ANL Singapore PTE LTD v. Prime Shipping International, Inc. ( 2019 )

1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANL SINGAPORE PTE LTD, ) Case No. CV 18-08631 DDP (JEMx) ) 12 Plaintiff, ) ) 13 v. ) ORDER RE: MOTIONS FOR SUMMARY ) JUDGMENT 14 PRIME SHIPPING ) INTERNATIONAL, INC., ET AL., ) 15 ) [Dkts. 33, 40] Defendants. ) 16 ___________________________ 17 Presently before the court are the parties’ cross-motions for 18 summary judgment. Having considered the submissions of the parties 19 and heard oral argument, the court grants Plaintiff’s motion for 20 partial summary judgment, grants Defendant’s motion in part, denies 21 Defendant’s motion in part, and adopts the following Order. 22 I. Background 23 ANL Singapore PTE Ltd (“Plaintiff” or “ANL”), an ocean freight 24 carrier, brings this action against Prime Shipping International, 25 Inc. (“Defendant” or “Prime”), a U.S. non-vessel-operating common 26 carrier.1 27 28 1 ANL and Eumex, a Chinese entity, entered into an agreement, in 2 the form of a bill of lading, for the transport of two shipping 3 containers containing $20,000 of plastic food containers from 4 Ningbo, China to Los Angeles, California. (Decl. Bryan Bissonette, 5 ¶ 8; Ex. A.; Decl. Wuquan Shao, ¶ 3.)2 The bill of lading 6 identifies Eumex as the shipper, Prime as the consignee and 7 notifying party, and ANL as the carrier. (Id. at ¶ 6, Ex. A, Ex. 8 B.) Marine Chaser was the ultimate consignee and cargo owner. 9 (Wuquan Shao Decl. ¶ 5.) 10 ANL delivered the containers to the Port of Los Angeles at the 11 West Basin Container Terminal (“the terminal”) on August 23, 2015. 12 The containers were subject to U.S. Customs (“Customs”) 13 examination. (Decl. Bissonette, ¶ 10.) Plaintiff alleges, and 14 Defendant does not appear to dispute, that once the containers 15 cleared Customs, Defendant was to remove the containers from the 16 terminal and transport the containers to the ultimate consignee, 17 Marine Chaser. (Compl., ¶ 19.). Customs, however, never cleared 18 the two shipping containers, which remained at the terminal.3 19 (Decl. Morrow, ¶ 4 ; Ex. 4E at 35:1-2.) 20 Generally, when uncleared cargo remains at the terminal, “the 21 master or owner of the vessel or the agent thereof” must notify 22 Customs of the delay within twenty days of landing. 19 C.F.R. § 23 24 2 Plaintiff filed the Declaration of Brian Bissonette and the exhibits thereto as the Declaration of Bryan Boyce. (Dkt. 33-6.) 25 3 The bill of lading states that the first four days following the 26 container’s arrival at the port are “free days” without imposition of demurrage, or late fees. (Decl. Bissonette, Ex. C. ; Decl. 27 Morrow, Ex. 4C. ; Compl., Ex. F.) The term “demurrage” applies to fees imposed by the carrier as well as by the port for the use of 28 terminal space. (Decl. Bissonette, ¶ 13. ; Compl., Ex. F.) 1 4.37(a). The carrier must also disclose the continued presence of 2 the uncleared cargo to a “bonded warehouse . . . qualified to 3 receive general order merchandise.” 19 C.F.R. § 4.37 (c). The 4 bonded warehouse then removes and stores the cargo, at the expense 5 of the consignee. Id. 6 Here, it is undisputed that ANL did not notify a general order 7 warehouse of the continued presence of the two uncleared containers 8 at the terminal within the regulatory period. The containers began 9 to accumulate demurrage, or late fee, charges from both ANL and the 10 terminal. 11 Approximately three months later, on December 8, 2015, 12 Defendant sent an e-mail to Plaintiff asking Plaintiff to move the 13 containers to a general order warehouse as soon as possible. 14 (Morrow Decl., ¶ 2, Ex. 2A.) A flurry of e-mails followed. 15 Plaintiff responded that Customs had placed the cargo on a 16 “constructive [general order].” (Morrow Decl., ¶ 2, Ex. 2B.) That 17 same day, Prime asked why Customs had taken such action, and 18 indicated that Prime’s customer “might not want the cargo any more 19 since there is so much demurrage at the terminal.” (Morrow Decl. ¶ 20 2, Ex. 2C.) Plaintiff responded that it did not know why Customs 21 had so acted. (Id.) 22 The next day, Prime sent Plaintiff a message observing that 23 demurrage fees now exceeded $90,000, and asking that ANL “charge 24 [Prime] only the value of two new containers for extending using 25 [sic] based on the situation that no one wants the cargo . . . . 