APL Co. Pte. Ltd. v. UK Aerosols Ltd.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APL CO. PTE. LTD., 
Plaintiff-Appellee,
v.
UK AEROSOLS LTD.,
Defendant,
VALLEY FORGE INSURANCE No. 07-16739
COMPANY,  D.C. No.
Defendant-intervenor, CV-05-00646-MHP
and
U.G. CO., INC., dba Universal
Grocers Co.; KAMDAR GLOBAL
LLC,
Defendants-Appellants.

APL CO. PTE. LTD., 
Plaintiff-Appellant,
v.
No. 08-15078
UK AEROSOLS LTD.; U.G. CO.,
INC., dba Universal Grocers Co.;
KAMDAR GLOBAL LLC,
 D.C. No.
CV-05-00646-MHP
Defendants-Appellees, OPINION
VALLEY FORGE INSURANCE
COMPANY,
Defendant-intervenor-Appellee.

Appeals from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
13671
13672 APL CO. PTE. LTD. v. U.G. CO., INC.
Argued and Submitted
March 12, 2009—San Francisco, California
Filed September 21, 2009
Before: J. Clifford Wallace, Sidney R. Thomas and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Wallace
APL CO. PTE. LTD. v. U.G. CO., INC. 13675
COUNSEL
Marilyn Raia and Norman J. Ronneberg Jr., Bullivant Houser
Bailey PC, San Francisco, California, for Valley Forge Insur-
ance Company, defendant-intervenor for U.G. Co. Inc. and
Kamdar Global LLC.
Charles S. Donovan, Amy B. Norris, Brenna E. Moorhead
and Timothy C. Perry, Sheppard, Mullin, Richter & Hampton
LLP, San Francisco, California, for APL Co. Pte. Ltd.
OPINION
WALLACE, Senior Circuit Judge:
U.G. Co., Inc. (U.G.) and Kamdar Global LLC (Kamdar)
appeal from the district court’s summary judgment in favor of
APL Co. Pte. Ltd. (APL), based on the district court’s holding
13676 APL CO. PTE. LTD. v. U.G. CO., INC.
that U.G. and Kamdar have indemnification obligations to
APL under the parties’ bill of lading. APL appeals from the
district court’s denial of its motion for attorneys’ fees. The
district court had jurisdiction pursuant to 28 U.S.C. § 1333.
We have jurisdiction over these timely filed appeals pursuant
to 28 U.S.C. § 1291. We affirm the summary judgment of the
district court. We reverse the district court’s denial of attor-
neys’ fees and remand this claim to the district court.
I.
In June 2003, U.G., a California company, sent purchase
orders for 717,120 cans of hair spray and 59,760 cartons of
hair mousse to Kamdar, an Illinois limited liability company.
Kamdar, acting as purchasing agent, forwarded the purchase
orders to UK Aerosols Ltd. (UK Aerosols), an English com-
pany, and purchased the goods from UK Aerosols. Kamdar
authorized UK Aerosols to ship the goods on behalf of U.G.
and Kamdar. Accordingly, UK Aerosols requested that APL,
a Singapore corporation, ship the cargo containing the hair
mousse and hair spray from Istanbul, Turkey to Long Beach,
California.
APL issued a bill of lading governing the terms of carriage.
On the bill of lading, APL is listed as the carrier, UK Aerosols
as the shipper, Kamdar as the “notify party,” and U.G. as the
“also notify party.” UK Aerosols, U.G. and Kamdar each
accepted and endorsed the bill of lading. The bill of lading
contains several provisions at issue in this case. Clause 9 pro-
vides that the “merchant” must indemnify APL for any losses
caused by the manner in which a container had been packed
by a party other than APL or the unsuitability of the goods for
carriage. “Merchant,” as defined in the bill of lading, includes
the shipper, consignee, receiver, holder of the bill of lading,
owner of the cargo or person entitled to the possession of the
cargo or having a present or future interest in the goods for
carriage. Clause 19 provides that express written consent from
APL is required for the carriage of hazardous goods, and
APL CO. PTE. LTD. v. U.G. CO., INC. 13677
regardless of whether the “merchant” is aware of the hazard-
ous nature of the goods, it must indemnify APL for any losses
arising as a consequence of the carriage of such goods. Clause
28(i) of the bill of lading specifies that “[i]nsofar as anything
has not been dealt with by the terms and conditions of the bill
of lading, Singapore law shall apply.”
