Superior Court of New Jersey,

Appellate Division.

Carlys ALEXANDER, Plaintiff–Appellant,

v.

MID–EASTERN TRANSPORTATION, INC., MK & K Leasing, Inc., Anthony Darnell Williams, Defendants–Respondents.

 

Submitted Aug. 13, 2012.

Decided Dec. 3, 2012.

 

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L–0931–09.

Patrick J. Whalen, attorney for appellant.

 

Respondents have not filed a brief.

 

Before Judges SAPP–PETERSON and ST. JOHN.

 

PER CURIAM.

*1 Plaintiff Carlys Alexander appeals from a January 21, 2011 order of the Law Division granting summary judgment for defendants Mid–Eastern Transportation, Inc., MK & K Leasing, Inc., and Anthony Darnell Williams.

 

On appeal, plaintiff challenges the exclusion of the expert report of Barry L. Brunstein, of Transport Safety Consultants Nationwide, arguing Brunstein provided an admissible opinion regarding the cause of the accident. Plaintiff also contends that expert testimony was not required. We find plaintiff’s arguments unpersuasive.

 

Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

 

I.

The following facts are derived from the record before the motion judge. On June 22, 2007, defendant Anthony Darnell Williams was driving a tractor trailer in Alabama, accompanied by plaintiff, who was a passenger. The tractor trailer was owned by defendant MK & K Leasing, Inc. and operated by Mid–Eastern Transportation, Inc., Williams’ employer. A tractor tire blew out causing the vehicle to veer off the highway which resulted in an accident and injury to plaintiff.

 

In Alexander’s certification, he asserted that just before the accident, he estimated the speed of the vehicle at seventy-seven miles per hour, in a seventy mile per hour zone. He also contended that immediately after the accident, Williams told him that he was aware of a defective plug in the blown out tire and that he should not have been driving on that tire.

 

Defendants contend that there is no evidence linking the speed of the truck as a factor in the blowout. Defendants also posit that there is no evidence that a plugged tire is inherently defective. They assert that Alexander failed to inspect the tire, obtain an expert opinion with regard to the specific elements of the causal connection between the blowout and the accident, and depose any Mid–Eastern employee or the responding police officer. Defendants further argue that Alexander failed to provide any evidence that demonstrates defendants were negligent in failing to properly maintain, repair, service, inspect, and monitor the truck.

 

In a comprehensive oral opinion, Judge Paul Innes first addressed plaintiff’s contention that the court should have extended the discovery end-date and that discovery was incomplete. The judge noted that on July 23, 2010, he denied Alexander’s motion to extend discovery. The judge further noted that under Rule 4:46–2, “a claim of incomplete discovery will not defeat summary judgment where the party opposing the motion has sought discovery within the time prescribed by the Rule.” The judge further stated that, “plaintiff’s assertion that summary judgment should be denied based on defendants failure to appear for a deposition and outstanding discovery is rejected.”

 

Previously, on December 17, 2010, the judge advised the parties that Alexander had failed to provide an appropriate expert report which opines that a plugged tire is unsafe. Alexander served a supplemental expert report at 4:00 p.m., the day before the return date. The judge stated that after reviewing the supplemental report, “I find that the report itself is a net opinion.” The judge further determined that, “plaintiff had full opportunity to conduct discovery with regard to the owner of the tractor trailer, had full opportunity to conduct an inspection of the vehicle and the tire, and had full opportunity to conduct other inspection and that was not done.”

 

*2 Plaintiff posits that the judge erred in granting summary judgment because he failed to find that defendants had a legal duty to place the plugged tire on a non-steering axle. Specifically, plaintiff argues that applicable commercial driving standards mandated that the plugged tire be on a non-steering axle. Further, plaintiff contends that since he was not an employee, he was an unauthorized passenger, and Section 392.60 of the Field Motor Carrier Safety Regulations, 60 C.F.R § 392.60, prohibits the transportation of unauthorized passengers.

 

II.

