Tariffs and Taxes for U.S. Exports

 

Free export tariff look-up with this tool.

 

Trade.gov users can look up tariffs and taxes for U.S. exports to foreign markets with free access to the Customs Info Database. Use the information to determine your buyer's total landed cost and look for advantages among target markets.

US International Trade Administration 

Republication

https://www.trade.gov/customs-info-database-user-guide

 

 

How to locate an HS code?
 
To use this tool, you will need a Harmonized Code (HS) code for your product. The United States Census Bureau Foreign Trade Data offers a product classification Schedule B Search Engine. To find your product’s 10 digit Schedule B number which can be converted into the Harmonized Code by using the first six digits of the Schedule B code, visit Schedule B Search Engine. Remember to start your search with typing in only six digits number (or fewer) of your product’s code as the U.S. codes tend to overlap (are harmonized) internationally up to first six digits. 

 

Swiss Customs - HS - Tares

Le Conseil fédéral approuve une adaptation du tarif des douanes, qui entrera en vigueur le 1er janvier 2022

 

Berne, 30.06.2021 - La dernière révision de la liste des marchandises harmonisée au niveau international de l'Organisation mondiale des douanes (OMD) rend nécessaire une adaptation du tarif des douanes suisses. Le Conseil fédéral l'a approuvée lors de sa séance du 30 juin 2021. Cela permettra un classement tarifaire plus précis et uniforme au niveau international pour les nouvelles catégories de produits. La charge douanière à l'importation restera inchangée.

https://www.admin.ch/gov/fr/accueil/documentation/communiques.msg-id-84239.html

 

Conformément à l’art. 5, al. 1, de la loi du 18 juin 2004 sur les publications officielles (RS 170.512), le tarif général n’est pas publié au RO. L’ordonnance ainsi que le tarif général contenant le texte des modifications sont publiés sur Internet à l’adresse www.ezv.admin.ch. Ces modifications seront également insérées dans le tarif des douanes, édité en vertu de l’art. 15, al. 2, de la loi du 9 oct. 1986 sur le tarif des douanes (LTaD), qui peut être consulté sur Internet à l’adresse www.tares.ch.

 

Swiss Customs Tariff Information - How to Locate an HS Code?

 

 

Swiss Customs tariff information

How to locate an HS code?

 

 

https://www.ezv.admin.ch/ezv/fr/home/infos-pour-entreprises/tarif-des-douanes---tares/renseignements-en-matiere-de-tarif.html

 

U.S. Supreme Court, Minerva Surgical, Inc. v. Hologic, Inc., Docket No. 20–440

 

Patent

Assignor Estoppel

Equity

Fair Dealing

Estoppel by Deed

Continuation Application

 

 

 

In Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., 266 U. S. 342, 349 (1924), this Court approved the “well settled” patent-law doctrine of “assignor estoppel.” That doctrine, rooted in an idea of fair dealing, limits an inventor’s ability to assign a patent to another for value and later contend in litigation that the patent is invalid. The question presented here is whether to discard this century-old form of estoppel. Continuing to see value in the doctrine, we decline to do so. But in upholding assignor estoppel, we clarify that it reaches only so far as the equitable principle long understood to lie at its core. The doctrine applies
when, but only when, the assignor’s claim of invalidity contradicts explicit or implicit representations he made in assigning the patent.

 

 

(…) A continuation application enables an inventor to add to or modify
the claims set out in his original application. See 35 U. S. C. §120; Manual of Patent Examining Procedure §201.07 (9th ed., June 2020). But the continuation application may not materially change the written description of the invention. See Manual of Patent Examining Procedure
§211.05. So the new or altered claims must align with the original description. Ibid.; see 35 U. S. C. §112.

