentions are inappropriate in a motion to dismiss. See Walker v. Gibson, 604 F.Supp. 916, 920 (N.D. Ill. 1985). Plano's Declaration of Robb Younger, which flatly denies various allegations of the Plaintiffs' Complaint, will not be considered by the Court, and Plaintiffs' Motion to Strike the Declaration will be granted. In fair turn, the Court will also exclude the affidavit and e-mails presented by Plaintiffs which argue that the terms of delivery were changed from F.O.B. to D.D.P.

Despite numerous further disputes and uncertainty in the Complaint about the roles played by Defendants and Defendants' relationships to the other parties involved, the following facts are clearly and unambiguously alleged in the Complaint, and they guide our decision in ruling on the motions to dismiss:

In November 2004, Plano contracted CMT to design, engineer, construct, and supply specialty steel injection molds. CMT arranged for Kunshan Yuanjin Plastic & Electronic Co., Ltd. ("Kunshan") to manufacture the steel molds, and CMT billed Plano for the cost of customs duties and for shipping from China to Chicago. World Commerce Services, LLC ("World"), a non-vessel operating common carrier, was hired to arrange shipment of the steel molds (though it is unclear whether World was hired by Plano or CMT). World then arranged for KL to transport the steel molds, and KL, in turn, arranged for inland rail transportation with Union Pacific Railroad Company. KL supplied a shipping container to THI Group Ltd. ("THI"), who loaded the steel molds into the container, though again it is unclear from the Complaint who hired THI.

The Complaint further alleges that the steel molds were loaded in accordance with instructions from World, Plano, and/or CMT and that Defendants or their agents arranged for, directed, and/or otherwise participated in the loading of the steel molds. Pertinent laws, regulations, and industry standards required that the steel molds be blocked and braced to evenly distribute the weight of the cargo. Plaintiffs allege that Defendants knew or should have known of this requirement and that Defendants or their agents knew or should have known that the steel molds were not properly stowed inside the container. The KL and World Bills of Lading also required the "Merchants" to the transaction to warrant that the cargo was safely stowed and secured.

Because the molds were improperly packed, they broke through the floor of the container during inland rail transit, fell onto the rail bed below, and caused the train to derail. KL's shipping containers were damaged as a result of the derailment, and Plaintiffs KL and KAM have been sued in the Southern District of New York for damages sustained to other cargo shipments. Plaintiffs allege that, after the derailment, both CMT and Plano inquired into the status of the molds and submitted claims to KL and/or KAM.


A motion to dismiss under Rule 12(b)(6) is designed only to test the sufficiency of the complaint, not to decide the underlying merits of the case. See Autry v. Northwest Premium Services, Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). Therefore, a plaintiff need only describe his claim in sufficient detail to "plausibly suggest that the plaintiff has a right to relief" and to give the defendants "fair notice of what the claim is and the grounds upon which it rests." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). Although mere vagueness or lack of detail will not compel dismissal, see Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985), the complaint must allege facts, either directly or inferentially, which set forth the essential elements of the cause of action. See Looper Maintenance Service Inc. v. City of Indianapolis, 197 F.3d 908, 911 (7th Cir. 1999).

A. Claims under the Bills of Lading

In pleading claims under the Bills of Lading in Counts I, II, V, and VI, Plaintiffs are entitled of course to enforce the protections of their own KL Bill of Lading. Under the World Bill's "Himalaya Clause," which passes all protections of the carrier on to the carrier's agents and independent contractors, Plaintiffs may also assert the terms and conditions of the World Bill. Under both Bills, a "Merchant" warrants to the carrier that the Merchant's containers have been safely packed and stowed, and upon breach of said warranty, the Merchant must indemnify the Carrier for any loss or liability arising out of the improper stowage. To properly state this claim, Plaintiffs must allege facts showing that (1) Defendants fit the definition of "Merchants" and (2) the Defendants are bound by the Bills of Lading. Despite confusion, ambiguity, and contention about the Defendants' roles in the transaction and their acceptance of the Bills of Lading, Plaintiffs have alleged sufficient facts to withstand dismissal.

Under both Bills of Lading, "Merchant" includes (among others) the shipper, consignor, consignee, holder of the Bill, and any person acting on behalf of the above-mentioned parties. Drawing all reasonable inferences in favor of Plaintiffs, both CMT and Plano fit these definitions. Plano is clearly identified as the consignee on the World Bill of Lading, and even though not so identified on the KL Waybill, it still appears to be the ultimate consignee or receiver of goods in the transaction. The Complaint's allegation that CMT agreed to design, engineer, construct, and supply the steel molds is enough to allege that CMT (even if not an agent of Plano), "acted on behalf" of Plano in this transaction. Further, as the party Plano contracted ...

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