RAYMOND K. JONES, Plaintiff, v. BEELMAN TRUCK COMPANY, Defendant.

 

No. 4:13-CV-252 CAS

 

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION

 

2015 U.S. Dist. LEXIS 74246

 

 

June 9, 2015, Decided

June 9, 2015, Filed

 

 

PRIOR HISTORY: Jones v. Beelman Truck Co., 2014 U.S. Dist. LEXIS 129986 (E.D. Mo., Sept. 17, 2014)

 

COUNSEL:  [*1] For Raymond K. Jones, Plaintiff: Joseph L. Bauer, Jr., LEAD ATTORNEY, BAUER AND BAEBLER, St. Louis, MO.

 

For Beelman Truck Company, Defendant: James L. Stockberger, LEAD ATTORNEY, Christopher D. Baucom, ARMSTRONG TEASDALE, LLP, St. Louis, MO.

 

JUDGES: CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.

 

OPINION BY: CHARLES A. SHAW

 

OPINION

 

MEMORANDUM AND ORDER

This diversity matter is before the Court on defendant Beelman Truck Company’s (“Beelman”) motion to exclude certain testimony of plaintiff’s expert witness William Hampton pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Plaintiff Raymond K. Jones opposes the motion and it is fully briefed. Neither party has requested an evidentiary hearing, and the parties have submitted an evidentiary record including exhibits and deposition testimony. The Court finds that it can make a proper Daubert analysis without the need for an evidentiary hearing or oral argument. For the following reasons, Beelman’s motion will be granted in part and denied in part.

 

I. Background

In the early morning hours of January 17, 2008, while walking along the highway leading toward his home, plaintiff was struck by a Beelman tractor-trailer operated by Steven Reinhardt. The accident occurred on Missouri Route 221, near its intersection [*2]  with U.S. Highway 67 in Farmington, Missouri. Plaintiff alleges he suffers serious and permanent injuries to his head, body, back, arms, legs, face, spine, organs, and feet. He brings this suit against Beelman in two counts: negligence (Count I) and negligent failure to train (Count II).

 

II. Legal Standard

The admission of expert testimony in federal court is governed by Federal Rule of Evidence 702. In Daubert, the United States Supreme Court interpreted Rule 702 to require district courts to be certain that expert evidence based on scientific, technical or other specialized knowledge is “not only relevant, but reliable.” Daubert, 509 U.S. at 589. The district court must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93.

The Eighth Circuit Court of Appeals has stated that proposed expert testimony must meet three criteria to be admissible under Rule 702. “First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). “Second, the proposed witness must be qualified [*3]  to assist the finder of fact.” Id. (citation omitted). “Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.” Id. To meet the third requirement, the testimony must be “based on sufficient facts or data” and be “the product of reliable principles and methods;” and the expert must have “reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702(b)-(d).

The Eighth Circuit has explained that “Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony,” Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir. 1999), and “favors admissibility if the testimony will assist the trier of fact.” Clark ex rel. Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998). Doubt regarding “whether an expert’s testimony will be useful should generally be resolved in favor of admissibility.” Id. (citation and internal quotation omitted).

 

III. Discussion

Plaintiff disclosed Mr. William E. Hampton as an expert witness. Mr. Hampton’s expert report concludes as follows:

 

(1) Steven Reinhardt was inattentive as he approached Raymond Jones.

(2) Steven Reinhardt had a sight distance of 350 to 500 feet ahead.

(3) Steven Reinhardt had a distance to perceive and brake his vehicle [*4]  to a stop prior to reaching Raymond Jones if he was attentive, while traveling at 35, 40, and 45 mph.

(4) Steven Reinhardt had a distance to perceive and swerve at 35, 40, 45 mph to avoid Raymond Jones.

(5) There was sufficient ambient lighting and headlamp lighting to illuminate Jones in or near the roadway.

(6) The dirt on Reinhardt’s windshield and headlamps further diminished his ability to see properly.

(7) Due to the absence of Steven Reinhardt’s drivers’ daily logs leading up to the date of the crash, I could not investigate the hours worked and movements of Steven Reinhardt. These records should have been retained by the Beelman Trucking Company.

(8) Steven Reinhardt did not place his vehicle in an emergency braking mode.

(9) If Steven Reinhardt would have been attentive, he could have avoided this crash.

 

 

Beelman moves for the exclusion of Mr. Hampton’s conclusion numbers 1, 2, 3, 4, 5, 6, and 9, arguing that Mr. Hampton is either unqualified to give the opinions or the opinions are unsupported and unreliable. Beelman states that Mr. Hampton is not qualified to render opinions regarding human factors evidence and, even if he was qualified, his opinions and methodology are unreliable [*5]  and violate Daubert. The Court will address each argument.

 

A. Human Factors Opinions

Beelman argues that Mr. Hampton is not a human factors expert, and is therefore not qualified to testify as to conclusion numbers 1, 2, 3, 4, and 9 regarding driver perception and response. Beelman states that because Mr. Hampton testified in another case that he is not a human factors expert, he does not have specialized knowledge regarding human factors and these opinions should be excluded.