26 Hope to avoid paying for equipment demurrage by doing so.” (Morrow 27 Decl., Ex. 2D.) ANL responded by asking Prime to “push your 28 customer” and indicating that in the event of abandonment, Prime 1 would be liable for demurrage and general order costs. (Morrow 2 Decl. Ex. 2E.) 3 A week later, Prime indicated that its customer only wanted 4 the cargo on the condition that all charges, including demurrage, 5 would not exceed the cargo’s $20,000 value. (Morrow Decl. Ex. 2F.) 6 Plaintiff responded that ANL would waive its “line demurrage” and 7 had arranged for “mitigated” terminal demurrage charges of 8 approximately $6,000. (Morrow Decl. Ex. 2G). It appears, however, 9 that nothing came of this exchange, and that the containers 10 continued to sit at the terminal. 11 Approximately two months later, on February 5, 2016, ANL 12 received a letter from Eumex, the Chinese shipper, indicating that 13 Eumex was abandoning the cargo. (Morrow Decl., Ex. 2H.) Prime 14 also sent an e-mail to ANL indicating that Prime “got overseas 15 confirmation to abandon this cargo now.” (Morrow Decl., Ex. 2H.) 16 On February 11, Prime asked ANL whether ANL “need[ed] anything else 17 from [Prime], to which ANL responded, “No, nothing else.” (Morrow 18 Decl., Ex. 2I.) 19 There was no further contact between the parties until June 20 10, 2016, when Plaintiff indicated to Prime that the containers 21 were still accumulating demurrage and that ANL could not find a 22 buyer for the containers. (Decl. Morrow, Ex. 2J. ; Ex. H at 48:17- 23 49:13.) On June 15, 2016, Defendant wrote a letter to Plaintiff 24 declaring that “we have abandoned the ownership of above mentioned 25 cargo.” Decl. Bissonette, Ex. D.) ANL then, on June 24, moved the 26 two containers to a general order warehouse. (Decl. Morrow, Ex. 27 2L.) 28 1 Three days later, ANL sent Prime an e-mail referencing an 2 unpaid bill that included approximately $52,000 in terminal storage 3 fees, but did not include any charges for line demurrage. (Morrow 4 Decl., Ex. 2K.) In response to the bill, Prime indicated that it 5 would not be responsible for any charges because, according to 6 Prime, ANL “[confirmed] with us last year and there is no charges 7 [sic] on this container if we abandon it . . . . The cargo has been 8 abandoned . . . .” (Morrow Decl. Ex. 2L.) ANL replied that the 9 “demurrage/storage” charges were due through June 24, the date that 10 the cargo was finally moved to a general order warehouse, but that 11 “there will be no further demurrage on our end.” (Id.) 12 Prime then reiterated that it “confirmed cargo abandoned long 13 ago.” (Morrow Decl., Ex. 2M.) In response, ANL stated that it had 14 advised Prime that Prime would be responsible for charges if the 15 cargo was abandoned, and pointed out that Prime had not picked up 16 the cargo even though ANL had waived its own demurrage charges and 17 “mitigated” terminal charges. ANL further clarified that the 18 charges at issue by that point, in June 2016, consisted of terminal 19 demurrage, not ANL’s line demurrage, which ANL continued to waive. 20 (Id.) ANL sent Prime an invoice for $56,294.93 on October 20, 21 2016. (Morrow Decl., Ex. 2O.) 22 On November 17, 2016, Prime notified ANL that Eumex would work 23 out payment with ANL. (Morrow Decl., Ex. 2P.) In January 2017, 24 Prime reiterated that ANL should sort out any payment issues with 25 Eumex. (Morrow Decl., Ex. 2T.) Approximately six months later, on 26 July 21, 2017, ANL sent Prime an invoice for $269,830.00. (Morrow 27 Decl, Ex. 2N.). The parties appear to agree that that amount 28 includes ANL’s line demurrage, also known as tariff demurrage. In 1 other words, Plaintiff’s 2017 invoice, unlike Plaintiff’s earlier 2 invoices and requests for payment, did not waive line demurrage. 