Before turning to the merits of the appeal, we outline some of the legal principles that govern our review of the trial judge’s decision, as well as the legal principles that govern the issues raised on appeal.

 

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the motion judge. Chance v. McCann, 405 N.J.Super. 547, 563 (App.Div.2009). We consider, as did the judge, “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ “ Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445–46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). We view the evidence submitted by the parties in support of, and in opposition to, plaintiffs’ summary judgment motion, in a light most favorable to plaintiffs. See Brill, supra, 143 N.J. at 540. Summary judgment must be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46–2(c). If there is no genuine issue of material fact, “[we] must [then] decide whether the trial court correctly interpreted the law.” Massachi v. AHL Servs., Inc., 396 N.J.Super. 486, 494 (App.Div.2007), certif. denied, 195 N.J. 419 (2008). Applying these standards, we are satisfied that the trial judge properly granted summary judgment.

 

The admissibility of expert testimony is guided by N.J.R.E. 702 and 703. N.J.R.E. 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” In addition, N.J.R.E. 703 provides that “[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.” Importantly, N.J.R.E. 703 explicates that an expert’s opinion must be founded on “facts or data.” See Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008).

 

*3 Because an expert’s opinion must be founded on “facts or data,” the “net opinion rule ‘requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.’ “ State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J.Super. 385, 401 (App.Div.2002). “The net opinion rule has been succinctly defined as ‘a prohibition against speculative testimony.’ “ Koruba v. Am. Honda Motor Co., 396 N.J.Super. 517, 525 (App.Div.2007) (quoting Grzanka v. Pfeifer, 301 N.J.Super. 563, 580 (App.Div.), certif. denied, 154 N.J. 607 (1997)), certif. denied, 194 N.J. 272 (2008).

 

A net opinion “present[s] solely a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird that opinion.” Polzo v. Cnty. of Essex, 196 N.J. 569, 583–84 (2008) (footnote omitted). The rule “frequently focuses … on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.” Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). It also requires the expert’s opinion be based on reasonable probabilities. Ibid. “Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience.” Rosenberg, supra, 352 N.J.Super. at 403 (citation omitted).

 

In reviewing the trial court’s evidentiary ruling, we are limited to examining the decision for an abuse of discretion. Hisenaj, supra, 194 N.J. at 12. Trial courts are “granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature.” Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

 

At issue in this matter is the cause of the accident. In his report, Brunstein stated:

 

In the trucking industry it is customary that when Motor Carriers have to patch or plug tires used on a steering axle, that those tires are converted to use on other axles, either drive axles or conversion to use on trailers. This is done because of the critical position of the steering axle. When a front tire blow-out (steering axle) occurs, the front axle drops rapidly to the surface of the road, very often resulting in a complete loss of control of the vehicle.FN1

 

FN1. Brunstein based his report on a review of the police report generated at the accident scene and photographs of the vehicle at the accident scene. The police report states that the “left rear trailer tire blew out” whereas Brunstein’s report states that “the left front tire (steering axle) experienced a ‘blow out’ ….“

 

Mid–Eastern Transportation ignored a safe standard of practice in the trucking industry by failing to remove the subject tire from the steering axle of the tractor and placing it in service as a drive axle tire or trailer tire, at the time it required a patch/plug.

 

The admissibility rule has been aptly described as requiring the expert to “give the why and wherefore” that supports his opinion, “rather than a mere conclusion.” See Polzo, supra, 196 N.J. at 583 (quoting Townsend, supra, 186 N.J. at 494). Further, if an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is “personal,” it fails because it is a mere net opinion. As we have stated:

 

*4 It is insufficient for … [an] expert simply to follow slavishly an “accepted practice” formula; there must be some evidential support offered by the expert establishing the existence of the standard. A standard which is personal to the expert is equivalent to a net opinion.

 

[ Taylor v. DeLosso, 319 N.J.Super. 174, 180 (App.Div.1999) (citations omitted).]

