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Nanko Shipping, USA v. Alcoa, Inc.

United States District Court, D. Columbia.

August 6, 2015

NANKO SHIPPING, USA, et al., Plaintiffs,
v.
ALCOA, INC., et al., Defendants

For NANKO SHIPPING, USA, Parent Company of Nanko Shipping Guinea, NANKO SHIPPING, GUINEE, MORI DIANE, President and Sole Shareholder of Nanko Shipping USA and Nanko Shipping Guinee, Plaintiffs: Benjamin D. Brown, LEAD ATTORNEY, COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, DC; David A. Young, PRO HAC VICE, COHEN MILSTEIN, Washington, DC; Donald M. Temple, DONALD M. TEMPLE, P.C., Washington, DC.

For ALCOA, INC., ALCOA WORLD ALUMINA, LLC, Defendants: David Taylor Case, LEAD ATTORNEY, K & L GATES LLP, Washington, DC.

OPINION

Page 373

ROSEMARY M. COLLYER, United States District Judge.

Nanko Shipping Guinea seeks reconsideration of the dismissal of this case. It does not assert new evidence or a change in law, but argues that the Court committed clear error and that reversal is required to avoid manifest injustice. Because there was no error or injustice, the motion will be denied.

I. FACTS[1]

In 1963, the Republic of Guinea (Guinea) and Harvey Aluminum Company of Delaware (Halco) formed the Compagnie des Bauxites de Guinee (CBG) and entered into the CBG Convention, a contract for the development of bauxite mining, processing, and shipping in Guinea. Second Am. Compl. [Dkt. 14-1] (SAC) at 1-2; see Mot. to Dismiss [Dkt. 7], Ex. A (Convention)

Page 374

[Dkt. 7-2].[2] Article 9 of the Convention gave Guinea a qualified right to ship 50% of the bauxite produced by CBG:

The Government [of Guinea] reserves the right, inasmuch as it does not adversely affect the sale of bauxite, to have the exported tonnage load[illegible] a proportion [of] which shall not exceed fifty percent on ships operating under the Guinean flag or an assimilated flag, or on ships chartered by the Government on the international shipping market, the above being, however, under the express condition that the freight tariffs practiced are lower or equal to those which are quoted at that particular time on the international shipping market for identical conditions for the freight and the shipping routes considered.

Convention, Art. 9.

Decades later, in 2011, Guinea entered into a Technical Assistance Agreement with Nanko Shipping Guinea. Under the terms of the Technical Assistance Agreement, Guinea allegedly authorized Nanko Shipping Guinea to exercise Guinea's shipping rights under Article 9 of the Convention.[3] SAC ¶ ¶ 3, 4, 20, 72. Nanko Shipping Guinea contends that the Technical Assistance Agreement made Nanko Shipping Guinea a third party beneficiary to the Convention. Id.

Nanko Shipping Guinea is owned by Nanko Shipping USA and Mori Diane. Id. ¶ 3. Mr. Diane is President and sole shareholder of both Nanko Shipping Guinea and Nanko Shipping USA. Id. Nanko Shipping Guinea, Nanko Shipping USA, and Mr. Diane (collectively, Plaintiffs) brought this suit against Alcoa, Inc. and its affiliate, Alcoa World Alumina LLC (collectively, Alcoa), alleging that Alcoa refused to implement and effectuate Nanko Shipping Guinea's shipping rights. Id. ¶ 63; Am. Compl. [Dkt. 10-1] ¶ 63.[4] Plaintiffs alleged that (1) Alcoa breached Plaintiffs' third party beneficiary rights and (2) Alcoa discriminated against Plaintiffs based on Mr. Diane's race in violation of 42 U.S.C. § 1981, which prohibits race discrimination in contracting. Mr. Diane is a Black American and Nanko Shipping Guinea is a Black-owned company. SAC ¶ ¶ 77-91; Am. Compl. ¶ ¶ 64-76.

Alcoa moved to dismiss, primarily because it cannot be liable for breaching the Convention (the source of Nanko Shipping Guinea's third party rights) when it was not a party to the Convention. In response, Plaintiffs asserted that Alcoa is the alter ego of Halco, a party to the Convention, and Plaintiffs sought to file a Second Amended Complaint to add Halco as a defendant. Plaintiffs also ...


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