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The Respondent is Mary Tersky, Nigdensk, Russian Federation.
The disputed domain name <natwest-online.pro> is registered with Regional Network Information Center, JSC dba RU-CENTER (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 25, 2012. On August 27, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 29, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On August 31, 2012, the Center notified the Complainant that as the language of the registration agreement for the disputed domain name was Russian (as per information provided by the Registrar), the Complainant would need to either provide satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English; submit the Complaint translated into Russian; or submit a request for English to be the language of the administrative proceedings. On August 31, 2012 the Complainant submitted a request for English to be the language of the proceedings in the Complaint providing the reasons for such request. The Respondent did not provide any comments in this regard.
The Center verified that the Complaint together with the language request satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
The Center appointed Ladislav Jakl as the sole panelist in this matter on October 26, 2012. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On the question of the language of the proceedings, the Registrar confirmed that the language of registration agreement is Russian. The Respondent did not express to the question of the language of the proceedings. The Complainant requests the Panel to decide that the language of the administrative proceedings in this case be English. According to paragraph 11(a) of the Rules the Panel has the authority to determine a different language other than the one in the registration agreement, having regard to the circumstances of the administrative proceeding. The Panel, taking into account the circumstances of this case and a number of recent UDRP proceedings (BrandStrategy, Inc. v. BusinessService Ltd., WIPO Case No. D2007-0749; Laboratoire Biosthétique Kosmetik GmbH & Co. KG and MCE S.A.S. v. BusinessService Ltd., WIPO Case No. D2007-1836), decides that the language of the administrative proceedings be English.
The National Westminster Bank Plc (the Complainant), is a public limited company incorporated in London and is a proprietor of the NATWEST trademark, and other trademarks used in connection with its NATWEST brand. The Complainant offers its financial services worldwide under the mark NATWEST and has spent a significant amount of money promoting and developing this mark. The Complainant also owns an international portfolio of registered trademarks for the term “Natwest”, including CTM trademark No. 4319067 dated April 18, 2006 and UK trademark No. 1438083 dated August 17, 1990. Moreover the Complainant operates websites at e.g. “www.natwest.com” and “www.natwest.co.uk”. It is the strict policy of the Complainant that all domain names containing the word NATWEST should be owned by the Complainant.
The disputed domain name <natwest-online.pro> was registered on February 2, 2012.
In accordance with paragraph 4(i) of the Policy, the Complainant requests that the disputed domain name be transferred to the Complainant.
The Complainant contends that the disputed domain name is identical or confusingly similar to its trademark NATWEST, that the Respondent has no rights or legitimate interests in respect to the disputed domain name and that the disputed domain name was registered and is being used in bad faith.
The Complainant argues that the disputed domain name is identical to the trademark NATWEST. The disputed domain name <natwest-online.pro> comprises the term NATWEST, which is identical to the registered trademark NATWEST, which has been registered by the Complainant as trademarks and domain names in numerous countries all over the world. The disputed domain name combines the Complainant’s NATWEST mark with the suffix “online” and such combination of a generic term with a mark does not prevent a domain name from being found confusingly similar. Furthermore, the Respondent’s addition of the generic top-level domain “.pro” does not distinguish the disputed domain name from the Complainant’s mark. Therefore, the Complainant submits that the disputed domain name is identical and confusingly similar to the mentioned trademarks in which the Complainant has rights.
As to rights or legitimate interests in respect of the disputed domain name, the Complainant essentially contends that it has not found that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name. The Complainant has also not found anything that would suggest that the Respondent has been using NATWEST in any other way that would give the Respondent any legitimate rights in the name and consequently the Respondent may not claim any rights established by common usage. Furthermore the Complainant argues that the Respondent registered the disputed domain name on February 2, 2012 and that the mere registration of a domain name does not give the owner a right or legitimate interest in respect of the domain name. The Respondent is not commonly known by the disputed domain name and there is no other evidence in the record suggesting that the Respondent is commonly known by this disputed domain name and therefore the Respondent has not established rights or legitimate interests in the domain name. Moreover the Complainant contends that the Respondent has used the disputed domain name to pass itself off as the Complainant in order to defraud the Complainant’s customers through a fraudulent website identical to the Complainant’s. Referring to the above mentioned, the Complainant concludes that the Respondent has no rights or legitimate interest in respect of the disputed domain name.
Furthermore, the Complainant asserts that the disputed domain name was registered and is being used in bad faith. The Complainant submits that the trademark NATWEST in financial services, belonging to the Complainant, has the status of well-known and reputed trademark with a substantial and widespread reputation throughout the whole Community and throughout the world and that awareness of that trademark is considered to be significant and substantial. The considerable value and goodwill of the mark NATWEST is most likely, a large contribution to this and also what made the Respondent register the domain name at issue here. The Complainant further introduces that it first tried to contact the Respondent on February 20, 2012 through a cease and desist letter, sent by email and advised the Respondent that the unauthorized use of the NATWEST trademark within the disputed domain name violated the Complainant’s rights in said trademark. The Complainant requested a voluntary transfer of the disputed domain name, but despite reminders no response received. The Complainant refers to earlier disputes that the failure of a respond to a cease and desist letter, or a similar attempt at contact, has been considered relevant in a finding of bad faith (News Group Newspapers Limited and News Network Limited v. Momm Amed Ia, WIPO Case D2000-1623; Nike, Inc. v. Azumano Travel, WIPO Case No. D2000-1598; America Online, Inc. v. Antonio R. Diaz, WIPO Case No. D2000-1460). Furthermore the Complainant introduces that use of a domain name that is confusingly similar to the Complainant’s trademark, redirects Internet users to a website that imitates the Complainant’s billing website, and is used to fraudulently acquire personal information from the Complainant’s clients is evidence of bad faith registration and use. The website is currently not active but it is still “in hands” of the Respondent and the Complainant will not be able to rest until the disputed domain name is transferred. The Complainant concludes that the NATWEST is a famous trademark worldwide and that it is obvious that the Respondent was aware of the rights of the Complainant’s trademark and of the value of said trademark, at point of the registration. Moreover there is no connection between the Respondent and the Complainant.
By using the disputed domain name for fraudulent purposes the Respondent is not making a legitimate noncommercial or fair use without intent for commercial gain but is committing a criminal offence and misleadingly diverting consumers for the Respondent’s own commercial gain. Consequently, by referring to the above mentioned, the Respondent should be considered to have registered and to be using the disputed domain name in bad faith.