 

 

Assignor estoppel got its start in late 18th-century England and crossed the Atlantic about a hundred years later. In the first recorded case, Lord Kenyon found that a patent assignor “was by his own oath and deed estopped” in an infringement suit from “attempting to deny his having had any title to convey.” Oldham v. Langmead (1789), as described in J. Davies, Collection of the Most Important Cases Respecting Patents of Invention and the Rights of Patentees 442 (1816); see Hayne v. Maltby, 3 T. R. 439, 441, 100 Eng. Rep. 665, 666 (K. B. 1789) (recognizing the Oldham holding). That rule took inspiration from an earlier doctrine—estoppel by deed—applied in real property law to prevent a conveyor of land from later asserting that he had lacked good title at the time of sale. See 2 E. Coke, The First Part of the Institutes of Laws of England 352a (Hargrave & Butler eds., 19th ed. 1832) (1628). Lord Kenyon’s new patent formulation of the doctrine grew in favor throughout the 1800s as an aspect of fair dealing: When “the Defendant sold and assigned the patent to the Plaintiffs as a valid one,” it “does not lie in his mouth to say that the patent is not good.” Chambers v. Crichley, 33 Beav. 374, 376, 55 Eng. Rep. 412 (1864); see Walton v. Lavater, 8 C. B. N. S. 162, 187, 141 Eng. Rep. 1127, 1137 (C. P. 1860) (“The defendant, who has received a large sum for the sale of this patent, ought not to be allowed to raise any question as to its validity”). The earliest American decision applying the doctrine dates from 1880. See Faulks v. Kamp, 3 F. 898 (CC SDNY). Within a decade or two, the doctrine was “so well
established and generally accepted that citation of authority is useless.” Griffith v. Shaw, 89 F. 313, 315 (CC SD Iowa 1893); see 2 W. Robinson, Law of Patents for Useful Inventions §787 (1890) (collecting cases).
This Court first considered—and unanimously approved—assignor estoppel in 1924, in Westinghouse v. Formica.

 

 

(…) “Of course,” the Court said, the assignor cannot use prior art in an infringement suit “to destroy the patent,” because he “is estopped to do this.” Id., at 351. But he can use prior art to support a narrow claim construction—to “construe and narrow the claims of the patent, conceding their validity.” Id., at 350–351. “Otherwise,” the Court explained, a judge “would be denied” the “most satisfactory means” of “reaching a just conclusion” about the patent’s scope—a conclusion needed to resolve the infringement charge. Id., at 350–351. “The distinction” thus established, the Court thought, “may be a nice one, but
seems to be workable.” Id., at 351.

 

 

Still, our endorsement of assignor estoppel comes with limits—true to the doctrine’s reason for being. Just as we guarded the doctrine’s boundaries in the past, see supra, at 7–8, 11–13, so too we do so today. Assignor estoppel should apply only when its underlying principle of fair dealing comes into play. That principle, as explained above, demands consistency in representations about a patent’s validity: What creates the unfairness is contradiction. When an assignor warrants that a patent is valid, his later denial of validity breaches norms of equitable dealing. And the original warranty need not be express; as we have explained, the assignment of specific patent claims carries with it an implied assurance. See supra, at 13. But when the assignor has made neither explicit nor implicit representations in conflict with an invalidity defense, then there is no unfairness in its assertion. And so there is no ground for applying assignor estoppel.
One example of non-contradiction is when the assignment occurs before an inventor can possibly make a warranty of validity as to specific patent claims. Consider a common employment arrangement. An employee assigns to his employer patent rights in any future inventions he develops during his employment; the employer then decides which, if any, of those inventions to patent. In that scenario, the assignment contains no representation that a patent is valid. How could it? The invention itself has not come into being. See Lemley, Rethinking Assignor Estoppel, 54 Houston L. Rev. 513, 525–527 (2016). And so the employee’s transfer of rights cannot estop him from alleging a patent’s invalidity in later litigation.
A second example is when a later legal development renders irrelevant the warranty given at the time of assignment. Suppose an inventor conveys a patent for value, with the warranty of validity that act implies. But the governing law then changes, so that previously valid patents become invalid. The inventor may claim that the patent is invalid in light of that change in law without contradicting his earlier representation. What was valid before is invalid today, and no principle of consistency prevents the assignor from saying so.

