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Bbc Chartering & Logistic Gmbh & Co. K.G v. Rotec Industries

February 23, 2011

BBC CHARTERING & LOGISTIC GMBH & CO. K.G., PLAINTIFF,
v.
ROTEC INDUSTRIES, INC., DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Plaintiff BBCChartering & Logistic GmbH & Co. K.G. ("BBC") previously won summary judgment on the issue of breach. They now move for summary judgment on the issue of damages, claiming that damages were liquidated by a "dead freight" provision in the booking note. Plaintiff's motion is denied.

II. STATEMENT OF FACTS

BBC is an owner and operator of vessels for the carriage of goods by sea. On September 15, 2007, Defendant Rotec entered into a maritime booking note ("Note") with Clipper Elite Carriers (Americas) Inc. ("Clipper") and APC, Dubai ("APC") for the ocean carriage of one "KD tower crane, about 2.763,8484 cubm" from Mumbai, India, to Palua, Venezuela.

Pursuant to the booking note, the loading of the cargo was to take place between October 1 and October 18, 2007. BBC nominated one of its vessels and directed it to Mumbai. At some point, BBC advised Rotec that the vessel that would carry the crane, the M/V BBC ASIA (the "Vessel"), and would arrive inMumbai on or around October 7, 2007. On October 3, 2007, Rotec contacted APC advising it that the crane would not be readyfor the vessel's arrival. On October 4, 2007, Rotec further advised that it was facing unavoidable delays with local Indian officials, and that it was unsure when the cargo would be released. On October 5, 2007, Rotec confirmed that it would not be able to load on time.

In the October 3-5 time frame, the Vessel was not in Mumbai nor anywhere in India, but in and around ports in the Persian Gulf. The voyage account for the Vessel has her arriving in Jubail, Saudi Arabia on October 2nd at 6:18 a.m. and departing there on October 4th at 10:48 a.m. The next stop was Fujairah in the United Arab Emirates. Arrival there was October 5th at 5:42 p.m. and departure was that night at 11:00 p.m. The next registered stop was in the Suez Canal on October 13, 2007. The voyage ended in Punta Cardon (presumably the Punta Cardon in Venezuela, though it is not specified) after the Vessel had delivered yachts from Genoa, Italy to Port Everglades, Florida.

On April 22, 2008, BBC filed suit against Rotec for breach of contract, claiming cancellation damages totaling $497,520.00. I granted BBC summary judgment on the issue of breach, and the parties thereafter appeared headed to a bench trial solely to determine damages on the breach. BBC now moves for summary judgment on damages, too, claiming that a provision in the Booking Note liquidated the damages at the figure noted above.

III. STANDARD OF REVIEW

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, Ind., 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

I consider the record in the light most favorable to the non-moving party, and draw all reasonable inferences in the non-movant's favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). I will accept the non-moving party's version of any disputed fact only if it is supported by relevant, admissible evidence. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).

IV. DISCUSSION

Rotec argues that the "dead freight" provision should not apply because it is unenforceable as a penalty clause. I need not reach that issue, however, because I find that the clause was not ...


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