When the goods arrived in Long Beach, California, APL
discovered that one of the containers in the shipment was
“leaking, dangerous and hazardous.” APL spent approxi-
mately $700,000 in assessing, cleaning up, removing, and
ultimately disposing of the shipment.
APL subsequently filed a complaint against UK Aerosols,
Kamdar, U.G., and Imp-Ex Solutions, LLC (a party later dis-
missed from the action), asserting negligence claims and con-
tract claims, alleging that the defendants had breached their
indemnification obligations under the bill of lading. UK Aero-
sols failed to answer the complaint, and the district court
entered default judgment against it. U.G. and Kamdar moved
for summary judgment, arguing that certain provisions of the
bill of lading were void because they violated provisions of
the Carriage of Goods by Sea Act (COGSA). The district
court held that Clause 9 of the bill of lading would only vio-
late COGSA to the extent that it imposed liability without
fault on a party that was a “shipper,” and because neither
party had alleged that U.G. and Kamdar were “shippers,”
Clause 9 was not necessarily void. The district court also held
that APL might not be able to prevail under Clause 19 if it
was on notice of the hazardous nature of the goods, but that
the issue of whether it had notice was a factual issue in dis-
pute. Consequently, the district court denied summary judg-
ment to U.G. and Kamdar on the contract claims. It did,
however, enter summary judgment for U.G. and Kamdar on
the negligence claims.
Subsequently, U.G. and Kamdar filed a second motion for
summary judgment, and APL filed its first motion for sum-
13678 APL CO. PTE. LTD. v. U.G. CO., INC.
mary judgment. U.G. and Kamdar argued that they were
“shippers,” and therefore, certain provisions of the bill of lad-
ing were void as applied to them. APL, on the other hand,
argued that U.G. and Kamdar were contractually liable under
the bill of lading for the negligence of UK Aerosols, even if
they were not negligent. The district court denied U.G. and
Kamdar’s motion and granted APL’s motion, holding that
U.G. and Kamdar were not “shippers,” and thus not entitled
to the protection of COGSA’s rule against liability without
fault. The district court held that U.G. and Kamdar were con-
tractually liable under Clauses 9 and 19 of the bill of lading.
The district court entered judgment against U.G. and Kamdar
in the amount of $733,963.10.
Following the entry of judgment, APL filed a motion for
attorneys’ fees. APL argued that the bill of lading provides
that the attorneys’ fees issue is governed by Singapore law,
and therefore, the prevailing party is entitled to attorneys’
fees. The district court denied the motion. It held that COGSA
would control the dispute over attorneys’ fees, that federal
law would apply to the issue, and therefore that no attorneys’
fees would be awarded. It also held that APL did not meet its
obligation under Federal Rule of Civil Procedure 44.1 to give
reasonable notice that it would raise the issue concerning Sin-
gapore law.
Subsequently, U.G. and Kamdar filed an appeal from the
district court’s summary judgment in favor of APL, and APL
filed an appeal from the district court’s denial of attorneys’
fees.
We review a district court’s summary judgment de novo.
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.,
408 F.3d 596, 602 (9th Cir. 2005). Questions of statutory con-
struction are reviewed de novo. All Pac. Trading, Inc. v. Ves-
sel M/V Hanjin Yosu, 7 F.3d 1427, 1433 (9th Cir. 1993).
Contract interpretation is also reviewed de novo. Yang Ming
APL CO. PTE. LTD. v. U.G. CO., INC. 13679
Marine Transp. Corp. v. Okamoto Freighters Ltd., 259 F.3d
1086, 1095 (9th Cir. 2001).