Rule 702 requires the area of the witness’s competence to match the subject matter of the witness’s testimony. “[F]or an expert witness to be qualified based on experience, that experience must bear a close relationship to the expert’s opinion.” Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). Mr. Hampton’s professional experience as an accident reconstructionist bears a close relationship to the opinions provided in his report. See Lift Truck Lease & Serv., Inc. v. Nissan Forklift Corp., 2013 U.S. Dist. LEXIS 87391, 2013 WL 3154012, *7 (E.D. Mo. June 21, 2013) (finding the experience of the proffered expert did not bear a close enough relationship to his opinion to provide a sufficient basis for the opinion); compare to In re Levaquin Products Liab. Litig., 2010 U.S. Dist. LEXIS 145989, 2010 WL 8399948, *7 (D. Minn. Nov. 12, 2010) (expert was qualified to provide opinion on medication labeling because of her long experience in the pharmaceutical industry, which included drafting product labels).

Since 1991, [*6]  Mr. Hampton has been the President of W.E. Hampton & Associates, Inc. and has provided consulting and expert testimony on motor vehicle accident reconstruction, motor carrier safety and performance, and motor carrier compliance with federal and state regulations. He has been certified as a Motor Vehicle Accident Reconstructionist through the Missouri State Highway Patrol and the Institute of Police Technology and Management. He has testified as an expert witness in civil and criminal cases in various state and federal courts and as a police officer and a private investigator. His background includes thirteen years of service for the Missouri State Highway Patrol as a patrol officer investigating motor vehicle accidents and providing accident reconstruction. He also worked several years at Champion Distribution Services, a nationwide motor carrier, as the Director of Safety & Maintenance.

Mr. Hampton’s conclusions 2, 3, and 4 fall well within his area of expertise: accident reconstruction and investigation. A driver’s perception distance, reaction distance, braking distance, and total stopping distance are discussed on page 2-14 of the Missouri Commercial Driver License Manual. See Pl.’s [*7]  Opp’n, Ex. 3 at 2-14. Mr. Hampton used equations published by the Institute of Police Technology and Management in its Equations for the Traffic Accident Reconstructionist Manual to calculate Mr. Reinhardt’s time to stop and swerving distance to avoid an object. See Pl.’s Opp’n, Ex. 4 at 15, 18, 20, 28. These calculations were based, in part, on Mr. Reinhardt’s testimony regarding his speed at the time of the accident and the strength of his headlight beams. The Court cannot find that testimony as to a driver’s sight distance, perception distance, and swerve distance necessarily requires expertise in human factors as opposed to motor vehicle accident reconstruction. In fact, it seems the question of perception is always at issue in an accident reconstruction case where allegations include that the driver should have braked or swerved to avoid the collision. These conclusions all fall within the scope of Mr. Hampton’s expertise in accident reconstruction.

The cases defendant relies on are distinguishable, as they concern experts who were testifying outside their field of experience. For example, in Anderson v. Raymond Corporation, 340 F.3d 520 (8th Cir. 2003), the Eighth Circuit upheld a district court’s order striking an expert’s testimony regarding [*8]  a defective lift truck. The expert admitted he was not an expert in the design or engineering of lift trucks; had never designed or consulted on a design of a lift truck; and had never designed a component part or a warning for a lift truck. Id. at 523. The proffered expert had neither operated nor seen a lift truck before the case. Id. Here, Mr. Hampton has extensive experience in accident reconstruction, which includes driver response time.

While Mr. Hampton’s conclusion numbers 2, 3, and 4 fall within his area of expertise, his conclusion numbers 1 and 9 are problematic. Conclusion number 1 states: “Steven Reinhardt was inattentive as he approached Raymond Jones,” and conclusion number 9 states: “If Steven Reinhardt would have been attentive, he could have avoided this crash.” These conclusions squarely address the ultimate issue of whether Mr. Reinhardt was negligent in driving his vehicle. “While such expert testimony is permissible, see Fed. R. Evid. 704(a), courts must guard against invading the province of the jury on a question which the jury was entirely capable of answering without the benefit of expert opinion.” American Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 725 (8th Cir. 2015) (internal quotations omitted). Mr. Hampton has no first-hand knowledge that Mr. Reinhardt [*9]  was inattentive as he approached plaintiff. He was not present at the time of the accident, and he certainly was not monitoring Mr. Reinhardt’s actions prior to the accident. Mr. Hampton is drawing conclusions on the ultimate issue of fact. The Court will exclude Mr. Hampton’s conclusion numbers 1 and 9 because they invade the province of the jury on questions that the jury is entirely capable of answering as the trier of fact.

 

B. Reliability

 

1. Mr. Hampton’s Testimony Regarding Illumination and Discernment Distance

In addition to objecting that Mr. Hampton’s testimony is outside his area of expertise, Beelman argues Mr. Hampton’s opinions and conclusions are unreliable. Beelman first objects to the reliability of Mr. Hampton’s testimony regarding the distinction between illumination distance and discernment distance. Beelman argues that because Mr. Hampton appears at times to conflate the two concepts, his testimony is unreliable.

In his deposition, Mr. Hampton defined “discernible distance” and “detection distance” as “the actual distance that [the driver] would have been able to perceive, react, and slow his vehicle to a stop.” (Hampton Dep. at 81-82). Later in the deposition, Mr. Hampton [*10]  testified that if the truck’s headlights illuminate to 500 feet, the discernment distance is also 500 feet. (Id. at 82-83). Mr. Hampton testified that a driver should be able to identify an object as discernible within the headlight illumination distance. (Id. at 82). Beelman uses this testimony as evidence that Mr. Hampton’s testimony as a whole is unreliable. (Def.’s Mem. at 8). Beelman argues, and presumably its expert will argue, that an object is not necessarily discernable at all points in a vehicle’s illumination distance.

