Appellee, 462 F.3d 1015

Source: United States Court of Appeals for the Eighth Circuit

Date: 2006-08-30

Jurisdiction: United States

Docket: No. 05-3766

Citation: 462 F.3d 1015

Opinion

RILEY, Circuit Judge. Sanderson Farms, Inc. (Sanderson), as-signee of Sams Management Group, Inc. (SMG) and the real party in interest, appeals the adverse ruling of the district court granting

summary judgment in favor of Certain Underwriters at Lloyd’s of London (Lloyd’s). We affirm. 1. BACKGROUND The parties adopted the factual

summary set out in the district court’s order, which we briefly summarize. At all times relevant, SMG was a frozen poultry wholesaler based in Rogers, Arkansas. Sander-son was one of SMG’s chicken suppliers. SMG contracted to sell twenty-four containers of frozen poultry (cargo) to KVA-DRO, a Russian company owned by Leonid Budilin (Budilin). SMG invoices 199 and 206 contained all the contract terms for the sale.

Both invoices listed the shipment terms as “C.I.F.” (cost, insurance, and freight), and the payment terms as “20% Down Payment,” “20% Upon Shipping,” and “60% Due 19 days after Discharge.” In connection with its business, SMG acquired a one-year, open cargo insurance policy from Lloyd’s (Lloyd’s policy), effective February 1, 2002. In accordance with the Lloyd’s policy, SMG applied for coverage of the cargo and Lloyd’s issued SMG two certificates of insurance. SMG arranged for shipment of the cargo from New Orleans, Louisiana, to St.

Petersburg, Russia, through P & O Nedlloyd, Ltd. (P & O), a New Jersey based shipper. P & O shipped the cargo in four separate shipments arriving in St. Petersburg, Russia, on March 3, March 4, March 26, and April 5, 2002. On March 27, 2002, at KVADRO’s request, SMG changed the consignee for the cargo from OOO Diliat to OOO Tech-promptorg (Techpromptorg). On April 15, 2002, the Russian government revoked all previously issued veterinary permits for the import of poultry from the United States.

Because Techpromptorg had not arranged for customs clearance before the revocation, Techpromptorg had to reapply for the necessary permits. Two months after arriving in port, the cargo still had not cleared customs as required by Russian regulations (sixty-day rule). Tech-promptorg applied for an extension of the sixty-day rule based on the Russian government’s blanket revocation, but the request was denied. Although Techpromp-torg filed an appeal, as of June 17, 2002, Techpromptorg had not received new permits or an extension.

On June 8 and June 18, 2002, Russian Federation Officials of the Baltic Customs House (Russian Federation) issued protocols, seized the cargo, and instituted an investigation into Techpromptorg’s apparent sixty-day rule violation. The poultry in fourteen of the twenty-four containers was sold during the pendency of the investigation and the appeal.

The Russian Federation ultimately granted Techpromptorg’s request for an extension of the sixty-day rule and also granted judgment in Techpromptorg’s favor on the appeal, ruling the remaining ten containers, as well as the proceeds from the fourteen containers of sold poultry, should be turned over to the poultry owner. Before Techpromptorg picked up the ten remaining containers, the containers were seized anew by Russian authorities as part of a different investigation involving Techpromptorg. Techpromptorg never enforced the judgment it received from the Russian Federation.

The ten containers were never returned to SMG or P & O. SMG never received the proceeds from the fourteen containers of sold poultry. SMG never received payment for the cargo and unsuccessfully pursued an action against Budilin and KVADRO. SMG filed a claim with Lloyd’s for recovery of the lost cargo. Lloyd’s denied the claim. Thereafter, P & O sued SMG to collect for services rendered in connection with shipping the cargo. SMG filed a counterclaim alleging P & O caused the loss by failing to provide the promised services.