 

 

Most relevant here, another post-assignment development—a change in patent claims—can remove the rationale for applying assignor estoppel. Westinghouse itself anticipated this point, which arises most often when an inventor assigns a patent application, rather than an issued patent. As Westinghouse noted, “the scope of the right conveyed in such an assignment” is “inchoate”—“less certainly defined than that of a granted patent.” 266 U. S., at 352–353; see supra, at 9. That is because the assignee, once he is the owner of the application, may return to the PTO to “enlarge” the patent’s claims. 266 U. S., at 353; see 35 U. S. C. §120; 37 CFR §1.53(b). And the new claims resulting from that process may go beyond what “the assignor intended” to claim as patentable. 266 U. S., at 353. Westinghouse did not need to resolve the effects of such a change, but its liberally dropped hints—and the equitable basis for assignor estoppel—point all in one direction. Assuming that the new claims are materially broader than the old claims, the assignor did not warrant to the new claims’ validity. And if he made no such representation, then he can challenge the new claims in litigation: Because there is no inconsistency in his positions, there is no estoppel. The limits of the assignor’s estoppel go only so far as, and not beyond, what he represented in assigning the patent application.

 

 

The Federal Circuit, in both its opinion below and prior decisions, has failed to recognize those boundaries. Minerva (recall, Truckai’s alter-ego) argued to the court that estoppel should not apply because it was challenging a claim that was materially broader than the ones Truckai had assigned. But the court declined to consider that alleged disparity. Citing circuit precedent, the court held it “irrelevant” whether Hologic had expanded the assigned claims: Even if so, Minerva could not contest the new claim’s validity. 957 F. 3d, at 1268 (quoting Diamond Scientific, 848 F. 2d, at 1226); see supra, at 4. For the reasons given above, that conclusion is wrong. If Hologic’s new claim is materially broader than the ones Truckai assigned, then Truckai could not have warranted its validity in making the assignment. And without such a prior inconsistent representation, there is no basis for estoppel.

 

We remand this case to the Federal Circuit to now address what it thought irrelevant: whether Hologic’s new claim is materially broader than the ones Truckai assigned.

 

 

This Court recognized assignor estoppel a century ago, and we reaffirm that judgment today. But as the Court recognized from the beginning, the doctrine is not limitless. Its boundaries reflect its equitable basis: to prevent an assignor from warranting one thing and later alleging another. Assignor estoppel applies when an invalidity defense in an infringement suit conflicts with an explicit or implicit representation made in assigning patent rights. But absent that kind of inconsistency, an invalidity defense raises no concern of fair dealing—so assignor estoppel has no place.

 

For these reasons, we vacate the judgment of the Federal Circuit and remand the case for further proceedings consistent with this opinion.

 

 

 

Secondary sources:  H. Herman, The Law of Estoppel §3 (1871) (“An estoppel is an obstruction or bar to one’s alleging or denying a fact contrary to his own previous action, allegation or denial”); Lemley, Rethinking Assignor Estoppel, 54 Houston L. Rev. 513, 525–527 (2016) ; Manual of Patent Examining Procedure (9th ed., June 2020)

 

 

 

 

(U.S. Supreme Court, June 29, 2021, Minerva Surgical, Inc. v. Hologic, Inc., Docket No. 20–440, J. Kagan, Roberts, C. J., and Breyer, Sotomayor, and Kavanaugh, JJ., joined)

 

 

 

 

U.S. Court of Appeals for the Sixth Circuit, Ingram Barge Company, LLC v. Zen-Noh Grain Corp., Docket No. 20-5514

 

Transportation of Goods

 

Bill of Lading

 

Negotiable Bill of Lading

 

Demurrage Charges

 

Admiralty

 

Maritime Law

 

Forum Selection Clause

 

Third-Party Beneficiary

 

Contract Drafting

 

Customs

 

 

 

Typically, only parties to a contract are bound to its terms.  This case is no exception.  Zen-Noh Grain Corporation was neither a party to nor consented to Ingram Barge Company’s contract for the transportation of goods (a bill of lading) and thus is not bound to the contract’s forum selection clause. Therefore,  the  district  court  did  not  have  jurisdiction over Zen-Noh, and we AFFIRM the district court’s dismissal for lack of personal jurisdiction.