U.G. and Kamdar argue that section 1304(3) of COGSA1
prohibits them from being held liable under the bill of lading.
Section 1304(3) provides that “[t]he shipper shall not be
responsible for loss or damage sustained by the carrier or the
ship arising or resulting from any cause without the act, fault,
or neglect of the shipper, his agents, or his servants.” Clause
9 of the bill of lading requires that where the container at
issue was packed by a party other than APL, a “merchant”
must indemnify APL for losses incurred as a result of “the
manner in which the Container has been filled, packed,
stuffed or loaded; or [ ] the unsuitability of the Goods for Car-
riage in [the] Container.” As defined in the bill of lading, the
term “merchant” includes U.G. and Kamdar as parties having
a future right to receive the goods and the owner of the goods,
respectively.
U.G. and Kamdar argue, however, that they are also “ship-
pers” entitled to the protection of section 1304(3) of COGSA.
Therefore, U.G. and Kamdar contend that they are not obli-
gated to indemnify APL for expenses related to the clean-up
of the leaked materials because the leak did not result from
their own acts, fault or neglect; rather the leak was the result
of UK Aerosol’s negligent packing.
The word “shipper” is not defined in COGSA. However,
the COGSA statutory scheme indicates that, for purposes of
section 1304(3), a “shipper” is a party separate and distinct
from other parties to a bill of lading, including, in this case,
the owners of the goods and those who have a future interest
in the goods.
1
COGSA is now included as a note to 46 U.S.C. § 30701. This opinion
cites the pre-2006 section numbers of COGSA as they appeared in the
appendix to Title 46 of the United States Code.
13680 APL CO. PTE. LTD. v. U.G. CO., INC.
[1] First, Congress chose to use different terms in COGSA
when referring to the “shipper” in conjunction with other par-
ties, on the one hand, and the “shipper” alone, on the other.
When interpreting a statute, we abide by the principle that
“[w]here Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello v.
United States, 464 U.S. 16, 23 (1983) (internal quotation
marks and citation omitted). In this case, COGSA defines a
“contract of carriage” to include bills of lading and other simi-
lar documents, which “regulate[ ] the relations between a car-
rier and a holder of the same.” 46 U.S.C. App. § 1301(b)
(2004) (emphasis added). A “holder” of a bill of lading can
be any person in possession of the bill of lading, whether it
be the shipper or the subsequent endorsee of the bill of lading.
U.C.C. § 1-201(b)(21)(B) (2004) (“ ‘Holder’ means . . . the
person in possession of a document of title if the goods are
deliverable either to bearer or to the order of the person in
possession”); see also Interpool Ltd. v. Char Yigh Marine
(Panama) S.A., 890 F.2d 1453, 1459 (9th Cir. 1989) (holding
that “[i]n maritime commercial transactions, the Uniform
Commercial Code is taken as indicative of the federal com-
mon law of admiralty”). Thus, if Congress had intended sec-
tion 1304(3) to protect both the shipper and subsequent
endorsees of the bill of lading, it could have used the term
“holder” as it did in section 1301(b).
[2] Second, expanding the definition of “shipper” to
include multiple parties to the bill of lading would undermine
the underlying policy goals of COGSA. For example,
COGSA mandates that, “on demand of the shipper,” the car-
rier must “issue to the shipper a bill of lading.” 46 U.S.C.
App. § 1303(3) (2004). A bill of lading evidences the receipt
of goods for shipment. U.C.C. § 1-201(b)(6). It also operates
as a document of title. See Pollard v. Vinton, 105 U.S. 7, 8
(1881) (“In the hands of the holder [the bill of lading] is evi-
dence of ownership . . . of the property mentioned in it, and
APL CO. PTE. LTD. v. U.G. CO., INC. 13681
of the right to receive said property at the place of delivery”).