At one point in his deposition, Mr. Hampton appears to conflate illumination distance and discernment distance, however the Court does not find that this makes his testimony unreliable. For example, Mr. Hampton agrees that a pedestrian wearing white clothing would be discernable in a roadway sooner than a pedestrian wearing dark clothing, illumination being constant. (Hampton Dep. at 83-84). He also included in his calculation of stopping distance a driver’s perception response time (a/k/a reaction time).

 

Q. Once Mr. Jones was discernible, how long would it take to perceive that he is a pedestrian?

A. Well, it should take about 1.6 seconds.

. . .

Q. So it looks like from the calculations, [*11]  you have 1.5 reaction time due to ambient lighting and high beam.

A. Um-hmm.

Q. Is that taking into account the 1.6 seconds you said for perception response?

A. Well, I think on those I used 1.5 [seconds] because that’s what the Commercial Driver’s Manual utilized.

Q. Where does the Commercial Driver’s Manual utilize a 1.5 second reaction time?

A. Well, it utilizes one-and-three-quarters second, I’m sorry.

Q. Okay. Where did you get 1.5?

A. That’s what I’d had used in the past. So. And that’s through the Missouri Divers Manual, I’d used that also, so. But they are referencing 1.34. So a little bit — about a quarter of a second longer.

Q. So the truck would travel farther based on the 1.34, correct?

A. It would, yes. So at 35 [mph] it’s going to travel about 12 feet further.

Q. And you used the term “reaction time.” Is that used to mean the same thing as perception response time?

A. It is.

 

 

(Hampton Dep. at 84, 88-89).

Based on this testimony, Mr. Hampton’s calculations of stopping distance take into account a driver’s perception/reaction time of 1.5 or 1.6 seconds. Factors affecting perception/reaction time include detection, identification, decision, and response. (Def.’s Opp’n, Ex. 6; Ex. 5 (discussing [*12]  perception/reaction time)). Although the deposition testimony is unclear whether discernment of an object is included in a driver’s perception/reaction time, it is clear that Mr. Hampton took into account a driver’s perception/reaction time in calculating stopping distance. (Hampton Dep. at 84, 88-89).

Beelman states that Mr. Hampton’s calculations are flawed because he is basing his calculations on a faulty determination of when plaintiff could first be discerned. (Def.’s Reply at 5). Mr. Hampton assumes plaintiff could be discerned between 350 and 500 feet from the Beelman vehicle, that is, when he was illuminated. Beelman disagrees. The Court finds it likely miscommunication between Beelman’s counsel and Mr. Hampton may have contributed to Mr. Hampton’s lack of distinction between discernment and illumination distance at deposition. In any event, Beelman may explore discernment distance versus illumination distance through its own expert testimony and through thorough cross-examination of Mr. Hampton. As stated above, Rule 702 “favors admissibility if the testimony will assist the trier of fact.” Clark 150 F.3d at 915. Beelman’s motion to exclude Mr. Hampton’s conclusions as unreliable based on his apparent [*13]  confusion regarding discernment and illumination distance should therefore be denied.

 

2. Mr. Hampton’s Testimony Regarding Sight Distance of a Commercial Motor Vehicle

Next, Beelman argues the Court should bar Mr. Hampton’s testimony regarding the sight distance of a commercial motor vehicle using its high beams because it is not reliable and amounts to unsupported speculation. Beelman states that Mr. Hampton “has no scientific basis for stating that the Beelman driver could have seen plaintiff at either 350 feet or 500 feet.” (Def.’s Mem. at 2). Additionally, Beelman argues because Mr. Hampton did not examine an exemplar of the truck or measure the ambient lighting at the scene, the factual basis of his testimony regarding illumination distance (i.e., the Missouri Commercial Vehicle Manual) is suspect. Beelman states that had Mr. Hampton conducted any testing to determine the lighting levels at the scene or by the truck, he would have discovered that the lighting levels at the scene do not support his contention that plaintiff was visible at 350 or 500 feet. (Reply at 3).

“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, [*14]  and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005) (quoting Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995)); Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 356 F.3d 850, 858 (8th Cir. 2004) (“Generally, the factual basis of an expert’s opinion goes to credibility of the testimony, not admissibility.”). The Eighth Circuit Court of Appeals has instructed that “[a]n expert’s opinion must be excluded only if it is so fundamentally unsupported that it can offer no assistance to the jury.” Id. (quoted cases omitted).

Mr. Hampton lifted the illumination distance of headlights directly from the Missouri Commercial Motor Vehicle Manual, § 2.11.4, which states that with low beams a driver can see ahead about 250 feet; with high beams, about 350-500 feet. See Pl.’s Opp’n, Ex. 3. Beelman objects that this testimony is unreliable because Mr. Hampton never measured the headlights of the truck at issue or an exemplar truck. While Beelman’s argument is well-taken, it goes to the factual basis and credibility of Mr. Hampton’s testimony, which is to be examined in cross-examination. The Court finds that Mr. Hampton’s testimony is sufficiently reliable to assist the jury’s determination of a disputed issue. The Court will not exclude this testimony under Daubert.