3 ANL’s Complaint in the instant action seeks to recover the 4 $269,830.00 amount, plus an additional $4,162.81 for transportation 5 and auction costs. The Complaint alleges causes of action for 6 breach of contract, account stated, quantum meruit, book account, 7 and services rendered. 8 ANL and Prime each now move for partial summary judgment. 9 Prime seeks summary judgment on ANL’s claims insofar as they relate 10 to Prime’s line demurrage. Prime further seeks partial summary 11 judgment on the quantum meruit and services rendered claims, 12 arguing that Prime never received anything from ANL. ANL seeks 13 summary judgment solely on the question whether Prime is liable to 14 ANL under the bill of lading. 15 II. Legal Standard 16 Summary judgment is appropriate where the pleadings, 17 depositions, answers to interrogatories, and admissions on file, 18 together with the affidavits, if any, show “that there is no 19 genuine dispute as to any material fact and the movant is entitled 20 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party 21 seeking summary judgment bears the initial burden of informing the 22 court of the basis for its motion and of identifying those portions 23 of the pleadings and discovery responses that demonstrate the 24 absence of a genuine issue of material fact. See Celotex Corp. v. 25 Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from 26 the evidence must be drawn in favor of the nonmoving party. See 27 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the 28 moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that “there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 323. 4 Once the moving party meets its burden, the burden shifts to 5! the nonmoving party opposing the motion, who must “set forth specific facts showing that there is a genuine issue for trial.” 7! Anderson, 477 U.S. at 256. Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 11] 477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 13] party,” and material facts are those “that might affect the outcome 14}/ of the suit under the governing law.” Anderson, 477 U.S. at 248. There is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 17] nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 19 It is not the court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 214-1278 (9th Cir. 1996). Counsel have an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 231026, 1031 (9th Cir. 2001). The court “need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate 261 references so that it could conveniently be found.” Id. 27 III. Discussion 28 A. ANL’s Motion for Summary Judgment 1 Although not entirely clear, ANL’s motion appears to seek only 2 a determination that the bill of lading is “the contractual basis 3 of ANL’s claim against Prime.” (ANL Mot. at 2:16-17.) Insofar as 4 the partial judgment sought is so limited, Defendant does not 5 appear to oppose the substance of ANL’s motion. Although Defendant 6 Prime has filed an opposition to ANL’s motion, that opposition 7 consists of largely of (1) a recitation of the facts and (2) a 8 restatement of the arguments made in Prime’s own motion as to why 9 ANL is not entitled to certain categories of damages and why ANL’s 10 third and fifth causes of action fail. Nowhere does Prime dispute 11 ANL’s core assertion that the bill of lading sets forth the 12 obligations of the parties. Indeed, Prime takes exception to ANL’s 13 omission of ANL’s tariff from the motion, and goes on to suggest 14 that both the tariff and the bill of lading must be read as a 15 single document comprising the contract between the parties.4 16 (Prime Opp. at 8:21-9:5.) Prime’s own motion similarly states that 17 ANL’s breach of contract claim is based upon “the ANL bill of 18 lading and ANL’s tariff.” (Prime Mot. at 11:22-23.) Furthermore, 19 Prime’s arguments quote from and depend upon the very language of 20 that contract. (Prime Mot. at 16:10-18.) The court therefore 21 concludes, and the parties apparently agree, that the parties’ 22 respective liabilities are set forth in the bill of lading and 23 associated ANL tariff. 