If each party to the bill of lading, including both the named
“shipper” and the “notify parties,” was entitled to demand that
the carrier issue a bill of lading, multiple parties could possess
an original bill of lading. To do so would create competing
chains of title, undermining COGSA’s goal of promoting pre-
dictability in the implementation of sea-carriage rules. Sena-
tor Linie Gmbh & Co. Kg v. Sunway Line, Inc., 291 F.3d 145,
148 (2d Cir. 2002) (holding that Congress’ goal with COGSA
was to foster “international uniformity in sea-carriage rules
and allocating risk between shippers and carriers in a manner
that is consistent and predictable”).
[3] Third, the use of the term “shipper” in other COGSA
provisions implies that a shipper is the entity that delivers the
goods to the carrier, not the eventual receiver of the goods.
Section 1303(5) provides that “[t]he shipper shall be deemed
to have guaranteed to the carrier the accuracy at the time of
shipment of the marks, number, quantity and weight, as fur-
nished by him.” Therefore, the shipper is the entity that pro-
vides the particulars regarding the shipment. Section 1303(5)
also requires the shipper to indemnify the carrier against
losses resulting from “inaccuracies” in the description of the
marks, number, quantity and weight of the shipment. A practi-
cal reading of this statute dictates that the entity that delivers
the goods to the carrier and provides the particulars is the
“shipper” because the entity that ships the goods is the party
most able to verify the specifics of the shipment.
Significantly, section 1303(5) also specifies that “[t]he right
of the carrier to such indemnity shall in no way limit his
responsibility and liability under the contract of carriage to
any person other than the shipper.” Id. (emphasis added). If
Congress had intended all parties to the bill of lading (includ-
ing the owners and those with a future interest in the goods)
to be included in the definition of “shipper,” there would be
no need to include a provision making the carrier liable to
parties to the bill of lading other than the “shipper” because
13682 APL CO. PTE. LTD. v. U.G. CO., INC.
there would be no other parties to whom the carrier would be
liable.
U.G. and Kamdar argue that the definition of “shipper”
from the Shipping Act of 1984 (Shipping Act) should supply
the definition of “shipper” under COGSA. Under the Ship-
ping Act, a “shipper” includes “a cargo owner” or the “person
to whom delivery is to be made.” 46 U.S.C. § 40102(22).
However, there is no indication that Congress intended to
merge the definition of “shipper” from the Shipping Act into
COGSA. Accord United States ex rel. Chicago, New York &
Boston Refrigerator Co. v. Interstate Commerce Comm’n, 265
U.S. 292, 295 (1924) (“[B]ecause words used in one statute
have a particular meaning they do not necessarily denote an
identical meaning when used in another and different stat-
ute”). Moreover, as discussed above, to do so would be incon-
sistent with several provisions within COGSA.
[4] Case law offers different definitions for “shipper”
depending on the context. Compare Logistics Mgmt., Inc. v.
One (1) Pyramid Tent Arena, 86 F.3d 908, 911 n.2 (9th Cir.
1996) (relying on an admiralty law treatise’s definition of
“shipper” as “the party who supplies the goods to be trans-
ported”) with Compagnie Generale Transatlantique v. Am.
Tobacco Co., 31 F.2d 663, 667 (2d Cir. 1929) (relying on the
Shipping Act’s definition of “shipper” as the “person for
whose account the carriage of the goods is undertaken”).
There is no need for us to articulate a precise definition of
“shipper” to fill in the definitional gap in COGSA. It is clear,
based on other provisions of COGSA’s statutory scheme, that
U.G. and Kamdar, parties not listed as the “shipper” on the
bill of lading, do not qualify as “shippers” for purposes of sec-
tion 1304(3). For those reasons, we hold that section 1304(3)
of COGSA does not shield them from liability under the bill
of lading.
II.