 

3. Mr. Hampton’s Testimony [*15]  Regarding Ambient Lighting at the Scene

Beelman moves to exclude Mr. Hampton’s opinion that “[t]here was sufficient ambient lighting and headlamp lighting to illuminate Jones in or near the roadway.” When questioned regarding the amount of ambient lighting at the scene, Mr. Hampton could not describe it, did not measure it, and “[a]ll [he] could tell you is there was light provided on the roadway . . . .minimum lighting and it did illuminate the roadway.” (Hampton Dep. 78-79). He has tested ambient lighting in the roadway in past cases, admits he could have tested it here, but did not conduct any test to measure the amount of ambient lighting at the scene. On questioning, he states:

 

Q. When you visited the accident site, did you measure the light level there?

A. I did not.

Q. Did you measure the light level at the point of impact?

A. No.

. . .

Q. Did they [lamps] provide lighting to the area where this accident occurred?

A. Some, yes.

Q. How much?

A. I can’t describe it to you.

Q. Did you measure it?

A. No. It was up to the area of the accident.

Q. Okay. How much up to the area of the accident?

A. I wasn’t able to measure a scientific reading at that point.

Q. What prevented you from doing that?

A. Nothing.

. [*16]  . .

Q. How much light was provided on the roadway by the McDonalds lights?

A. All I can tell you is there was light provided on the roadway.

Q. You can’t tell us how much?

A. No.

Q. You could have measured it, correct?

. . .

Q. Have you measured light before?

A. I have, yes.

Q. And did you make the determination not to measure light in this case?

A. I did. . . .

Q. And you can’t tell us how well lit it was, correct?

A. No, I can’t.

 

 

(Hampton Dep. 62-63, 77-79).

The Court will not allow Mr. Hampton to testify regarding ambient lighting at the scene. His conclusion in his report that “there was sufficient ambient lighting and headlamp lighting to illuminate Jones in or near the roadway” does not include any measure of distance or description of the ambient lighting. Unlike his testimony regarding the headlamps, which was based on the driver’s testimony that he was using his high beams and the Missouri Commercial Vehicle Manual’s statement that high beams illuminate the roadway up to 350 to 500 feet, Mr. Hampton’s opinion regarding ambient lighting is so fundamentally unsupported that the Court finds it can offer no assistance to the jury, and will exclude it.

 

4. Mr. Hampton’s Testimony Regarding Dirt [*17]  on Mr. Reinhardt’s Windshield and Headlamps

Finally, Beelman moves to exclude Mr. Hampton’s conclusion number 6, which states: “The dirt on Reinhardt’s windshield and headlamps further diminished his ability to see properly.” It is undisputed that Mr. Hampton never inspected the Beelman vehicle after the crash. His testimony regarding dirt on the windshield and headlamps is based only on the photographs he examined, which were exhibits to plaintiff’s deposition.

 

Q. Do you know what distance the headlamps of Mr. Reinhardt’s truck illuminated?

A. They should be on high beam at least 350 to 500 [feet]. There might have been some reduction due to the film [road dirt and dust] on his headlamp.

Q. How thick was the film on his headlamps?

A. I did not take a measurement. It was just illustrated in the photograph.

 

 

(Hampton Dep. at 50)

Mr. Hampton’s proffered expert testimony regarding the dirt on the windshield and headlamps does not qualify as scientifically valid. His opinion is premised exclusively upon his impression of the photographs of the vehicle taken after the accident. He did not inspect the vehicle or measure any dirt or dust. Nor did he calculate any reduced strength of the headlamps [*18]  or reduced visibility caused by the dirt and dust. His resulting conclusion is nothing more than speculation and conjecture and does not contribute to a legally sufficient evidentiary basis. See Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir. 2000). The jury is as capable as Mr. Hampton of viewing a photograph and noting the presence of dirt on the windshield and headlamps. Mr. Hampton’s conclusion number 6 will be excluded.

 

IV. Conclusion

For the foregoing reasons, Beelman’s motion to exclude certain testimony of plaintiff’s liability expert, William Hampton pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), should be granted in part and denied in part.

Accordingly,

IT IS HEREBY ORDERED that defendant Beelman Truck Company’s motion to bar certain testimony of William Hampton under Daubert and Federal Rule of Evidence 403, 702, and 704 is GRANTED in part and DENIED in part; [Doc. 44] the motion is:

GRANTED to the extent defendant seeks to bar testimony regarding conclusion numbers 1, 6 and 9 of Mr. Hampton’s expert report and to the extent defendant seeks to bar testimony regarding ambient lighting at the scene of the accident; and

DENIED in all other respects.

/s/ Charles A. Shaw

CHARLES A. SHAW

UNITED STATES DISTRICT JUDGE

Dated this 9th day of June, 2015

G&P Trucking Co., Inc., Plaintiff, v. Zurich American Insurance Company, as subrogee of SKF USA, Inc.; SKF USA, Inc., Defendants.

 

Civil Action No. 3:14-cv-501

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, COLUMBIA DIVISION

 

2015 U.S. Dist. LEXIS 79604

 

 

June 18, 2015, Decided

June 19, 2015, Filed

 

 

COUNSEL:  [*1] For G&P Trucking Company Inc, Plaintiff, Counter Defendant: Casper Fredric Marcinak, III, Robert Daniel Moseley, Jr, LEAD ATTORNEYS, Smith Moore Leatherwood, Greenville, SC.