 

 

Zen-Noh  purchased  shipments  of  grains  from  several  companies. The  sellers  were required to prepay the barge freight and deliver the product to Zen-Noh’s grain trading terminal in Convent, Louisiana.  But the sellers were not required to use any specific company to deliver the goods.  Plaintiff Ingram was chosen. Ingram then issued a contract to the sellers for the transportation of goods—a negotiable bill  of  lading  in  industry  parlance.    A  bill  of  lading  defines  the  relationships  of  the  parties:  the consignor (company arranging shipment); the consignee (company which is owed delivery); and the carrier (company that carries the goods). After the goods have arrived, a consignee presents the  bill  of  lading  to  receive  the  goods.   See Evergreen  Marine  Corp.  v.  Six  Consignments of Frozen Scallops, 4 F.3d 90, 92 n.1 (1st Cir. 1993).  A negotiable bill of lading is a document of title, which is “vested in the holder of the bill.”  Id. at 96.  All the bills issued by Ingram are essentially identical, except two.  In most of these bills: “the grain seller (or affiliate) is the consignor; the consignment is to the order of the consignee; Zen-Noh is included as a ‘notify’ party ‘A/C’ the consignor/consignee; the freight is described as prepaid; and the signature blocks are for Ingram and the consignor/consignee.”  In the two exceptions, Zen-Noh is not mentioned at all or is mentioned in the field for consignee.  Printed on each bill was an agreement to the “Carrier’s Grain Transportation Terms” and a link to the Terms on Ingram’s website.  Importantly, the Terms: (1) purport to bind any entity that has an ownership interest in the goods; and (2) include a forum selection provision selecting the U.S. District Court for the Middle District of Tennessee.

 

(Parties can have multiple roles). 

(“A/C” means “on account of).” 

 

 

Ingram updated its Terms in April 2019.   Ingram alleges that it notified Zen-Noh of the Terms  through  an  email  to  CGB  Enterprises,  Inc.    In  a  declaration,  a  representative  of  Ingram says, “to the best of his knowledge, information and belief,” that “CGB is a company closely connected  with  Zen-Noh  and  Zen-Noh  is  a  part-owner of CGB.”  The representative also  says, again on information and belief, “CGB receives many of Zen-Noh’s consigned grain cargos on the Lower Mississippi River and often acts on Zen-Noh's behalf in commercial dealings related to grain transportation.”  Ingram’s email to CGB was sent prior to the use of the invoices at issue in this case.  About  three  weeks  later,  Zen-Noh “sent an email to Ingram complaining that Zen-Noh had received invoices for which it did not believe it was liable.”  Ingram responded that the invoices were “per the grain contract.”  When Zen-Noh  requested  the  grain  contract  for  its review, Ingram replied with a link to the Grain Transportation terms.  Zen-Noh finally answered that it was “not party to the barge affreightment contract as received in your previous email, and as such, is not liable for nor will be paying these invoices.”  No  one  complains  that  the  grains  were  not  shipped  and  received  by  Zen-Noh.    Instead, Ingram  alleges  it  incurred  costs  that  it  claims  Zen-Noh  must  pay.    Zen-Noh  has  already  paid Ingram demurrage charges—“penalties related to delayed loading or unloading of goods”—but has  not  paid  for  “unrelated  expenses  that  Ingram  incurred  en  route  involving  ‘fleeting,’ ‘wharfage,’ and ‘shifting.’”  Those costs it says it does not owe.  As a result,  Ingram  filed  this lawsuit against Zen-Noh in the Middle District of Tennessee, but the district court dismissed the case for lack of personal jurisdiction.

 

 

