The opinion
March 31, 2025
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
COLFLETAR SAS and § CIVIL ACTION NO
CTR GROUP SA, § 4:22-cv-04518
Plaintiffs, §
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
THOMPSON PIPE §
GROUP INC, et al, §
Defendants. §
ORDER AND OPINION
ON MOTIONS FOR SUMMARY JUDGMENT
The motion by Plaintiffs Colfletar SAS and CTR Group
SA for summary judgment as to the counterclaims asserted
against them is denied. Dkt 64.
The motion by Defendants Thomas Pipe Group, Inc,
and TPG Pressure, Inc, for partial summary judgment as
to certain affirmative defenses asserted against their
counterclaims is granted. Dkt 62.
1. Background
Thompson Pipe is an industrial pipe distributor.
Colfletar is a provider of transportation services, including
services as a freight forwarder. Thompson Pipe hired
Colfletar to facilitate the movement of glass-reinforced
plastic pipes from Turkey to Houston, Texas, and then
onward to job sites in Texas. Dkts 1 at ¶9 (complaint).
Thompson Pipe purchased the subject pipe from a
Turkish pipe manufacturer referred to as Subor. Dkts
64-14 at 15:2–24 (Heaton deposition) & Dkt 64-1 (exclusive
distribution agreement). On behalf of Thompson Pipe,
Colfletar entered into a charter party with an entity
referred to as Spliethoff to transport the pipe and fittings
from Turkey to Houston. Dkt 1 at 9; see also Dkt 62-2 at 2
(seaway bill, identifying Subor as “shipper,” Thompson
Pipe as “consignee,” and Spliethoff as “carrier’). A charter
party is a contract for the use or lease of a vessel subject to
general maritime law. Thomas J. Schoenbaum, 2
Admiralty and Maritime Law §11:1 at 2 (6th ed 2018).
Thompson and Colfletar had worked together on two
prior occasions. The first was in late 2021 regarding a
shipment from Colombia to the United States. The other
was a shipment in April 2022 regarding the same type of
pipe from Turkey to the United States. Dkt 64-16 at 29:7—
31:20 (Lloreda deposition). That latter agreement also
involved transporting the pipe from Subor’s facility in
Turkey. Idat 30:7-17.
The terms of Colfletar’s offer as accepted by Thompson
Pipe stated:
e Offer includes: Inland transportation from factory facilities to Derince port, port
charges at Derince, customs at Derince, load ops on board vessel, lashing materials,
secure works on board, discharge at Houston, port charges at Houston, Inland
transportation from Houston port to Conrad, TX, Inland from Conrad, TX to job site,
customs at USA; Colfletar’s Supervision.
e We as COLFLETAR will issue a report once Pipes arrive to Derince Port, and also a
report once pipes arrive to Houston port and once arrive to Job site.
« We as COLFLETAR will follow all the operation in all the supply chain, from receive
the pipes at Subor’s facilities, until deliver the pipes at Job site.
¢ Offer does not include: duties at USA, discharge the pipes at Conrad from truck to
floor, load the pipes at Conrad from floor to trucks, discharge the pipes at Job site from
trucks to floor.
Ibid (emphasis original).
Subor packed the shipment in wood packaging
material. Dkt 64-14 at 25:16—-26:11 (Heaton deposition).
Federal law and regulation require that such wood have
proper treatment, packaging material, and marking prior
to entry into the United States. See 7 USC §7701, et seq;
7 CFR §319.40-3(b)(8). Given the shipment’s origin in
Turkey, there was also an independent obligation to ensure
that the wood was both properly treated and marked under
what’s known as the Phytosanitary Measures 15, to which
Turkey is a signatory. See Dkt 64 at 6. The wood-packaging
material was indeed stamped, but the markings were later
assessed to be likely fraudulent. Dkt 65-1 at 4 (Customs
and Border Patrol report).
Colfletar arranged for the shipment to travel by truck
from Subor’s facility to a port in Turkey. Colfletar
maintained an in-person supervisor to provide Thompson
Pipe updates of the shipment, including photographs of the
pipe and its wood packaging. It then facilitated the
shipment’s loading onto an overseas freighter. The
freighter then set out from Turkey in September 2022 and
arrived in Houston the following month. See generally
Dkts 62-1 at 3–4 (shipment correspondence), 64-14 at 44:8–
15 (Heaton deposition), 64-16 at 58:7–24 (Lloreda
deposition) & 65-1 at 3 (CBP report).
Port authorities in the United States initially cleared
the shipment for entry on October 14, 2022. Dkt 64-7
(notification of initial customs clearance); see also Dkt 65-1
at 3 (CBP report). And some of the shipment moved onward
to Thompson Pipe job sites after that initial clearance.
Dkt 64-7 at 3–4 (email correspondence).
But Customs and Border Patrol in Houston inspected
the remaining cargo on October 30th and discovered the
presence of timber pests. These included insects and snails
which had bored within the wood, while also being present
on the surface. Dkts 64-8 at 4–5 (Russo report) & 65-1 at 2–
3 (CBP report). Colfletar concedes that it did not “identify
the presence of insects or insect infestation in the packaged
Cargo or in the WPM” at any point during the shipping
process. Dkt 64 at 8.
This infestation triggered an Emergency Action
Notification mandating that the entire shipment be re-
exported. Dkt 62-3 at 2 (EAN 436494). This required
Thompson Pipe to return all of the pipe that had delivered
to its job sites for reloading on a ship in the port of Houston.
Dkt 64-14 at 88:18–89:5 (Heaton deposition). The US
Department of Agriculture also issued a later EAN, which
noted that the shipment lacked the proper markings with
respect to the International Plant Protection Convention as
required under 7 CFR §319.40, and that the infestation
indicated that the wood was infested prior to being loaded
on the vessel. Dkts 62-4 (EAN 441669) & 56-2 at ¶37
(Tucker report).
Colfletar arranged for the shipment to be fumigated off
the coast of Altamira, Mexico. Dkt 64-16 at 82:10–84:1
(Lloreda deposition). Colfletar arranged and supervised
the fumigation service. Id at 98:22–99:6. The parties agree
that CBP and USDA both advised against onboard
fumigation due to poor results, but they differ regarding
the nature of the authorization to fumigate the shipment
onboard the vessel. Dkts 36 at 18 & 64 at 10–11; see also
Dkt 64-10 (email discussing USDA fumigation standards).
The shipment returned to Houston in late November,
only to again be found with “wood boring pests.” Dkt 64-8
at 8 (Russo report); see also Dkt 62-4 (EAN 443343). This
required a second re-export and fumigation of the
shipment. Dkt 64-14 at 109:24–110:9) (Heaton deposition).
Colfletar filed a complaint against Thompson Pipe and
the shipment in rem upon next return to the Port of
Houston, seeking payment for its services. Dkt 1 at ¶¶7–8,
16–18. Colfletar also sought a writ of attachment, although
it later agreed to release the shipment to Thompson Pipe.
Dkts 4, 12 & 13.
Thompson Pipe filed a counterclaim against Colfletar
for breach of maritime contract and negligence. Dkt 36
at 20–23. It claims that it suffered “significant damages
with respect to this shipment of pipes” due to breach of
contract and negligence by Colfletar, including delays,
fumigation costs, storage and handling charges, additional
transportation costs (both by sea and land), and
government penalties. Dkt 62 at 3–4. Thompson Pipe also
filed a motion for countersecurity, which was denied.
Dkts 37 & 44.
The parties both filed motions for summary judgment
with respect to the counterclaims asserted by Thompson
Pipe. Dkts 62 & 64.