 

For Zurich American Insurance Company, as subrogee of SKF USA Inc, other SKF USA Inc, SKF USA Inc, Defendants: Eric Richard Tonnsen, Eller Tonnsen Bach, Greenville, SC.

 

For SKF USA Inc, Zurich American Insurance Company, as subrogee of SKF USA Inc, Counter Claimants: Eric Richard Tonnsen, Eller Tonnsen Bach, Greenville, SC.

 

JUDGES: Margaret B. Seymour, Senior United States District Judge.

 

OPINION BY: Margaret B. Seymour

 

OPINION

 

ORDER AND OPINION

This declaratory judgment action arises out of an accident that occurred near Atlanta, Georgia, in which a truck owned by Plaintiff G&P Trucking, Inc. (“G&P”) crashed, allegedly damaging goods owned by Defendant SKF USA, Inc. (“SKF”). Defendant Zurich American Insurance Company (“Zurich”) is insurer and subrogee of SKF. Before the court are motions for summary judgment by both G&P and SKF. ECF Nos. 20 (G&P) & 26 (SKF).

The parties disagree as to which law governs the shipment at issue in this case. G&P’s position is that the shipment is governed by the terms of a bill of lading issued by the ocean carrier, [*2]  Pantainer (H.K.) Limited (“Pantainer”), doing business as Pantainer Express Line, in Spain where the goods originated at a factory owned by SKF Espanola S.A. (“SKF Espanola”). G&P contends that the bill of lading may extend the provisions of the Carriage of Goods by Sea Act (“COGSA”), Note following 46 U.S.C. § 30701, to the domestic inland portions of the journey. G&P characterizes the document issued by Pantainer as a through bill of lading. SKF, on the other hand, contends that the movement was in fact two shipments, and that the domestic inland portion from Savannah, Georgia, to Crossville, Tennessee, was a second transaction, governed by a delivery order issued in the United States by Panalpina, Inc. (“Panalpina”) and by the provisions of the Carmack Amendment, 49 U.S.C. § 14706.

The court must determine whether the Bill of Lading issued by Pantainer is a through bill of lading. If it is, then its associated terms and conditions and COGSA apply. If it is not, then the Carmack Amendment applies. For the reasons explained more fully below, the court concludes that a genuine issue of material fact exists as to whether the bill of lading is a through bill of lading. Accordingly, the court will hold a hearing during which the parties can present evidence [*3]  and after which the court can make a factual determination as to the nature of the bill of lading and thereafter rule on the parties’ motions for summary judgment.

 

I. Factual and Procedural Background

On April 9, 2013, Pantainer issued an “Ocean or Combined Transport Waybill” in Bilbao, Spain, for a shipment of goods to the United States. ECF Nos. 20-3 & 26-5 (hereinafter the “Bill of Lading”). The Bill of Lading lists SKF Espanola, a manufacturer in Spain, as the shipper and SKF, an importer and distributor of automotive parts in Crossville, Tennessee, as the consignee. Id. The goods to be shipped were two twenty-foot standard shipping containers said to contain forty-four cases of bearings and ball bearings. Id. The Bill of Lading designates several geographic locations:

 

o The “place of receipt” is given as Fontellas, Spain, an inland town in the Spanish province of Navarra, approximately four hours by road from Barcelona, Spain.

o The “place of loading” is given as Barcelona, Spain, a city on Spain’s Mediterranean coast.

o The “port of discharge” is given as Savannah, Georgia.

o The “place of delivery” is left blank.

 

 

Id. The Bill of Lading also indicates “for delivery apply to” Panalpina [*4]  in Charleston, South Carolina. The Bill states that it is “payable at destination.” Finally, the bottom right of the Bill of Lading contains the designation “Panalpina Transp Mundiales S.A.” Id.

A set of Terms and Conditions was attached to the Bill of Lading and labeled “Pantainer Waybill – Terms and Conditions.” ECF Nos. 20-5 & 26-8 (hereinafter the “Terms and Conditions”).1 The fifteen-page Terms and Conditions contains several relevant provisions. In its “Definitions” section, the Terms and Conditions defines:

 

o “Carrier” as “Pantainer (H.K.) Limited . . . carrying on business as Pantainer Express Line and on whose behalf this Waybill has been issued.”

o “Combined Transport” as arising only if “either or both the Place of Receipt and the Place of Delivery are duly indicated in the relevant boxes on the front hereof.”

o “Merchant” as including “any person who is or at any time has been or becomes the Shipper, [or] the Consignee . . . .”

o “Sub-Contractors” as including “the owners, charterers and operators of any Vessel, stevedores, terminal operators, forwards, groupage operators, consolidators, warehouse operators, road, rail and air transport operators, and other independent contractors [*5]  employed directly or indirectly by or for Carrier in the performance of any of Carrier’s obligations hereunder, and including subcontractors of any degree.”

 

 

ECF No. 20-5 at 2. The Terms and Conditions also includes provisions Plaintiff interprets as a so-called “Himalaya Clause”:2

4.1 Carrier may sub-contract directly or indirectly on any terms the Carriage or any of its obligations hereunder.

4.2 Merchant warrants that no claim or demand shall be made against any person whomsoever by whom the Carriage is performed or undertaken (including Carrier’s servants, agents and Sub-Contractors) other than Carrier which imposes or attempts to impose on any such person or any vessel owned or operated or controlled by any such person, any liability whatsoever in connection with the Goods or the Carriage or this Waybill, whether or not arising out of negligence on the part of such person . . . . Every such person shall have the benefit of all Rights and Defenses herein provided for the benefit of or otherwise available to Carrier as if the same were expressly made also for such person’s benefit.

 

 

Id. at 3.

 

1   The parties have submitted two slightly differing versions of the Terms and Conditions. That submitted by G&P is dated [*6]  2011. ECF No. 20-5 at 12. That submitted by SKF is dated 2015. ECF No. 26-8. Because the 2015 version could not have governed a Bill of Lading issued in 2013, the court uses the 2011 version in this order.

2   A Himalaya Clause is a provision in a bill of lading that extends the carrier’s defenses and the limitations of COGSA to third parties. Black’s Law Dictionary (10th ed. 2014), Himalaya clause.

The Terms and Conditions provides separate schemes for determining Carrier’s liability based on whether the transport is port-to-port transport or combined transport. In the case of combined transport, “Carrier shall be responsible for loss or damage occurring during the Carriage from the Place of Receipt or the Port of Loading (whichever is applicable) to the Port of Discharge or the Place of Delivery (whichever is applicable) . . . .” Id. at 4, ¶ 7.1. The Terms and Conditions limited Carrier’s liability to that provided by COGSA, i.e., $500.00 per package. Id. at 5, ¶ 8.1; see also Note following 46 U.S.C. § 30701. Finally, the Terms and Conditions defines “package” as the shipping container, if the goods are received by the carrier in such a container. Id. at 6, ¶ 8.5.

Once the goods arrived in Savannah, Georgia, Panalpina–a separately incorporated [*7]  entity, but one related to Pantainer, see ECF No. 33-2 at 7-10 (Deposition of Laura Brennan)–contracted on April 25, 2013, with G&P, using a Delivery Order. ECF No. 20-6 at 2 & ECF No. 26-3. The Delivery Order states that the goods are to be picked up from Savannah and are for delivery to SKF in Crossville, Tennessee. Id. The description of the goods in the Delivery Order matches that in the Bill of Lading. Id. Barcelona, Spain, is listed as the “port of origin.” Id. The Order indicates that the shipment was prepaid. Id. The Delivery Order also states at bottom right: “Liability including negligence is limited to the sum of $50.00 per shipment, unless a greater valuation shall be paid for or agreed to be paid in writing prior to shipping.” Id.

On April 28, 2013, while en route from Savannah, Georgia, to Crossville, Tennessee, the G&P truck carrying the shipping container of bearings and ball bearings was in an accident near Atlanta, Georgia. ECF No. 12 at 2 (G&P’s answer to SKF’s counterclaim admitting that an accident occurred). Nonetheless, delivery of the goods was made in Crossville, Tennessee, on or before May 2, 2013. ECF No. 20-4 at 59 (Delivery Order showing delivery confirmation [*8]  signature dated “5/2/13”). On May 20, 2013, SKF filed a claim with Zurich for the damaged goods. ECF No. 33-1. The claim documents state that conveyance of the goods was by “vessel,” from Spain, carried by Panalpina, and under a bill of lading number matching that of the Bill of Lading issued by Pantainer. Id. The type of damages SKF claimed was breakage and damaged packaging. Id. SKF sought $101,770.24 from Zurich under its policy. Id.

On February 24, 2014, G&P filed this declaratory judgment action against SKF and Zurich seeking a determination of its liability and a determination as to any limitation of liability available to it. ECF No. 1 (Complaint). On January 14, 2014, G&P moved the court for summary judgment in its favor and asked the court to find that it had no liability under the Bill of Lading, or alternatively that its liability was limited to $50.00 by the terms of the Delivery Order or $500.00 by COGSA. ECF No. 20. On March 2, 2015, SKF and Zurich also moved for summary judgment on the issue of liability, asking the court to hold that G&P had not presented evidence of a viable limitation of liability. ECF No. 26.3 G&P filed a consolidated response in opposition to SKF’s [*9]  motion and reply on April 2, 2015. The court held a hearing on the summary judgment motions on April 14, 2015. On May 6, 2015, the court entered an order requesting supplemental briefing from the parties on the issue of the condition of the goods when they were delivered to G&P in Savannah. ECF No. 43. The parties completed this briefing by May 18, 2015. ECF Nos. 45 & 46.

 

3   SKF’s motion for summary judgment also served as a response in opposition to G&P’s motion for summary judgment. ECF No. 27.

 

II. Governing Law: COGSA or Carmack Amendment

The court must first determine which law–COGSA or the Carmack Amendment–governs the shipping transaction at issue in this case. G&P’s position is that COGSA governs. SKF contends that the Carmack Amendment governs.

