This was an unopposed motion for summary judgment brought by Maersk Agency USA Inc (Maersk Agency) against KLM Consulting LLC (KLM). KLM exported products from Texas, USA, to Douala, Cameroon. Maersk Agency was the US general agent for the ocean carrier Maersk A/S. Panacea Shipping Co Inc (Panacea) was a Texas freight forwarder. KLM arranged with Maersk A/S to carry and deliver cargo for KLM to Cameroon. KLM stuffed the container, had it transported by truck to Houston, co-ordinated with Panacea so that Panacea could make arrangements for ocean carriage, and worked with Maersk A/S as the ocean carrier. On 30 November 2020, the cargo shipped from Houston.

The relevant sea waybill named Landry Kammogne, KLM's CEO, as the consignee, Panacea as the shipper, and Maersk Agency as signatory 'as agent for the Carrier Maersk A/S'. The waybill incorporated by reference Maersk A/S's full bill of lading, including its standard terms and conditions, which are publicly available online pursuant to federal common carrier regulations. These included: (1) a clause defining 'Merchant' as 'the Shipper, Holder, Consignee, Receiver of the Goods, any Person owning or entitled to the possession of the Goods or of this bill of lading and anyone acting on behalf of such Person'; (2) a clause defining 'Carrier' as 'A.P. Moller – Maersk A/S trading as Maersk Line'; and (3) an exoneration clause stating that:

[N]o [s]ubcontractor, agent, or servant shall in any circumstances whatsoever be under any liability whatsoever to the Merchant for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from ay act, neglect or default on the Subcontractor, agent or servant's part while acting in the course of or in connection with the Goods or the Carriage of the Goods ... The Merchant undertakes that on claim or allegation whether arising in contract, bailment, tort or otherwise shall be made against any servant, agent, or Subcontractor of the Carrier which imposes or attempts to impose upon any of them or any vessel owned or chartered by any of them any liability whatsoever in connection with the Goods or the Carriage of the Goods whether or not arising out of negligence on the part of such Person. The Subcontractor, agent or servant shall also be entitled to enforce the foregoing covenant against the Merchant.

The goods were shipped to the UAE rather than Cameroon, and their delivery was delayed. KLM alleged that this resulted in over USD 250,000 in lost sales revenue for the cargo held up in the UAE, USD 4,000 to get the cargo released from the UAE, and the deterioration of its CEO's health due to stress.

KLM initially brought suit in a Texas state court against Maersk and Panacea for breach of contract, negligence, and violation of the Texas Deceptive Trade Practices Act. Maersk Agency filed a notice of removal of the case to the Southern District of Texas, on the ground that KLM's allegations amounted to a claim of delay under the federal Carriage of Goods by Sea Act, 46 USC § 30701 ff (COGSA), which 'applies ex propio vigore to all contracts for carriage of goods by sea between the ports of the United States and the ports of foreign countries': Nippon Fire & Marine Ins Co v MV Tourcoing 167 F 3d 99, 100 (2d Cir 1999) (CMI1503). Maersk Agency moved successfully to transfer the case to the Southern District of New York on the basis of the forum selection clause in the waybill. Maersk Agency then filed for summary judgment.

Held: Motion for summary judgment granted.

Maersk Agency argues that it is entitled to summary judgment against KLM as KLM brings this action under the waybill, and the plain terms of the waybill preclude KLM from bringing suit against Maersk Agency specifically. Maersk Agency is correct. KLM is bound by the terms of the waybill because it brought suit against Maersk Agency on the grounds that Maersk Agency violated the terms of the waybill: see Herod's Stone Design v Mediterranean Shipping Co SA 434 F Supp 3d 142, 158-59 (SD NY 2020) (CMI671) (plaintiff who sued on sea waybill bound by its terms).

Under the plain language of the waybill and Maersk Agency's incorporated bill of lading, KLM cannot seek to hold Maersk Agency, rather than the carrier, Maersk A/S, liable for damages resulting from the delayed delivery to Cameroon. The relevant provisions amount to an exoneration clause not unfamiliar in bills of lading wherein all liability is channelled to the carrier and away from subcontractors or agents thereof: see eg Sompo Japan Ins Co of Am v Norfolk S Ry Co, 762 F 3d 165, 178 (2d Cir 2014); Herod's Stone Design 159. The language in the bill of lading is explicit that 'no claim or allegation' shall be made against an 'agent' of Maersk A/S, and no liability shall be imposed on such an agent either. Yet that is exactly what KLM seeks to do by bringing this lawsuit against Maersk Agency. In other words, '[t]he plain language of the clause clearly bars Plaintiff's suit' against Maersk Agency: Herod's Stone Design 159.