326. AP Moller-Maersk AS v Comercializidora de Calidad SA1

Forum selection clause—damages for breach—anti-suit injunction—sanctions for contempt

The defendant, a Guatemalan corporation, bought a used printing machine located in Milwaukee. The defendant arranged for carriage of the machine through a Miami-based freight forwarder, which in turn booked the shipment with the plaintiff shipping line through the services of another Miami-based freight forwarder. The machine was disassembled in Milwaukee and the parts were stuffed into four containers. The plaintiff issued a through bill of lading for carriage of the four containers from Milwaukee to Santo Tomas de Castilla, Guatemala. The containers were carried by road from Milwaukee to Chicago and thence by rail to New Orleans. Three of the containers were then carried by sea from New Orleans to Santo Tomas de Castilla aboard a ship operated by the plaintiff. The fourth container did not arrive in New Orleans until after the cargo loading cut-off date for that voyage. A few days later, Hurricane Katrina caused severe flooding in New Orleans, damaging the equipment in the fourth container. The defendant filed two actions in the Second Maritime Court of Panama and one in Guatemala, claiming damages incurred for failure to deliver the fourth container to Santo Tomas de Castilla. The plaintiff successfully applied for an anti-suit injunction to restrain the defendant from proceeding in Panama and Guatemala because of a forum selection clause in the bill of lading choosing the US District Court for the Southern District of New York as the exclusive forum for all claims. The district court later sanctioned the defendant for contempt for violating the terms of that injunction. The defendant appealed to the US Court of Appeals for the Second Circuit.