24 B. Prime’s Motion 25 26 4 ANL does not suggest otherwise. ANL refers to its tariff in 27 the Complaint as well, and attaches the tariff to the Complaint as an exhibit. The bill of lading also refers to and incorporates the 28 tariff. Complaint, Exs. B, F. 1 Prime’s Motion for Summary Judgment seeks a determination that 2 (1) ANL is not entitled to any tariff, or line, demurrage and (2) 3 that ANL’s quantum meruit and services rendered claims fail because 4 Prime received no benefit from work or services performed by ANL. 5 1. Tariff Demurrage 6 a. Equitable Estoppel 7 Prime argues that ANL should be equitably estopped from 8 seeking any tariff demurrage. Under the doctrine of equitable 9 estoppel, a party cannot assert a fact if he has intentionally lead 10 another party to believe and rely upon a contrary fact. See People 11 v. Castillo, 49 Cal. 4th 145, 156 n.10 (2010). “The elements of 12 equitable estoppel are (1) the party to be estopped must be 13 apprised of the facts; (2) he must intend that his conduct shall be 14 acted upon, or must so act that the party asserting the estoppel 15 has a right to believe it was so intended; (3) the other party must 16 be ignorant of the true state of facts; and (4) he must rely upon 17 the conduct to his injury.” Schafer v. City of Los Angeles, 237 18 Cal. App. 4th 1250, 1261 (2015) (internal quotation marks omitted). 19 Here, Prime argues that ANL is equitably estopped from 20 asserting a claim to tariff demurrage because it represented to 21 Prime that all line, or tariff, demurrage would be waived. ANL 22 did, on December 17, 2015, state that it was “waiving our line 23 demurrage.” (Morrow Decl., Ex. 2G.) That statement was not made 24 in a vacuum, however. ANL waived its line demurrage in response to 25 Prime’s request that ANL help reduce the total charges, including 26 demurrage, down below the value of the goods. By so doing, and by 27 “mitigating” terminal demurral charges, ANL was able to reduce 28 applicable expenses to approximately $6,000 “assuming [the cargo 1 was retrieved] in the next few days.”5 (Morrow Decl., Ex. 2G.) 2 ANL’s message cannot reasonably be read, however, to suggest that 3 ANL was agreeing, or misleading Prime to believe that ANL was 4 agreeing, to waive all tariff demurrage for all time, regardless 5 whether the cargo ever cleared Customs or Prime ever retrieved the 6 cargo. Rather, by waiving its own line demurrage and mitigating 7 the port demurrage as of December 2015, ANL was simply acceding to 8 Prime’s request that ANL find a way to reduce demurrage charges to 9 less than $20,000. 10 The question whether ANL led Prime to believe that line 11 demurrage fees would be waived in perpetuity is somewhat more 12 complicated after December 2015. In February 2016, after receiving 13 notice of abandonment from Eumex, ANL told Prime that ANL required 14 nothing further from Prime. In June 2016, when explaining that the 15 cargo had finally been moved to a general order warehouse, ANL 16 indicated that the charges to date totaled approximately $56,000, 17 comprised mostly of approximately $52,000 in terminal storage fees. 18 (Morrow Decl., Ex. 2K.) ANL’s message made no mention of tariff 19 demurrage charges, and explicitly stated that the demurrage fees at 20 issue were terminal demurrage fees, not line demurrage. Similarly, 21 in October 2016, ANL issued Prime an invoice for $52,132.12. 22 (Morrow Decl. Ex. 2O). This amount represented only terminal 23 demurrage, not ANL’s line/tariff demurrage. These communications 24 demonstrate that, as of October 2016, Prime reasonably understood 25 that ANL was continuing to waive its own tariff demurrage charges. 26 5 At the same time it apprised Prime of that reduction, ANL 27 reiterated that the cargo had still not been cleared by Customs and that ANL could not release the cargo until it had received payment. 