 

We see no reason to disturb the trial judge’s decision that Brunstein’s bare opinion, that has no support in factual evidence or similar data, is a mere net opinion which is not admissible and may not be considered. See Polzo, supra, 196 N.J. at 583.

 

Plaintiff also asserts that Brunstein’s opinion as to liability was based on defendants’ violation of certain “National Truck Safety Standards” and transportation of plaintiff, an unauthorized passenger. We find this contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11–3(e)(1)(E). We add the following comment.

 

If a “plaintiff does not fall within the class of persons for whose benefit the statute was enacted,” such statute is “not applicable either as evidence of a duty or as evidence of negligence arising from a breach of such alleged duty.” Fortugno Realty Co. v. Schiavone–Bonomo Corp., 39 N.J. 382, 393 (1963). See also Restatement (Second) of Torts § 288 (1965) (“The court will not adopt … an administrative regulation whose purpose is found to be exclusively … (d) to protect a class of persons other than the one whose interests are invaded, or … (f) to protect against other harm than that which has resulted, or … (g) to protect against any other hazards than that from which the harm has resulted.”); Prosser & Keeton on Torts § 36 (5th ed.2001) ( “the harm suffered must be of the kind which the statute was intended, in general, to prevent … [and] a statute may well be assumed to include all risks that reasonably may be anticipated to follow from its violation.”); 8 Am.Jur.2d Automobiles and Highway Traffic § 729 (2011) (“The plaintiff must establish further that the violation of the statute or ordinance was the proximate cause, or at least a proximate cause, of the accident and resulting injuries. There must be a direct relation of cause and effect between the violation of the statute or ordinance and the ensuing accident and injury, otherwise there is no liability.”).

 

We recognize that violation of a statute may sometimes be considered by a jury in determining issues of negligence or contributory negligence. See, e.g., Braitman v. Overlook Terrace Corp., 68 N.J. 368, 385 (1975); Horbal v. McNeil, 66 N.J . 99, 103–104 (1974); Ellis v. Caprice, 96 N.J.Super. 539, 553 (App.Div.), certif. denied, 50 N.J. 409 (1967). However, “this rule is subsumed by the overriding principle that the statutory violation, to be evidential, must be causally related to the happening of the accident, since a permissible inference of causality is indispensable to its relevancy.”   Mattero v. Silverman, 71 N.J.Super. 1, 9 (App.Div.1961), certif. denied, 36 N.J. 305 (1962).

 

*5 Finally, plaintiff argues that summary judgment should not have been granted as expert liability testimony was not required under the circumstances. We find this contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11–3(e)(1)(E).

 

For completeness, we add the following comments. Plaintiff directs our attention to our opinion in Apuzzio v. J. Fede Trucking, Inc., 355 N.J.Super. 122, 129 (App.Div.2002) (considering application of res ipsa loquitor to claim that victims were injured when wheel became detached from passing truck and struck them).

 

Ordinarily, it is a plaintiff’s burden to prove negligence and it is never presumed. Hansen v. Eagle–Picher Lead Co., 8 N.J. 133, 139 (1951). Even so, there is a place in our system of justice for the doctrine of res ipsa loquitur. See Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269–70 (1958) (citing cases and authorities). The theory, which can be translated from Latin as the maxim “the thing speaks for itself,” permits the jury to infer negligence in certain circumstances, effectively reducing the plaintiff’s burden of persuasion, but not shifting the burden of proof. Eaton v. Eaton, 119 N.J. 628, 638 (1990).

 

There are three fundamental predicates for the application of the doctrine. These are that “(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant’s exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.” Bornstein, supra, 26 N.J. at 269.

 

Here, the plaintiff has not offered any proof that a repaired tire “ordinarily bespeaks negligence.”

 

Affirmed.

United States District Court,

S.D. New York.

ROYAL & SUN ALLIANCE INSURANCE, PLC, Plaintiff,

v.

SERVICE TRANSFER, INC., Defendant.

 

No. 12 Civ. 97(DLC).

Dec. 4, 2012.