Ingram does not allege that Zen-Noh is subject to the court’s jurisdiction through general or specific jurisdiction.  Rather, it relies on a forum selection clause linked to its bills of lading.  And a forum selection clause allows a party to agree “to the jurisdiction of a particular court.”  Preferred  Capital,  Inc.  v.  Assocs.  in  Urology,  453  F.3d  718,  721  (6th  Cir.  2006)  (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S.1 (1972)).  But  a  bill  of  lading  is  a  contract. See Wemhoener  Pressen  v.  Ceres  Marine Terminals Inc., 5 F.3d 734, 738 (4th Cir. 1993).  “When a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation.”  Dynamic Worldwide Logistics, Inc. v. Exclusive Expressions, LLC, 77 F. Supp. 3d 364, 373 (S.D.N.Y 2015) (quoting Norfolk S. Ry.  Co.  v.  Kirby,  543  U.S.  14,  22–23  (2004)).    Under  federal  common  law,  these  contracts should be construed “by their terms and consistent with the intent of the parties.”  Id. (quoting Kirby,  543  U.S.  at  31).    As  such,  these  contracts  bind  the  parties  that  negotiated  them.  Wemhoener Pressen, 5 F.3d at 738. Here, Ingram and the grain sellers.  Ingram instead attempts to bind Zen-Noh as a consignee, despite Zen-Noh’s classification on  most  bills  as  a  notify party.   See North  Pennsylvania  R.  Co.  v.  Commercial  Nat.  Bank  of Chicago,  123  U.S.  727,  736–37  (1887)  (recognizing  that  notify  parties  are  distinct  from consignees).    Consignees  are  considered  third-party  beneficiaries  to  bills  of  lading.   Dynamic Worldwide  Logistics,  77  F.  Supp  3d  at  374.    A  bill  can  bind  them,  but  only  with  their  consent.  See Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co., 696 F.3d 647, 655 (7th Cir. 2012); In re M/V  Rickners  Genoa  Litig., 622  F.  Supp.  2d  56,  71  (S.D.N.Y.  2009) opinion adhered  to  on reconsideration,  643  F.  Supp.  2d  553  (S.D.N.Y.  2009) and aff’d sub nom. Chem One, Ltd. V. M/V Rickmers Genoa, 502 F. App’x 66 (2d Cir. 2012).  And a third-party beneficiary can show consent by: (1) filing suit; (2) its course of conduct; or (3) accepting through its agent.4 Zen-Noh did not consent in any of these ways.  So, even if we treat Zen-Noh as a consignee, the terms of the bills do not reach it.

 

 

Lawsuit.    Ingram  sued  Zen-Noh.    So,  Zen-Noh neither “filed a lawsuit under the bill” nor “attempted to benefit from its terms.”  Kawasaki, 696 F.3d at 655. Course  of  conduct.    Zen-Noh did not acquiesce to Ingram’s grain terms over a long period.    Just  the  opposite.    Shortly  after  Zen-Noh  learned  of  the  revised  Terms,  it  informed Ingram that it did not consider itself bound by those terms negotiated by the sellers and Ingram.  Compare APL Co. Pte. Ltd. v. Kemira Water Solutions, Inc., 890 F. Supp. 2d 360, 367 (S.D.N.Y. 2012) (holding that “little past dealings” precludes a finding of acceptance  through  a  course  of conduct) with Sea-Land Service, Inc. v. Landis, No. Civ. A. 94-6153, 1996 WL 4120, at *3 (E.D. Pa. Jan. 3, 1996) (finding acceptance when there was no evidence a defendant rejected the bill’s unchanged terms over a decade-long relationship).  Ingram  highlights  its  longstanding  relationship  with  CGB,  claiming  CGB  is  affiliated with and partially owned by Zen-Noh.  Yet, even if that is true, that relationship is too attenuated to  presume  Zen-Noh’s acceptance.  Ingram also points to  Zen-Noh’s payment of demurrage charges on some of the shipments.  As the district court found, however, those payments may be explained by a separate obligation between Zen-Noh and the sellers.  Indeed, Zen-Noh may have “an  implied  obligation  to  pay  freight  charges  separate  and  apart  from  the  operative  bill  of lading.”  APL  Co.  Pte.  Ltd.,  890  F.Supp.  2d  at  367; see  also  FT  &  T  Consulting,  Inc.  v.  B.O. Astra Management Corp., No. 12-cv-134, 2016 WL 8711085, at *5 (E.D.N.Y. Sept. 30, 2016). Acceptance  by an  agent.    Zen-Noh  and  the  grain  sellers  did  not  have  an  agency relationship. “A basic principle of agency law is that an agency relationship exists only if the agent is acting on behalf of and subject to the control of the principal.”  APL Co. Pte. Ltd, 890 F. Supp.  2d  at  369  (quoting Maersk,  Inc.  v  Neewra,  Inc.,  687  F.  Supp.  2d  300,  329  (S.D.N.Y. 2009)).  Ingram presents no evidence that the grain sellers were “acting on behalf” of Zen-Noh or  under  Zen-Noh’s control when the sellers entered the bills of lading.   Id. at  369  (collecting cases); Kawasaki, 696 F.3d at 655 (“the agency test must fail because the consignee did not have the power to control. . .”); see  also  Baker  v.  LeBoeuf,  Lamb,  Leiby  &  Macrae,  105  F.3d 1102, 1106 (6th Cir. 1997) (holding that counterparties cannot be bound to a third-party contract unless  the  entities  are  so  closely  related  that  being  bound  to  the  contract  becomes  foreseeable).  To  the  contrary,  binding  Zen-Noh in this way would be “inconsistent with the intent of the parties.”  Kirby,  543  U.S.  at  31.    Zen-Noh  paid  for  freight  with  the  expectation  that  the  seller would  bear  the  full  responsibility  for  transport.    In  other  words,  Zen-Noh  sought  to  avoid  a contractual relationship with Ingram.