28 (Morrow Decl., Ex. 2G.) 1 Notably, however, there is no indication that, at least as of 2 October 2016, ANL had any different understanding of the facts. In 3 other words, there is no evidence in the record that, prior to the 4 2017 invoice, ANL attempted to mislead Prime into believing that 5 line demurrage would be waived ad infinitum as part of some 6 undisclosed scheme to induce Prime to continue to rack up massive 7 hidden tariff demurrage fees. ANL’s initial 2015 offer to waive 8 tariff demurrage was responsive to Prime’s request to minimize 9 total charges, and appeared to further the parties’ common goal of 10 avoiding abandonment of the cargo and removing it from the terminal 11 as soon as possible. The October 2016 invoice reflects that same 12 understanding.6 It is clear from the invoice that, had Prime paid 13 the terminal demurrage fees in October 2016, ANL would not ever 14 have charged any tariff demurrage fees. That continued 15 accommodation, however, cannot fairly be read as a 16 misrepresentation that ANL had waived line demurrage until the end 17 of time, regardless whether Prime ever paid even the terminal 18 demurrage. Prime has presented no evidence that ANL’s offers to 19 waive line demurrage were not made in good faith at the time they 20 were made or that ANL intended to trick Prime into believing that 21 22 23 24 25 26 6 Indeed, ANL’s October demand for payment is inconsistent 27 with the assertion that ANL intended to induce Prime not to pay as a means of tricking Prime into incurring more, as-yet uncharged 28 tariff fees. 1 the waiver of ANL’s line demurrage was unconditional.7 Prime’s 2 equitable estoppel argument therefore fails. 3 b. ANL’s Tariff 4 Prime further contends that the terms of ANL’s own tariff 5 forbid ANL from charging demurrage under the circumstances here. 6 ANL’s tariff states, “When the carrier is for any reason unable to 7 tender cargo for delivery during free time, free time will be 8 extended for a period equal to the duration of the carrier’s 9 inability to tender the cargo. If such condition arises after the 10 expiration of free time, no demurrage . . . will be charged for a 11 period equal to the duration of the carrier’s inability to tender 12 the cargo.” (Complaint, Ex. F.). ANL’s person most knowledgeable 13 testified that Prime had no ability, independent of the ultimate 14 consignee, Marine Chaser, to clear the cargo through Customs. 15 (Morrow Decl., Ex. 4F.) Prime’s designee also acknowledged that, 16 absent Customs clearance, Prime could not have picked up the cargo. 17 (Id.) Prime argues, therefore, that ANL never tendered the cargo 18 for delivery and, therefore, could not charge tariff demurrage. 19 Other language in the tariff and bill of lading, however, 20 arguably conflicts with the tariff provision cited by Prime. 21 Paragraph 19(4) of the bill of lading states that the carrier’s 22 obligations are completely discharged if goods are delivered to or 23 taken into the custody of Customs or other government officials. 24 (Complaint, Ex. B.) The tariff further states, “The carrier shall 25 7 Nor can ANL’s statement in June 2016 that “there will be no 26 further demurrage on our end” reasonably be read to suggest that ANL would never, under any circumstances, charge line demurrage. 27 Read in context, the statement explains that no further tariff demurrage would be assessed after June 24 because, as of that date, 28 the cargo had been moved to a bonded warehouse. 1 not be responsible for delays in delivering containers when such 2 delays result from cargo being detained in customs or quarantine. 3 Any demurrage charges that are accrued resulting from delays in 4 customs and/or quarantine are to be billed for account of the 5 cargo.” (Complaint, Ex. F.) 6 Although Prime attempts to characterize these conflicting 7 terms as creating an ambiguity in the contract, Prime’s argument is 8 not convincing. Prime equates its inability to retrieve the cargo, 9 which resulted from customs issues, as equivalent to ANL’s failure 10 to tender the cargo. The bill of lading, however, clearly states 11 that ANL’s obligations cease once the cargo is delivered into 12 Customs’ custody. Prime’s interpretation would render paragraph 13 19(4) of the bill of lading, and portions of the “Demurrage” 14 section of the tariff, meaningless.8 The tariff therefore does not 15 bar Plaintiff from recovering line demurrage. 16 c. ANL’s Failure to Mitigate 17 Lastly, Prime argues that ANL failed to mitigate its damages 18 by moving the containers to a bonded warehouse, as it was required 19 to do by law. Customs regulations require that carriers notify 20 both Customs and a bonded warehouse of any cargo that has not 21 cleared customs within 20 days of landing. 19 C.F.R. § 22 4.37(a),(c). The warehouse is then responsible for removing the 23 goods. 19 C.F.R. § 4.37(c). It is undisputed that ANL did not 24 provide a bonded warehouse with the requisite notice until June 25 2016, approximately ten months after landing the cargo. 26 27 8 In other words, the fact that Prime was not able to retrieve the cargo unless and until Customs cleared the cargo does not mean 28 that ANL failed or was unable to tender the cargo. 1 ANL claims, without any citation to the record, that Prime was 2 “fully aware that Plaintiff had nothing to do with the constructive 3 [general order] ordered by [Customs.]”9 (Opp. to Prime MSJ at 7:2- 4 3.) The correspondence between the parties does indicate that ANL 5 notified Prime in December that the cargo had been placed “on a 6 constructive G.O.” (Morrow Decl. Ex.2 B.) The parties’ initial 7 briefing, however, cited to no evidence as to when or why Customs 8 placed the cargo in constructive general order status, what role, 9 if any, ANL played in that decision, or what, if any, action ANL 10 took or could have taken subsequent to Customs’ decision. 11 Accordingly, this Court ordered the parties to file supplemental 12 briefs addressing why the cargo was placed under a constructive 13 general order; whether, when, and how the parties became aware of 14 that designation; and what, if anything, the parties could have 15 done once the cargo was so designated. (Dkt. 51.) 16 The supplemental briefing casts little light upon these 17 questions. Plaintiff provides an exhibit indicating, for the first 18 time, that Customs issued the constructive general order notice to 19 Plaintiff on September 15, 2015. (Plaintiff’s Supplemental Brief, 20 Ex. G). There is no indication, however, that Plaintiff notified 21 Prime, or that Prime was otherwise aware, of the constructive 22 general order designation prior to December 2015. Furthermore, 23 Plaintiff’s exhibits provide no insight as to why Customs 24 determined that the plastic containers in question “require[d] 25 26 9 Plaintiff’s supplemental brief more explicitly, albeit without elaboration or explanation, contends that “[t]he 27 Constructive G.O. constrained Plaintiff after the time when it would normally be freed of its responsibility as to the cargo . . . 28 .” (Plaintiff’s Supplemental Brief at 6:5-6.) 1 specialized storage” typically reserved for dangerous cargo such as 2 hazardous materials, firearms, and ammunition; a determination 3 generally precipitated by a carrier’s initial notification of the 4 presence of dangerous cargo. (Prime Request for Judicial Notice, 5 Attachment 3.) Although a bonded warehouse’s inability to accept 6 dangerous cargo can result in the issuance of a constructive 7 general order notice, it is undisputed that Plaintiff never 8 contacted a warehouse prior to June 2016, and, accordingly, there 9 is no evidence that any warehouse refused to accept the cargo. See 10 19 C.F.R. § 4.37(e). It is, therefore, far from clear that 11 Plaintiff had “nothing to do” with the constructive general order 12 notice. 13 Much of Plaintiff’s supplemental brief focuses on the argument 14 that Prime’s agreement with Marine Chaser, the ultimate consignee, 15 allowed Prime to abandon or pick up the cargo even without Marine 16 Chaser’s cooperation. As an initial matter, this argument 17 conflicts with evidence, including testimony from Plaintiff’s own 18 designee, that Prime had no ability to clear the cargo through 19 Customs independent of Marine Chaser. (Morrow Decl., Ex. 4F.) 20 Furthermore, this argument fails to address what options remained 21 available to Plaintiff or why the constructive general order notice 22 limited Plaintiff’s ability to mitigate its own damages.10 On June 23 24, 2016, Plaintiff ultimately did have the cargo removed to a 24 bonded warehouse. Plaintiff has provided no explanation as to why 25 it could not have done so sooner, either within the regulatory 26 period or at any point prior to June 2016. 27 28 10 See note 9, above. 1 ANL had a duty to take reasonable steps to mitigate its 2 damages. Yang Ming Marine Transp. Corp. v. Okamoto Freighters 3 Ltd., 259 F.3d 1086, 1095 (9th Cir. 2001). It is undisputed that 4 ANL did not provide a bonded warehouse with notice within the 20- 5 day period prescribed by regulation. It is also undisputed that, 6 had ANL done so, the cargo would have been moved to a warehouse and 7 ANL would not have incurred any further storage or demurrage 8 expenses.11 ANL would then have had no right or occasion to charge 9 Prime any further line demurrage, as any subsequent storage 10 disputes would have been issues for Prime to resolve with the 11 warehouse, not with ANL. As a result of ANL’s failure to comply 12 with regulatory requirements and concomitant failure to mitigate 13 its damages, ANL is barred from recovering tariff demurrage after 14 September 12, 2015, the date by which it should have notified a 15 bonded warehouse of the uncleared cargo. 16 2. Common Counts 17 Prime argues that it is entitled to summary judgment on ANL’s 18 third cause of action for quantum meruit and fifth cause of action 19 for services rendered because there is no allegation, let alone 20 evidence, that Prime received any benefit from ANL.12 A plaintiff 21 cannot recover on a quantum meruit theory unless he shows that he 22 acted pursuant to a request for services, express or implied, and 23 11 In Yang Ming, the court found that although a carrier might 24 be required to make “reasonable” expenditures in order to mitigate its damages, it could not be not required to make “substantial” or 25 “extraordinary” expenditures. Yang Ming, 259 F.3d at 1086. Here, there is no evidence that Plaintiff would have incurred or did 26 incur any substantial expense by having the cargo moved to a bonded warehouse. 27 12 Although alleged as two separate causes of action, 28 Plaintiff makes no attempt to distinguish the two. 1 that those services were intended to, and did, benefit the 2 defendant. Ochs v. PacifiCare of California, 115 Cal. App. 4th 3 782, 794 (2004). Plaintiff’s argument that “an analysis of 4 Defendant’s liability may well, in some degree or kind, focus on 5 the reasonable value of plaintiff’s services” is difficult to 6 parse. Plaintiff refers to “international freight services” and 7 “services provided by plaintiff in attempting to administer the 8 problems caused by the failures of Defendant,” but cites to no 9 evidence that any of those services did, or were intended to, 10 benefit Prime. Furthermore, plaintiffs cannot bring equitable 11 quantum meruit claims where, as here, the parties have an “actual 12 contract covering a subject.” DPR Constr. v. Shire Regenerative 13 Med., Inc., 204 F. Supp. 3d 1118, 1131 (S.D. Cal. 2016) (citation 14 omitted). Plaintiff’s assertion that “the quantum meruit and 15 account stated are useful tools in the trial process, and since 16 there is no prejudice to the Defendant, should remain,” provides no 17 basis for denial of Prime’s motion with respect to the third and 18 fifth causes of action. 19 IV. Conclusion 20 For the reasons stated above, ANL’s Motion for Summary 21 Judgment is GRANTED, to the extent it seeks a determination that 22 the bill of lading and other incorporated documents set forth the 23 obligations of the parties. Prime’s Motion is GRANTED in part and 24 DENIED in part. The motion is denied insofar as Prime seeks to 25 prevent ANL from seeking tariff demurrage on estoppel or tariff 26 grounds. The motion is granted, however, insofar as it seeks to 27 limit ANL to tariff demurrage that accrued prior to September 12, 28 1 2015. Summary judgment is also granted to Prime with respect to 2 Plaintiff’s third and fifth causes of action. 3 4 5 IT IS SO ORDERED. 6 Dated: August 15, 2019 7 DEAN D. PREGERSON United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28