In accordance with paragraph 4(i) of the Policy, the Complainant requests the Panel appointed in this administrative proceeding to issue a decision that the disputed domain name be transferred to the Complainant.
The Complainant owns hundreds of trademark registrations for the NATWEST mark throughout the world, for example United Kingdom trademark registration No. 1278207, dated October 1,1986 or Russian Federation registration No. 2005729121, and hundreds of trademark registrations consisting from that trademark and a word suffix, for example NATWEST ON LINE, United Kingdom trademark registration No. 1278427, dated October 1, 1986. The Panel accepts the Complainant’s assertion that the disputed domain name is confusingly similar to the Complainant’s trademark NATWEST as the disputed domain name <natwest-online.pro> comprises the term “natwest”, which is identical to the registered trademark NATWEST, which has been registered by the Complainant as trademarks and domain names in numerous countries all over the world. The disputed domain name combines the Complainant’s NATWEST mark with the suffix hyphen and “online”; such a combination of a hyphen and generic term with a mark does not prevent a domain name from being found confusingly similar. Furthermore, the Respondent’s addition of the generic top-level domain “.pro” does not distinguish the disputed domain name from the Complainant’s mark (Davidoff & Cie SA v. Paul Darnell o/b/o Cuban Cigars International, NAF Claim No. 97331; Wal-Mart Stores, Inc. v. Gerry Senker, WIPO Case No. D2006-0211; HSBC Holdings Plc v. David H. Gold, WIPO Case No. D2001-0343; F.Hoffmann-La Roche AG v. Whois Defender, Inc., WIPO Case No. D2006-0717). The Panel accepts the general principle that the test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone (Wal-Mart Stores, Inc. v. Traffic Yoon, WIPO Case No. D2006-0812; AT&T Corp. v. William Gormally, WIPO Case No. D2005-0758; Accor v. Lee Dong Youn, WIPO Case No. D2008-0705; and Sanofi-aventis v. Brad Hedlund, WIPO Case No. D2007-1310).
For all the above cited reasons, the Panel concludes that disputed domain name is identical or confusingly similar to the Complainant’s trademark in which the Complainant has rights, and therefore the condition of paragraph 4(a)(i) of the Policy is fulfilled.
The Panel accepts the Complainant’s assertion that the Respondent must at all times have been aware of the Complainant’s trademarks NATWEST, especially of the United Kingdom trademark registration No. 1278207, dated October 1, 1986 or Russian Federation trademark registration No. 2005729121 and hundreds of trademark registrations consisting from that trademark and a word suffix, for example NATWEST ON LINE, United Kingdom trademark registration No. 1278427, dated October 1, 1986. The disputed domain name was only registered on February 2, 2012 and the mere registration of a domain name does not give the owner a right or legitimate interest in respect of the domain name. There is no doubt that the Respondent has chosen the disputed domain name to exploit the goodwill of the Complainant’s trademark (McDonald’s Corporation v. ZusCom, WIPO Case No. D2007-1353). The Respondent has no relation to the Complainant and only registered the disputed domain name for commercial gain in order to misleadingly divert consumers to sites not affiliated with the Complainant. The Respondent is not a licensee of the Complainant and did not obtain any authorization to use the trademark of the Complainant. The Respondent is also not making a legitimate noncommercial or fair use of the disputed domain name, without the intent, for commercial gain, to mislead the consumers or to tarnish the Complainant’s trademark. The Respondent was using the disputed domain name to attract Internet users seeking a website linked to the Complainant and to its mark NATWEST to the Respondent’s own website, without the Respondent being in a position to legitimately offer services under the mark NATWEST. There is a consensus view by previous UDRP panels that such use cannot be considered a bona fide offering of goods or services, or a noncommercial or fair use in circumstances as the ones that are present in this case (Bridgestone Corporation v. Horoshiy, Inc., WIPO Case No. D2004-0795; Deutsche Telekom AG v. Dong Wang, WIPO Case No. D2005-0819; Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and World Wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001).
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product or service on that website or location.
The Panel accepts the arguments of the Complainant that the disputed domain name was registered and is being used in bad faith. The trademark NATWEST in financial services, belonging to the Complainant, has the status of well-known and reputed trademark with a substantial and widespread reputation throughout the whole community and throughout the world and that awareness of that trademark is considered to be significant and substantial. The considerable value and goodwill of the mark NATWEST is most likely, a large contribution to this and also what made the Respondent register the disputed domain name. The Complainant tried to contact the Respondent on February 20, 2012 through a cease and desist letter, sent by email and advised the Respondent, that the unauthorized use of the NATWEST trademark within the disputed domain name violated the Complainant’s rights in said trademark. The Complainant requested a voluntary transfer of the disputed domain name, but despite reminders no response from the Respondent was received. There is a consensus view by previous UDRP panels, that such failure of a respond to a cease and desist letter, or a similar attempt at contact, has been considered relevant in a finding of bad faith (News Group Newspapers Limited and News Network Limited v. Momm Amed Ia, WIPO Case No. D2000-1623; Nike, Inc. v. Azumano Travel, WIPO Case No. D2000-1598; America Online, Inc. v. Antonio R. Diaz, WIPO Case No. D2000-1460). Furthermore using of a domain name, that is confusingly similar to the Complainant’s trademark, redirects Internet users to a website that imitates the Complainant’s billing website, and was used to fraudulently acquire personal information from the Complainant’s clients is evidence of bad faith registration and use. At some point around the time of the filing of the Complaint the website at the disputed domain name was taken down. In the circumstances of this case, the Panel finds this is another indication of bad faith. For the above cited reasons the Panel finds that the disputed domain name was registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <natwest-online.pro> be transferred to the Complainant.

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CASE NAME: Doolim Corp. v. R Doll, LLC, et al.
Doolim Corp. v. R Doll, LLC, et al.
Barbara S. Jones, District Judge.
Upon my review of Magistrate Judge Henry B. Pitman's Report and Recommendation dated May 7, 2009 (the "Report"), and in the absence of any objections to that Report, I hereby confirm and adopt the Report in its entirety, finding no clear error on the face of the record. See, e.g., Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985).