[5] U.G. and Kamdar next argue that they are not obligated
to indemnify APL under Clauses 9 and 19 of the bill of lading
APL CO. PTE. LTD. v. U.G. CO., INC. 13683
because those clauses are void under section 1303(8) of
COGSA. Section 1303(8) provides that:
“[a]ny clause . . . in a contract of carriage relieving
the carrier or the ship from liability for loss or dam-
age to or in connection with the goods, arising from
negligence, fault, or failure in the duties and obliga-
tions provided in this section, or lessening such lia-
bility otherwise than as provided in this chapter,
shall be null and void and of no effect.”
The question before us is whether either Clause 9 or Clause
19 of the bill of lading impermissibly lessens APL’s liability
for loss or damage to or in connection with the goods trans-
ported; if so, the clauses are void.
U.G. and Kamdar first argue that Clause 9 is void under
section 1303(8) to the extent that it “lessens APL’s liability”
by violating section 1304(3). As discussed above, section
1304(3) of COGSA prevents a shipper from being responsible
for loss or damage sustained by a carrier without “the act,
fault, or neglect of the shipper, his agent, or his servants.”
Clause 9 of the bill of lading states that if a container not
packed by APL causes loss, damage, or liability because of
the manner in which the container was packed or loaded, the
merchants (as defined in the bill of lading) must indemnify
the carrier for the loss.
[6] We conclude that Clause 9 of the bill of lading does not
violate section 1304(3). Clause 9 would violate section
1304(3) if it imposed strict liability on the shipper. But in
order for liability under Clause 9 to set in, a person or entity
other than the carrier (most likely the shipper) must have
acted negligently or packed the container in a manner that
would cause damage. Thus, it does not impermissibly lessen
APL’s liability. Furthermore, to the extent that U.G. and
Kamdar also argue that Clause 9 relieves APL of liability for
loss caused by APL’s own negligence, they are incorrect. The
13684 APL CO. PTE. LTD. v. U.G. CO., INC.
clause is not triggered if APL packed the containers that
caused the damage. Therefore, the clause is not void under
section 1303(8).
Clause 9 in this case is readily distinguishable from the
clause at issue in a district court case cited by U.G. and Kam-
dar: Excel Shipping Corp. v. Seatrain Int’l S.A., 584 F. Supp.
734, 747-48 (E.D.N.Y. 1984). In that case, the bill of lading
included a clause stating that “ ‘the shipper, the consignee and
the goods, jointly and severally, shall be liable for, and shall
indemnify [the carrier] and the ship against’ damages caused
by cargo tendered for carriage.” Id. at 747. There was no pro-
vision exempting the shipper from liability which stemmed
from the carrier’s negligence. It therefore directly violates
section 1304(3) of COGSA by making the shipper liable for
acts caused by any party. Id. at 748. In Clause 9 at issue here,
on the other hand, the parties cannot be held liable for any
negligence on the part of APL in packing and shipping the
goods.
[7] For the above reasons, Clause 9 of the bill of lading
does not violate section 1304(3), and it does not attempt to
relieve APL of APL’s liability for loss or damage to goods
due to its negligence. Clause 9 is therefore valid. U.G. and
Kamdar do not dispute that they fit within the definition of
“merchant” under the bill of lading, and under Clause 9, the
“merchants” must indemnify APL for losses caused by the
manner in which a shipper-packed container was packed or
the unsuitability of goods for carriage. Thus, U.G. and Kam-
dar are contractually bound to indemnify APL under Clause
9.
U.G. and Kamdar also argue that Clause 19 of the bill of
lading is void under section 1303(8) because the clause vio-
lates section 1304(6) of COGSA. Because we hold they are
liable under Clause 9, it is unnecessary for us to reach the
alternative liability issue raised under Clause 19.
APL CO. PTE. LTD. v. U.G. CO., INC. 13685
III.
We review a district court’s determination that a party did
not give reasonable notice of its intent to raise an issue about
a foreign country’s law for abuse of discretion. DP Aviation
v. Smiths Indus. Aerospace & Defense Sys. Ltd., 268 F.3d
829, 846 (9th Cir. 2001). We review the district court’s analy-
sis of the Federal Rules of Civil Procedure de novo. Id. We
review de novo a district court’s decision concerning the
appropriate choice of law. Id.
