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APL Co. v. U.G. Co. (9th Cir. - Sept. 21, 2009)

By Shaun Martin

Sometimes politics matters. Other times, not so much. Or at all.

The panel here consists of Judges Wallace, Thomas and Bybee. So two strong conservatives on the topside. It's reviewing an opinion by Judge Patel of the Northern District. A solid leftie. So if we're talking about civil rights, or constitutional law, or immigration, or pretty much any other hot-button topic, you'd expect some fireworks.

But, instead, this case is about contractual indemnification: Who's responsible for when U.G. Co. (in California) orders 717,120 cans of hair spray and 59,760 cartons of hair mousse and in transit from Istanbul to Long Beach one of the containers leaked and created a huge mess? The answer to this question relies on the particular invoice and on interpreting who's the "shipper" under the Carriage of Goods by Sea Act (COGSA).

For that dispute, politics matter not in the slightest. Indeed, not only is the panel unanimous on the merits, but it also affirms Judge Patel. So, as Coca-Cola would perhaps put it, the world now sings in perfect harmony, at least as concerns this particular dispute. With the exception of the losing lawyers, of course.

Actually, there's a residual portion of the case as which the Ninth Circuit reverses Judge Patel and that's somewhat doctrinally important as well. It's about attorney's fees and Singapore law. Yeah, I know. That was my initial reaction too. "Like I care." But the central issue relates to the application of Rule 44.1, which requires parties to give advance notice of any reliance upon foreign law -- a rule that's not too well-known and as to which there's not abundant precedent. Here, the losing party was constantly arguing the case (summary judgment motions, etc.) under COGSA -- a federal law -- but once they won, they said "Oh, well as to that issue, Singapore law applies, so give us fees even though federal law doesn't provide for 'em." Judge Patel said that's too late, but the Ninth Circuit reverses.

According to Judge Wallace, it was sufficient for APL to include a footnote or two in their summary judgment papers that said that even though it was arguing for federal law to apply, it "reserved the right" to argue that Singapore law applied as to unspecified "other issues." Although Rule 44.1 generally requires earlier -- and pretrial, not post-decision -- notice, because attorney fee disputes necessarily arise only after the merits are resolved, there's no Rule 44.1 violation here. Since Singapore law doesn't conflict with COGSA (which is silent) on this issue, the Ninth Circuit remands for APL to try to recover enough attorney's fees to buy the whole world a Coke. Good luck on that. And thank you, Singapore.

Full post as published by California Appellate Report on September 21, 2009 (boomark / email).