 

 

4 Ingram makes much of Zen-Noh’s status as the “ultimate consignee” or owner of the grain, but neither is synonymous with consent.  See Dynamic Worldwide Logistics, 77 F. Supp. 3d at 374 (“The mere fact that a party is a  consignee  or  third-party  beneficiary  is  insufficient  to  warrant  a  finding  that  the  consignee  was  bound  by  the terms contained in the bills of lading”); APL Co. PTE v. UK Aerosols LTD., No. C 05-0646, 2006 WL 3848784, at *3 (N.D. Cal. Sept. 28, 2006) (finding mere ownership of property does not bind the purchaser to the terms of a bill of lading).

 

 

While  Zen-Noh  is  a  beneficiary of these bills of lading, that “mere fact . . . does not create contractual obligations for that beneficiary.”  Dynamic Worldwide, 77 F. Supp. 3d at 374; see  also  Affiliated  FM  Ins.  Co.  v.  Kuehne  +  Nagel,  Inc.,  328  F.  Supp.  3d  329,  338  (S.D.N.Y. 2018) (declining to enforce a forum selection clause against a third-party  beneficiary).   Instead, Ingram  must  show  Zen-Noh  consented  to  its  bills.    It  has  not.    Accordingly,  we  AFFIRM  the district court’s dismissal.

 

 

 

HELENE N. WHITE, Circuit Judge, dissenting.

 

I respectfully dissent. The  difference  between  negotiable  and  nonnegotiable  bills  of  lading  is  important  in  this case.  “A negotiable bill of lading is a document of title, while a non-negotiable  bill  functions more like a receipt.”  Williston on Contracts § 59:10 (4th ed. 2020). Buyers of highly fungible commodities like grain often choose to resell their grain while it is still in transit from the seller.  Wallingford Bros. v. Bush, 255 F. 949, 950 (8th Cir. 1918).  To transfer title of the still-in-transit grain  to  a  new  buyer,  the  original  buyer  need  only  endorse  the  negotiable  bill  of  lading  and deliver  it  to  the  new  buyer.   Allied  Chem.  Int’l  Corp.  v.  Companhia  de  Navegacao  Lloyd Brasileiro, 775 F.2d 476, 481 (2d Cir. 1985); Susan Beecher, Can the Electronic Bill of Lading Go  Paperless?,  40  Int’l  Law.  627,  631  (2006)  (“the  negotiable  bill  of  lading  is  the  only document which the shipper may not transmit by fax or email”).  The new buyer then  presents the bill to the carrier, who “is responsible for releasing the cargo only to the party who presents the  original  bill  of  lading.  .  .  .  If  the  carrier  delivers  the  goods  to  one  other  than  the  authorized holder  of  the  bill  of  lading,  the  carrier is liable for misdelivery.”  Allied Chem. Int’l Corp., 775 F.2d at 481.  A  nonnegotiable  bill  works  differently.    Goods  sent  by  way  of  a  nonnegotiable  bill  are “nontransferable;  that  is,  John  Doe  cannot,  by  indorsing  that  bill  to  anyone  else,  give  that transferee  the  right  to  receive  the  goods  from  the  carrier.”    Alan  S.  Gutterman, Business Transactions  Solutions §  123:86  (2021).    Because  title  to  the  goods  cannot  be  transferred  mid-shipment  when  using  a  nonnegotiable  bill,  there  is  no  requirement  that the  buyer  present  the original bill of lading at the time it accepts the goods from the carrier.  Pere Marquette Ry. Co. v. Chicago  &  E.  I.  Ry.  Co.,  255  F.  40,  41–42  (7th  Cir.  1918);  David  A.  Bury, Electronic  Bills  of Lading:  A  Never-Ending  Story?,  41  Tul.Mar. L.J. 197, 209 (2016) (“negotiable bills of lading require consignees to present the physical bill of lading to enable the carrier to release the cargo; conversely, non-negotiable alternatives . . . are not burdened by this requirement”).