After the district court entered judgment in favor of APL,
APL filed a motion for attorneys’ fees, arguing that attorneys’
fees should be awarded in accordance with Singapore law.
Clause 28(i) of the bill of lading provides that “[i]nsofar as
anything has not been dealt with by the terms and conditions
of the bill of lading, Singapore law shall apply.” APL argues
that this provision requires application of Singapore law as to
attorneys’ fees, which are not provided for in the bill of lad-
ing. APL also contends that Singapore law follows the
English rule, according to which attorneys’ fees are awarded
to the prevailing party.
The district court denied APL’s motion for attorneys’ fees
on three grounds: (A) APL did not provide reasonable notice
pursuant to Federal Rule of Civil Procedure 44.1 of its intent
to raise Singapore law as to the attorneys’ fees issue; (B) the
governing choice-of-law provision in the bill of lading is
COGSA, and therefore, the American rule should apply to the
attorneys’ fees issue; and (C) APL is estopped from invoking
Singapore law because it relied heavily on COGSA through-
out the litigation. We address each ground in turn.
A.
[8] The first issue is whether APL gave reasonable notice
of its intent to invoke Singapore law. Pursuant to Federal Rule
of Civil Procedure 44.1, “[a] party who intends to raise an
13686 APL CO. PTE. LTD. v. U.G. CO., INC.
issue about a foreign country’s law must give notice by a
pleading or other writing.” The primary purpose of this notice
requirement is to avoid unfairly surprising opposing parties,
and therefore, “[i]t is only fair to provide notice of potential
application of foreign law as early as is practicable and, in any
event, at a time that is reasonable in light of the interests of
all parties and the court.” DP Aviation, 268 F.3d at 847. The
Advisory Committee Notes to Rule 44.1 delineate several fac-
tors to consider in determining whether the notice of the for-
eign law issue is “reasonable”: (1) the stage which the case
had reached at the time of the notice; (2) the reason proffered
by the party for its failure to give earlier notice; and (3) the
importance to the case as a whole of the issue of foreign law.
Fed. R. Civ. P. 44.1 Advisory Committee’s Note; DP Avia-
tion, 268 F.3d at 847. We evaluate the reasonableness of
APL’s notice of its intent to invoke Singapore law under these
factors.
At the summary judgment stage of the proceeding, APL
advised the court that it did not waive the right to contend that
Singapore law governs the bill of lading. In a footnote to its
opposition to U.G. and Kamdar’s first motion for summary
judgment, APL asserted that it reserved the right to contend
that Singapore law governed the bill of lading. In its motion
for summary judgment, APL stated, “by arguing U.S. law in
this motion, APL does not waive the right to contend Singa-
pore law applies to other issues in the case.” Of course, attor-
neys’ fees were not at issue in the judgment on the merits and
APL did not invoke Singapore law during the summary judg-
ment portion of the proceedings before the district court. Fol-
lowing judgment on the merits, APL filed its motion for
attorneys’ fees, and at that point, specifically alleged that Sin-
gapore law applies to attorneys’ fees.
[9] First, we consider the stage which the case had reached
at the time of notice. Fed. R. Civ. P. 44.1 Advisory Commit-
tee’s Note. In general, “[a]bsent extenuating circumstances,
notice of issues of foreign law that reasonably would be
APL CO. PTE. LTD. v. U.G. CO., INC. 13687
expected to be part of the proceedings should be provided in
the pretrial conference.” DP Aviation, 268 F.3d at 848. How-
ever, attorneys’ fees were not an issue in the merits of the
summary judgment requests. APL maintained throughout the
proceedings that Singapore law might apply to other issues
under the bill of lading unrelated to the merits of the
requested summary judgments. Attorneys’ fees only became
an issue after summary judgment had been entered. Therefore
the issue of foreign law was not “reasonably . . . expected to
be part of the proceedings” earlier in the case, and it was not
at issue in the summary judgment proceedings. See id. The
court and the opposing parties were on notice that Singapore
law might be raised in future motions. APL timely invoked
foreign law as to attorneys’ fees at the first opportunity when
the issue became material: in the motion for attorneys’ fees.
Second, we evaluate the reason proffered by the party for
the failure to give earlier notice. Fed. R. Civ. P. 44.1 Advisory
Committee’s Note. As discussed above, there was no need for
APL to give notice that it would specifically invoke Singa-
pore law as to attorneys’ fees until that became an issue
before the court. The parties were on notice that Singapore
law might be invoked, and APL gave more specific notice
when the post-judgment issue came before the court.
Third, we consider the importance to the case as a whole
on the issue of foreign law. The district court found that the
delay in raising the foreign law issue was “highly prejudicial”
to the defendants because APL could have “reasonably antici-
pated that attorneys’ fees would be an issue if liability was
resolved in its favor,” and earlier disclosure would have
afforded defendants time to research and mount a defense as
to Singapore law. However, the issue of choice of law as to
attorneys’ fees was an isolated aspect of the case, not touch-
ing upon other areas, including the summary judgment
motions. Further, the issue is not particularly complicated; to
mount a successful defense would not require extensive or
time-consuming research or discovery. Indeed, the parties
13688 APL CO. PTE. LTD. v. U.G. CO., INC.
were alerted to possible relevance of Singapore law long prior
to the filing of the fee motion.
[10] For the above reasons, we hold that the district court
abused its discretion in holding that APL failed to give rea-
sonable notice under Rule 44.1.
B.
The next reason used by the district court to deny APL’s
motion for attorneys’ fees was because it held that COGSA
was the governing choice-of-law provision in the bill of lad-
ing. Based on its holding that COGSA governs the bill of lad-
ing, the district court chose to apply United States admiralty
law to the attorneys’ fees issue. Federal law generally does
not permit the prevailing party in an admiralty case to recover
attorneys’ fees. See B.P. N. Am. Trading, Inc. v. Vessel Pana-
max Nova, 784 F.2d 975, 977 (9th Cir. 1986).
There are two choice-of-law clauses we should consider.
Clause 6 of the bill of lading specifies that “[f]rom loading of
the Goods onto the Vessel until discharge of the Goods from
the Vessel, the Carrier’s responsibility shall be subject to the
provisions of any legislation compulsorily applicable to this
Bill of Lading,” including COGSA, the provisions of which
“shall apply on all shipments to or from the United States
whether compulsorily available or not.” Clause 28(i) specifies
that “[i]nsofar as anything has not been dealt with by the
terms and conditions of this Bill of Lading, Singapore law
shall apply. Singapore law shall in any event apply in inter-
preting the terms and conditions hereof.” No provision of the
bill of lading refers to the award of attorneys’ fees or which
law shall govern the award of attorneys’ fees.
The district court held that Clause 6 of the bill of lading
creates an ambiguity as to the scope of Clause 28. It is true
that any ambiguity in a bill of lading is strictly construed
against the carrier, and ambiguity as to a choice-of-law provi-
APL CO. PTE. LTD. v. U.G. CO., INC. 13689
sion is construed against the interest of the party that drafted
it. Chan v. Soc’y Expeditions, Inc., 123 F.3d 1287, 1296 (9th
Cir. 1997); All Pac. Trading, Inc., 7 F.3d at 1431. We now
determine whether the district court correctly held there was
an ambiguity caused by Clause 6.
[11] COGSA is silent as to attorneys’ fees: it neither autho-
rizes their award, nor prohibits fees. See Noritake Co., Inc. v.
M/V Hellenic Champion, 627 F.2d 724, 730 & 730 n.5 (5th
Cir. 1980) (stating that Congress did not explicitly authorize
the award of attorneys’ fees to the prevailing party in an
action based on COGSA, then explaining two judicially-
created exceptions where attorneys’ fees are awarded in suits
based on COGSA). Additionally, the parties do not contend
that Clause 28 is void under any provision of COGSA.