SMG also filed a third-party complaint against Lloyd’s, seeking recovery of the lost cargo under the Lloyd’s policy. P & O amended its complaint, adding a third-party beneficiary claim against Lloyd’s. Lloyd’s moved for

summary judgment, arguing

(1) P & O was not an intended third-party beneficiary of the Lloyd’s policy,

(2) SMG had no insurable interest in the cargo at the time of the loss, (3) the Lloyd’s policy did not cover credit risks, and (4) the Lloyd’s policy specifically excluded losses arising out of the seizure of insured cargo by customs officials. Applying Arkansas law, the district court granted Lloyd’s motion for

summary judgment, finding P & O was not an intended beneficiary of the Lloyd’s policy and SMG did not have an insurable interest in the cargo at the time of seizure. The district court did not reach Lloyd’s remaining arguments. SMG appeals. II. DISCUSSION We review de novo the district court’s grant of

summary judgment, applying the same standard as the district court, and viewing the evidence in the light most favorable to SMG, the nonmoving party. See Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 845 (8th Cir.2006). The moving party is entitled to

summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Bloom v. Metro Heart Group of St. Louis, Inc., 440 F.3d 1025, 1028 (8th Cir.2006). We may affirm on any ground supported by the record. Mo. Prot. & Advocacy Servs. v. Mo. Dep’t of Mental Health, 447 F.3d 1021, 1023 (8th Cir.2006) (citation omitted).

The question before us is whether under the Lloyd’s policy, “ [SMG had] an insurable interest in the [cargo] at the time of the loss.” Under Arkansas’s version of the Uniform Commercial Code, “[t]he seller retains an insurable interest in goods so long as title to or any security interest in the goods remains in him.” Ark.Code Ann. § 4-2-501(2).

In order to determine whether SMG retained any insurable interest in the cargo, we must determine whether title passed from SMG to KVA-DRO. “Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods .... [I]f the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment.” Id. § 4-2-401(2)(a).

Invoices 199 and 206 state the shipment terms are C.I.F., and under Arkansas law, if the seller has performed his obligations under a C.I.F. shipment contract, the risk of subsequent loss or damage passes to the buyer upon shipment. Id. § 4-2-320 cmt. n. 1. “Delivery to the carrier is delivery to the buyer for purposes of risk and ‘title.’ ” Id.

In a C.I.F. contract, the seller is required to: (1) “put the goods into the possession of a carrier at the port for shipment and obtain a negotiable bill or bills of lading covering the entire transportation to the named destination”; (2) “load the goods and obtain a receipt from the carrier ... showing that the freight has been paid or provided for”; (3) “obtain a policy or certificate of insurance, including any war risk insurance”; (4) “prepare an invoice of the goods”; and (5) “forward and tender with commercial promptness all the documents in due form and with any indorsement necessary to perfect the buyer’s rights.” Id. § 4-2-320(2)(a)-(e).

It is undisputed SMG complied with all its obligations under the contracts with KVA-DRO. On appeal, SMG first asserts the term C.I.F. was a typographical or clerical error and postulates the parties did not intend for cargo to be shipped C.I.F. In response, Lloyd’s argues (1) the clerical error argument is being raised for the first time on appeal, and (2) invoices 199 and 206 are unambiguous, clearly indicating the cargo was shipped C.I.F. The issue of clerical error is raised for the first time on appeal; therefore, we do not consider it. See Wever v.

Lincoln County, Neb., 388 F.3d 601, 608 (8th Cir.2004) (“Ordinarily, this court will not consider arguments raised for the first time on appeal.” (citation omitted)). Without an evidentiary record developed in the district court to prove or disprove a typographical or clerical error, consideration of this argument on appeal is particularly inappropriate. See Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir.2002) (‘We consider a newly raised argument only if it is purely legal and requires no additional factual development, or if a manifest injustice would otherwise result.” (citation omitted)).

For its remaining arguments, SMG points to prior conduct of the parties to show the parties did not intend invoices 199 and 206 to be C.I.F. shipments. Arkansas’s parol evidence rule bars the introduction into evidence of any prior agreement of the parties that contradicts the terms of an unambiguous contract. See Ark.Code Ann. § 4-2-202. However, the Arkansas Supreme Court has declared that evidence of “a course of dealing that explains or supplements a contract is competent evidence of the parties’ intent and can become a part of a contract.” Bank of Am. v. C.D.

Smith Motor Co., 353 Ark. 228, 106 S.W.3d 425, 429-30 (2003) (citation omitted). As proof the parties did not intend the shipment terms on invoices 199 and 206 to be C.I.F., SMG first asks the court to consider prior SMG-KVADRO shipment invoices, which show the shipping terms as “F.A.S.” (free alongside). This evidence is offered to contradict the terms of invoices 199 and 206, and therefore is barred by the parol evidence rule.

Furthermore, even if the evidence fell within Arkansas’s course of dealing exception to the parol evidence rule, it is contradicted by the testimonies of Andrew Sams (Sams), SMG’s president, and Brant Turner (Turner), SMG’s accountant. Sams admitted invoices 199 and 206 “definitely show[ ] C.I.F.” and “[w]e stated C.I.F. because that’s what we-that’s what we charged [Budilin], He was in charge of the port handling fees, the customs clearance, [and] the discharging from the vessel.” Sams further admitted SMG and KVADRO could have different terms for different shipments.

Turner also confirmed that the shipment terms on invoices 199 and 206 were C.I.F. and that SMG “shipped [the cargo] just like we should have.” Also, in an e-mail to an insurance broker attempting to recover the cargo, Turner detailed the shipment terms of invoices 199 and 206, indicating (1) “The terms of the sale were C.I.F....

This is documented on the invoice, no other contract exist [sic] that I am aware of’; (2) “The title was to pass with the original [bills of lading] as long as the customer was in terms”; (3) “Again the contract is the invoice”; (4) “The customer was responsible for customs in all instances. We have a copy of the customs payment”; and (5) “All along our invoiced customer, Budi-lin, has said that he is working to get the cargo and understands his responsibilities.” Thus, SMG clearly intended C.I.F. shipment contracts. SMG next asks the court to infer from the payment

schedule that the parties did not intend C.I.F. contracts. We decline to do so. SMG argues the credit extended, with no final payment until after delivery, constituted an insurable interest. By extending credit to KVADRO and requiring only a down payment before placing the cargo with the carrier in New Orleans, SMG did not change the terms of the shipment contracts or prevent title from passing.

Furthermore, Turner testified SMG extended credit to KVADRO to “get as much poultry on the water on or before March 10th as possible because we knew that these changes [to veterinary certificates by the Russian government] would be coming into place.” These credit terms do not change or modify the C.I.F. contract terms or the clear testimony of SMG’s officers confirming the C.I.F. shipments. SMG does not argue, nor does the record show, SMG retained any security interest in the goods after title passed when the cargo was delivered to the carrier.

Therefore, under Arkansas law, SMG did not retain an insurable interest in the cargo. See Ark.Code Ann. § 4-2-501(2). We need not consider SMG’s remaining contentions regarding the intentions of the parties as they amount to mere speculation, and therefore are not enough to survive a motion for

summary judgment. See Bloom, 440 F.3d at 1028. Furthermore, because we conclude SMG had no insurable interest under the terms of the Lloyd’s policy, we need not reach Lloyd’s alternative theories for

summary judgment. III. CONCLUSION We affirm the district court’s grant of

summary judgment. . During the pendency of this appeal, SMG assigned its rights in this litigation to Sander-son as part of a settlement agreement between Sanderson and SMG. Although Sander-son has been substituted as the real party in interest, we refer to SMG as appellant. . The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. . The district court did not state its reason for applying Arkansas law, although arguably it did so because Arkansas was the forum state.

At appellate arguments, SMG raised the choice of law issue for the first time, arguing the Lloyd’s policy is subject to English law. Because choice of law is wáived if not timely raised, we need not address the choice of law question for the first time on appeal, Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1224 (8th Cir.1995); see also Wiser v. Wayne Farms, 411 F.3d 923, 926-28 (8th Cir.2005), and we may consider this appeal under Arkansas law. . After the district court granted

summary judgment, P & O moved to withdraw its complaint against SMG. The district court granted the motion and dismissed the case, rendering the district court’s order on

summary judgment a final judgment, thereby clearing the road for this appeal. See Reinholdson v. Minnesota, 346 F.3d 847, 849 (8th Cir.2003) (explaining appellate jurisdiction pursuant to 28 U.S.C. § 1291, is limited to appeals from “final decisions of the district courts”). . In the district court, Lloyd's filed a statement of undisputed facts, SMG responded, contesting certain facts, and the district court found, based on these filings, "[SMA] complied with all its obligations under the terms of the contract between Sams and KVADRO.” .

F.A.S. is a delivery term under which the seller, at his own expense and risk, must deliver the goods in the manner designated and provided by the buyer, and obtain and tender a receipt for the goods. Ark.Code Ann. § 4-2-319(2)(a)-(b).

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