Accordingly, I award plaintiff Doolim Corp. ("Doolim") judgment in the amount of $840,085.94 against defendant R Doll, LLC ("Doll"), and a declaration that it may sell the garments in its possession manufactured for Doll without regard to Doll's trademark rights. Further, as the Report notes, while my July 15, 2008 Order entering default judgment against Doll and Rosenthal & Rosenthal, Inc., did not address defendant Steven Oshatz, he was also and remains in default. In keeping with Magistrate Judge Pitman's recommendation, I enter a judgment of default against Oshatz and award Doolim a declaration that it may sell the garments in its possession manufactured for Doll without regard to Oshatz's trademark rights. I dismiss Doolim's fourth claim, which sought a declaration of its rights with respect to certain assets in the possession of defendant Rosenthal & Rosenthal, Inc., and deny Doolim's application for an order of attachment.
On July 15, 2008, the Honorable Barbara S. Jones, United States District Judge, ordered that plaintiff Doolim Corporation ("Doolim") shall have a default judgment against defendants, R Doll LLC, a/k/a "Rubber Doll" ("Doll") and Rosenthal & Rosenthal, Inc. ("Rosenthal") as a result of defendants' failure to answer or move with respect to the complaint (Order, dated July 15, 2008 (Docket Item 10)). Judge Jones subsequently referred this matter to me to conduct an inquest and to issue a report and recommendation concerning the amount of damages to be awarded to Doolim (Order dated July 15, 2008 (Docket Item 10)).
IF DEFENDANTS (1) FAIL TO RESPOND TO PLAINTIFF'S SUBMISSIONS, OR (2) FAIL TO CONTACT MY CHAMBERS BY OCTOBER 30, 2008 AND REQUEST AN IN-COURT HEARING, IT IS MY INTENTION TO ISSUE A REPORT AND RECOMMENDATION CONCERNING DAMAGES ON THE BASIS OF PLAINTIFF'S WRITTEN SUBMISSIONS ALONE WITHOUT AN IN-COURT HEARING. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997); Fustok v. ContiCommodity Services Inc., 873 F.2d 38, 40 (2d Cir.1989) ("[I]t [is] not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in a default judgment.") (Docket Item 11 (emphasis in original)).
One copy of my July 31 Order was sent to defendants Doll and Steven Oshatz ("Oshatz") at 530 Seventh Avenue, Suite 2805, New York, New York 10018, the address where Doolim effected personal service on them; a second copy of the Order was sent to defendant Rosenthal, one of Doll's factors. The copy sent to Doll and Oshatz was returned to my chambers, labeled by the United States Postal Service "Return to Sender, Attempted -- Not Known, Unable to Forward," but the copy sent to Rosenthal was not returned. Doolim submitted proposed findings of fact and conclusions of law on October 2, 2008, and revised proposed findings of fact and conclusions of law on January 21, 2009. None of the defendants has made any written submission, nor have they contacted my chambers in any way. Since all reasonable steps to provide notice to defendants have been taken, I make the following findings of fact and conclusions of law on the basis of plaintiff's submissions alone.
1. Plaintiff, Doolim, was and is a Korean corporation engaged in the manufacture of apparel, with its principal place of business in Seoul, Korea (Complaint ("Compl.") �� 1-2).
2. Defendant Doll was and is a New York limited liability company engaged in the business of manufacturing and distributing apparel under the registered trademarks RUBBER DOLL and RDOLL (the "Doll Marks"), with its principal place of business in New York, New York (Compl.� 3).
3. Defendant Oshatz was and is the managing member of Doll and owner of the Doll Marks; he maintained a business office in New York, New York and resides in Newtown, Pennsylvania. (Compl.� 4).
4. Defendant Rosenthal was and is a New York corporation engaged in the business of factoring and financing, with its principal place a business in New York, New York (Compl.� 5).
5. Between April and October 2007, Doolim and Doll entered into a series of contracts pursuant to which Doolim was to manufacture in Vietnam and ship to Los Angeles approximately 500,000 women's knit pants, dresses and tops, manufactured to Doll's specifications (Compl. � 22; Doll Purchase Orders annexed as Ex. 2 to Declaration of Huh Dal Wook, dated Jan. 15, 2009 ("Huh Decl.")).
6. Approximately 460,000 of the garments were to be branded with the Doll Marks (Compl.� 22). Many of the garments were to be branded such that the Doll Marks were to be "on and a part of the garments themselves," rather than on a removable tag or label (Huh Decl. �� 3, 20).
7. Doll agreed to purchase the garments for landed duty-paid  prices ranging from $3.20 to $12.50 per garment, with the majority of the garments in the $3.20 to $5.00 range (Huh Decl. � 2; Doll Purchase Orders annexed as Ex. 2 to Huh Decl.; Doolim Invoices annexed as Exs. 4-7 to Huh Decl.).
8. According to the terms on Doll's purchase orders, Doll was obligated to pay Doolim within 15 days of Doll's receipt of the garments (Purchase Orders annexed as Ex. 2 to Huh Decl.; see also Huh Decl. � 5).
9. In July and August 2007, Doolim shipped 77,528 of the garments that Doll had ordered with a total purchase price of $381,026.10 (the "July and August Garments") (Compl. � 13; Doll Purchase Order Nos. 100541-43, 100554, 100556-59, 100560-63, 100581-82, 100597-98, annexed as Ex. 2 to Huh Decl.; Doolim Invoice Nos. DM-0257 , DM-20070724 , DM-20070803 , DM-222/223 , DM-225229 , annexed as Ex. 4 to Huh Decl.).
10. Doll received the July and August Garments on or before September 7, 2007 (Compl. � 13; Huh Decl. � 7).
11. As of September 22, 2007, Doll had not made any payments to Doolim for the July and August Garments (Huh Decl. � 8).
12. Between September 22 and October 9, 2007, Doolim sought and obtained assurances from Doll that it would pay for the July and August Garments (Huh Decl. �� 8-9).
13. In October and early November 2007, Doolim shipped to Doll an additional 157,092 garments with a total purchase price of $659,059.74; Doll received these garments on or before November 20, 2007 (the "October Garments") (Compl. � 15; Doolim Invoice Nos. DM-308/307  & DM-0395 , annexed as Exs. 5-6 to Huh Decl.).
14. During the same period in October and November, Doll ordered 249,293 more garments from Doolim, with a total landed duty-paid purchase price of $878,262.64 (the "Surplus Garments") (Doll Purchase Order Nos. 100656-60, 100662-75, annexed as part of Ex. 2 to Huh Decl.). Approximately 87% of the Surplus Garments were scheduled to be shipped to Doll in January 2008; Doll planned to re-sell most of the Surplus Garments to K-Mart (the "K-Mart Garments"). The landed duty-paid price to Doll of the K-Mart Garments was $766,438.54 (Doll Purchase Order Nos. 100656-60, annexed as part of Ex. 2 to Huh Decl.).
