Corex SpA (Corex) contracted to sell 11 shipping containers of canned tomatoes and pasta to Good Gusto Food Group LLC (Gusto). Although the goods were shipped from Italy to the US, Gusto never paid Corex. Corex brought this suit against two entities involved in the shipping process, as well as two downstream purchasers of the tomatoes, to recover its losses.

The goods were sold 'Ex Works', meaning that Gusto was responsible for picking up the goods from Corex's place of business in Italy and transporting them to the US. M&M International Imports LLC (M&M) was a customer of Gusto. Orlando Food Sales Inc (Orlando), in turn, was a customer of M&M. Gusto sold the goods to M&M before they were delivered. The shipping instructions therefore provided that the goods should be delivered to M&M after clearing customs. M&M contracted with Cargo Compass SpA (Compass), a freight forwarder, and Reliable Shipping Services Inc (Reliable), a customs broker, to have the goods shipped.

Corex, Gusto, and Compass agreed that Corex would retain title to the goods, and that no bill of lading would be released until Corex was paid in full. Corex shipped the goods, but did not receive payment from Gusto. The containers thus remained at the destination ports. Corex contacted Compass and Reliable, instructing them to hold the goods and not to release the bill of lading until Corex received full payment. In exchange, Corex paid Compass the cost of shipping for the six containers delivered to Miami.

At some point, despite Corex not receiving payment from Gusto, Compass released the bills of lading for most or all of the containers, permitting Reliable and other handlers to ship the containers to M&M.

Held: Reliable's motion to dismiss is granted in part and denied in part. Corex's claims for breach of contract as a third-party beneficiary and for negligence are dismissed, but Corex's claim for trespass to chattels may proceed. Compass's motion to dismiss Corex's claims for forum non conveniens based on the forum-selection clause contained in the bills of lading is granted. Corex's motion to dismiss the counter- and third-party claims brought by M&M and Orlando is granted in part and denied in part. M&M and Orlando's claims for abuse of process are dismissed, but their claims for tortious interference may proceed against Corex itself.

Compass moves to dismiss Corex's claims against it for forum non conveniens, invoking the forum-selection clause contained in the bills of lading. The motion is granted. The forum-selection clause contained in the bills of lading is presumptively enforceable. First, the clause was reasonably communicated to Corex. At Corex's own request, Corex is listed as the 'shipper' on the bills of lading, and its complaint invokes and relies on the bills of lading. The mandatory terms and conditions of the bills contain a clearly labelled 'JURISDICTION AND LAW CLAUSE' that identifies Hong Kong as the exclusive forum for all disputes. This is sufficient to provide notice of the contents of the clause to Corex.

Second, the clause is mandatory. A forum-selection clause is mandatory 'when it confers exclusive jurisdiction on the designated forum or incorporates obligatory venue language': Phillips v Audio Active Ltd 494 F 3d 378, 386 (2d Cir 2007). Here, the clause states that any claims are to be 'determined by Courts in Hong Kong and no other Courts', clearly evincing an intent to have Hong Kong as the exclusive forum for all disputes.

Third, Corex and its claims are subject to the forum-selection clause. Corex argues that it is not a signatory to the bills of lading and that, even if it were, the claims it brings against Compass in this action are not covered by the forum-selection clause. Neither argument succeeds.

The parties agree that the bills of lading are subject to the Carriage of Goods by Sea Act (COGSA). 'COGSA governs the terms of bills of lading issued by ocean carriers engaged in foreign trade' and 'requires each carrier to issue to the cargo owner a bill that contains certain terms': Kawasaki Kisen Kaisha Ltd v Regal-Beloit Corp 561 US 89, 96 (2010) (CMI1455). 'Although COGSA imposes some limitations on the parties' authority to adjust liability, it does not limit the parties’ ability to adopt forum-selection clauses': id. In Stolt Tank Containers Inc v Evergreen Marine Corp 962 F 2d 276, 279 (2d Cir 1992) (CMI1866), the Second Circuit explained that 'once a party issues a bill of lading, goods covered by that bill of lading become subject to' COGSA's liability-allocating provisions. The Second Circuit specifically rejected the argument that a non-signatory to a bill of lading should be excused from the liability-allocating provisions, because such an outcome 'would defeat COGSA's intended purposes of allocating risk of loss and creating predictable liability rules on which not only carriers but others can rely': id. Accordingly, 'where a party is aware that another is shipping its packages aboard a vessel and has at least constructive notice that liability limitations might apply, that party is bound by the liability limitations agreed to by the shipper': id, 280. Accordingly, Corex - which specifically injected itself into the bill of lading in order to protect its own title to the goods being shipped - is bound by the forum-selection clause contained in the bill of lading, even as a non-signatory.

Although Corex argues that its claims against Compass are not related to the bills of lading, the Court disagrees. The meanings of the terms 'arising hereunder' and 'in connection herewith' in the forum-selection clause are broad and are 'not restricted to pure breaches of the contracts containing the clauses': Roby v Corp of Lloyd's 996 F 2d 1353, 1361 (2d Cir 1993); see also Coregis Ins v Am Health Found Inc 241 F 3d 123, 128-29 (2d Cir 2001) (concluding that the meaning of 'in connection with' is broader than the meaning of 'arise from'). Corex's complaint alleges that Compass improperly released the bills of lading to Reliable, MSC, or other handlers in contravention of duties owed to Corex, the legal owner of the goods. Corex's claims both 'arise' from and are 'in connection' with the bills of lading, given that its claims stem from the allegedly improper release of those bills by Compass to the other parties.

Because the forum-selection clause was reasonably communicated to Corex, is mandatory, and covers the parties and claims at issue, it is 'presumptively enforceable'.