 

A. COGSA

A bill of lading “records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage.” 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., 561 U.S. 89, 94, 130 S. Ct. 2433, 177 L. Ed. 2d 424 (2010) (quoting Norfolk So. R. Co. v. James N. Kirby, 543 U.S. 14, 125 S. Ct. 385, 160 L. Ed. 2d 283 (2004). Bills of lading may contain a Himalaya clause “which extends the bills’ defenses and limitations on liability to parties that sign subcontracts to perform services contemplated by the [*10]  bills.” Id.4

 

4   The Fourth Circuit does not appear to have considered COGSA since the 2010 Supreme Court decision in Kawasaki.

COGSA governs the terms of bills of lading issued by ocean carriers engaged in foreign trade. Kawasaki, 561 U.S. at 96. It requires each carrier to issue to the cargo owner a bill that contains certain terms. Id. By its terms, COGSA only applies to shipments from United States ports to ports of foreign countries and vice versa. Id. The statute, however, 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.” Id. (quoting Kirby, 543 U.S. at 29). “While COGSA does not provide any limitation of liability in favor of third parties, the parties, by the bill of lading, may extend to third parties the limitation of liability granted the carrier [by COGSA]. . . . Such limitations of liability in the bill of lading in favor of third parties, however, are to be ‘strictly construed.'” Caterpillar Overseas, S.A. v. Marine Transp. Inc., 900 F.2d 714, 725 (4th Cir. 1990) (citations omitted). A carrier’s liability under COGSA is limited to $500.00 “per package.” Note following 46 U.S.C. § 30701.

 

B. The Carmack Amendment

The Carmack Amendment, 49 U.S.C. § 14706, governs the liability of motor carriers under receipts and bills [*11]  of lading. The parties agree that the Carmack Amendment applies if COGSA does not govern.5 The Amendment provides, in relevant part:

 

A carrier providing transportation or service subject to jurisdiction [of the Surface Transportation Board] shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service subject to jurisdiction [of the Surface Transportation Board] are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by

 

(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 and, except in the case of a freight forwarder, applies to property reconsigned or diverted under a tariff under section 13702.

 

 

Failure to issue a receipt or bill of lading does not affect the liability of a carrier. A delivering carrier is deemed to be the carrier performing [*12]  the line-haul transportation nearest the destination but does not include a carrier providing only a switching service at the destination.

 

 

49 U.S.C. § 14706(a).

 

5   Under the Bill of Lading, the “Carrier” is Pantainer as explained in the Terms and Conditions. Under the Carmack Amendment, however, G&P is the carrier and Panalpina (as intermediary for SKF) is the shipper.

The Carmack Amendment’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.” Reider v. Thompson, 339 U.S. 113, 119, 70 S. Ct. 499, 94 L. Ed. 698 (1950). “To help achieve this goal, Carmack constrains carriers’ ability to limit liability by contract.” Kawasaki Kisen, 561 U.S. at 98;6 see also 49 U.S.C. § 14706(c). Whether the motor carrier in fact issued a Carmack bill of lading is not dispositive of the question of whether the Carmack Amendment applies. Id. at 102-103. The Carmack Amendment will apply to “transport of property for which Carmack requires a receiving carrier to issue a bill of lading, regardless of whether that carrier erroneously fails to issue such a bill.” Id. at 103. By holding that the issuance of a separate bill of lading by the domestic carrier is not determinative of whether the Carmack Amendment applies, the Supreme Court overruled the holding of the Fourth Circuit in Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir. 1993), that the Carmack Amendment could only apply where the domestic carrier issued [*13]  a separate bill of lading.

 

6   Kawasaki addressed the Carmack Amendment’s provisions governing rail carriers. The provision governing motor carriers is substantially the same. Compare 49 U.S.C. § 11706 (rail carriers) with 49 U.S.C. § 14706(a) (motor carriers). The court concludes that the analytical framework of Kawasaki applies to this case, notwithstanding the fact that this case involves a motor, rather than a rail, carrier.

In sum,

 

“[F]or Carmack’s provisions to apply the journey must begin with a receiving rail carrier, which would have to issue a Carmack-compliant bill of lading. It follows 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,” § 11706(a), and thus no carrier that must issue a Carmack-compliant bill of lading. The initial carrier in that instance receives the property at the shipment’s point of origin for overseas multimodal import transport, not for domestic rail transport.”

 

 

Kawasaki Kisen, 561 U.S. at 103 (quotations, alterations, and citations as in the original). Where the bill of lading issued at the overseas location does not [*14]  cover transport to an inland location in the United States, there exists a receiving domestic carrier required to issue a Carmack-compliant bill of lading.

 

C. A Genuine Issue of Material Fact Exists as to Whether the Bill of Lading Is a Through Bill

The court undertakes analysis of the Bill of Lading in this case as an exercise of the Constitution’s grant of admiralty jurisdiction to the federal courts. U.S. Const. Art. III, § 2, cl. 1 (federal judicial power extends to “all Cases of admiralty and maritime jurisdiction”); see also Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23, 125 S. Ct. 385, 160 L. Ed. 2d 283 (2004). A bill of lading is a contract between the shipper and the carrier. Wemhoener Pressen v. Ceres Marine Terminals, Inc., 5 F.3d 734, 738 (4th Cir. 1993). If a particular bill of lading is a “maritime contract” federal law will govern its construction. Kirby, 543 U.S. at 23-24. The court concludes that the Bill of Lading issued by Pantainer in this case is a maritime contract because its “primary objective” is to “accomplish the transportation of goods by sea” from Spain to the United States. Id. at 24. Like the bill of lading at issue in Kirby, the Bill of Lading in this case “requires substantial carriage of goods by sea, [and] its purpose is to effectuate maritime commerce–and thus it is a maritime contract. Its character as a maritime contract is not defeated simply because it also provides for some [*15]  land carriage [in Spain and, potentially, in the United States].” Id. at 27. Additionally, neither G&P nor SKF has argued that any specific local interest exists sufficient “to beckon interpretation [of the Bill of Lading] by state law.” Id. Federal admiralty law thus governs the interpretation and construction of the Bill of Lading. See id. at 28-29.

Determining whether a shipment is governed by a through bill of lading is a question of fact. Am. Rd. Serv. Co. v. Consol. Rail Corp., 348 F.3d 565, 568 (6th Cir. 2003); see also Capitol Converting Equip., Inc. v. LEP Transp., Inc., 965 F.2d 391, 394 (7th Cir. 1992). In an admiralty proceeding, it is the duty of the court to settle factual disputes. New Jersey Steam Navigation Co. v. Merchant’s Bank of Boston, 47 U.S. 344, 423, 12 L. Ed. 465 (1847) (“[I]t is our duty to settle facts in an admiralty proceeding, when they are material to the merits”). Whether a particular bill of lading is a through bill is to be determined with reference to various factors, including: “(1) whether the bill of lading indicates the final destination for the goods; (2) whether the freight for the entire shipment was prepaid; and (3) whether a separate, domestic bill of lading ever issued.” Custom Rubber Corp. v. ATS Specialized, Inc., 633 F. Supp. 2d 495, 504 (N.D. Ohio 2009). The court may also consider other general aspects of the conduct of the shipper and the carriers. Marine Office of Am. Corp. v. NYK Lines, 638 F. Supp. 393, 399 (N.D. Ill. 1985) (collecting cases).

 

1. Whether the bill of lading indicates the final destination for the goods

In this case, the Bill of Lading leaves the “Place [*16]  of Delivery” blank, and does not, therefore, indicate on its face the final destination of the goods. See ECF No. 26-5. G&P urges the court to construe the listing of SKF’s Tennessee address in the consignee box as being an indication of the final destination of the goods. A consignee is the “person named in a bill to whom or to whose order the bill promises delivery.” Black’s Law Dictionary (10th ed. 2010), consignee. There is ambiguity as to whether the address of the consignee is the final destination of the goods and was so understood by the parties, or, alternatively, whether the final destination of the goods was unclear and was to be provided by the consignee at some future date after the issuance of the Bill of Lading.

Further, the Terms and Conditions expressly contemplates the possibility that the Bill of Lading may serve either as a through bill or a normal bill of lading. The document provides that: “Carrier shall be responsible for loss or damage occurring during the Carriage from the Place of Receipt or the Port of Loading (whichever is applicable) to the Port of Discharge or the Place of Delivery (whichever is applicable) . . . .” Id. at 4, ¶ 7.1. The term “whichever” is exclusive–meaning [*17]  “any one of two or more.” Webster’s New World Dictionary, 3rd ed. (1988) at 1521 (entry for “whichever”) (emphasis added). Thus, the Bill of Lading may provide for “combined transport,” but it is unclear whether this combined transport is only from Fontellas, Spain, the place of receipt, to Savannah, Georgia, the port of discharge, or whether it is, in fact, door-to-door transport from Fontellas, Spain, to Crossville, Tennessee.

 

2. Whether the freight for the entire shipment was prepaid

The court similarly concludes that the record points in no clear direction as to the second factor. The court cannot determine with any certainty whether the freight for the entire shipment was prepaid. The Bill of Lading indicates that it is payable at “destination,” and was not, therefore, prepaid. The Delivery Order issued to G&P, on the other hand, indicates that it was “prepaid.” Further, Simpson, SKF’s warehouse manager, responded to a question about whether the movement from Savannah to Crossville was domestic or international by saying: “It still would have been international normally because it’s bonded freight.” ECF No. 20-4 at 35:16-21. The Delivery Order confirms that the freight was bonded. [*18]  The court concludes that a genuine issue of material fact exits as to what, exactly, the payment term was for the transportation of the goods under the Pantainer Bill of Lading.

 

3. Whether a separate, domestic bill of lading ever issued

Finally, the court determines that the third relevant factor, the issuance of a separate domestic bill of lading by the domestic carrier, is no longer of much analytic value after Kawasaki in a case such as this. While the issuance of a separate bill of lading strongly implies that the case is within the Carmack Amendment, and therefore, that the original bill of lading is not a through bill, the Supreme Court held in Kawasaki that the absence of such a separate, domestic document does not ipso facto render the Carmack Amendment inapplicable, and, by default, render the original bill a through bill. Kawasaki Kisen, 561 U.S. at 103 (distinguishing several appellate cases where those courts placed primacy on the issuance or non-issuance of a separate domestic bill of lading). Thus, there exists the possibility that G&P may have erroneously failed to issue a separate bill of lading. That possibility substantially limits the value of this third factor in evaluating whether the Bill of Lading is a through bill.

Considering the [*19]  foregoing factors, the record at present in insufficient to allow the court to determine with any confidence whether the bill of lading is a through bill. The court will schedule a hearing during which the parties can present further evidence on the issue.

 

IV. Conclusion

The court cannot reach the other issues briefed by the parties in their motions for summary judgment until the court determines whether COGSA or the Carmack Amendment governs the shipping transaction–a determination flowing from the court’s decision about the nature of the Bill of Lading. The other issues presented by the motions for summary judgment are held in abeyance. An evidentiary hearing will be scheduled during which the parties may present evidence to the court on the issue of whether the Bill of Lading is a through bill.

IT IS SO ORDERED.

/s/ Margaret B. Seymour

Margaret B. Seymour

Senior United States District Judge

Columbia, S.C.

June 18, 2015