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Alliance Shippers, Inc. v. Mitsui O.S.K. Lines

March 6, 2008

ALLIANCE SHIPPERS, INC., PLAINTIFF-APPELLANT,
v.
MITSUI O.S.K. LINES A/K/A MOL (AMERICA), INC. AND ECKERD CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4509-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 19, 2007

Before Judges Lisa, Lihotz and Simonelli.

Plaintiff Alliance Shippers, Inc. (Alliance) appeals from a final judgment entered on May 16, 2006, following a bench trial on its complaint. Alliance sued for payment of $38,517.12 incurred for inland transportation services provided to defendant, Mitsui O.S.K. Lines (Mitsui) to ship products owned by defendant Eckerd Corporation (Eckerd). A disagreement arose, during the parties' relationship, as to the agreed per trip drayage rate payable to Alliance. The trial court determined the parties settled this dispute. Based on those settlement terms Mitsui owed Alliance $5,567.37.

Alliance argues the trial court erred by ignoring the parties' alleged initial agreement, which would have increased Alliance's recovery based on an increased per trip rate or alternatively, the trial court miscalculated the amount of damages due. Alliance also alleges the trial court failed to determine that Eckerd was primarily liable for payment as the consignee and erroneously excluded evidence that precluded Alliance's recovery of attorneys' fees. We affirm.

Eckerd contracted with Mitsui to provide ocean freight transportation services of its cargo from certain foreign ports to Eckerd's distribution centers in the United States. Alliance contacted Eckerd to provide inland transportation of its products, which entailed the pick up of loaded containers from a designated port and their transport to a designated Eckerd distribution center. Alliance proposed drayage rates for round trip service of $875 to Liverpool, New York and $1,175 to Pittsburgh, Pennsylvania. Eckerd instructed Mitsui to work out an arrangement with Alliance for the ground transportation. The rate Eckerd paid Mitsui already included the ground transportation costs so Mitsui would pay Alliance. Mitsui did not object to using Alliance as Eckerd's "preferred" inland carrier rather than its "house carrier."

Paul Higgins, Alliance's Sales Director, Luther Coipel, Eckerd's Director of Imports, and Jeffrey Bumgardner, Mitsui's Southeast Regional Sales Manager held a conference call on May 17, 2002. Alliance provided Bumgardner with its drayage rates. Bumgardner testified he explained the rates were set by the New Jersey operations group and advised Alliance to contact Paul DeLuca, Mitsui's Northeast Operations Manager. At the end of the conversation Higgins stated he asked Bumgardner whether "any issues [] stop us from going forward[?]" Bumgardner replied "good to go." Higgins testified he believed this conversation resulted in an agreement with Eckerd and Mitsui to pay Alliance's drayage rates as proposed.

Alliance transmitted a three-page credit application to Mitsui on July 11, 2002. The agreement required payment of Alliance's attorneys' fees in the event of litigation. Mitsui declined to complete the form advising that it "does not file credit applications with trucking companies or pay fuel surcharges." Alliance sent the same credit application to Eckerd. Eckerd completed and returned page one. Alliance also emailed Eckerd on July 16, 2002, "to make sure that we are clear on some of the major points as we begin this venture."

From July 12, 2002 to November 6, 2002, Eckerd sent notices to Alliance designating the port and the cargo to be transported. Alliance transported 155 container shipments of Eckerd's cargo from an entry port to a distribution center.

Mitsui provided Alliance with purchase order (PO) forms to submit its invoices for the transportation services provided. The per load rates listed on Mitsui's POs were one-way from Liverpool - $420 and $250 for return of the empty container (or $670 roundtrip); and $950 from Pittsburgh. Each PO included a statement of "payment procedures," which included:

3. PLEASE INSURE THAT THE UNIT NUMBERS & COSTS REFLECTED IN YOUR INVOICE IS [SIC] EXACT MATCH TO THOSE IN PURCHASE ORDER. IF THERE IS A DISCREPENCY, PLEASE CONTACT THE MITSUI REPRESENTATIVE PLACING THE ORDER TO RESOLVE PRIOR TO MAILING YOUR BILL.

Alliance billed Mitsui for the transportation services in accordance with Alliance's proposed drayage rate schedule, not the rate schedule listed on the POs. Mitsui's invoices contained the following statement:

IN THE EVENT OF NON-PAYMENT, THE COSTS OF COLLECTION INCLUDING REASONABLE ATTORNEYS' FEES ...


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