15. On or about November 21, 2007, Doll paid Doolim $200,000.00, which Doolim credited against one of the October Invoices (Huh Decl. � 10; Doolim Invoice No. DM-308-307 , annexed as Ex. 5 to Huh Decl.).
16. On November 25, 2007, Doolim shipped to Doll an additional 13,735 garments, with a total purchase price of $67,433.75 (the "November Garments"); these garments did not arrive in the United States until December 2007 or January 2008 (Huh Decl. � 11; Doll Purchase Order Nos. 100624-27, 100653-55, annexed as part of Ex. 2 to Huh Decl.; Doolim Invoice No. DM-20071125 , annexed as Ex. 7 to Huh Decl.).
17. On December 1, 2007, Doolim requested additional assurances from Doll that it would pay the outstanding balances on all of the orders accepted by Doolim as of that date (Huh Decl. � 13).
18. On December 8, 2007, the parties entered into a written agreement that modified the rights and obligations of the parties (the "Modification Agreement") (Huh Decl. �� 14-15; Doolim/R Doll Payment Schedule, executed Dec. 7 & 8, 2007, annexed as Ex. 8 to Huh Decl.). Doll promised to pay Doolim, and Doolim promised to accept, a total of $931,000.00 in five specified installments on December 14 and 28, 2007 and January 11, January 25 and April 20, 2008 in satisfaction of "[a]ll open invoices received through 12/30/07"; Doll also promised to provide Doolim, by December 14, 2007, with a letter of credit securing Doll's payment for the K-Mart Garments (Huh Decl. �� 14-15; Doolim/R Doll Payment Schedule, executed Dec. 7 & 8, 2007, annexed as Ex. 8 to Huh Decl.). In exchange, Doolim promised to accept the reduced payment amount  and Doll's modified payment schedule, instead of the original terms which required payment within 15 days of Doll's receipt of the garments.
19. By mid-January 2008, Doll had not made any of the scheduled installment payments and had not provided Doolim with a letter of credit securing payment for the K-Mart Garments (Huh Decl. � 12). As a result, Doolim suspended all further deliveries of garments to Doll (Huh Decl. � 16).
20. At the time that Doolim suspended its deliveries, Doolim had not yet delivered the November Garments to Doll; it held those Garments for Doll in Los Angeles (Huh Decl. � 19). In addition, Doolim had finished manufacturing, but had not yet shipped, 38,450 of the Surplus Garments, and had commenced the manufacture of the remaining 210,843 Surplus Garments.
21. Doolim had already incurred the majority of its costs with respect to the manufacture of the Surplus Garments, and it completed the manufacturing process with "minimal [additional] effort" (Huh Decl. � 17). After completing the manufacture of the Surplus Garments, Doolim held them in Vietnam (Huh Decl. � 18).
22. Doolim did not attempt to sell any of the completed November and Surplus Garments because "Doll and Oshatz had at one point intimated that they would seek to protect their interests in the intellectual property, should [Doolim] try to sell any of the garments directly" (Huh Decl. � 20).
23. On February 8, 2008, Doolim filed a UCC financing statement with the New York Secretary of State, claiming a security interest in, among other things, the July and August Garments, the October Garments, and all of the proceeds from the sale or delivery of those garments (Doolim Financing Statement, annexed as Ex. 9 to Huh Decl.).
24. In early 2008, Oshatz told Doolim that "he and [Doll] were insolvent," that "the brand was finished" and that "he was planning to leave New York" (Huh Decl. � 24).
25. Doolim had no further contact with Doll or Oshatz after that conversation (Huh Decl. � 24).
26. In July 2005, Rosenthal filed a UCC financing statement with the New York Secretary of State, claiming a security interest in, among other things, all of Doll's present and future accounts, inventory and trademarks. New York State UCC Financing Statement No. 760985, Filing No. 200507065602580, available at http://appsext7.dos.state.ny .us/ASPIMGView/imgview.aspx?pdocid=14835940 (last visited May 7, 2009).
27. In or around April 2007, Doll entered into an agreement with Rosenthal pursuant to which Rosenthal provided financing to Doll, Rosenthal acquired all of Doll's rights to payment from its customers for goods which Doll sold to them, including goods manufactured by Doolim, and Rosenthal acquired a security interest in the Doll Marks (Compl.� 10).
28. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. � 1331 (civil actions arising under the treaties of the United States), Genpharm Inc. v. Pliva-Lachema a.s ., 361 F.Supp.2d 49, 53-55 (E.D.N.Y.2005), and 28 U.S.C. � 1332(a)(2) (civil actions between citizens of State and citizens of foreign state where matter in controversy exceeds sum of $75, 000).
29. Venue is proper in the Southern District of New York pursuant to 28 U.S.C. � 1391(b)(2) because a substantial part of Doll's actions and omissions that gave rise to Doolim's claims occurred at Doll's principal place of business located in the Southern District of New York. In the alternative, venue is proper in the Southern District of New York pursuant to 28 U.S.C. � 1391(b)(3) because at least one defendant, Rosenthal, may be found in that district.
30. The Court has personal jurisdiction over the defendants under New York C.P.L.R. � 301 because they or their representatives were personally served in New York with the summons and complaint in this action (Affidavit of Service by Personal Delivery, sworn to Feb. 21, 2008, Docket Item 3). See Genpharm Inc. v. Pliva-Lachema a.s., supra, 361 F.Supp.2d at 56, citing Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir.2004); Jack B. Weinstein, Harold L. Korn & Arthur R. Miller, New York Civil Practice: CPLR � 301.00 (Lexis 2009).
31. Doolim's contract claims against Doll are governed by the United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, S. Treaty Doc. No. 98-9 (1983), 1489 U.N.T.S. 3, 19 I.L.M. 668 (1980) ( "CISG"), "which 'applies to contracts of sale of goods between parties whose places of business are in different States ... when the States are Contracting States.' " TeeVee Toons, Inc. v. Gerhard Schubert GmbH, 00 Civ. 5189(RCC), 2006 WL 2463537 at *4 (S.D.N.Y. Aug. 23, 2006), quoting CISG art. 1(1)(a), 19 I.L.M. at 672.
32. Doolim and Doll entered into contracts for the manufacture and delivery of garments, which were "contracts of sale of goods" within the meaning of the CISG (Compl.� 28).
33. Doolim and Doll's places of business are in South Korea and the United States, respectively, which are both "Contracting States" within the meaning of the CISG. See CISG art. 99(2), 19 I.L.M. at 694 (CISG enters into force for states that accede to it); United Nations Commission on International Trade Law, Status of CISG, http://www.uncitral.or g/uncitral/en/uncitral_texts/sale_ goods/1980CISG_status.html (last visited May 7, 2009) (CISG entered into force for South Korea on March 1, 2005, and for the United States on January 1, 1988).
34. None of the exceptions to the applicability of the CISG applies here. See CISG arts. 2, 6, 19 I.L.M. at 672, 673 (CISG does not apply to contracts for purchase of money, securities, negotiable instruments, ships, vessels, hovercraft, aircraft, or electricity, does not apply to goods bought by auction or by authority of law or goods bought for personal, family or household use, and does not apply if and to the extent that the parties so agree); see also Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1027 n. 1 (2d Cir.1995) (CISG applies if "agreement is silent as to choice of law" and "both parties are located in signatory nations," unless parties have "by contract choose[n] to be bound by a source of law other than the CISG, such as the Uniform Commercial Code").
35. Doolim first seeks damages for the garments that it delivered to Doll.
36. Doll is obligated to pay Doolim $1,040,085.84, the purchase price for the July and August Garments and the October Garments, and was initially obligated to pay that sum within 15 days of its receipt those garments. CISG, art. 53, 19 I.L.M. at 683 ("The buyer must pay the price for the goods and take delivery of them ....").
37. Doll fundamentally breached this obligation by paying Doolim only $200,000.00 for the garments and failing to pay the balance. Doll's payment of only a small fraction -- less than 20% -- of the purchase price substantially deprived Doolim of the performance that it had a right to expect from Doll, i.e., full payment within 15 days of delivery. CISG art. 25, 19 I.L.M. at 677 (A breach is fundamental if it "results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.").
38. Because of Doll's breach, Doolim is entitled to recover $840,085.84, the difference between the total contract price for the July and August Garments and the October Garments and the amount paid. CISG art. 74, 19 I.L.M. at 688 ("Damages for breach ... by one party consist of a sum equal to the loss ... suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the ... conclusion of the contract ....").
39. Doolim also seeks damages for the garments that it manufactured but did not deliver.
40. Doolim permissibly withheld delivery of the November and Surplus Garments to Doll because it became apparent that Doll would not be able to make any payments for those Garments. CISG art. 71(1), 19 I.L.M. at 687-88 ("A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of ... a serious deficiency in his ability to perform ...."). As of December 7, 2007, Doolim had well-grounded fears that Doll would not pay for the garments in production because Doll was already more than three months delinquent with respect to the July and August Garments. Doolim only resumed manufacture and shipment of the Surplus Garments because Doll promised to secure a letter of credit for the bulk of the Surplus Garments by December 14, 2007 and to pay a discounted price in installments, beginning with a $200,000.00 payment on December 14, 2007. However, when Doll failed to either secure the letter of credit or make the $200,000.00 payment by December 14, 2007, it was apparent that Doll would be, at the very least, seriously deficient in its performance of its remaining contractual obligations.
41. Doolim also permissibly cancelled the contract and permanently withheld delivery of the November Garments and the Surplus Garments because Doll's persistent failure to pay for the garments it ordered demonstrated that it was unable or unwilling to pay the agreed upon price for these garments. CISG art. 72, 19 I.L.M. 688 ("If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided."). By the end of January 2008, Doll had failed to secure the letter of credit for the K-Mart Garments, had failed to make the payments totaling $530,000.00 that were due on December 14 and 28, 2007 and January 11 and 25, 2008, and had failed to give Doolim any assurance that Doll would be able to meet any of its obligations on the amounts owed to Doolim for shipments previously accepted. Thus, it was evident that Doll would likely continue to breach its obligations under both the Modification Agreement and the purchase orders for the November and the Surplus Garments.
42. Because Doolim reasonably avoided its contracts with Doll relating to the November and Surplus Garments, it was entitled to a choice of two remedies under the CISG: (1) resale of the Garments within a reasonable time and in a reasonable manner, coupled with recovery from Doll of the difference between the resale price and the contract price (in addition to any foreseeable consequential losses) or (2) recovery of the difference between the current price and the contract price as damages, with the current price usually defined as the price at the place of delivery. CISG arts. 75-76, 19 I.L.M. at 689.
43. Doolim seeks to invoke the first option, evidently believing that the November and Surplus Garments retain some value (Plaintiff Doolim's Memorandum of Law in Support of the Proposed Findings of Fact and Law at Inquest, dated Jan. 21, 2009 ("Pl.'s Br."), 4-7). However, Doolim has not yet resold the garments because the garments bear the Doll Marks, and Doolim is concerned that its sale of the garments might constitute trademark infringement. As a result, Doolim has not established that it is entitled to any damages relating to the November and Surplus Garments, and I recommend that it be denied any such damages.
As discussed below, Doolim is entitled to a declaration that it can sell the November and Surplus Garments without regard to Doll and Oshatz's trademark rights. Thus, Doolim will recover some proceeds from the sales of these garments. Awarding Doolim the purchase price that Doll had agreed to pay would result in a double recovery to Doolim and put it in a better position than if Doll had fully performed the contracts.
44. Doolim also seeks a declaratory judgment that it may sell the garments currently in its possession without infringing the Doll Marks that appear on the garments (Plaintiff Doolim's Proposed Findings of Fact and Law at Inquest, dated Jan. 21, 2009 ("Pl.'s Prop. Findings"), � 29).
45. Where, as here, a seller manufactures trademarked goods in response to an order from the trademark owner, and the trademark owner unjustifiably fails to accept or pay for the goods, the aggrieved seller has an implied license to sell the trademarked goods in order to mitigate its damages. See McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 922 (Fed.Cir.1995) (authorizing manufacturer's resale of 130,000 patented and trademarked knives because buyer previously accepted and paid for 20,000 such knives, but unjustifiably refused to pay for remaining knives); Platt & Munk Co. v. Repub. Graphics, Inc., 315 F.2d 847, 854-55 (2d Cir.1963) (manufacturer of children's books could have resold copyrighted books "without liability for infringement, just as a judgment creditor or another lienor foreclosing through the judicial process could do" if "the person for whom the goods were being made unjustifiably decline[d] to pay the price."); Diebold Inc. v.. Positran Mfg., Inc., CIV. A. 02-374 GMS, 2002 WL 31129726 at *1-*4 (D.Del. Sept. 26, 2002) (permitting manufacturer to complete manufacture of patented remote transaction security equipment and sell that equipment after buyer breached agreement to pay for equipment and filed for bankruptcy).
46. Here, as in Mitsuboshi Cutlery, Doolim's performance was not deficient in any way; Doll was simply unwilling or unable to pay the price for the garments despite its promises to do so. Under these circumstances, Doolim is entitled to an implied license to sell the November Garments and Surplus Garments in order to mitigate its damages. I therefore recommend that Doolim be granted a declaratory judgment that it does not infringe the Doll Marks by selling the garments which Doolim originally agreed to manufacture and deliver to Doll.
47. Doolim claims that it has perfected a purchase-money security interest in the garments that Doolim delivered to Doll, and in the proceeds from Doll's or its creditors' sale of those garments (Compl .� 42). Doolim further claims that Rosenthal possesses such proceeds, and that Doolim's interest "is senior to any other security interests in the collateral, except to the extent of Rosenthal's possessory interest therein" (Pl.'s Prop. Findings � 31). Doolim seeks a declaratory judgment and order that Rosenthal disburse the proceeds to Doolim, "net of Rosenthal's entitlement" (Pl.'s Prop. Findings � 31).
48. Doolim has not pled facts nor has it offered evidence establishing that Rosenthal has possession of any of the proceeds from the sale of garments manufactured by Doolim. A plaintiff is not entitled to entry of an award of damages at an inquest absent evidence as to the amount of damages. See Int'l Bhd. of Elec. Workers Local No. 43 v. Meachum Elec. Contractors, Inc., 5:05-CV-754 (NAM/GHL), 2006 WL 3096486 at *2 (N.D.N.Y. Oct. 27, 2006) ("[W]here, as here, plaintiffs presented no evidence in support of their averment regarding the amount of contributions and deductions defendants were delinquent in remitting, there was no basis on which to make a damages award.").
49. Without evidence as to the amount of proceeds that Rosenthal possesses, Doolim has not proven that it is entitled to any recovery from Rosenthal. Therefore, I recommend that Doolim be denied declaratory relief on the issue of its entitlement to proceeds held by Rosenthal, if any.
50. Doolim also seeks an order of attachment "against Doll and Rosenthal" (Pl.'s Br. 11) and "on the monies held by Rosenthal to satisfy the outstanding balance due" from Doll (Pl.'s Prop. Findings � 32). Doolim does not seek an order of attachment against Oshatz.
51. Rule 64 of the Federal Rules of Civil Procedure incorporates the law of the state in which a federal court sits with respect to provisional remedies. Accordingly, New York state law is controlling. Fed.R.Civ.P. 64(a)-(b).
52. Attachment is a "provisional remedy," N.Y. C.P.L.R. � 6001, which, by definition, is only available before judgment is entered. N.Y. C.P.L.R. � 6211 (order of attachment may be granted "before or after service of summons and at any time prior to judgment."); Black's Law Dictionary 1320 (8th ed.2004) (defining provisional remedy as "[a] temporary remedy awarded before judgment and pending the action's disposition, such as ... an attachment."); David D. Siegel, New York Practice � 316 (4th ed. 2009) ("Application for the attachment can be made ... at any time before final judgment.").
53. Here, Doolim is seeking attachment as part of the final judgment, "after all doubt as to liability has been erased," McCahey v. L.P. Investors, 774 F.2d 543, 548 (2d Cir.1985) (describing circumstances under which post-judgment remedies are appropriate), and the only issue is the amount of damages. Under these circumstances, it is improper for Doolim to seek attachment. Therefore, I recommend that Doolim's request for an order of attachment be denied as to both Doll and Rosenthal.
Accordingly, for all the foregoing reasons, I respectfully recommend that Doolim be awarded judgment on its first and second claims against Doll in the amount of $840,085.94. I further recommend that on its third claim, Doolim be awarded a declaration that it is entitled to sell the garments in its possession manufactured for Doll without regard to the trademark rights of Doll. I recommend that Doolim's fourth claim, which seeks a declaration of its rights with respect to certain assets in the possession of Rosenthal, be dismissed. I also recommend that Doolim's application for an order of attachment as part of the final judgment be denied.
I also note that your Honor's Order dated July 15, 2008 which directed the entry of a default judgment did not include Oshatz. Oshatz appears to be a defendant only on Doolim's claim for a declaration of its rights to sell the garments specially manufactured for Doolim; the complaint affirmatively states that the claims for money damages are directed against Doll only (Compl. at 6). Since Oshatz is also in default, I further recommend that the judgment in this matter include Oshatz and declare that Doolim is entitled to sell the garments in its possession manufactured for Doll without regard to the trademark rights of Oshatz.
Pursuant to 28 U.S.C. � 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a) and 6(e). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Barbara S. Jones, United States District Judge, 500 Pearl Street, Room 1920, and to the Chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO OBJECT WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993); Frank v. Johnson, 986 F.2d 298, 300 (2d Cir.); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d Cir.1983).
1. As a result of defendants' default, all the allegations of the complaint, except as to the amount of damages, must be taken as true. Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir.1995); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992); Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 69-70 (2d Cir.1971), rev'd on other grounds, 409 U.S. 363 (1973); Knox v. Palestine Lib. Org., 442 F.Supp.2d 62, 74 (S.D.N.Y.2006).
2. A landed duty-paid price includes shipping costs. See, e.g., Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1109 (9th Cir.2002); New York Credit Men's Adjustment Bureau, Inc. v. United States, 68 Cust. Ct. 319, 342 F.Supp. 745 (1972).
3. As of December 8, 2007, the total landed duty-paid price to Doll for the open invoices that had been, or were scheduled to be, delivered by December 30, 2007, was $1,019,343.69 (Doll Purchase Order Nos. 100541- 43, 100554, 100556-59, 100624-27, 100653-55, 100662-75, annexed as part of Ex. 2 to Huh Decl.). However, the parties may have anticipated that Doolim would not deliver all of the open invoices on schedule, and this possibility may have been reflected in the modified payment amount.
4. Doolim does not claim any additional damages based on Doll's delay in paying Doolim or its subsequent breach of the Modification Agreement (see Compl. 6-10).
5. Although Doolim also requests damages in the amount of the full contract price for the November and Surplus Garments (Compl. � 33; Plaintiff Doolim's Proposed Findings of Fact and Law at Inquest, dated Jan. 21, 2009, � 28), it has offered no evidence concerning the current price of the goods, so it may not utilize that remedy.
6. Because I recommend that Doolim should be granted an implied license to resell the withheld garments without infringing the Doll Marks, it is unnecessary to address Doolim's alternative argument that the trademarks have been abandoned.

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We have seen how severe a responsibility is cast upon the common carrier by the law; and it is a very interesting question, how far he may remove it or lessen it, with or without the concurrence of the other party. Can the carrier do this by a special contract with the owner of the goods? and, if so, is a notice by the carrier brought home to the owner equivalent to such contract? and if the carrier cannot in this way relieve himself entirely from his responsibility, can he lessen and qualify it? Some of these questions are not yet definitely settled.
There is no doubt that, originally, this responsibility was considered as beyond the reach of the carrier himself. It is but about fifty years since he was permitted to qualify or control it by his own act. And courts have been influenced in their opinion of his rights in this respect, by the view they have taken of the nature of his responsibility. The more they have regarded it as created by the law for public reasons, the less willing have they been that it should be placed within the control of one or both parties to be modified at their pleasure.
(io) Compare Holdridge v. Utica, etc. R. R. Co. 66 Barb. 191; 84 N. T. 548; with Mote v. Chicago R. R. Co. 27 Iowa, 22.
(j) It seems now to be perfectly settled in this country and in England, that a special contract between the owner of goods and a carrier, limiting the common-law liability of the latter, is valid. It is wholly unnecessary to cite authorities to been said in some late cases in this country, particularly in one with a special acceptance in writing, which they received, and delivered the goods accordingly. This constitutes undoubted evidence of assent on their part. One exception was, of casualties occasioned by fire; and the loss arose from that cause. The servants of the defendants were called as witnesses to make out a case of care; and the jury, under the charge of the court, allowed this as a defence. For myself I shall do little more than refer to my opinion in Cole v. Goodwin (19 Wend. 281), and the reason for such opinion as stated in that case. It was to the effect, that I could no more regard a special acceptance as operating to take from the duty of the common carrier, than a general one. I collect what would be a contract from both instances, provided it be lawful for the carrier to insist on it; and such is the construction which has been given to both by all the courts. The only difference lies in the different kinds of evidence by which the contract is made out. When the jury have found that the goods were delivered with intent to abide the terms of the general notice, I understand a contract to be as effectually fastened upon the bailor as if he had reduced it to writing. Indeed, the contrary construction would, I think, be to tolerate a fraud on the part of the bailor. The true ground for repudiating the general notice, is, therefore, its being against public policy ; and this ground goes not only to the evidence - the mode in which you are to prove the assent - but to the contract itself. After forbidding the carrier to impose it under the form of a general notice, therefore, we cannot consistently allow him to do the same thing in the form of a special notice or receipt. The consequences to the public would be the same, whether we allow one form or the other." The judgment was accordingly reversed; Nelson, C. J., dissenting. We are not aware that this decision has ever been sanctioned by any court in this country. It received the approbation of Mr. Justice Nisbet, in Fish v. Chapman, 2 6a. 349; but that case did not call for any decision upon the question. On the other hand, in 1848, the Supreme Court of the United States, in the case of The New Jersey Steam Nav. Co. v. Merchants Bank, 6 How. 844, denied the authority of Gould v. Hill, and held such a contract to be valid. Nelson, J., said: "As the extraordinary duties annexed to his employment concern only, in the particular instance, the parties to the transaction, involving simply rights of properly, - the safe custody and delivery of the goods, - we are unable to perceive any well-founded objection to the restriction, or any stronger reasons forbidding it, than exist in the case of any other insurer of goods, to which his obligation is analogous; and which depends altogether upon the contract between the parties. The owner, by entering into the contract, virtually agrees, that in respect to the particular transaction, the carrier is not to be regarded as in the exercise of his public employment; but as a private person who incurs no responsibility beyond that of an ordinary bailee for hire, and answerable only for misconduct or negligence. The right thus to restrict the obligation is admitted in a large class of cases founded on bills of lading and charter-parties, where the exception to the common-law liability (other than that of inevitable accident) has been, from time to time, enlarged, and the risk diminished, by the express stipulation of the parties. The right of the carrier thus to limit his liability in the shipment of goods has, we think, never been doubted." Since that time, Gould v. Hill has been expressly overruled in New York in three cases; one in the Supreme Court, and two in the Superior Court of the city of New York. We allude to Parsons v. Monteath, 13 Barb. 363; Dorr v. N. J. Steam Nav. Co. 4 Sandf. 136, and Stoddard v. The Long Island R. R. Co. 5 Sandf. 180; Dorr v. New Jersey Steam Nav. Co. 1 Kern. 486; The Mercantile Mutual Ins. Co. v. Chase, 1 E. D. Smith, 116. Dorr v. N. J. Steam Nav. Co. was an action against the defendants as common carriers upon the Long Island Sound, between New York and Stonington, to recover damages for the loss of goods. The declaration averred that the plaintiffs, who were merchants in New York, shipped the goods in question on board the steamer Lexington, in the defendant's line, to be carried to Stonington; that on the same evening, the steamer was consumed by fire on her passage, and the plaintiffs' goods destroyed. The defendants pleaded that the goods in question were received by them under a special contract, by reason of a clause and notice inserted in their bill of lading, which was set forth in the plea, and which contained, among other things, that the goods in question were to be transported to Stonington, danger of fire, & c., excepted. The plea then averred, that the liability of the defendants was restricted by the exception of the casualties mentioned in the bill of in New York, (k) that no such contract * is valid or lading, and that the loss in question was occasioned by one of the excepted casualties, and was without the fault or negligence of the defendants. To this plea the plaintiffs demurred. And Campbell, J., in pronouncing judgment upon the demurrer in favor of the defendants, said: "The question presented for our consideration is, whether common carriers can, by special contract, restrict their liabilities for losses which occur otherwise than by the act of God or the public enemies. If the point were now for the first time raised, we should have considered it, if not entirely free from difficulty, at least as not leaving much room for doubt as to the correctness of the conclusion at which we have arrived. The judgment of a majority of the late Supreme Court, pronounced in the case of Gould v. Hill, 2 Hill (N. Y.), 623, was cited and urged on the part of the plaintiffs as settling the law in this State, that a common carrier cannot, by special contract, limit his liability. Though the court was divided in opinion, the cause does not seem to have been carried to the court for the correction of errors, and we are not therefore sure of what would have been the decision of the court of last resort But the clear conviction of all of us, that the case of Gould v. Hill was not correctly decided, supported as we are by the Supreme Court of the United States (Merchants Bank v. New Jersey Steam Navigation Company, 6 How. 344), and the great importance of the question to a commercial people, especially the importance of uniformity between the courts of the State and Union in the rules of law regulating commercial transactions, compel us respectfully to dissent from the judgment in that case." Stoddard v. Long Island R. R. Co. is to the same effect. In Parsons v. Monteath, the defendants being common carriers on the Erie Canal between Albany and Buffalo, and occupying a warehouse on the pier at Albany, their agent in New York received goods there belonging to the plaintiff, and gave a receipt or shipping-bill therefor, in the name of the defendants, by which they agreed to transport the goods to Brighton Locks, "the danger of the lakes, of fire, etc., and acts of Providence excepted." The goods reached Albany on the morning of August 17, 1848, and were taken from the tow-boats into the defendant's warehouse on the pier. On the same day a fire broke out in the city of Albany, by which the warehouse was consumed; and the plaintiff's goods, being removed by the defendants' agent into a canal boat in the basin, were destroyed by the fire. Held, that the defendants sustained the relation of common carriers of the goods at the time the fire broke out, and when the goods were destroyed; and that the rules of law incident to that relation applied to them; but that they had a right to circumscribe or limit their common-law liability as common carriers by agreement; and that, having expressly excepted the risk of loss by fire, they were not liable for the value of the goods. Wells, J., said: "Were it not for the late case of Gould v. Hill (supra), I should have no hesitation in holding the contract between the parties as valid and binding, and one to which we were bound to give effect. To do so would be in accordance with a long and unbroken course of decision in England, and in many of our sister States, and in all of them, I believe, where the question has arisen, excepting Ohio; and would be in harmony with the views of all the elementary writers on the subject. It is unnecessary to go into a particular examination of the authorities cited. I content myself with the remark, that the doctrine" is fully asserted by Story, Chitty, Kent, and Angell, and most abundantly sustained by the authorities to which they refer. But in the case of Gould v. Hill (supra), Justice Cowen held a contrary doctrine; that it was not competent for a common carrier to restrict, by special contract, his common-law liability; and that where the defendant, being a common carrier, on receiving the plaintiff's goods for transportation, gave him a memorandum by which he promised to forward the goods to their place of destination, danger of fire, etc., excepted, the defendant was liable for a loss by fire although not resulting from negligence. The learned Justice puts his decision wholly on the ground of public policy, and refers to his reasoning in the case of Cole v Goodwin (19 Wend. 261); the substance of which is (p. 281), that a common carrier's business is of a public nature; that he is a public servant, and bound to perform the duties of his office, and that he should no more be permitted to limit or vary his obligations or liabilities by contract, than a sheriff, has any efficacy. But this case seems to rest upon a previous decision, (l) that the carrier's responsibility is not affected by a notice from him made known to the other party; and upon the difficulty of distinguishing this from an express contract.

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D.C. Law Library - § 47–3401.01. Intermediate-term advances for liquidation of deficit.
↪ § 47–3401.01. Intermediate-term advances for liquidation of deficit.
§ 47–3401. Transitional provision for short-term advances.
§ 47–3401.01. Intermediate-term advances for liquidation of deficit.
(a) In general. — If the conditions in subsection (b) of this section are satisfied, the Secretary shall make an advance of funds from time to time, out of any money in the Treasury not otherwise appropriated and to the extent provided in advance in annual appropriations acts, for the purpose of assisting the District government in liquidating the outstanding accumulated operating deficit of the general fund of the District government existing as of September 30, 1997.
(7) The Secretary receives from such persons as the Secretary determines to be appropriate such additional certifications and opinions relating to such matters as the Secretary determines to be appropriate.
(1) In general. — Except as provided in paragraph (3) of this subsection, if the conditions in paragraph (2) of this subsection are satisfied, each advance made under this section shall be in the amount designated by the Mayor in the Mayor’s requisition for such advance.
(B) The Authority concurs in the Mayor’s certification under subparagraph (A) of this paragraph.
(3) Maximum amount. — Notwithstanding paragraph (1) of this subsection, the aggregate amount of all advances made under this section shall not be greater than $300,000,000.
(1) In general. — Except as provided in paragraphs (2) and (3) of this subsection, each advance made under this section shall mature on the date designated by the Mayor in the Mayor’s requisition for such advance.
(2) Latest permissible maturity date. — Notwithstanding paragraph (1) of this subsection, the maturity date for any advance made under this section shall not be later than 10 years from the date on which the first advance under this section is made.
(4) Secretary’s right to require early reimbursement. — Notwithstanding paragraph (1) of this subsection, if the Secretary determines, at any time while any advance made under this section has not been fully reimbursed, that the District is able to obtain credit in the public credit markets or elsewhere in sufficient amounts and on sufficiently reasonable terms, in the judgment of the Secretary, to refinance all or a portion of the unpaid balance of such advance in the public credit markets or elsewhere without adversely affecting the financial stability of the District government, the Secretary may require reimbursement for all or a portion of the unpaid balance of such advance at any time after the Secretary makes the determination.
(e) Interest rate. — Each advance made under this section shall bear interest at an annual rate equal to a rate determined by the Secretary at the time that the Secretary makes such advance taking into consideration the prevailing yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the repayment schedule of such advance, plus 1/8 of 1%.
(f) Other terms and conditions. — Each advance made under this section shall be on such other terms and conditions, including repayment schedule, as the Secretary determines to be appropriate.
(g) Deposit of advances. — As provided in § 47-392.04(b) advances made under this section for the account of the District government shall be deposited by the Secretary into an escrow account held by the Authority.
This section is referenced in § 1-301.115a.
Section 156 (d) of Laws 13-91 validated a previously made technical amendment in subsecs. (4)(b) and (c)(2)(B).
Section 160 (b) of D.C. Law 13-91 made a technical correction.
Procurement, office of the Inspector General, powers, duty to provide certification, see § 2-302.08.
The “Balanced Budget Act of 1997,” referred to in (b)(2), is Pub. L. 105-33, 111 Stat. 251, effective August 5, 1997.
The “District of Columbia Financial Responsibility and Management Assistance Act of 1995,” referred to in (b)(4)(A), is Pub. L. 104-8, 109 Stat. 97, approved April 17, 1995.