 

David T. Maloof, Thomas M. Eagan, Maloof Browne & Eagan LLC, Rye, NY, for plaintiff.

 

George W. Wright, Narinder S. Parmar, George W. Wright & Associates, LLC, New York, NY, for defendant.

 

OPINION & ORDER

DENISE COTE, District Judge.

*1 Defendant Service Transfer, Inc. (“STI”) moves for partial summary judgment in this maritime case, arguing that this action, filed by plaintiff Royal & Sun Alliance Insurance, PLC (“RSA”), acting as subrogee for a shipper, is governed by the United States Shipping Act of 1984, 46 U.S.C. § 40101 et seq., and the United States Carriage of Goods by Sea Act of 1936, 46 U.S.C. § 1300 et seq. (“COGSA”). The parties dispute whether the domestic leg of an international transportation contract is governed by COGSA or the Carmack Amendment, 46 U.S.C. § 14706. For the following reasons, the defendant’s motion is granted; COGSA will be applied to the journey at issue here.

 

Background

STI is an interstate motor carrier which provides services to ocean carrier American President Lines, Ltd. (“APL”). In April 2011, BioLife Plasma Services LLC (“BioLife”) delivered a shipment of frozen human plasma to STI at a warehouse in Erlanger, Kentucky, operated by RxCrossroads Acquisition Company (“RxCrossroads/MDI”). Rx Crossroads/MDI acts as the warehousing and distribution logistics contractor for Baxter Healthcare Corporation (“Baxter”). It was intended that STI would transport and deliver the plasma from Kentucky to APL in Norfolk, Virginia for further shipment by sea to Bremerhaven, Germany en route to its ultimate destination in Vienna, Austria. BioLife is a part of Baxter, and the plasma was to be delivered to a European affiliate of Baxter, Baxter Healthcare Switzerland.

 

While driving between Kentucky and Virginia, STI’s truck driver fell asleep and drove the truck off the road. The truck burned and the shipment was lost. RSA commenced this action as Baxter’s subrogee.

 

The shipment of plasma was subject to a sea waybill between Baxter and APL (“Waybill”).FN1 The Waybill provided for the through intermodal transport of the goods from Erlanger, Kentucky to Vienna, Austria.FN2 For the purposes of the Waybill, APL is the “Carrier” and Baxter is the “Merchant” shipper. STI acted on this shipment as a sub-contractor of APL. As such, STI is not a party to the Waybill but seeks protection under its terms.

 

FN1. A sea waybill “typically functions in the same way as a bill of lading, except that it is non-negotiable.” Mitsui Sumitomo Ins. Co., Ltd. v. Evergreen Marine Corp., 621 F.3d 215, 216 n. 1 (2d Cir.2010).

 

FN2. “Intermodal transport, also known as multimodal transport, is transport consisting of multiple modes of transport—that is, more than one of truck, rail, sea, and air.” Royal & Sun Alliance Ins ., PLC v. Ocean World Lines, Inc., 612 F.3d 138, 141 n. 4 (2d Cir.2010). Plaintiffs dispute the characterization of the shipment as “through.” “A through bill of lading covers both the ocean and inland portions of the transport in a single document.” Kawasaki Kisen Kaisha Ltd. v. Regal–Beloit Corp., 130 S.Ct 2433, 2439 (2010). The APL Bill of Lading designates the “Place of Receipt” as Erlanger, the “Port of Loading” as Norfolk, the “Port of Discharge” as Bremerhaven, and the “Place of Delivery” as Vienna. The Waybill is, thus, a through waybill.

 

The Waybill included a Clause Paramount and a Himalaya Clause. The clauses in relevant part extend APL’s liability under COGSA to the period prior to loading goods onto APL’s ocean vessel and permit APL’s subcontractors to invoke COGSA’s liability limitations, respectively. The parties do not dispute that the Hague Rules as referenced in the Waybill include their 1936 adaptations in COGSA.

