SHAYNE INDUSTRIES USA INC v. SCANWELL FREIGHT EXPRESS USA LTD (2003)

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered November 27, 2002, which denied defendants' motion to dismiss the complaint pursuant to CPLR 3211, unanimously affirmed, with costs.

Although there is no indication from the motion court's decision that the court took into account that the bills of lading issued by the nonparty ocean carrier contained a “Himalaya Clause” extending the liability protections contained within those bills to agents or subcontractors of the ocean carrier, we nonetheless affirm the denial of defendants' motion because defendants' documentary evidence does not establish that they were agents or subcontractors of the ocean carrier within the meaning of the “Himalaya Clause” at issue (see Citrus Mktg. Bd. of Israel v. J. Lauritzen A/S, 943 F.2d 220, 223-224).   We note, in addition, that plaintiff's causes of action against defendants pertain to defendants' warehousing and inland processing of plaintiff's goods, which activities were not shown by defendants to be covered by the bills of lading clearly designating Los Angeles as the port of discharge, and making no provision for an additional destination inland (compare New York Marine & Gen. Ins. Co. v. S/S “Ming Prosperity,” 920 F.Supp. 416, 425).   Nor, in view of defendants' failure to establish the applicability of the subject bills of lading, is dismissal required upon the ground that the bills' forum selection clause provides that actions be brought in Hong Kong or that the bills preclude an award of damages against the carrier for loss caused by delay.

Finally, that branch of defendants' motion seeking dismissal upon the alternative ground of forum non conveniens was also properly denied, no showing having been made that California would be a more convenient forum than New York (see Banco Ambrosiano, S.p.A. v. Artoc Bank & Trust, Ltd., 62 N.Y.2d 65, 74, 476 N.Y.S.2d 64, 464 N.E.2d 432).