 

 

For that reason, the name listed as consignee on a nonnegotiable bill of lading matters a great deal; the carrier must deliver to the named consignee or face liability for misdelivery. Pere Marquette Ry. Co., 255 F. at 41–42. Not so with a negotiable bill. Since a negotiable bill of lading may change hands multiple times mid-shipment, “the consignee or ‘notify party’ designated on the negotiable bill of lading may not necessarily be the holder of the bill at the time and place of delivery,” Evergreen Marine Corp. v. Six Consignments of Frozen Scallops, 4 F.3d 90, 92 n.1 (1st Cir. 1993), and these labels accordingly carry little significance. The holder of the negotiable bill is entitled to “the rights and subject to the liabilities of the original consignee.” United States v. Wells Fargo & Co., 271 F. 180, 182 (2d Cir. 1921). Thus, what matters when dealing with a negotiable bill of lading is who physically presents the bill and accepts delivery of the cargo under it. Allied Chem. Int’l Corp., 775 F.2d at 481. And, because the bill of lading is negotiable, if it purports to bind the consignee to its terms upon acceptance of the goods under it, those who opt to become a party to the transaction by accepting the goods and presenting the bill are bound by its terms.

 

Ingram Barge’s complaint alleges that Zen-Noh became the consignee after the bills of lading were issued, and Zen-Noh does not deny that it physically presented the negotiable bills of lading and accepted delivery of the cargo.

The district court and the majority cite the bills’ identifying Zen-Noh as merely the “notify” party, and not the consignee, as evidence that Zen-Noh was not a party to the bills and did not consent to be bound by the bills’ terms. I disagree with this analysis at a few points. First, Zen-Noh is the named consignee on Bill No. ING 19- 00901. Second, even if Zen-Noh were listed as the notify party on that bill, as it is on all but one of the other bills in this case, the bills of lading were negotiable, which means that any distinction between the “notify” party and the “consignee” evaporated when, as Ingram Barge alleges, Zen-Noh presented the negotiable bills and accepted delivery of the cargo under the bills. See Pac. Coast Fruit Dist. v. Pennsylvania R.R. Co., 217 F.2d 273, 275 (9th Cir. 1954) (party not named in original bill of lading became consignee through its actions). It could not have demanded and accepted the cargo otherwise. See Allied Chem. Int’l Corp., 775 F.2d at 481.

 

True, neither Zen-Noh nor the named consignees bargained for the terms in Ingram Barge’s bills of lading, but, as the majority acknowledges, a bill of lading “can nonetheless bind a non-party buyer where there is consent to be bound.” Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co., 696 F.3d 647, 655 (7th Cir. 2012). The bills of lading in this case clearly stated that “any Consignee hereto is (and will be deemed) bound by Ingram Barge’s Grain Transportation Terms. The surrender of this original Order Bill of Lading . . . properly endorsed is required before the delivery of the shipment.” See, e.g., R. 1-38, PID. 201. Although Zen-Noh told Ingram Barge on June 3, 2019—before accepting any of the cargo at issue here—that it did not believe it was liable for the fleeting, wharfage, and shifting charges Ingram Barge seeks to recoup, that shows only that Zen-Noh was on notice of the terms at issue and nevertheless decided to physically present the bills and accept the cargo under the bills anyway. Absent an express agreement with Ingram Barge to the contrary, Zen-Noh’s conduct in stepping into the shoes of the named consignee and accepting the grain pursuant to the negotiable bills of lading demonstrated consent to the terms of Ingram Barge’s bills of lading. See, e.g., Pac. Coast Fruit Dist., 217 F.2d at 275 (explaining that “receipt and acceptance of the shipment” would be sufficient to bind consignee to terms of a bill of lading that made the consignee liable for shipping charges, and holding that the consignee was bound to the terms of the bill of lading because the consignee’s “unqualified and unequivocal dominion and control of the shipments” was “equivalent to acceptance” of the shipments); Neilsen v. Jesup, 30 F. 138, 139 (S.D.N.Y. 1887) (“The general rule undoubtedly is that the consignee and indorsee of the bill of lading who is owner of the goods and of the bill of lading, and who accepts the goods under the bill of lading, is bound by its terms.”); Gage v. Morse, 94 Mass. (12 Allen) 410, 411 (Mass. 1866) (“The receipt by consignee of the cargo, which was to be delivered upon payment of the freight, would have been evidence of an agreement to receive it upon the terms named in the bill of lading.”). The majority cites no case holding that a party can unilaterally change the terms of a bill of lading under which it demands and accepts delivery of the cargo.

 

The majority contends that neither Zen-Noh’s status as the “ultimate consignee” nor as owner of the grain constitutes consent to the bills’ terms, and that being a mere beneficiary of the bills of lading does not create contractual obligations for Zen-Noh. Each of those propositions standing alone may be correct, but none is squarely applicable here where Zen-Noh was a consignee, owner and beneficiary who also presented the bills and accepted the goods. Indeed, in none of the cases cited by the majority did a consignee physically present a negotiable bill of lading and accept the goods. That factual distinction is critical.

 

Moreover, presentation of the bills and acceptance of the goods is not the only evidence of consent to be bound that can be found in the record. Zen-Noh paid demurrage charges owed under the terms of Ingram Barge’s bills of lading for some of the shipments at issue. Ingram Barge argues that partial payment of demurrage charges pursuant to the bills of lading is evidence of Zen-Noh’s consent to be bound. The majority echoes the district court’s speculation—based on no fact apparent in the record—that those payments “may be explained by a separate obligation between Zen-Noh and the sellers” or were paid pursuant to an implied obligation to pay freight charges. One of those theories may prove to be correct, but dismissing Ingram Barge’s partial-performance argument based on speculation contravenes our admonition that “the pleadings and affidavits submitted must be viewed in a light most favorable to the plaintiff, and the district court should not weigh ‘the controverting assertions of the party seeking dismissal’” when it elects to rule on a Rule 12(b)(2) motion without a hearing or the opportunity for discovery. Air Prod. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (quoting Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)). At this stage, the district court should have considered Zen-Noh’s partial payment of demurrage charges as evidence of Zen-Noh’s consent to be bound.

 

(In Dynamic Worldwide Logistics, Inc., the consignee failed to present the negotiable bill of lading at the time it accepted the goods, thus never evincing knowledge of the bill of lading’s terms. 77 F. Supp. 3d at 368. Affiliated FM Ins. Co. v. Kuehne + Nagel, Inc. is inapposite, since the third-party beneficiaries were not consignees or owners of the cargo, but subcontractors of the carrier who sought the liability protections of the bill’s Himalaya Clause. 328 F. Supp. 3d 329, 338 (S.D.N.Y. 2018). And in the remainder of the cases cited by the majority, the goods were never accepted by the consignee. Kawasaki Kisen Kaisha, Ltd., 696 F.3d at 652 (goods damaged in train derailment); APL Co. PTE. v. UK Aerosols LTD., No. C 05-0646-MHP, 2006 WL 3848784, at *1 (N.D. Cal. Sept. 28, 2006) (goods were “leaking, dangerous and hazardous” and were destroyed by carrier); APL Co. Pte. v. Kemira Water Sols., Inc., 890 F. Supp. 2d 360, 364, 368 (S.D.N.Y. 2012) (hazardous goods—shipped by nonnegotiable bill of lading with terms the consignee never received—leaked during shipment and were rejected by consignee); In re M/V Rickmers Genoa Litig., 622 F. Supp. 2d 56, 62 (S.D.N.Y.), opinion adhered to on reconsideration, 643 F. Supp. 2d 553 (S.D.N.Y. 2009), and aff’d sub nom. Chem One, Ltd. v. M/V Rickmers Genoa, 502 F. App’x 66 (2d Cir. 2012) (goods were destroyed by an explosion en route).)

 

 

Secondary Sources: Alan  S.  Gutterman, Business Transactions  Solutions § 123:86 (2021)

 

 

 

(U.S. Court of Appeals for the Sixth Circuit, June 28, 2021, Ingram Barge Company, LLC v. Zen-Noh Grain Corp., Docket No. 20-5514, Recommended for Publication)