 

When STI’s truck driver picked up the shipment from RxCrossroads/MDI on April 11, 2011, the STI driver signed an RxCrossroads/MDI Uniform Straight Bill of Lading dated April 9, 2011 (“Bill of Lading”). The Bill of Lading states that the subject shipment is “From” MDI in Kentucky “To” Baxter AG in Vienna, Austria.

 

RSA commenced this action on January 6, 2012. APL was not served and has not appeared in this case. On August 2, STI filed a motion for partial summary judgment on the discrete issue of whether COGSA governs the present action. STI argues that, after benefitting from APL’s “all-in” door-to-door rates and the corresponding limitations on APL’s liability under COGSA, Baxter’s subrogee RSA is now disregarding its Waybill and pursuing a direct, unlimited liability action against STI, a party with whom it was not in privity. RSA opposes the motion, arguing that the Carmack Amendment governs this case, and not COGSA.

 

Discussion

*2 Summary judgment may not be granted unless all of the submissions taken together “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts “in the light most favorable” to the nonmoving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir.2008); see also Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456 (1992). Once the moving party has asserted facts showing that the non-movant’s claims cannot be sustained, the opposing party must “set out specific facts showing a genuine issue for trial,” and cannot “rely merely on allegations or denials” contained in the pleadings. Fed.R.Civ.P. 56(e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009).

 

COGSA governs “the terms of bills of lading issued by ocean carriers engaged in foreign trade.” Regal–Beloit, 130 S.Ct at 2440; see also 46 U.S.C. § 30701 at Sec. 13. Although COGSA “only applies to shipments from United States ports to ports of foreign countries and vice versa … [it] allows parties the option of extending certain COGSA terms by contract to cover the entire period in which the goods would be under a carrier’s responsibility, including a period of inland transport.” Regal–Beloit, 130 S.Ct at 2440 (citation omitted).

 

The Carmack Amdendment, by contrast, governs the terms of bills of lading issued by domestic motor carriers providing transportation or service subject to the jurisdiction of the Surface Transportation Board (“STB”). See 49 U.S.C. § 14706(a)(1).FN3 It imposes liability for damage caused during motor carriage under the STB’s jurisdiction against

 

FN3. The STB has jurisdiction over “transportation by motor carrier and the procurement of that transportation, to the extent that passengers, property, or both, are transported by motor carrier—

 

(1) between a place in—(A) a State and a place in another State; (B) a State and another place in the same State through another State; (C) the United States and a place in a territory or possession of the United States to the extent the transportation is in the United States; (D) the United States and another place in the United States through a foreign country to the extent the transportation is in the United States; or (E) the United States and a place in a foreign country to the extent the transportation is in the United States; and

 

(2) in a reservation under the exclusive jurisdiction of the United States or on a public highway.”

 

49 U.S.C. § 13501.

 

(A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading.

Id. (emphasis supplied). “Carmack’s purpose is to relieve cargo owners of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.” Regal–Beloit, 130 S.Ct at 2441. Parties may agree to waive the rights and remedies provided under the Carmack Amendment by express waiver. See 49 U.S.C. § 14101(b)(1).

 

The clear terms of the Waybill indicate that COGSA governs this action. The Ocean Freight Services Agreement between Baxter and APL provides that liability for any freight claims shall be determined pursuant to the terms and conditions of the Waybill. The Waybill specifies that APL is responsible for the performance of the Carriage from the Place of Receipt … to the … Place of Delivery” of the combined carriage indicated on the Waybill, namely the shipment of goods from Erlanger, Kentucky to Vienna, Austria via the ports of Norfolk, Virginia and Bremerhaven, Germany. It contains a Clause Paramount which specifically extends COGSA’s application to the inland portion of the shipment by stating in relevant part that, “[p]rior to loading onto the [overseas] Vessel … the Carrier’s liability shall be governed under the Hague Rules,” which the parties do not dispute includes COGSA. The Himalaya Clause extends COGSA’s application to STI as APL’s sub-contractor on the Waybill. STI did not issue its own bill of lading and it had no privity with Baxter. Indeed, no bill of lading was issued by any party to cover solely the domestic leg of this international shipment. Thus, claims arising during STI’s transport of the goods from the Waybill’s “place of receipt,” Erlanger, Kentucky, to the “port of loading,” Norfolk, Virginia, are covered by COGSA.

 

*3 RSA makes two principal arguments in support of its theory that the Carmack Amendment, not COGSA, applies in this action. Both arguments fail.

 

As a preliminary matter, the Carmack Amendment by its terms does not apply to non-receiving carriers transporting goods as part of a shipment between the United States and a non-adjacent foreign country under a through bill of lading. See 49 U.S.C. § 14706(a)(1); Missouri Pacific R.R. Co. v. Porter, 273 U.S. 341, 345 (1927); see also Regal–Beloit, 130 S.Ct at 2445 (finding that the STB’s jurisdiction is not coextensive with Carmack’s coverage). At most Carmack could govern the domestic portion of a shipment from the United States to an adjacent foreign country. That is not the situation here.

 

RSA primarily relies on the Supreme Court’s decision in Regal–Beloit to argue that STI acted as a “receiving carrier” subject to the Carmack Amendment. FN4 Regal–Beloit, which addressed an international shipment coming into the United States, chose not to address the status of shipments received in the United States for export. Regal–Beloit, 130 S.Ct at 2444. Nonetheless, its reasoning supports the application of COGSA here.

 

FN4. RSA refers to several inapposite decisions in support of this theory, including: a decision abrogated by the Supreme Court, Sompo Japan Ins. Co. of Am. v. Union Pacific R.R. Co., 456 F.3d 54 (2d Cir.2006), abrogated by Regal–Beloit, 130 S.Ct 2433; and a Ninth Circuit decision in which, as the plaintiff admits, no intermodal bill of lading appears to have been issued, Smallwood v.. Allied Van Lines, Inc., 660 F.3d 1115 (9th Cir.2011).

 

In Regal–Beloit, the Court examined whether COGSA or the Carmack Amendment governed the domestic rail portion of an intermodal maritime shipment that originated abroad and was performed pursuant to a single through bill of lading. It held that

 

Carmack does not apply if the property is received at an overseas location under a through bill that covers the transport into an inland location in the United States. In such a case, there is no receiving rail carrier that “receives” the property for domestic rail transportation, and thus no carrier that must issue a Carmack-compliant bill of lading.

 

Id. (citation omitted). It further held that “[t]he decisive question is not whether the rail carrier in fact issued a Carmack bill but rather whether that carrier was required to issue a bill by Carmack’s [terms].” Id.

 

In reaching this conclusion, the Court reasoned that “[a]pplying Carmack’s provisions to international import shipping transport would … undermine the purpose of COGSA, to facilitate efficient contracting in contracts for carriage by the sea.” Id. at 2447 (citation omitted). It further found that “[Congress] has not imposed Carmack’s regime, textually and historically limited to the carriage of goods received for domestic rail transport, onto what are essentially maritime contracts.” Id . at 2449 (citation omitted). Regal–Beloit applies to cases involving the Carmack Amendment’s motor carriage provisions, Royal & Sun, 612 F.3d at 145, and “[t]he policy arguments made by the Court are equally applicable” in cases of both motor and rail carriage. Id.

 

Regal–Beloit thus established a two-part test for determining whether the Carmack Amendment applies to a particular domestic transport of goods. First, the carrier must provide transportation or service “subject to the jurisdiction of the [STB].” Second, the carrier must “receive the property” for transportation under the STB’s jurisdiction over domestic motor transport.   Mitsui, 621 F.3d at 218 (citation omitted).

 

*4 The second prong of this test precludes application of the Carmack Amendment here even though it is undisputed that STI acted as the first carrier to transport the plasma from Kentucky. Being the first carrier does not necessarily make STI the “receiving” carrier for the purposes of Carmack coverage. Instead, the “receiving” carrier is the “principal” party to the contract governing the subject shipment, Missouri, Kansas & Texas Ry. Co. of Texas v. Ward, 244 U.S. 383, 388 (1917), and is “responsible for the whole carriage.” Id. at 387. In other words, it is the carrier which holds “unity of responsibility for the transportation to destination.” Mexican Light & Power Co. v. Texas Mexican Ry. Co., 331 U.S. 731, 734 (1947). “A carrier does not become a receiving carrier simply by accepting goods for further transport from another carrier in the middle of an international shipment under a through bill.” Regal–Beloit, 130 S.Ct at 2445; see also R. R. Retirement Bd. v. Alton R. Co., 295 U.S. 330, 359 (1935) (“initial carriers in fact enter into contracts for delivery of goods beyond their own lines and make through or joint rates over independent lines”).

 

Here, it is undisputed that STI was not the carrier responsible for the entire course of the shipment. Baxter signed the single Waybill and paid APL a single “all-in” through rate to handle the shipment of goods from Kentucky through to its final destination in Austria.FN5 Therefore, STI did not function as a “receiving” carrier, and the Carmack Amendment does not apply.

 

FN5. The Services Agreement between Baxter and APL provides that the rates included in the Waybill “are considered all-in rates.”

 

This outcome is consistent with the Supreme Court’s emphasis on efficiency in international maritime trade. See Regal–Beloit, 130 S.Ct at 2447–48; Norfolk Southern Ry. Co. v. Kirby, 543 U.S. 14, 25 (2004) (“[T]he fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce.” (citation omitted)). The Carmack Amendment was intended to “mak[e] the receiving and delivering carriers liable under a single, initial bill of lading for damage caused by any carrier.” Regal–Beloit, 130 S.Ct at 2443. As the Court explained,

 

[i]f a carrier … which acts as a connecting or delivering carrier during an international through shipment, was, counterintuitively, a receiving carrier under Carmack, this would in effect outlaw through shipments under a single bill of lading … because a carriage like the one in the present case would require two bills of lading: one that the overseas carrier … issues to the cargo owners under COGSA, and a second one that the first domestic … carrier … issues to the overseas carrier under Carmack.

 

Id. at 2445. The Court saw “no reason to read COGSA and Carmack to outlaw this efficient mode of international shipping,” which allows cargo owners to contract for transportation across oceans and to inland destinations in a single transaction. Id. Although the Supreme Court has not addressed the present circumstances, where goods are received at a point in the United States for export, see id. at 2444, the same reasoning applies to those contracts which create a single transaction for shipments across inland segments to overseas destinations.

 

*5 The second argument RSA offers is that the Bill of Lading acts as a “de facto … second interstate domestic bill of lading,” which extends the Carmack Amendment’s coverage to STI. This theory also fails, for two reasons. First, the Bill of Lading indicates that it involves a shipment of goods “from” Kentucky “to” Vienna, and not a domestic shipment. Second, even assuming that the Bill of Lading was intended to cover the interstate shipment between Kentucky and Virginia, the Carmack Amendment still would not apply to STI. When a non-receiving carrier signs a second bill of lading in connection with a through shipment, “Carmack makes any subsequent bill of lading void unless the so-called second bill of lading represents the initiation of a new shipment.” Id. at 2443 (citation omitted). A second bill of lading is thus invalid “unless the connecting carrier has received a consideration for the bill of lading in addition to that which flowed under the bill of lading issued by the initiating carrier.” Mexican Light, 331 U.S. at 734.

 

RSA concedes that STI did not receive freight payments directly from Baxter. RSA presents no evidence that any other form of consideration was exchanged between STI and RxCrossroads/MDI or STI and Baxter separate from any consideration received by STI as a sub-contractor on the Waybill. In light of the above, COGSA governs the claims at issue in this action, not the Carmack Amendment.

 

CONCLUSION

Defendant’s August 2, 2012 motion for partial summary judgment is granted.

 

SO ORDERED: