United States District Court,

M.D. North Carolina.

Richard PARRAMORE, State Farm Fire and Casualty Company, Plaintiffs,

v.

TRU-PAK MOVING SYSTEMS, INC., d/b/a Isenhower Tru-Pak, Atlas Van Lines, Inc.,

John Siegel, Kevin Franklin England, Defendants.

Oct. 1, 2003.

MEMORANDUM OPINION AND ORDER

OSTEEN, District J.

Plaintiffs Richard Parramore and State Farm Fire and Casualty Company bring this action against Defendants Tru-Pak Moving Systems, Inc., d/b/a Isenhower Tru-Pak, Atlas Van Lines, Inc., John Siegel, and Kevin Franklin England. The claim involves damage done to a shipment of household goods during an interstate move. As such, the claim is governed by the Interstate Commerce Act, 49 U.S.C. § 10101 et seq., and specifically the Carmack Amendment to that Act, 49 U.S.C. § 14706. In addition, Plaintiffs have asserted state law claims of negligence and breach of contract. This matter is now before the court on Defendants’ Motion for Summary Judgment. For the reasons stated herein, the court will grant Defendants’ motion with respect to Plaintiffs’ state law claims. The court will further grant Defendants’ motion with respect to all of Plaintiffs’ remaining claims against Defendants Tru-Pak, Siegel, and England. Finally, the court will grant Defendants’ motion with respect to all damages exceeding $70,000.00, exclusive of any additional fees and costs to which Plaintiffs may be entitled. The court will deny Defendants’ motion with respect to Plaintiffs’ Carmack Amendment claim against Defendant Atlas.

I. BACKGROUND

In September 1999, Richard Parramore (“Parramore”) was preparing to move from Newland, North Carolina to Grand Rapids, Michigan. To facilitate the move, Parramore went to the offices of Tru-Pak Moving Systems (“Tru-Pak”) and contracted to have his household belongings transported to Michigan. At that time, Tru-Pak was owned by John Siegel (“Siegel”) and was an agent of a larger carrier, Atlas Van Lines (“Atlas”). Through an agency agreement, Atlas expressly authorized Tru-Pak to arrange interstate shipments and to prepare bills of lading that would give the terms of such shipments. (Siegel Dep. at 16-17.)

On September 14, Tru-Pak sent a truck and personnel to Parramore’s home so that the shipment could be loaded. The driver of the truck, Kevin Franklin England (“England”), presented Parramore with a bill of lading. The document bore Atlas’s logo, as did England’s uniform. The bill of lading further stated that Atlas was the “carrier” and Parramore was the “shipper.” It is clear from the bill of lading that Parramore contracted for “full value protection” up to $70,000.00 and agreed to pay Atlas $4,021.13 for the shipping service. (Zammit Dep. Ex. 1.) Parramore signed the bill of lading and retained a copy.

Once the shipment was loaded, England departed from Parramore’s home, intending to proceed to Tru-Pak’s overnight storage facility in North Carolina. While en route, the truck was involved in an accident. Although the exact nature of the accident is disputed, it is agreed by all parties that the shipment was damaged.

Unbeknownst to Parramore, Atlas had not authorized England to drive an interstate shipment. (Anders Dep. at 31; Siegel Dep. at 41.) The agency agreement between Tru-Pak and Atlas provided that only “Atlas approved” drivers should be permitted to transport interstate shipments. (Siegel Dep. Ex. 1.) Siegel instructed England to transport Parramore’s shipment even though Siegel knew that this action violated Tru-Pak’s agency agreement with Atlas. (Id. at 40-41.)

Immediately following the accident, Tru-Pak made an attempt to identify the items in the shipment and sent some of them for repair. On September 17, Tru-Pak’s Operations Manager, James Anders (“Anders”), notified Parramore of the accident and Tru-Pak’s subsequent corrective actions. Anders’ letter stated that “all but one or two items” would be repaired to a state that would “meet [Parramore’s] approval.” (Anders Dep. Ex. 1.)

On September 18, movers arrived at Parramore’s Grand Rapids, Michigan home. Parramore asserts that the movers demanded payment before they would unload any items. Once he paid the previously agreed upon price of $4,021.13, the movers unloaded Parramore’s shipment. Parramore alleges that everything delivered was dirty or heavily damaged and that several boxes had been repacked with the contents rearranged. Parramore also asserts that at least 50 items were missing.

On September 29, 1999, Parramore filed a loss claim with State Farm Fire and Casualty Company (“State Farm”). State Farm provided homeowners insurance on the shipped items and eventually paid Parramore $152,457.00 on the claim.

Having determined that it would subrogate any loss claim against Atlas and/or Tru-Pak, State Farm worked to negotiate the return of Parramore’s missing items. As a result, a second delivery was made to Parramore on November 11, 1999, but items were damaged or missing.

Approximately one month after the accident, on November 12, 1999, Atlas terminated its agency agreement with Tru-Pak. (Siegel Dep. at 74-75, 82-84.) The termination was apparently unrelated to Parramore’s shipment. Neither Parramore nor State Farm received any direct notice that the agency agreement had ended.

On January 11, 2000, Parramore’s former attorney, Freeman C. Visser (“Visser”), notified Atlas that items were still missing from the shipment. Atlas’s log reflects Visser was told Tru-Pak would be handling the matter, and a claim could be filed for the missing items. (Id. Ex. 21.) The log does not indicate if Visser was instructed to file the claim with Tru-Pak or with Atlas.

Atlas asserts that it subsequently mailed a claim form and instructions to Visser. Visser cannot recall if he received either, but contends that if he had, the claim form would have been completed and returned to Atlas. [FN1] (Visser Aff. ¶ 6.) Atlas denies having received any claim from Visser, Parramore, or State Farm. No documentation has been produced to show that any party ever completed an Atlas claim form. Atlas did receive a blank, unsigned claim form from Tru-Pak. Attached to the form were bills for repairs to Parramore’s shipment. (Siegel Dep. Ex. 19.)

The parties have provided only one additional piece of correspondence that might constitute a written claim. This correspondence is a letter, dated May 4, 2000, sent from State Farm to Tru-Pak. It is not disputed that the letter bore an address that was partially incorrect. The letter identifies Parramore as the insured party and gives the date of the accident. It states in part, “This letter is to advise you that we are pursuing a subrogation claim for the damages to our insured’s property from the accident involving your company.” (Anders Dep. Ex. 6.) Various employees of Tru-Pak have stated that they cannot recall whether this letter was ever received. (Id. at 63; Siegel Dep. at 177.)

Whether or not Atlas ever provided an official claim form with instructions, it is not disputed that the requirements for a claim are set forth in the parties’ contract. [FN2] Section six of the bill of lading states that “as a condition precedent to recovery, a claim … must be filed in writing with carrier within nine months after delivery.” (Zammit Dep. Ex. 1.) The bill of lading also expressly incorporates a tariff. (Id.) The terms of that tariff set forth additional minimum filing requirements, such as the inclusion of a damage estimate. (Suter Decl. Ex. 2.)

Having been unable to collect any monetary settlement from Atlas or Tru-Pak, Parramore, and State Farm (collectively, “Plaintiffs”) filed suit on March 8, 2002. Atlas, Tru-Pak, Siegel, and England (collectively, “Defendants”) now move for summary judgment.

II. STANDARD OF REVIEW

Summary judgment is appropriate where an examination of the pleadings, affidavits and other proper discovery materials before the court demonstrates that there is no genuine issue of material fact, thus entitling the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party has met that burden, the nonmoving party must then persuade the court that a genuine issue does remain for trial.

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted) (quoting Fed.R.Civ.P. 56(e)). The court must view the facts in the light most favorable to the nonmovant, drawing inferences favorable to that party if such inferences are reasonable. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir.1980). However, there must be more than just a factual dispute; the fact in question must be material and the dispute must be genuine. Fed R. Civ. P. 56(c); Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A dispute is only “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

III. ANALYSIS

Defendants have moved, pursuant to Federal Rule of Civil Procedure 56, for summary judgment on the following grounds: (1) the Carmack Amendment exclusively governs disputes between shippers and common carriers, thereby preempting Plaintiffs’ state law claims; (2) Plaintiffs are barred from recovery under the Carmack Amendment because they failed to submit a sufficient written claim as required by Interstate Commerce Commission (“ICC”) regulations; (3) Defendants Tru-Pak, Siegel, and England were not parties to the bill of lading as a matter of law and may not be held liable under the Interstate Commerce Act; and (4) Plaintiffs’ damages are limited to $70,000.00, the maximum amount of liability set forth in the bill of lading.

A. The Carmack Amendment’s Preemption of State Law Claims

In passing the Carmack Amendment to the Interstate Commerce Act, Congress intended to “relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.” Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 502, 94 L.Ed. 698 (1950). The Carmack Amendment was meant “to create a national uniform policy regarding the liability of carriers under a bill of lading for goods lost or damaged in shipment.” Shao v. Link Cargo (Taiwan), Ltd., 986 F.2d 700, 706 (4th Cir.1993). In fact, the Carmack Amendment’s provisions are so comprehensive that “[a]lmost every detail of the subject is covered … there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulations with reference to it.” Adams Express v. Croninger, 226 U.S. 491, 505-06, 33 S.Ct. 148, 152, 57 L.Ed. 314 (1913).

When federal law supplants state authority with such pervasive regulation, state law remedies are usually deemed to be preempted. For this reason, the Fourth Circuit has joined virtually all others in agreeing that the Carmack Amendment preempts all state law claims, whether they contradict or supplement Carmack Amendment remedies. See Shao, 986 F.2d at 706-07 (concluding that “[Congress intended] to create a national uniform policy regarding the liability of carriers …. Allowing a shipper to bring common law breach of contract or negligence claims against a carrier … conflicts with this policy. We therefore agree that … [state] common law claims are preempted by the Carmack Amendment.”); see also Advanced Sterilizer Dev. & Design, Inc. v. Roadway Express, Inc., 2002 WL 31165144 (M.D.N.C. Aug.21, 2002).

Plaintiffs raise a new argument in response to this well-settled rule. Plaintiffs assert that the Carmack Amendment does not preempt their state law claims with respect to Defendants Tru-Pak, Siegel, and England because certain acts by these Defendants were ultra vires. Plaintiffs contend that ultra vires acts would not be within the Carmack Amendment’s scope and that state law claims arising from those acts would then avoid preemption.

Plaintiffs cite only Taylor v. Mayflower Transit, Inc., 161 F.Supp.2d 651, 658 (W.D.N.C.2000), a case in which the court held that agents of a principal carrier were not parties to the bill of lading. The court noted that “[t]here [were] no allegations in the complaint or in plaintiffs’ response that such agents acted ultra vires.” Id. By this statement, which appears to have been made in passing, the court implies that a carrier’s agent might be liable under the Carmack Amendment if that agent acted ultra vires. [FN3] There is no suggestion in Taylor that an agent acting ultra vires might also be liable under state law claims. This court could find no further precedent that allowed state law claims to survive Carmack Amendment preemption when an agent of the carrier acted ultra vires.

Having found no case law directly on point, this court will not conclude that ultra vires acts by a carrier’s agent would allow Plaintiffs’ state law claims to avoid Carmack Amendment preemption. Plaintiffs have failed to point out any specific facts that create a genuine dispute as to whether their state law claims may avoid Carmack Amendment preemption. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 (upon defendant’s demonstration that no genuine issues of material fact are present, plaintiff bears the burden of showing disputed factual issues). Accordingly, Defendants’ motion for summary judgment will be granted with respect to Plaintiffs’ state law claims based on negligence and breach of contract.

B. Liability of Defendants Tru-Pak, Siegel, and England

Defendants’ next argument in favor of summary judgment addresses only the potential liability of Defendants Tru-Pak, Siegel, and England under the Interstate Commerce Act. Defendants claim that agents of a disclosed principal carrier (in this case Atlas) cannot be held liable because they are not parties to the bill of lading as a matter of law. Plaintiffs dispute this claim by arguing that Defendants Tru-Pak, Siegel, and England acted outside their authority as Atlas’s agents when they violated their agency agreement. Plaintiffs allege that these acts expose Defendants Tru-Pak, Siegel, and England to direct liability under the Interstate Commerce Act.

The Interstate Commerce Act provides that a principal carrier is liable for the acts of its disclosed agents. The statute clearly states that liability will extend to acts within the agent’s actual or apparent authority:

Each motor carrier providing transportation of household goods shall be responsible for all acts or omissions of any of its agents which relate to the performance of household goods transportation services (including accessorial or terminal services) and which are within the actual or apparent authority of the agent from the carrier or which are ratified by the carrier.

49 U.S.C. § 13907(a).

While this federal statute creates liability for the principal carrier, it simultaneously relieves the carrier’s agents of any liability, provided the transaction occurred pursuant to a valid bill of lading. See id.; Taylor v. Mayflower Transit, Inc., 161 F.Supp.2d 651, 658 (W.D.N.C.2000); Werner v. Lawrence Transp. Sys., Inc., 52 F.Supp.2d 567, 568-69 (E.D.N.C.1998). Courts have regularly held that the agents of disclosed principals are not liable for damages arising under § 13907(a), and that these agents are not parties to the bill of lading as a matter of law. See, e.g ., Taylor, 161 F.Supp.2d at 658; O’Donnell v. Earle W. Noyes & Sons, 98 F.Supp.2d 60, 63 (D.Me.2000); Werner, 52 F.Supp.2d at 568-69; Fox v. Kachina Moving & Storage, 1998 WL 760268 (N.D.Tex. Oct.21, 1998); see also Restatement (Second) of Agency § 320 (1957) (“[A] person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.”).

As per the provisions of 49 U.S.C. § 13907(a), Atlas is liable for all actions by Defendants Tru-Pak, Siegel, and England which fell within their actual or apparent authority as Atlas’s agents. Conversely, Tru-Pak, Siegel, and England will not be liable for acts that were within their authority as Atlas’s agents, nor are they parties to the bill of lading as a matter of law. Plaintiffs, however, assert that these Defendants did commit unauthorized acts which created direct liability for them under the Interstate Commerce Act.

Siegel concedes that he directed England to drive Parramore’s shipment, even though England was not an “Atlas approved driver.” (Siegel Dep. at 40-41.) That directive violated Tru-Pak’s agency agreement with Atlas. Since England was not an “Atlas approved driver,” Plaintiffs claim that England lacked actual authority to handle initial transport of Parramore’s household goods.

However, this violation of Tru-Pak’s agency agreement did not affect England’s apparent authority to transport the shipment. “Apparent authority results from a principal’s manifestation of an agent’s authority to a third party, regardless of the actual understanding between the principal and agent. ” Auvil v. Grafton Homes, Inc., 92 F.3d 226, 230 (4th Cir.1996) (emphasis added). In this case, Atlas did manifest to Parramore that Tru-Pak was Atlas’s agent. Given the facts on record, Parramore would have been reasonable in this belief. For example, the bill of lading provided to Parramore by Tru-Pak clearly bore Atlas’s logo and identified Atlas as the “carrier.” (Compl.Ex. A.) England’s Tru-Pak uniform also bore Atlas’s logo. (Siegel Dep. at 27.)

All facts known to Parramore clearly indicated that England and Tru-Pak were operating under Atlas’s full authority. Plaintiffs do not allege that Parramore was aware of the agency agreement or its terms at the time his shipment was collected. Absent such knowledge, Parramore could not have known that Tru-Pak was acting outside its actual authority. As a result, Defendants Tru-Pak, Siegel, and England continued to act with apparent authority as agents of Atlas.

Plaintiffs argue that Defendants Tru-Pak, Siegel, and England are still subject to liability for damages under the Interstate Commerce Act because they acted ultra vires. Plaintiffs again point to England’s transportation of the shipment as a violation of Tru-Pak’s agency agreement and an ultra vires activity. Plaintiffs do not allege any further acts by Defendants Tru-Pak, Siegel, or England that could be construed as ultra vires.

The term ultra vires is most commonly used to refer to acts that are beyond the scope of a corporation’s purposes, as set forth in their articles of incorporation or bylaws. However, the term also has a broader meaning, implicating all actions that are “performed without any authority to act on the subject.” Black’s Law Dictionary 1522 (6th ed.1990) (emphasis added). The Supreme Court has employed the term in holding that certain acts by a state officer lacked authority and were therefore unprotected by sovereign immunity. In this context, the Court has held that “a state officer may be said to act ultra vires only when he acts ‘without any authority whatever.” ‘ Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n. 11, 104 S.Ct. 900, 908 n. 11, 79 L.Ed.2d 67 (1984) (quoting Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 697, 102 S.Ct. 3304, 3321, 73 L.Ed.2d 1057 (1982)).

To find that Defendants Tru-Pak, Siegel, and England acted ultra vires would require that these Defendants acted in the complete absence of authority. Having already found that Tru-Pak, Siegel, and England acted within their apparent authority, the court now concludes that these Defendants did not act ultra vires or “without any authority whatever.” Id.

Since Defendants Tru-Pak, Siegel, and England were acting within their apparent authority as agents of Atlas, a disclosed principal, they were not parties to the bill of lading as a matter of law. Under 49 U.S.C. § 13907(a), these Defendants may not be held liable for the damage to Parramore’s shipment. Plaintiffs’ sole remedy in this case lies in their Carmack Amendment claim against Atlas, the disclosed principal carrier. Summary judgment is therefore granted with respect to all of Plaintiffs’ claims against Defendants Tru-Pak, Siegel, and England.

C. Plaintiffs’ Compliance with the Carmack Amendment

Defendants’ third argument in favor of summary judgment goes to the sufficiency of Plaintiffs’ claim. The parties’ contract, the Carmack Amendment, and ICC regulations set forth the requirements for a valid claim. Defendants contend that Plaintiffs did not comply with these requirements and should be barred from recovery.

The bill of lading provided to and signed by Parramore clearly states that “[a]s a condition precedent to recovery, a claim for any loss or damage, injury or delay, must be filed in writing with carrier.” (Zammit Dep. Ex. 1.) The bill of lading also expressly incorporates the terms of Atlas’s tariff, stating “the terms of the tariffs that are incorporated include (I) limits on the Carrier’s liability for loss, damage or delay of goods, including fragile or valuable goods; (II) claim restrictions; and (III) rights of the Carrier to impose monetary penalties on shippers.” (Id.)

The “claim restrictions” referred to are actually minimum filing requirements imposed on any claim submitted to Atlas. The requirements in Atlas’s tariff are identical to those set forth in the applicable ICC regulations:

A written or electronic communication … from a claimant, filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage or transportation and: (1) Containing facts sufficient to identify the baggage or shipment (or shipments) of property, (2) Asserting liability for alleged loss, damage, injury, or delay, and (3) Making claim for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provision for filing claims embraced in the bill of lading or other contract of carriage….

49 C.F.R. § 370.3 (2003).

Although a copy of the tariff was not offered to Plaintiffs prior to shipping, the bill of lading clearly states that the tariff’s terms are part of the contract. The bill of lading also notes that a copy of the tariff will be furnished on request. Plaintiffs do not allege that they ever requested a copy of the tariff.

In this case, the parties contacted each other many times to discuss their conflict. However, most of these contacts were oral communications and cannot satisfy the written claim requirement set forth in the bill of lading.

The parties have produced only one piece of written correspondence that might constitute a valid claim–the letter State Farm sent to Tru-Pak on May 4, 2000, advising its intent to pursue a subrogation claim. (Anders Dep. Ex. 6.) The parties vigorously dispute whether this letter was ever received, and if it were, whether it could constitute a sufficient claim as required by the bill of lading, the tariff, and the ICC regulations.

1. Receipt of the Claim

The parties first dispute whether State Farm’s letter was ever received by Tru-Pak. A copy of the letter produced by Plaintiffs bears the address “1205 6th St SW P.O. Box 773.” (Siegel Dep. Ex. 24.) Two facts are not disputed: (1) at the time of the accident, the aforementioned address was valid; (2) after the accident, Tru-Pak moved to a new location. Plaintiffs assert they were unaware of the move until after the claim had been mailed. Although Tru-Pak’s street address changed, it continued to maintain the same post office box. As such, the post office box number appearing on the letter was valid, although the street address was not.

Anders stated in his deposition that the post office would not have forwarded the letter to Tru-Pak’s new address because the location lacked a mail receptacle. (Anders Dep. at 66-68.) He further stated that the post office did not forward any mail to Tru-Pak that bore the wrong street address. (Id.)

However, when viewed in the light most favorable to Plaintiffs, the court finds that a genuine factual dispute remains as to whether this letter was received. The letter is addressed, in part, to a correct post office box where Tru-Pak did receive mail. (Anders Dep. at 68.) Tru-Pak continued to use the incorrect address in a letter it sent to State Farm after Tru-Pak’s location had changed. (Siegel Dep. Ex. 20.) Further, State Farm appears to have faxed a copy of the letter to Tru-Pak on August 29, 2000. (Siegel Dep. Ex. 25.) There is no contention that the fax number was incorrect.

When the resolution of factual issues necessarily depends on a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir.1979); see Fed.R.Civ.P. 56(e) (comments to 1963 amendments). In this case, Plaintiffs assert that the letter was mailed while Defendants claim it was never received. There are facts on the record to support either contention, but these facts must be viewed in the light most favorable to Plaintiffs. Since the issue of whether the letter was ever received is certainly material to this case, the court will not grant a motion for summary judgment on these grounds.

Defendants next contend, even if the letter were received by Tru-Pak, summary judgment is proper because Plaintiffs did not file their claim with Atlas directly. Defendants argue, because Atlas ended its agency agreement with Tru- Pak shortly after the accident, Tru-Pak is not a “proper carrier” with which a claim may be filed. See 49 C.F.R. § 370.3(b).

Considering the facts in the light most favorable to Plaintiffs, the court finds there is a genuine issue of material fact as to whether Tru-Pak continued to have the authority to receive claims for Atlas even after the termination of the agency agreement. The agency agreement between the parties provided in section 2(h) that Tru-Pak would “transmit promptly to Atlas notices of all civil, criminal and administrative actions and all claims, including claims for loss, damage or delay to shipments.” (Siegel Dep. Ex. 1.) Section 9(e) further provides, upon termination of the agency agreement, Tru-Pak’s “rights and privileges under this Agreement, but not [Tru-Pak]’s obligations and liabilities, shall cease.” (Id.) This language would require Tru-Pak to transmit any relevant claims it received to Atlas, regardless of the agreement’s termination. Tru-Pak contends, had it received Plaintiffs’ claim, it would have forwarded the claim to Atlas. (Id. at 84, 176.) Plaintiffs also assert that Atlas told them Tru-Pak would be handling the claim, leading Plaintiffs to believe any claims should be filed with Tru-Pak. [FN4] (Id. Exs. 21-23.)

These facts indicate there is a genuine and material dispute regarding Tru- Pak’s authority to receive claims on behalf of Atlas. Viewing the facts in the light most favorable to Plaintiffs, there is reason to believe that Atlas gave Tru-Pak actual authority to receive claims, even after the agency agreement terminated. In the alternative, there is an indication that Atlas may have made statements that caused Plaintiffs to reasonably believe they should have filed their claim with Tru-Pak. In that circumstance, Tru-Pak would retain apparent, if not actual, authority to receive the claim on behalf of Atlas. As a result of this material factual dispute, Defendants are not entitled to summary judgment on grounds that Atlas never received Plaintiffs’ claim.

2. Sufficiency of the Claim

Defendants contend, even if State Farm’s letter were received, summary judgment is proper because the claim did not meet the requirements set forth by ICC regulations. As set forth above, these regulations require that a valid claim, at minimum, must: “(1) Contain[ ] facts sufficient to identify the baggage or shipment (or shipments) of property, (2) Assert[ ] liability for alleged loss, damage, injury, or delay, and (3) Mak[e] claim for the payment of a specified or determinable amount of money.” 49 C.F.R. § 370.3. Atlas’s tariff also sets forth these same requirements.

Defendants allege the State Farm letter fails the first and third of these requirements. By way of identifying the shipment, the State Farm letter gives only Parramore’s name and the date of loss. As to the monetary value of the claim, the letter does not include a damage estimate.

Plaintiffs contend, despite their failure to strictly comply with the regulatory requirements, the State Farm letter does substantially comply with these provisions. They assert that identifying Parramore and giving the date of loss were sufficient for Tru-Pak and Atlas to identify the shipment in question. They further assert that the inclusion of a specific amount of damages was unnecessary since Tru-Pak and Atlas were fully capable of estimating the value themselves. As support for this assertion, Plaintiffs put forward State Farm’s own estimate of $152,457.00, which was paid to Parramore through his homeowner’s insurance policy. Plaintiffs do not allege that they gave Defendants any further notice of a specific amount to be claimed.

Defendants urge this court to apply a strict compliance standard to the letter in question; Plaintiffs argue that a substantial compliance standard should be applied. There is currently a split among the circuits regarding which approach should be taken when evaluating Carmack Amendment claims. Compare Salzstein v. Bekins Van Lines, Inc., 993 F.2d 1187, 1189-91 (5th Cir.1993) (finding that shipper’s claims must strictly comply with Carmack Amendment requirements), and Nedlloyd Lines, B.V. Corp. v. Harris Trans. Co., 922 F.2d 905, 908-09 (1st Cir.1991) (same), and Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900, 904-05 (2d Cir.1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1357, 67 L.Ed.2d 340 (1981) (same), with Trepel v. Roadway Express, Inc., 194 F.3d 708, 713 (6th Cir.1999) (finding that shipper’s claim need only substantially comply with Carmack Amendment requirements), and Insurance Co. of N. Am. v. G.I. Trucking Co., 1 F.3d 903, 906-07 (9th Cir.1993) (same), and Wisconsin Packing Co. v. Indiana Refrigerator Lines, Inc., 618 F.2d 441, 446-47 (7th Cir.1980) (same), and Atchison, Topeka & Santa Fe Ry. Co. v. Littleton Leasing & Inv. Co., 582 F.2d 1237, 1240-41 (10th Cir.1978) (same). The Fourth Circuit has not had occasion to determine which standard of compliance it would apply to Carmack Amendment claims.

Courts following a strict compliance standard routinely find that claims are insufficient unless some price is quoted. See, e.g., Salzstein, 993 F.2d at 1190-91 (holding that to allow recovery based on a claim that contained no damage estimate would “frustrate the regulatory purpose of encouraging voluntary settlement”); Nedlloyd, 922 F.2d at 908 (ruling that two letters submitted by the shipper were inadequate as claims because they failed to include damage estimates); General Elec. Co. v. Brown Transp. Co., 597 F.Supp. 1258, 1267 (E.D.Va.1984) (finding shipper’s claim inadequate because shipper knew the amount of damages but failed to include the information). By contrast, at least two circuits following a substantial compliance standard have found that a price estimate is not necessarily required. G.I. Trucking, 1 F.3d at 906-07 (finding that a shipper’s claim was sufficient even though no amount of damage was specified); Wisconsin Packing, 618 F.2d at 445-46 (finding that a shipper’s initial claim may lack a damage amount but that the carrier should be given supplemental notice of any estimate that is later calculated). Under the strict compliance view, Plaintiffs’ letter is inadequate as a Carmack Amendment claim, while under the substantial compliance view the letter may be sufficient.

At this stage, the court will refrain from deciding which legal standard should be applied. When inquiry into the facts is necessary to a determination of the correct legal principle, summary judgment is generally not appropriate. Podberesky v. Kirwan, 38 F.3d 147, 156 (4th Cir.1994), cert. denied, 514 U.S. 1128, 115 S.Ct. 2001 (1995) (citing Stevens v. Howard Johnson, Co., 181 F.2d 390, 394 (4th Cir.1950) (finding that summary judgment should be granted “only where it is perfectly clear that … inquiry into the facts [would] not [be] desirable to clarify the application of the law.”)).

When viewed in the light most favorable to Plaintiffs, a genuine factual dispute exists regarding Defendants’ notice of this claim. Numerous contacts between Plaintiffs and Defendants are documented in the exhibits presented to the court. Taken together with State Farm’s letter, Defendants’ actual notice may have been sufficient to constitute a valid Carmack claim under the substantial compliance view. However, extensive inquiry into the factual record and the credibility of the parties would be needed before the court could determine if the substantial compliance view is the appropriate legal standard to apply.

Since it cannot be said that Plaintiffs’ claim was insufficient as a matter of law, the court will not grant Defendants’ motion for summary judgment on those grounds.

3. Waiver and Estoppel

Even if the court were to find that Plaintiffs’ claim was insufficient as a matter of law, Plaintiffs have argued that Defendants were not entitled to an adequate or timely claim. Plaintiffs contend that Defendants should be estopped from asserting their right to a proper claim or, in the alternative, that Defendants waived their right to a proper claim.

The Fourth Circuit has not yet considered possible exceptions to the Carmack Amendment’s notice requirements. Courts that have considered the matter apply only a few, including estoppel and waiver. [FN5] If applicable, these exceptions may relieve a shipper of his obligation to file a valid and timely claim.

Estoppel occurs when “one party has reasonably relied on the conduct or statements of another; if the relying party suffers harm as a result of this reliance, the inducing party can be estopped from disavowing his earlier conduct or statement.” Salzstein, 993 F.2d at 1191. “Estoppel is not to be found lightly …. Estoppel cannot be invoked absent evidence that the carrier told the shipper not to file or otherwise led it to believe that filing was unnecessary to have its claim satisfied.” Imperial News Co. v. P-I-E Nationwide, Inc., 905 F.2d 641, 645 (2d Cir.1990).

In this case, Plaintiffs plead ignorance of the written claim requirements. However, these requirements were specifically set forth in their bill of lading, with further conditions included in the incorporated tariff. Defendants had no further duty to make Plaintiffs aware of the terms. That they did not specifically seek to advise Plaintiffs of these terms does not constitute misleading conduct. See Imperial News, 905 F.2d at 645 (declining to apply estoppel where a shipper made repeated calls to its carrier but was never advised of the need to file a claim). Absent misleading statements or conduct by Defendants, Plaintiffs cannot claim estoppel solely because they were ignorant of their contract’s unambiguous terms. See Home Ins. Co. v. Rail Express, Inc., 865 F.Supp. 183, 188 (S.D.N.Y.1994) (declining to apply estoppel where a shipper’s insurer had not shown that it was misled as to the terms of the tariff or that the tariff itself was ambiguous).

Plaintiffs next assert that estoppel is appropriate because Tru-Pak repeatedly assured them that the shipment would be repaired and delivered. [FN6] When viewed in the light most favorable to Plaintiffs, these facts show that Tru-Pak may have intended to provide some sort of settlement. Even if Plaintiffs’ reliance on a possible settlement were reasonable, that alone may not justify estopping Defendants from requiring a written claim. See Bruker Instruments, Inc. v. Bay State Moving Sys., Inc., 15 F.Supp.2d 156, 161 (D.Mass.1998) (finding that a settlement offer by a carrier’s agent did not estop the carrier from requiring that the shipper file a timely and sufficient claim).

However, Plaintiffs also contend that they had several contacts with Atlas during this time. Plaintiffs claim that Atlas repeatedly told them the claim would be handled exclusively by Tru-Pak. (Siegel Dep. Exs. 21-23.) Making all reasonable inferences in Plaintiffs’ favor, a jury could conclude that these statements by Atlas, coupled with the representations made by Tru-Pak, may have caused Plaintiffs to believe that they did not need to submit a written claim. Atlas’s statements would lead Plaintiffs to believe that Tru-Pak alone was handling the claim and Tru-Pak’s own statements indicated that it would settle the claim by repairing and delivering the shipment.

These same facts cause Plaintiffs to argue that Defendants waived their right to a timely written claim. Waiver is a second exception to the Carmack Amendment’s notice requirement. “Waiver involves the voluntary or intentional surrender of a known right.” Salzstein, 993 F.2d at 1191. Offers to settle a claim do not usually amount to a waiver of a carrier’s right to written notice. See Bruker, 15 F.Supp.2d at 161 (finding that a settlement offer by carrier’s agent did not waive carrier’s right to a timely and sufficient claim). As such, Tru-Pak’s offers to repair the shipment do not amount to waiver by Atlas. However, when viewed in the light most favorable to Plaintiffs, Atlas did maintain that Tru-Pak alone would handle the claim. This fact could allow a reasonable jury to find that Atlas effectively waived its right to receive a claim.

These actions create a genuine issue of material fact as to whether Defendants induced Plaintiffs’ reasonable belief that they would not be held to the ordinary claim requirements. Although Defendants have shown that Plaintiffs’ claim may not meet these requirements, Plaintiffs have shown that their suit is not necessarily barred on those grounds. When viewed in the light most favorable to Plaintiffs, the facts could support a reasonable jury’s finding that Defendants waived or are estopped from asserting their right to a timely and adequate claim. As a result, the court will deny Defendants’ motion for summary judgment with respect to the adequacy of Plaintiffs’ claim under the Carmack Amendment.

4. Applicable Deadline for Claims

The bill of lading provides that “[a]s a condition precedent to recovery, a claim for any loss or damage, injury or delay, must be filed in writing with carrier within nine months after delivery … or in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed.” (Zammit Dep. Ex. 1) (emphasis added). This time limit is an acceptable minimum period for filing under the Carmack Amendment. 49 U.S.C. § 14706(e)(1).

Plaintiffs note that Tru-Pak still retains a hand-painted occasional table belonging to Parramore. (Siegel Dep. at 155, 157-58 .) Since the filing deadline runs from the date of delivery, and delivery is not yet complete, Plaintiffs reason that the nine-month deadline has not yet begun to run in their case. Presumably, Plaintiffs would then still be able to file a timely and adequate claim with Atlas.

However, the contract provides that, in the case of non-delivery, the filing deadline will run from “a reasonable time for delivery.” Accepting Plaintiffs’ argument would stretch the meaning of “a reasonable time for delivery” too far. Although Tru-Pak may still retain a portion of Parramore’s shipment, delivery at this late date (more than four years) would clearly constitute an unreasonable delay. The reasonable time for delivery and the subsequent nine month filing period have undoubtedly expired.

Exactly when the time for reasonable delivery passed does not need to be addressed because Plaintiffs do not set forth any other written communication that could constitute a valid Carmack Amendment claim. The only written source of notice to Defendants that could be construed as a Carmack Amendment claim is the State Farm letter of May 4, 2000. [FN7] The court’s further consideration of this matter will then be limited to whether the State Farm letter will suffice as a written claim as required by the bill of lading and ICC regulations or, in the alternative, whether Defendants waived or are estopped from asserting their right to such a claim.

4. Amount of Plaintiffs’ Maximum Recovery

Defendants have also moved for summary judgment as to damages. Defendants allege that the bill of lading limits Plaintiffs’ recovery to a maximum of $70,000.00. (Defs.’ Br. Supp. Mot. Summ. J. at 14-15.) Plaintiffs concede their recovery is limited to $70,000.00, not inclusive of any costs or fees to which they may be entitled. (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. at 18-19.) Since the parties have agreed on this point, the court will grant summary judgment to Defendants with respect to any damages in excess of $70,000.00, not inclusive of costs and fees.

IV. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendants’ Motion for Summary Judgment with respect to Plaintiffs’ state law claims is GRANTED; with respect to all of Plaintiffs’ claims against Defendants Tru-Pak, Siegel, and England is GRANTED; with respect to all damages exceeding $70,000.00, exclusive of any additional fees and costs to which Plaintiffs may be entitled is GRANTED. The Defendants’motion is DENIED with respect to Plaintiffs’ Carmack Amendment claim against Defendant Atlas.

FN1. Mr. Visser no longer represents Parramore and has retired from his firm. (Visser Aff. ¶ 5.) His files at that firm have since been destroyed. (Id.)

FN2. Although State Farm obtained a copy of the bill of lading, the agent handling Parramore’s claim has admitted that he never read these provisions. (Zammit Dep. at 46-49.) State Farm’s subrogation unit also appears to have been unaware of the requirements. (Siegel Dep. Ex. 23.)

FN3. As will be discussed further herein, the ordinary rule is that only principal carriers and not their agents may be liable for damages under the Carmack Amendment. See 49 U.S.C. § 13907(a).

FN4. Although Atlas counters with the allegation that it provided Plaintiffs with a claim form and instructions, Plaintiffs deny that any such forms were received. (Visser Aff. ¶ 6.) Since all facts must be considered in favor of the nonmovants, the court will assume for the purposes of this motion that the forms were not received.

FN5. Only one additional exception has been recognized but does not apply in this case. This exception occurs when a shipper is “unable, despite the exercise of reasonable diligence, to ascertain the extent of its loss within the claim filing period.” Nedlloyd Lines, B.V. Corp. v. Harris Trans. Co., 922 F.2d 905, 909 (1st Cir.1991) (citing Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900, 905 n. 10 (2d Cir.1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1357, 67 L.Ed.2d 340 (1981). Since State Farm determined the amount of damage and paid $152,457.00 to Parramore, Plaintiffs may not assert that they were unable to “ascertain the extent of loss.”

FN6. As of June 4, 2003, Plaintiffs continued to allege that some items had not been delivered. (Pls.’ Br. Opp’n Defs.’ Mot. Summ. J. at 14- 15.)

FN7. State Farm Agent Zammit has stated that State Farm sent no other documents to Tru-Pak or Atlas which might constitute a claim. (Zammit Dep. at 41-42.) In addition, he took no action at all from April 2000 through July 2001. (Id.) Plaintiffs have not produced any documents filed with either Tru-Pak or Atlas between September 14, 1999, the date of the accident, and May 4, 2000, the date of the State Farm letter. Following the letter, the only document provided that could constitute a written claim is Plaintiffs’ complaint of March 8, 2002. The complaint contains all the elements of a valid Carmack Amendment claim, but certainly was not filed within nine months of a reasonable time for delivery.

United States District Court,

S.D. New York.

SECURITY INSURANCE COMPANY OF HARTFORD, a/s/o JT International Holdings, B.A.,

Plaintiff,

v.

OLD DOMINION FREIGHT LINE, INC., and Concord Transportation, Inc., Defendants.

Aug. 22, 2003.

OPINION AND ORDER

LYNCH, J.

This dispute concerns a shipment of cigarettes transported by truck from North Carolina to Montreal, Canada, where it was stolen shortly after being deposited in a bonded warehouse pending inspection and release by the Canadian customs authorities. Plaintiff Security Insurance of Hartford (“Security”) is the subrogee of RJ Reynolds, Inc. (“RJR” or “the shipper”), which owned the cigarettes and contracted for their transportation to Canada. Security sues the trucking company that RJR hired to ship the cigarettes, Old Dominion Freight Line, Inc. (“Old Dominion” or “the carrier”), for the full value of the lost cargo. Security originally named Concord Transportation, Inc. (“Concord”), a Canadian transportation company that was Old Dominion’s subcontractor, as a co- defendant, but later withdrew its complaint against Concord. [FN1] Old Dominion, however, then filed a cross-claim against Concord which remains pending.

FN1. The action against Concord was dismissed without prejudice on April 27, 2002, upon plaintiff’s voluntary withdrawal of the complaint against Concord.

Several motions have been filed. Security has moved for summary judgment, arguing that Old Dominion is strictly liable for the loss of the cargo under the law relating to common carrier liability. Both Old Dominion and Concord moved either to dismiss the complaint on the grounds of forum non conveniens, or to stay this action pending resolution of a prior action in a Canadian court involving the same incident (the “Canadian Action”). The parties appeared for oral argument on the motions on June 30, 2003.

For the reasons that follow, the Court finds that Old Dominion is strictly liable for the loss of the cargo en route to its final destination in Canada. Therefore, Old Dominion’s motion for dismissal or stay based on forum non conveniens is denied, because there would be no additional convenience in trying a strict liability action between an American shipper and an American carrier in Canada. Moreover, because there are no issues of material fact in dispute, and because Old Dominion fails to raise an adequate defense to the prima facie case for liability, summary judgment is awarded to Security. Finally, because Old Dominion’s claim against Concord essentially concerns matters that are more appropriately tried in Canada, Concord’s motion to dismiss the cross-claim on grounds of forum non conveniens is granted.

BACKGROUND [FN2]

FN2. Except as otherwise indicated, the following facts are drawn from the parties’ affidavits and legal memoranda submitted in connection with the various motions before this Court. The Court notes that plaintiff never filed a Statement of Uncontested Facts with its Motion for Summary Judgment, as required by Local Rule 56.1, but instead provided a statement of facts in the multiple affirmations submitted by its counsel Michael J. Slevin. Plaintiff also failed to comply with Local Rule 7.1, which requires submission of a brief in support of or opposition to a motion, rather than submission of affirmations combining factual statements with legal argument. To avoid prejudicing the plaintiff because of errors of form, the plaintiff’s procedurally defective submissions will be considered on the merits. The Court notes, however, that its rules are designed to facilitate the identification of potential factual disputes, and that the failure to follow them significantly burdens the Court in dealing with complex summary judgment motions.

Carriage from North Carolina to Canada

On March 20, 1996, RJR entered into a Transportation Agreement or contract of carriage (“Contract”) with Old Dominion setting forth terms of carriage for shipments undertaken by Old Dominion. The Contract automatically renewed for one year periods unless cancelled in writing. Plaintiff alleges that on July 13, 1999, 604 cases of Camel Light cigarettes and 175 cases of Winston KS cigarettes were loaded into an Old Dominion truck on the premises of RJR in Winston-Salem, North Carolina. The straight bill of lading for that shipment identified the consignee as RJR Macdonald, Inc., in Montreal, Canada, c/o Collector of Customs. (Straight Bill of Lading dated July 13, 1999, Ex. A. to Affirmation of Michael J. Slevin, dated Jan. 21, 2003 (“Slevin Aff.”).)

Old Dominion transported the cargo to Greensboro, North Carolina, where it turned the cargo over to its subcontractor, Concord. (Slevin Aff. ¶ 4.) Concord trucked the cargo to Lewiston, New York, and over the border into Canada, on July 14, 1999. (Slevin Aff ., Ex. B.) At the direction of the Canadian customs authorities, Concord transported the cigarettes to a warehouse owned by Intermediate Terminals Warehousing (“Intermediate”) in Montreal on July 20, 1999, to be stored there in the Concord trailer pending customs release, at which time they were to be delivered to the consignee, RJR Macdonald in Montreal.

Theft of the Cigarettes

The parties agree that the cargo was subsequently stolen from the Intermediate warehouse by an unknown party. The plaintiff claims that the cigarettes were stolen on the same day they arrived at the warehouse, and that no one noted the theft until the consignee began looking for the missing shipment over a week later, after Canadian customs authorities had officially released the cigarettes.

Old Dominion was apparently unaware of the theft, and did not report it to the shipper in North Carolina or to the consignee in Montreal. When the cargo did not arrive at the final destination in Montreal by August 3, 1999, RJR Macdonald reported the loss to the Montreal police. The plaintiff claims to have learned, in the course of subsequent investigation, that the Concord trailer, missing its cargo, had been discovered by the Montreal police in front of some other warehouse on July 22, 1999. It appears undisputed that the police did not identify the origin of the trailer it found, nor did the bonded customs warehouse notice the theft of the trailer from its premises, until after RJR Macdonald had reported the missing cargo to the police.

Filing of the Claim

RJR filed a claim with Old Dominion for reimbursement for the lost cargo. None of the motion papers before the Court includes a copy of plaintiff’s claim letter, nor do the parties refer to the date of the claim, but on May 22, 2000, Old Dominion’s Director of Claims sent a letter to RJR referring to a claim in the amount of $133,436.05. The letter stated that because the shipment had been transferred to Concord, Old Dominion would transfer the file to Concord, and Concord “would resolve this matter with [RJR] direct [sic ],” and that Old Dominion was closing its file on the claim. (Letter from Ernie Benge to S. Appelbe/Frt Claims, Ex. A to Affidavit of Ernie S. Benge, dated Feb. 17, 2003 (“Benge Aff.”).)

The parties dispute whether the May 22 letter constituted a disallowance of RJR’s claim, sufficient to start the clock on the shipper’s time to initiate suit. Old Dominion argues that the letter was a clear rejection of liability for the claim. (Def. Mem. in Opp. to Summ. J. at 12.) Security argues that while the letter referred RJR to Concord for further proceedings on the claim, RJR had no reason to believe that Old Dominion had rejected its responsibility for the loss. The May 22 letter to RJR enclosed a letter from Concord to Old Dominion, wherein Concord advised Old Dominion that RJR had filed a claim against Concord, and that Concord had in turn filed a claim against the warehouse in Canada. (Letter from Jacqueline Craig to Eddie Wooten dated May 5, 2000, Ex. B to Reply Affirmation of Michael J. Slevin, dated Feb. 25, 2003 (“Slevin Reply Aff.”).) Concord agreed to advise Old Dominion “upon closure of RJ Reynold’s [sic ] claim against Concord Transportation Inc. when all pertinent matters have been attended to.” (Id.)

There was no further correspondence between the parties concerning the claim until nearly two years later, when counsel for Security, as subrogee to the shipper, [FN3] sent a letter to Old Dominion inquiring into the status of the claim. (Def. Mem. in Opp. to Summ. J. at 14; Letter from Michael J. Slevin to Old Dominion dated March 11, 2002, Slevin Reply Aff. Ex. A).

FN3. At some point, Security paid out $195,938 to RJR and/or its parent company Japan Tobacco International Holdings (“JTIH”), pursuant to an insurance policy held by JTIH. (Compl.¶ 2.) Security is therefore subrogated to the interests of JTIH and/or RJR in the claim.

The Canadian and U.S. Lawsuits

On June 17, 2002, Security brought suit in the Superior Court of the Province of Quebec, District of Montreal, against Concord, Intermediate, and Le Groupe de Securitethat is, against the Canadian subcontractor, warehouse, and security firm involved in the events surrounding the theft of the cargo (“Canadian Action”). (Declaration of Gregory Azancot dated Oct. 23, 2002 (“Azancot Decl.”), ¶ 3.) Old Dominion, a Virginia corporation with headquarters in North Carolina, was not named in the Canadian Action. In the Canadian Action, Security seeks damages equal to the $195,938 (U.S.) it had paid out on the claim, in addition to interest and statutory indemnity available under Canadian law. (Azancot Decl. Ex. A at 3.)

On July 10, 2002, less than a month after filing the Canadian Action, plaintiff filed the instant lawsuit against Old Dominion and Concord, demanding damages in the amount of $195,938, plus interest, costs and attorneys fees. (Compl. at 5-6.) After having withdrawn its claims against Concord, plaintiff is left with two lawsuits in two countries concerning the same theft, with no overlap of defendants between the suits (except to the extent that Concord remains in this action as a defendant on Old Dominion’s cross-claim).

DISCUSSION

The Court is faced with a set of intertwined motions concerning procedural questions (defendant and cross-claim defendant’s motions for stay or dismissal based on forum non conveniens), as well as questions on the merits (plaintiff’s motion for summary judgment). Essentially, plaintiff argues that the doctrine of strict liability under common carrier law applies to this dispute, and that there is no practical barrier to this Court exercising jurisdiction because the Court is fully capable of interpreting the Contract, which was executed in the United States. Furthermore, plaintiff argues that the Court should award summary judgment in its favor and find Old Dominion strictly liable for the lost cargo because plaintiff made a timely loss claim, and because plaintiff has established an unrebutted prima facie case of carrier liability.

Old Dominion, on the other hand, argues that strict liability is not the appropriate standard here because the Contract provides that a negligence standard applies to loss in cases such as this one. Under Old Dominion’s negligence theory, there are numerous contested issues of fact concerning the depositing of the cigarettes in the customs warehouse, which would require discovery into the details of the security at the warehouse, and the theft itself. Because the theft occurred in Canada and all witnesses to the depositing of the cargo in the warehouse are in Canada, and because this Court does not have the power to compel testimony or issue discovery orders enforceable in Canada, Old Dominion argues that Canada is the proper forum for this dispute. To the extent that Old Dominion might not otherwise be subject to Canadian jurisdiction, it offers to submit to the jurisdiction of the Quebec court as a condition of the dismissal it seeks here.

I. Forum Non Conveniens

Since the most fundamental issue is whether the Court should exercise jurisdiction, we turn first to the forum non conveniens analysis. Under the doctrine of forum non conveniens, a district court has broad discretion to dismiss an action, over which jurisdiction is otherwise proper, based on the convenience of the parties and the interests of justice. See Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527 (1947); R. Maganlal & Co. v. M.G. Chem. Co., Inc., 942 F.2d 164, 167 (2d Cir.1991) (“A district court has broad discretion in deciding whether to dismiss an action on grounds of forum non conveniens.” ); Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 145 (2d Cir.2000) (“We have recognized that our review of a forum non conveniens dismissal is limited to whether a district court abused its broad discretion to dismiss on such grounds.”).

District courts apply a two-part test in determining whether to grant a motion to dismiss based on forum non conveniens. Specifically, “[t]o prevail on a motion to dismiss based on forum non conveniens, a defendant must demonstrate that an adequate alternative forum exists and that, considering the relevant private and public interest factors set forth in [Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947) ], the balance of convenience tilts strongly in favor of trial in the foreign forum.” Maganlal, 942 F.2d at 167.

In this case, the Court need not decide the adequacy of Canada as a forum because the second prong of the Gulf Oil test is dispositive of the forum non conveniens analysis. The key to the weighing of public and private interest factors here is the location of the sources of proof, which would dictate the convenience, and indeed, the practicability, of discovery and trial. Therefore, the linchpin to the forum non conveniens analysis is the applicable standard of liability. If plaintiff is correct that this is a strict liability case, then the circumstances surrounding the theft of the cargo in Canada are irrelevant to the resolution of the claim. No additional convenience would be gained from pursuing Security’s claim in Canada, because no Canadian discovery would be required to determine the merits of a strict liability action based on the United States-executed contract of carriage. However, if defendant is correct that a negligence standard applies, then discovery into the security at the warehouse and the circumstances of the theft would be necessary to determine liability. In that event, the balance of convenience might very well tip in favor of the Canadian forum (assuming it were found to be adequate) because the sources of proof concerning the theft, and the care taken to prevent it, lie for the most part in Canada, easily accessible to the Canadian court but beyond the reach of this one. Because the Court finds that strict liability applies, there is no need for discovery in Canada, and therefore Old Dominion’s motion to dismiss or stay based on forum non conveniens is denied.

A. Standard of Liability

At common law, a common carrier is liable as a virtual insurer for cargo it transports, with some significant exceptions. See Shippers Nat’l Freight Claim Council, Inc. v. ICC, 712 F.2d 740, 745 (2d Cir.1983). The Interstate Commerce Act of 1887 (“ICA”) codified this common law rule. Under the Carmack Amendment to the ICA (enacted as part of the Hepburn Act of 1906, ch. 3591, sec. 7, 34 Stat. 584, 593-95 (1906)), a common carrier transporting goods interstate or from the United States to an adjacent country under a through bill of lading is liable to the person entitled to recover under the bill of lading for actual loss of property. If the carrier can establish a common law exception, then the carrier is held to a negligence standard. The Carmack Amendment’s strict liability provisions were carried over into the ICC Termination Act of 1995 (“ICCTA”), effective January 1, 1996. See 49 U.S.C. § 14706(a)(1). Significantly, under the ICCTA, registered motor carriers may also enter a contract with the shipper, and may waive rights and remedies under the statute. 49 U.S.C. § 14101(b). In effect, this allows parties to contract around the strict liability rule. See Saul Sorkin, Goods In Transit § 6.01[7][c] (2003).

While, as a general rule, common carriers are strictly liable for loss that occurs during shipment, a different liability standard applies after delivery has been tendered if the cargo remains in the carrier’s possession. In the absence of a valid agreement to the contrary, the liability of a common carrier for possession of a shipper’s goods after completion of transportation and tender of delivery is the negligence standard applicable to a warehouseman or bailee. In other words, if a carrier transports the goods and tenders delivery, but the consignee does not accept delivery, then the carrier is only liable for losses resulting from its negligence during the time it stores the cargo subsequent to consignee’s rejection. See e.g., General Am. Transp. Corp. v. Indiana Harbor Belt R. Co., 191 F.2d 865, 870 (7th Cir.1951).

Here, the Contract between Old Dominion and RJR provided that Old Dominion would assume “liability at the full actual value (wholesale selling price of the property in the quantity shipped), such liability to exist from the time of the receipt of any of said goods by [Old Dominion] until proper delivery has been made.” (Contract ¶ 6(a), Ex. C. to Slevin Aff.) The Contract thus creates a general rule essentially the same as the common law rule that Old Dominion is liable as an insurer for the cargo. The Contract further specifies that under certain circumstances, Old Dominion’s liability will be reduced to the negligence standard applicable to a warehouseman: “If a shipment is refused by the consignee, or [Old Dominion] is unable to deliver it for any reason, [Old Dominion’s] liability as a warehouseman shall not begin until it has placed the goods in a public warehouse or other storage facility under reasonable security.” (Contract ¶ 6(c), Ex. C to Slevin Aff.)

Old Dominion argues that when Canadian customs halted the cargo for further inspection, Old Dominion became “unable to deliver” the cargo to the consignee, and when the cargo was then deposited in a bonded customs warehouse pending further action, Old Dominion’s liability was reduced to that of a warehouseman by operation of Paragraph 6(c) of the Contract. At a minimum, it contends, discovery is required into conditions at the warehouse to determine whether the “reasonable security” requirement of Paragraph 6(c) was met, thus satisfying the requirements triggering the negligence standard under the Contract.

By its own plain terms, however, and as a matter of law, Paragraph 6(c) does not apply to this situation. The paragraph, properly read, does not extend the conditions under which the shipper’s liability is limited to negligence; rather, it restricts those conditions, providing that if the conditions arise that under common law would trigger a shift from strict liability to liability for negligence, the shift is delayed “until [Old Dominion] has placed the goods in a public warehouse or other storage facility under reasonable security.” Before the question of “reasonable security” even arises, it must be determined whether those triggering conditions have occurred, since Paragraph 6(c) only applies (1) “[i]f a shipment is refused by the consignee,” or (2) if Old Dominion “is unable to deliver it for any reason.”

The first triggering event, if the “shipment is refused by the consignee,” is clearly inapplicable. This condition would involve a tender of delivery to the consignee, who refused to accept. That did not happen in this case, as delivery was never tendered.

The second event that could trigger negligence liability is if the carrier is “unable to deliver for any reason.” This condition encompasses situations where the carrier has not tendered delivery to the consignee because delivery is impossible. The question here is whether the halting of the cargo by Canadian customs constituted an action which made delivery to the consignee impossible, or merely a temporary interruption of transportation leading to incidental storage of the cargo by the carrier (or in this case, by its subcontractor).

The detention of the cargo by Canadian customs authorities has the hallmarks of a mere interruption in transportation, and in fact, an interruption that the parties could easily have foreseen. The detention of cargo did not make delivery impossible – it was the theft that made delivery impossible. Barring the theft, Canadian customs would have cleared the cargo for entry into Canada (as, in fact, it did, at which point the consignee discovered that the cargo was missing), and the carrier would have been able to deliver the cargo to the consignee. Parties contracting to ship goods across an international border necessarily contemplate that the goods will have to clear customs, a process that might entail some delay. The possibility that the goods will be so delayed, requiring storage by the carrier, like the possibility that progress will be interrupted by weather or traffic conditions, does not constitute a condition that renders the carrier “unable to deliver” the shipment, but simply an anticipated interruption in the course of carriage and delivery. Under common carrier law, storage incidental to carriage is insufficient to convert a carrier into a warehouseman. See Baloise Ins. Co. v. United Airlines, Inc., 723 F.Supp. 195, 199 (S.D.N.Y.1989). See also Nippon Fire & Marine Insurance Co., v. Skyway Freight Systems, Inc., 45 F.Supp.2d 288, 292 (S.D.N.Y.1999) (noting that courts have rejected theories of warehouseman’s duty under state law where storage was only incidental to transport).

The delay at Canadian customs did not make delivery impossible. Old Dominion does not even allege that the stop by Canadian customs was anything other than a routine customs inspection. The cargo was not impounded by Canadian customs, and no one contends that the cargo would have been permanently refused entry, rendering the carrier “unable to deliver” the goods to the consignee. [FN4] Under the terms of the Contract, deposit of the cargo in a warehouse alone does not trigger the warehouseman’s standard. For instance, if the carrier temporarily deposits the goods in a warehouse en route to the destination because of a brief delay due to inclement weather or because of a sick truck driver, its liability does not change. Under the Contract, the shift to negligence liability occurs only if the carrier is unable to make delivery, and then deposits the cargo in an appropriately secured warehouse. The detention by Canadian customs merely delayed delivery, but would not have precluded it, had the cargo not been stolen. [FN5]

FN4. If a customs authority impounded contraband goods that were prohibited entry into the destination country, it might well follow that the carrier was “unable to deliver” the goods. In such a case, where the goods might require indefinite storage pending the shipper’s instruction of where to transport the goods that were refused entry and thus impossible to deliver, it would be logical that the strict liability of the carrier should end once appropriate warehousing was obtained. Here, however, there is no suggestion that the Canadian customs authority prevented the cargo from entering Canada; on the contrary, the goods were in fact cleared for delivery.

FN5. Old Dominion cannot claim that its liability changed to that of a warehouseman because a theft occurred. It is true that the theft rendered Old Dominion “unable to deliver” the goods, and thus in principle could trigger Paragraph 6(c). But it would be absurd to argue that the loss of the property in itself defeats strict liability because it makes delivery impossible, and the Contract in fact does no such thing. Under Paragraph 6(c), an event that makes delivery impossible only causes a shift to warehouseman’s liability after the carrier reacts to the event by placing the goods in a properly secured warehouse, something that cannot occur when the triggering event is the theft or loss of the goods.

That the parties to the Contract could have foreseen the eventual detention of cigarettes for customs inspection is apparent from the nature of the shipment (international transportation of highly-taxed tobacco products). Moreover, the bill of lading itself, which indicates that the shipment is to “RJR Macdonald Inc. c/o Collector of Customs” and that “[t]his shipment will clear customs in Lacolle, Quebec,” demonstrates that they did foresee that possibility. (Through Bill of Lading, Slevin Aff. Ex. A.) Had the parties intended to hold the carrier only to a negligence standard for cargo held in the carrier’s possession during customs inspection, they could have so contracted. Indeed, that is precisely what occurred in H.P.I. Int’l Corp. v. Yellow Freight System, Inc., No. 84 Civ. 3800, 1987 WL 8069 (E.D.N.Y. Feb. 24, 1987), a case cited by Old Dominion. In H.P.I., unlike this case, the tariff specifically stated that “[f]reight held in carrier’s possession … for customs clearance or inspection … will be considered stored immediately.” H.P.I., 1987 WL 8069. Thus, far from supporting Old Dominion’s position, H.P.I. highlights the fact that the Contract here failed to provide that the carrier is held to warehouseman’s liability for goods stopped for customs inspection.

Because the Court finds that as a matter of law, the depositing of the cargo in the bonded customs warehouse to facilitate Canadian customs inspection was incidental to the carriage, and because the detention for routine customs inspection did not imply an inability to finally deliver the cargo, it follows that Paragraph 6(c) of the Contract was not triggered and Old Dominion’s liability remained that of an insurer.

B. Forum Non Conveniens Analysis

Courts in this circuit follow the Gulf Oil analysis of public and private factors when weighing the relative convenience of different potential fora. See Murray v. British Broadcasting Corp., 81 F.3d 287, 292 (2d Cir.1996). Under the Gulf Oil test, the requisite private factors include:

[1] the relative ease of access to sources of proof; [2] the availability of compulsory process for attendance of unwilling witnesses; [3] the cost of obtaining attendance of willing witnesses; [4] … all other practical problems that make trial of a case easy, expeditious, and inexpensive–or the opposite; [and][5] [i]ssues concerning the enforceability of a judgment.

Murray, 81 F.3d at 294. Public factors include:

[1] the administrative difficulties flowing from court congestion; [2] the local interest in having controversies decided at home; [3] the interest in having a trial in a forum that is familiar with the law governing the action; [4] the avoidance of unnecessary problems in conflict of laws or in the application of foreign law; and [5] the unfairness of burdening citizens in an unrelated forum with jury duty.

Murray, 81 F.3d at 293. Here, given the applicability of the strict liability standard, the balance of conveniences weighs in favor of this Court’s continuing jurisdiction.

Considering first the private factors, it is clear that New York is a convenient forum for this dispute. Because Old Dominion is held to a strict liability standard, the security conditions at the warehouse in Canada and circumstances of the theft are irrelevant to the liability analysis. [FN6] To the extent that contract interpretation is required, this Court is fully capable of interpreting the Contract, which was executed in the United States. To the extent parole evidence would be required to interpret the Contract, the witnesses to its formation appear to be available in this jurisdiction, as they might not be in Canada. Public factors similarly favor this Court’s continuing jurisdiction. United States law applies, the parties are United States corporations, and there is no reason to remove this case from a United States docket only to burden a Canadian court and potentially a Canadian jury with it. Because the balance of convenience factors tips in favor of this Court’s jurisdiction, Old Dominion’s motion for denial or stay on the grounds of forum non conveniens is denied.

FN6. Unless Old Dominion could successfully assert certain common law defenses to strict liability, in which case it would be held to a negligence standard. However, that is not the case here. See infra II.C and II.D.

II. Summary Judgment Against Old Dominion

A. Standard for Summary Judgment

Summary judgment is appropriate when there are no genuine issues of material fact in dispute and when, viewing the evidence in the light most favorable to the nonmoving party, no reasonable trier of fact could disagree as to the outcome of the case. See Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir.2000). While all ambiguities in the evidentiary record must be resolved in favor of the nonmoving party, “the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). In addition, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996). Summary judgment is then appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits … show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

To establish a genuine issue of material fact, the party opposing summary judgment ” ‘must produce specific facts indicating’ that a genuine factual issue exists.” Scotto, 143 F.3d at 114 (quoting Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations omitted). “The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Pocchia v. NYNEX Corp., 81 F.3d 275, 277 (2d Cir.1996) (quoting Liberty Lobby, 477 U.S. at 252).

B. Timeliness of Claim

Before addressing the merits of Security’s claim, it is necessary to consider Old Dominion’s argument that Security cannot prevail because this action was commenced too late under a contractual limitations clause. Alternatively, Old Dominion contends that summary judgment may not be granted because at the very least discovery into the facts of the alleged declination of the claim is required in order to determine the merits of this defense.

Under Contract Paragraph 6(h), a provision authorized by 49 U.S.C. § 14706(e)(1), [FN7] the Shipper has two years and one day from the date of a written disallowance of a claim to file suit. Old Dominion argues that it disallowed RJR’s claim by letter on May 22, 2000, starting the limitations clock, and that RJR therefore had until May 23, 2002, to file suit. Because RJR’s subrogee filed the instant lawsuit on July 8, 2002, Old Dominion argues that the claim is time-barred.

FN7. This statute provides in pertinent part that: “A carrier may not provide by rule, contract or otherwise … a period of less than 2 years for bringing a civil action against it under this section. The period for bringing a civil action is computed from the date the carrier gives a person written notice that the carrier has disallowed any part of the claim specified in the notice.”

The Second Circuit has specified that in order to trigger a contractual limitations clause of this kind, a written communication must “operate as a clear, final and unequivocal disallowance [of the claim],” and has warned carriers against using “words that are susceptible of more than one meaning, [as] it increases the risk that later it will be found not to have started the time limitations clock ticking.” Combustion Engineering, Inc. v. Consolidated Rail Corp., 741 F.2d 533, 537 (2d Cir.1984). The question here is whether Old Dominion’s May 2000 letter was sufficient to trigger the limitations period in the Contract and render this action untimely.

In the May 2000 letter, Old Dominion’s Director of Claims notified RJR that upon receipt of the claim, the file was transmitted to Concord for further handing and therefore Old Dominion was “closing [its] files.” (Benge Aff. Ex. 1.) Security argues that the May 2000 letter is at best ambiguous, since it indicated only that the claim was being passed on to the subcontractor, but did not definitively reject the claim. Rather, Security claims, the “clear, final and unequivocal disallowance” of the claim did not occur until an April 2, 2002, letter from Old Dominion’s Director of Claims to Security’s attorney stated that “[w]e decline liability under completion of contract or authority of law.” (Slevin Aff. Ex. D.) As Security points out, the April 2002 letter, which uses unambiguous language denying the claim, does not refer to any prior disallowance of the claim.

The Court agrees with Security that the language of the May 2000 letter is susceptible of multiple interpretations. It could easily mean, as Security contends, that Old Dominion expected the subcontractor to pay the claim, and that Old Dominion therefore need not do so. Old Dominion cited no reason why it was not ultimately responsible for the claim, as it did in the April 2002 letter, and did not indicate that “closing the file” constituted a definitive rejection of the claim. The May 2000 letter thus could be interpreted as a mere deferral of the claim, pending the subcontractor’s response. As a sophisticated actor engaged in the business of interstate and international shipping, Old Dominion can be expected to heed the Second Circuit’s warning and clearly decline a claim when that is, in fact, what it is doing. The vague language of the May 2000 letter does not meet the legal standard of a disallowance. Because that letter was not a “clear, final and unequivocal disallowance” of the claim as required in this Circuit, the time limit for the shipper to file suit did not begin to run until the definitive disallowance of the claim on April 2, 2002. Therefore, Security’s suit was timely brought and Old Dominion’s defense is rejected. [FN8]

FN8. Contrary to Old Dominion’s alternative argument, this question presents no factual issues, and no discovery is necessary to resolve it. Whether the May 2000 letter constituted a “clear, final and unequivocal disallowance” of the claim is essentially a question of law that depends on a reading of the text of the letter. Because the carrier has the power to fix the time when the limitations period begins to run, courts have required a clear and unequivocal date for the start of the limitations period. Combustion Engineering, 741 F.2d at 536. The purpose of the rule is to permit a claimant to file suit once it knows that its claim is not going to be paid voluntarily. Since a reasonable reader would have found the May 2000 letter ambiguous, and could have believed that it was still possible that the claim would be voluntarily paid by Old Dominion or Concord, the letter is not sufficiently “clear, final and unequivocal” to trigger the limitations clause.

C. Prima Facie Case of Carrier Liability

In order to make a prima facie case of carrier liability under the Carmack Amendment, a shipper must show that the cargo was delivered to the carrier in good condition, arrived at the destination in damaged condition (or failed to arrive at all), and damages. See Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619, 625 (2d Cir.1980). Once a prima facie case has been established, the burden is on the carrier to show both that it was not negligent and that the damage or loss was due to one of the excepted causes relieving the carrier from liability. Id. at FN 10. The excepted causes are: act of God, of public enemy, of the shipper, or of public authority, or the inherent vice of the cargo. See Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137 (1964). Because the defendant agrees that the cargo was stolen from the Canadian warehouse and thus never arrived at the destination, the second element is met and plaintiff need only present evidence of the first and third elements of the prima facie case. For the reasons that follow, the Court finds that plaintiff has established a prima facie case, which defendant fails to rebut.

1. Condition of the Cargo

Old Dominion argues that plaintiff has failed to present evidence that the cargo was delivered in good condition to the carrier, because the cigarettes were in sealed packages and the carrier could not inspect the condition or quantity of cargo upon receipt. A clean bill of lading is ordinarily prima facie evidence of delivery to the carrier in good condition. See Caemint Food Inc. v. Lloyd Brasiliero Co., 647 F.2d 347 (2d Cir.1981). However, “[a] clean bill of lading does not … constitute prima facie evidence of the condition of goods shipped in sealed packages where the carrier is prevented from ‘observing the damaged condition had it existed when the goods were loaded.” ‘ Bally, Inc. v. M.V. Zim America, 22 F.3d 65, 69 (2d Cir.1994), quoting Caemint, 647 F.2d at 352. In the case of a sealed container, the shipper must present other evidence to show that the goods were delivered to the carrier in good order. See Bally, 22 F.3d at 69. The question here is whether plaintiff has presented evidence that the cigarettes were provided to Old Dominion in good condition in the amounts specified.

Security has alleged that 175 boxed of Winston cigarettes and 604 boxes of Camel Light cigarettes were loaded onto Old Dominion trucks on July 13, 1999, at RJR’s Central Distribution Center. In support of this allegation, plaintiff cites: (1) the Straight Bill of Lading, which indicates the number of boxes and the weight of the cargo and bears what plaintiff claims is the signature of the Old Dominion truck driver who accepted the cargo; (2) an affidavit of the consignee’s Director of Taxation and Insurance attaching the invoice for the shipment and customs receipt for the shipment (Affidavit of Robert McMaster, sworn to Dec. 22, 2002 (“McMaster Aff.”), attaching invoice as Ex. B and Revenue Canada customs receipt as Ex. C); and (3) the affidavit of Walter F. Nowicki, a Distribution Manager at the RJR Central Distribution Center at the time of the shipment (Affidavit of Walter F. Nowicki, sworn to Jan. 22, 2003, (“Nowicki Aff.”)).

Old Dominion argues that based on the Nowicki Affidavit, it appears “that the cargo was loaded and sealed by RJ Reynolds” and that therefore the bill of lading does not constitute prima facie evidence of the condition of the cargo because defendant could not inspect it. Because the Nowicki Affidavit is unclear about the nature of the cargo’s packaging, the defendant has raised an issue of fact as to the packaging. However, that does not preclude summary judgment if there is other evidence of quality and quantity from which a factfinder could only conclude that plaintiff has established good condition upon delivery to the carrier. Even assuming that the cargo was packaged in such a way that prevented inspection, there is sufficient other evidence of quantity and quality demonstrating delivery in good order to the carrier, and Old Dominion has failed to present any evidence creating a contested issue of material fact concerning the condition of cargo upon receipt.

As to quantity, the Consignee’s invoice and the bill of lading state the number of boxes of cigarettes and their weight. Old Dominion does not dispute the weight of the shipment upon delivery or thereafter, or suggest that the cargo weighed less than what that amount of cigarettes should weigh. Since the carrier had a contractual duty to weigh the cargo (Contract ¶ 2(d)), its failure to contest that the weight of the cargo conformed to the purported number of boxes in the shipment confirms that the cargo contained the number of cigarettes indicated on the bill of lading.

As to quality, the Nowicki Affidavit provides detailed information on the retrieval system at the RJR facility. The multiple checks on inventory and the precise system described, in addition to the highly regulated nature of the cargo, provide ample basis for a factfinder to infer that the cargo was received in good condition. Once again, Old Dominion presents no evidence from which a factfinder could draw any other conclusion. In any event, the issue of quality is something of a red herring. This is not a case in which goods were delivered to the consignee in poor condition, and the question is whether they were originally shipped that way or the damage occurred during carriage. Here, the goods were never delivered, and there is no dispute that they were stolen during carriage. Under these circumstances, the issue of quality could at most bear on damages, and not on the carrier’s liability.

2. Damages

The proper measure of damages in a Carmack Amendment case is “actual loss,” defined as “the fair market value of the lost or damaged goods at destination.” Jessica Howard Ltd. v. Norfolk Southern Railway Co., 316 F.3d 165, 168 (2d Cir.2003). Security claims damages in the amount of $195, 938 (U.S.), the amount that Security paid its insured, the consignee RJR Macdonald, on the claim. Needless to say, an insurer is unlikely to pay an insured more than its actual loss. Moreover, Old Dominion has failed to raise a contested issue of fact concerning the amount of damages. In support of its damages claim, Security submits the affidavit of the Director of Taxation and Insurance at JTI-Macdonald Corp., formerly known as RJR-Macdonald Corp., who testifies that Security paid RJR-Macdonald $195, 938 (U.S.) on the claim for the lost cargo. (McMaster Aff. ¶ 11.) Old Dominion does not dispute either the fact or amount of the insurance payment. Plaintiff has thus met the final element of the prima facie test.

Accordingly, Security has established a prima facie case of carrier liability. Absent a genuine issue of material fact about one of the limited defenses available to a carrier, it would be entitled to summary judgment. Old Dominion has offered only one defense, that the loss resulted from an act of public authority.

D. Public Authority

Old Dominion argues that it is not strictly liable under the Contract because the loss of the cargo resulted from the actions of the Canadian customs authorities in halting the goods. Old Dominion attempts to invoke the force majeure provision of the contract (¶ 19(c)), which states that “neither shipper nor carrier shall be liable for damages for any … failure to perform any of the terms and provisions of this Agreement arising from causes beyond its control, including but not limited to … acts of civil or military authority.” This provision is consistent with the excepted causes of loss or damage under the Carmack Amendment.

The argument fails, because the force majeure clause on its face only applies when an action of the sovereign caused the loss. Here, the loss was caused not by the detention of the goods, but by the theft. Unlike the situation in which goods are confiscated by governmental authority, the Canadian government itself did not take nor destroy the cargo. That the goods were stolen while the goods were in the carrier’s custody pending an entirely foreseeable customs inspection does not make the Canadian government the “cause” of the loss, any more than bad weather could be blamed if the goods were stolen while the driver was parked in a rest stop waiting out a storm. Old Dominion has not cited and research has not revealed any authority that applies the concept of force majeure in such circumstances, to a loss that was the product of a theft that occurred during, rather than because of, the interruption of a journey due to predictable events.

E. Summary

Security, as subrogee of RJR, is entitled to summary judgment against Old Dominion, because there is no genuine issue of material fact as to its prima facie case of strict liability, and because the only defenses presented by Old Dominion, untimeliness of the lawsuit and the applicability of the force majeure provision of the contract, fail as a matter of law.

III. Old Dominion’s Cross-Claim against Concord

It may well be that Old Dominion’s cross-claim against Concord is subject to a similarly simple analysis. However, Old Dominion has not moved for summary judgment against Concord, so that the Court does not have a record upon which to assess the ease or difficulty of adjudicating this claim. Moreover, both parties to the cross-claim, Old Dominion and Concord, have consistently argued that it would be more convenient to litigate this claim in Canada, where, in addition, the rights of either or both of them against the warehouse and the security firm that protected it can be adjudicated. (Transcript of June 30, 2002, oral argument (“Tr.”), at 24-25.) In furtherance of its forum non conveniens argument, Old Dominion consented to the jurisdiction of the Canadian court (Def. Mem. in Supp. of Mot. to Dismiss at 5) and agreed that United States law will apply to this dispute (Tr. 19) and that Old Dominion would not take advantage of any statute of limitations defense available in Canada but not in the United States (Tr. 29). The same conditions should properly apply to Concord in its defense of the cross-claim brought by Old Dominion.

There is no reason not to grant these parties their wish to proceed in Canada. Accordingly, Concord’s motion to dismiss Old Dominion’s cross-claim against it is granted on consent on the conditions that Concord (1) agree that United States law will apply to the adjudication of the claim in a Canadian forum; and (2) waive any defenses it would have in Canada that are unavailable in the United States.

CONCLUSION

For the foregoing reasons, Old Dominion’s motion to dismiss or stay based on forum non conveniens is denied. Plaintiff’s motion for summary judgment for damages in the amount of $195,938 plus interest and costs is granted. Concord’s motion to dismiss Old Dominion’s cross-claim is granted on consent, on the conditions stated, without prejudice to Old Dominion’s right to reinstitute its claim should Concord fail to adhere to the stated conditions or should the Canadian court decline to hear the dispute.