[12] Because the bill of lading does not expressly deal with
attorneys’ fees, COGSA is silent as to attorneys’ fees, and the
award of attorneys’ fees does not contravene any other provi-
sion of COGSA, attorneys’ fees thus become an issue that
was not “dealt with” in the bill of lading. It therefore falls
squarely in the domain of Clause 28, which states that Singa-
pore law shall apply to issues not “dealt with” in the bill of
lading. Singapore law provides that, under certain circum-
stances, the common law of England is in force in Singapore.
Application of English Law Act § 3(1) (Sing.). Under the
English rule, attorneys’ fees are generally awarded to the pre-
vailing party. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240, 247 (1975).
In the face of COGSA’s silence as to attorneys’ fees, the
district court erroneously substituted the general American
rule in admiralty cases that provides that, “[a]bsent some stat-
utory authorization, the prevailing party in an admiralty case
is generally not entitled to an award for attorneys’ fees.”
Noritake, 627 F.2d at 730; see also Alyeska Pipeline, 421 U.S.
at 247. We have held that “[i]n the absence of a contractual
choice-of-law clause, federal courts sitting in admiralty apply
13690 APL CO. PTE. LTD. v. U.G. CO., INC.
federal maritime choice-of-law principles derived from the
Supreme Court’s decision in Lauritzen v. Larsen, 345 U.S.
571 . . . (1953), and its progeny.” Chan, 123 F.3d at 1296.
However, “where the parties specify in their contractual
agreement which law will apply, admiralty courts will gener-
ally give effect to that choice.” Id. at 1296-97. The parties in
this case selected Singapore law to govern issues not other-
wise covered by the bill of lading. The district court erred in
substituting federal law to govern all provisions of the bill of
lading merely because COGSA is federal law.
U.G. and Kamdar also argue that Clause 28(iii), which
states that if “Carriage includes Carriage to, from or through
a port in the United States of America, the Merchant may
refer any claim or dispute to the United States District Court
for the Southern District of New York in accordance with the
laws of the United States,” dictates that the American Rule of
attorneys’ fees should apply in this case. This statement is not
a choice-of-law provision. The bill of lading explicitly states
that “Singapore law shall in any event apply in interpreting
the terms and conditions hereof.” The reference to United
States law in Clause 28(iii) refers only to the law required to
refer a claim to the Southern District of New York, and is not
the choice of law that governs the bill of lading.
[13] For the above reasons, we hold that by the terms of the
bill of lading, Singapore law is the parties’ choice of law as
to attorneys’ fees.
C.
[14] Finally, the district court held that APL is estopped
from invoking Singapore law because it relied heavily on
COGSA throughout the litigation. The doctrine of judicial
estoppel may be invoked to prevent a party “from taking
inconsistent positions in the same litigation.” Yanez v. United
States, 989 F.2d 323, 326 (9th Cir. 1993), quoting Morris v.
California, 966 F.2d 448, 452-53 (9th Cir. 1991), cert. denied,
APL CO. PTE. LTD. v. U.G. CO., INC. 13691
506 U.S. 831 (1992). But APL did not take inconsistent posi-
tions in this litigation. As discussed above, COGSA governed
the bill of lading, and anything not controlled by COGSA or
otherwise “dealt with” in the bill of lading is governed by Sin-
gapore law. COGSA dictated many of the rights and duties
that were at issue in determining liability under the bill of lad-
ing. COGSA, however, did not supply the answer to the ques-
tion of attorneys’ fees; consequently, APL is entitled to rely
on the contractual choice-of-law provision in the bill of lad-
ing.
For the above reasons, we affirm the summary judgment
entered by the district court, but reverse the district court’s
determination that Singapore law does not apply for the deter-
mination of attorneys’ fees. We therefore remand to the dis-
trict court the attorneys’ fees issue.
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART.