Ingram Barge Co., LLC v. Zen-Noh Grain Corp.
3 F.4th 275
6th Cir.2021Background
- Zen-Noh purchased grain that sellers prepaid for barge transport; sellers contracted with Ingram Barge, which issued negotiable bills of lading.
- Most bills listed the seller as consignor, the consignment to the order of the consignee, and Zen-Noh only as a "notify" party; one bill named Zen-Noh as consignee and another omitted Zen-Noh entirely.
- Each bill referenced Ingram’s online "Carrier’s Grain Transportation Terms," which purported to bind any owner/consignee and contained a forum-selection clause designating the U.S. District Court for the Middle District of Tennessee.
- Ingram updated those Terms in April 2019 and says it emailed the update to CGB (allegedly affiliated with Zen-Noh); Zen-Noh later told Ingram it was not a party to the barge contract and would not pay certain invoiced charges.
- Ingram sued Zen-Noh in the Middle District of Tennessee seeking payment for charges (fleeting, wharfage, shifting); the district court dismissed for lack of personal jurisdiction.
- The Sixth Circuit majority affirmed, holding Zen-Noh did not consent to be bound by the bills’ forum-selection clause; Judge White dissented, arguing Zen-Noh’s presentation of negotiable bills and acceptance of cargo supplied consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a forum-selection clause in Ingram’s bills binds Zen-Noh (a non-signatory) so as to confer personal jurisdiction | Ingram: Zen-Noh is a consignee/owner/beneficiary of the negotiable bills and thus is bound by the Terms (including forum clause) | Zen-Noh: It never agreed to the bills’ terms; it was only a "notify" party on most bills and did not consent | Held: No. Court affirmed dismissal—Zen-Noh did not consent to be bound by the bills, so forum clause does not confer jurisdiction |
| Whether presentation of negotiable bills and acceptance of cargo establishes consent to the bills’ terms | Ingram: Presentation/acceptance of negotiable bills manifests consent to be bound by terms | Zen-Noh: Presentation does not equal consent when it never agreed to the bill; it disclaimed liability and paid only some demurrage under separate obligations | Held: Majority: Presentation/acceptance did not establish consent here; Dissent: presentation plus acceptance would suffice to bind a consignee under a negotiable bill |
| Whether Zen-Noh’s partial payments (demurrage) and course of dealing imply acceptance of Ingram’s Terms | Ingram: Partial payments and longstanding dealings via CGB indicate acceptance | Zen-Noh: Payments can be explained by separate seller obligations; no long-term acquiescence to Ingram’s unchanged terms | Held: Majority: Payments and alleged affiliations are too attenuated to prove consent; insufficient to establish jurisdiction |
| Whether agency/affiliation (CGB) makes Zen-Noh bound by sellers’ contracts with Ingram | Ingram: CGB is affiliated/part-owned by Zen-Noh and acts on its behalf, so notice to CGB binds Zen-Noh | Zen-Noh: No agency or control shown; sellers did not act under Zen-Noh’s control when contracting with Ingram | Held: Majority: No agency established; agency theory fails and cannot supply consent |
Key Cases Cited
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum-selection clauses permit parties to agree to particular jurisdiction)
- Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14 (2004) (federal maritime law governs interpretation of maritime contracts)
- Wemhoener Pressen v. Ceres Marine Terminals Inc., 5 F.3d 734 (4th Cir. 1993) (bills of lading bind the parties who negotiated them)
- Kawasaki Kisen Kaisha, Ltd. v. Plano Molding Co., 696 F.3d 647 (7th Cir. 2012) (a third-party consignee is bound by a bill of lading only upon consent)
- Evergreen Marine Corp. v. Six Consignments of Frozen Scallops, 4 F.3d 90 (1st Cir. 1993) (a negotiable bill of lading is a document of title; holder gains rights)
- Air Products & Controls, Inc. v. Safetech Intern., Inc., 503 F.3d 544 (6th Cir. 2007) (standard of review and plaintiff’s burden on personal-jurisdiction challenges decided on written submissions)
- Allied Chem. Int’l Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476 (2d Cir. 1985) (holder of a negotiable bill is entitled to delivery; carrier liable for misdelivery)