The plaintiff hired the defendant to ship a crane from Italy to Houston, Texas. The defendant issued a bill of lading dated 13 April 2020. The plaintiff alleged that the defendant had misrepresented that it had the experience, skill, and knowledge necessary to procure a competent shipping company to ship the crane. Instead, the defendant hired a shipping agent that used insect-infested wood to support the crane during shipping, which caused it to be rejected at Houston and returned to Italy. The defendant then told the plaintiff that the latter must incur the additional costs to have the crane shipped back to Houston.

The plaintiff filed its claim on 3 December 2020, alleging that the defendant: (1) violated the Tennessee Consumer Protection Act (the TCPA); (2) intentionally misrepresented its experience, skill, and knowledge to the plaintiff's detriment; (3) breached its contract with the plaintiff as set forth in the bill of lading; and (4) negligently procured subcontractors that did not have the necessary experience, knowledge, or skill.

The defendant argued that the seller of the crane, Vicario, packaged it for shipping. The crane was placed on the ship as packaged by Vicario, and the defendant did not oversee any party responsible for packing, loading, or shipping the crane to Houston. After the crane was rejected, the defendant provided a quote for reshipping it from Italy to Houston, and the plaintiff agreed to the quote. However, after the crane arrived back in Houston and was released to the plaintiff, the plaintiff refused to compensate the defendant.

Held: The plaintiff may amend its complaint. The defendant's motion for judgment on the pleadings is denied. The plaintiff will have 10 days to amend its complaint. The defendant is not prejudiced from filing a subsequent motion for dismissal or motion for judgment on the pleadings with respect to the plaintiff's amended complaint.

With respect to the TCPA, the plaintiff's complaint only alleges that the defendant 'engaged in the unfair and deceptive act of representing to [Plaintiff] that it had the experience, skill, and knowledge necessary to procure a competent shipping company to ship the Crane from Italy to Houston'. This is insufficient to plead with particularity the circumstances of the unfair or deceptive conduct.

The plaintiff, for the first time in briefing, claims that the Carriage of Goods by Sea Act (COGSA) also imposes additional legal duties upon the defendant. 'COGSA controls Bills of Lading and similar documents evidencing contracts for carriage of goods by sea to or from ports in the United States in foreign trade': Associated Metals & Minerals Corp v The M/V Vishva Shobha 530 F 2d 714, 719 (6th Cir 1976). The plaintiff's complaint does not expressly reference COGSA, let alone cite specific provisions of COGSA or the bill of lading that it believes confer a legal duty upon the defendant. Where an action is governed by COGSA, state causes of action are barred for breach of contract and negligence: Expeditors Int'l of Wash Inc v Crowley Am Transp Inc 117 F Supp 2d 663, 667 (SD Ohio 2000). However, the Court need not decide at present whether COGSA imposes additional legal duties upon the defendant or bars any of the plaintiff's causes of action. The complaint does not mention COGSA or any specific duty allegedly imposed therein. Therefore, the complaint cannot plead with sufficient particularity a claim under the TCPA, or a claim for intentional misrepresentation with respect to duties allegedly imposed by COGSA. If the plaintiff wishes to assert in its amended complaint that COGSA places a legal duty on the defendant that is actionable under the TCPA or under a state-law claim for intentional misrepresentation, it must plead such assertions with particularity. Further, despite the plaintiff's argument to the contrary, incorporation by reference of the bill of lading alone is insufficient to plead a TCPA claim with particularity where the plaintiff has not alleged which provisions therein are supposed to constitute misrepresentations.

The plaintiff's complaint alleges that 'the Bill of Lading was a valid and binding contract' between the parties, and that 'Defendant breached the Bill of Lading by failing to hire a shipping company with the necessary experience skill and knowledge to properly perform the shipment pursuant to the Bill of Lading instead hiring a company that utilized infested wood to support the Crane in shipping causing the Crane to be rejected at the port of Houston'. The parties do not appear to dispute the existence or validity of the bill of lading. The plaintiff further argues that 'with the incorporation of COGSA into the Bill of Lading, Defendant had a duty under the contract to use reasonable care in the "loading, stowage, custody, care, or proper delivery" of the crane'. However, the plaintiff's actual complaint does not expressly reference COGSA, let alone explain which contractual provisions of the bill of lading it believes the defendant to have breached, and the relevant terms and conditions of the bill of lading as attached to the complaint are largely illegible. The plaintiff merely concludes, without factual basis, that the defendant's failure to hire a non-negligent shipping company constitutes a breach of contract. This is insufficient.