2. Legal standard
Rule 56(a) of the Federal Rules of Civil Procedure
requires a court to enter summary judgment when the
movant establishes that “there is no genuine dispute as to
any material fact and the movant is entitled to judgment
as a matter of law.” A fact is material if it “might affect the
outcome of the suit under the governing law.” Sulzer
Carbomedics Inc v Oregon Cardio-Devices Inc, 257 F3d 449,
456 (5th Cir 2001), quoting Anderson v Liberty Lobby Inc,
477 US 242, 248 (1986). And a dispute is genuine if the
“evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Royal v CCC & R Tres
Arboles LLC, 736 F3d 396, 400 (5th Cir 2013),
quoting Anderson, 477 US at 248.
The summary judgment stage doesn’t involve weighing
the evidence or determining the truth of the matter. The
task is solely to determine whether a genuine issue exists
that would allow a reasonable jury to return a verdict for
the nonmoving party. Smith v Harris County, 956 F3d 311,
316 (5th Cir 2020). Disputed factual issues must be
resolved in favor of the nonmoving party. Little v Liquid
Air Corp, 37 F3d 1069, 1075 (5th Cir 1994). All reasonable
inferences must also be drawn in the light most favorable
to the nonmoving party. Connors v Graves, 538 F3d 373,
376 (5th Cir 2008).
3. Analysis
Addressed first is the motion by Colfletar for summary
judgment on the counterclaims brought by Thompson Pipe
for breach of maritime contract, negligence, and damages.
Dkt 64. Discussed next is the motion by Thompson Pipe for
partial summary judgment as to several affirmative
defenses asserted by Colfletar. Dkt 62.
a. Counterclaims by Thompson Pipe
Juries are instructed that common sense plays a role in
assessing the evidence at trial. For example, Pattern
Charge 1.08 of the Pattern Jury Instructions (Criminal
Cases) for the Fifth Circuit provides, with emphasis:
In considering the evidence, you are
permitted to draw such reasonable
inferences from the testimony and exhibits
as you feel are justified in the light of
common experience. In other words, you
may make deductions and reach
conclusions that reason and common sense
lead you to draw from the facts which have
been established by the evidence.
See also Pattern Charge 3.3 of the Pattern Jury
Instructions (Civil Cases) for the Fifth Circuit:
“Circumstantial evidence is evidence that proves a fact
from which you can logically conclude another fact exists.”
The same pertains on summary judgment, just as it
will to the extent that this particular action later proceeds
by way of bench trial. In short, the district court is equally
able to employ its common sense, drawing logical
conclusions based on reason. American Communications
Association, CIO v Douds, 339 US 382, 411 (1950). And
common sense here requires denial of Colfletar’s motion for
summary judgment.
As to the claim for breach of maritime contract,
admiralty law applies to all maritime contract claims.
Schoenbaum, 1 Admiralty & Maritime Law 5:1 at 285.
Basic principles of maritime contract interpretation
include that (i) contracts are to be construed by the text’s
plain language, and terms are to be given their ordinary
meaning, (ii) terms shouldn’t be interpreted such that
they’re rendered “meaningless or superfluous,” and
(iii) extrinsic evidence should only be considered if the
plain language is ambiguous.” Id at 285–86.
Colfletar contends that it violated no contractual duties
to Thompson Pipe. Dkt 64 at 13–14. Missing is any citation
to an exception allowing it to deliver a pest-infested
shipment specifically prohibited by federal law. To the
extent that it argues it complied with duties to “properly
inspect” the shipment and to provide for its “supervision,”
common sense suggests that a genuine dispute of material
fact obviously exists. Compare Dkt 64 at 13–14 (stating
agreement didn’t explicitly obligate it to inspect for
infestation), with Dkt 65 at 18–19 (terms such as
“supervision” at “customs at the USA” reasonably meant
Colfletar had duty to inspect for compliance with customs
standards). This includes evidence provided by Thompson
Pipe that competent “supervision” would have discerned
that (i) the WPM markings were improperly stamped,
(ii) the wood contained insect exit holes, and (iii) snails
were present on the surface of the wood. See 56-2 at 9–10
(Tucker report); see also Dkts 65-1 (CBP report noting
same) & 65-2 (photo of snail).
As to the claim for negligence, principles of maritime
negligence apply, as opposed to those of common-law
negligence. Schoenbaum, 1 Admiralty & Maritime Law
§5:4 at 290. But the elements of maritime negligence are
“essentially the same as land-based negligence under the
common law,” and include (i) the existence of a legal duty,
(ii) a “breach of that duty by engaging in conduct that falls
below the applicable standard or norm,” (iii) the breach
reasonably caused a resulting injury, and (iv) the plaintiff
suffered loss, injury, or damage. Id at 292.
Colfletar asserts that it had no duty to conduct any
inspection. But it argues in such respect only that the
contract itself imposed no such obligation. Dkt 64 at 20–21.
That isn’t true, or at least as noted above, a disputed issue
of fact exists on the point. And beyond the contract,
Colfletar knowingly undertook duties that would bring its
work under purview of federal law. It thus assumed a duty
to do so reasonably and with due care.
Colfletar also argues that it couldn’t have discovered
the infestation even in the exercise of due care. Dkt 64
at 21–22. Common sense leads one to wonder how visible
snails and exit holes were beyond its competence, if it
indeed cared about doing its job properly. See Dkts 65-1
at 4 (CBP report) & 65-2 at 2 (photo of snail).
As to damages, Colfletar argues that a quantity
discount negotiated by Thompson Pipe as part of its
settlement agreement with Subor “on all future purchases”
somehow constitutes “double recovery” if it obtains
damages from itself. Dkt 64 at 23. How this results in
double recovery isn’t clear, much less undisputed on this
record. Such argument will be considered with damages at
trial, if then appropriate. But see Baldwin v Mortgage
Electronic Registration System, Inc, 2020 WL 4227591, at
*3 (SD Tex) (third party isn’t contractual beneficiary unless
agreement “clearly and fully” expresses intention to confer
benefit).
The motion for summary judgment by Colfletar will be
denied in all respects.
b. Affirmative defenses by Colfletar
Colfletar asserts the following affirmative defenses:
o 33: damages are due to “own acts, omissions,
and/or negligence” of Thompson Pipe;
o 35: intervening, superseding, or independent
causes;
o 36: failure to mitigate damages;
o 37: failure to join indispensable party;
o 38: “defenses, limitations, and conditions
precedent” under the Federal Rules of Civil
Procedure;
o 44: statute of limitations, waiver, estoppel,
voluntary payment, accord and satisfaction,
ratification, consent, settlement and release,
merger, novation, acquiescence, discharge, and
laches; and
o 45: entitlement to contribution and indemnity.
Dkt 24 at 5–7.
Colfletar failed to respond to the motion by Thompson
Pipe seeking dismissal of these defenses. This is “taken as
notice of no opposition.” Local Rule 7.4. The motion for
summary judgment will thus be granted, and those
affirmative defenses will be dismissed.
Colfletar also asserts these other affirmative defenses:
o 39: defenses, limitations and exclusions under
relevant shipping documents and applicable
statutes;
o 40: defenses under bill of lading;
o 41: damages cap under United States Carriage
of Goods by Sea Act; and
o 43: defenses under whatever written
instrument “is found to ultimately constitute
the contract of carriage.”
Dkt 24 at 5–7.
As to these, Thompson Pipe asserts that Colfletar
cannot qualify so as to be covered under the liability
exceptions of the Carriage of Goods by Sea Act, an
uncodified statute previously codified at 46 USC app
§1312. Dkt 62 at 8–9. It argues that Colfletar isn’t a carrier
or a qualified subcontractor of one, and didn’t otherwise
perform any qualifying carrier duties. Id at 8–10.
COGSA applies to “all contracts for carriage of goods
by sea to or from ports of the United States in foreign
trade,” while defining such trade as “the transportation of
goods between ports of the United States and ports of
foreign countries.” COGSA §13. Overall, it serves to define
the relationship, rights, and duties of shippers and carriers
by outlining carrier obligations, ensuring carriers cannot
be contracted out of obligations, and affording carriers
liability protection. Schoenbaum, 1 Admiralty & Maritime
Law §10:16 at 952. COGSA protections are triggered when
a carrier issues a bill of lading. Id at 953. These cover
carriers and subcarriers during the time the cargo is at sea,
although they may be contracted to cover during land
transportation. Ibid; Norfolk Southern Railway Co v Kirby,
543 US 14, 29 (2004).
Colfletar argues that it should be considered a carrier
because, in its view, the Fifth Circuit determines carriers
by “function rather than form.” Dkt 66 at 6. While such
argument may be expedient, Colfletar can’t have it both
ways, arguing that it was more involved when seeking to
lessen its liability, while otherwise arguing (as above) that
it was less involved when that, too, might lessen its
liability. Regardless, Colfletar has consistently argued that
it merely provided “logistical services.” For example, see
Dkts 67 at 4 & 71 at 4. It has also repeated throughout this
litigation that it was simply a “freight forwarder” or
“logistics provider.” For example, see Dkts 67 at 4–6, 69
at 2–4 & 71 at 2–3; see also Dkt 71-3 at 16:24–17:2 (hearing
transcript of 11/21/2023).
No evidence suggests that Colfletar did anything more
than that here. It cites to another Southern District of
Texas case where a freight forwarder was found to be
considered a “carrier.” Dkt 66 at 7, citing Rainly Equipos
de Riego S.R.L. v Pentagon Freight Services, Inc, 979 F
Supp 1079, 1082–83 (SD Tex 1997). But the freight
forwarder there “did more than merely arrange for
transportation”—namely, unloaded the cargo, stored it,
loaded it into containers, arranged for shipment through a
subsidiary, and provided all the invoicing. Id at 1082. And
the court noted that freight forwarders “cannot typically be
held liable under COGSA as a carrier” because they
“normally only act[ ] for the shipper in arranging for
transportation of the cargo.” Ibid.
Colfletar also contends that the bill of lading
contractually extended to it the liability limitations of
COGSA through what’s known as a Himalaya Clause.
Dkt 66 at 8. Such a clause allows for the agents or
contractors of a carrier to take advantage of COGSA’s
defenses and liability limitations. Schoenbaum, 1
Admiralty & Maritime 10:8 at 908 (indicating typical
inclusion of stevedores, terminal operators, and other
subcontractors of ocean carriers). But Colfletar here was
neither an agent nor a subcontractor of the carrier,
Spliethoff. It was instead an agent of Thompson Pipe,
providing it freight-forwarding services. Dkt 71 at 5.
Also rejected is passing argument by Colfletar that it
served as a “servant” of Spliethoff by providing “services”
to it. Dkt 66 at 5, citing Dkt 66-2 (bill of lading). Colfletar
fails to explain the “services” putatively provided to
Spliethoff. Regardless, the record is undisputed that it was
serving as the agent of Thompson Pipe.
The motion for summary judgment will also be granted
in this regard, and those affirmative defenses will be
dismissed.
4. Conclusion
The motion for summary judgment by Plaintiffs
Colfletar SAS and CTR Group SA is DENIED. Dkt 64.
The motion for partial summary judgment by
Defendants Thompson Pipe Group, Inc and TPG Pressure,
Inc is GRANTED. Dkt 62.
Affirmative defenses 33, 35 through 41, and 43 through
45 as asserted by Plaintiffs are DISMISSED.
SO ORDERED.
Signed on March 31, 2025, at Houston, Texas
( AL 4 ich Z.
Hon. Charles Eskridg
United States District Judge
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