United States District Court,

S.D. Texas,

Laredo Division.

APPAREL PRODUCTION SERVICES, INC., Plaintiff,

v.

INDIANA TRANSPORT, S.A. de C.V. d/b/a Indiana Transport and Trafago Forwarding, Inc., Defendants.

Apparel Production Services, Inc., Plaintiff,

v.

Transportes de Carga Fema, S.A. de C.V. and Trafago Forwarding, Inc., Defendants.

Civil Action Nos. L-08-26, L-08-62.

 

March 28, 2009.

 

MEMORANDUM AND ORDER

 

GEORGE P. KAZEN, District Judge.

 

These cases arise out of losses of goods by highjacking in Nuevo Laredo , Mexico. On two separate occasions, Plaintiff Apparel Production Services, Inc. (“APS”) had shipments of sewing machines and fabric delivered from several United States locations to Defendant Trafago Forwarding, Inc.’s (“Trafago”) Laredo, Texas warehouse on various bills of lading. APS then hired Trafago to, among other duties, obtain the customs documents for the goods and prepare the goods for shipment from Laredo to Nuevo Laredo. Trafago picked Defendants Indiana Transport, S.A. de C.V. (“Indiana”) and Transportes de Carga FEMA, S.A. de C.V. (“FEMA”) to actually transport the goods to Nuevo Laredo. There, a Mexican line haul carrier, Aril, was to pick up the goods and carry them to their ultimate destinations in Puebla/Xalapa, Mexico. The record reflects that Aril’s selection was arranged by APS. After passing through Mexican customs but before delivering the goods to Aril, FEMA and Indiana’s drivers were highjacked by unknown criminals, and the goods were stolen. Subsequently, APS filed two actions against Defendants under the Carmack Amendment, 49 U.S.C. § 14706, and state tort and contract law.

 

Now pending are two motions for summary judgment by APS on its Carmack Amendment claims. (Dkt. No. 29 in L-08-26 and Dkt. No. 36 in L-08-62.) Also pending are two counter-motions for summary judgment, one by Defendants Trafago and Indiana (Dkt. No. 42 in L-08-26) and one by Defendants Trafago and FEMA (Dkt. No. 44 in L-08-62). The Court considers these motions in a consolidated manner pursuant to its Order filed February 9, 2009. (SeeDkt. No. 59.)

 

Application of Carmack Amendment to Extra-Territorial Losses

 

Defendants argue that the Carmack Amendment cannot apply to losses of cargo occurring in Mexico. The Carmack Amendment establishes liability of a carrier or freight forwarder, which provides transportation or service subject to jurisdiction under 49 U.S.C. § 13501 or § 13531:

 

for the actual loss or injury to 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.

 

49 U.S.C. § 14706(a)(1) (emphasis added). Under 49 U.S.C. § 13501(1)(E), the Secretary of Transportation and the Surface Transportation Board (“STB”)’s jurisdiction covers transportation by motor carrier“between a place in … the United States and a place in a foreign country to the extent the transportation is in the United States.”§ 13501(1)(E) (emphasis added).

 

Section 13531 is nearly identical to § 13501, but relates to the Secretary’s jurisdiction over service/transportation by freight forwarders.

 

Defendants argue that the emphasized text in § 13501 creates a strict geographical limitation to the Secretary’s jurisdiction and, therefore, negates Carmack’s applicability to losses occurring outside the United States. Defendants cite Berlanga v. Terrier Transp., Inc. to support this argument. 269 F.Supp.2d 821 (N.D.Tex.2003). In Berlanga, the defendant issued a Mexican through bill of lading covering transportation of household goods from Mexico City, Mexico to Plano, Texas. The goods were damaged during the domestic leg of the shipment. Relying on § 13501, the court found it “now plain that the international leg of such a shipment is not covered by Carmack.”Id. at 827.

 

Defendants cite Project Hope v. M/V IBN Sina for the same proposition. 250 F.3d 67 (2d Cir.2001). There, the plaintiff contracted with the defendants to carry insulin from Virginia to Cairo, Egypt on a through bill of lading. The insulin was damaged during the initial Virginia leg. The issue was whether an intrastate leg of the shipment fell under Carmack. The Second Circuit, looking to the intended nature of the entire transportation, concluded that “the Carmack Amendment applies throughout the entire portion of the shipment taking place in the United States, including intrastate legs of the shipment.” Id. at 74-75.It is noteworthy that Project Hope did not involve transportation to an adjacent foreign country. Further, the opinion only explained that a seemingly intrastate loss could come under Carmack if the transportation was the beginning of a longer journey that would cross state lines.

 

Other courts have consistently applied, or been ready to apply, the Carmack Amendment to cover losses occurring in Mexico or Canada during through transportation initiated in the United States. See e.g., Mex. Power & Light Co. v. Tex. Mex. Ry. Co., 331 U.S. 731, 67 S.Ct. 1440, 91 L.Ed. 1779 (1947); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77 (2d Cir.2004); Tempel Steel Corp. v. Landstar Inway, Inc., 211 F.3d 1029 (7th Cir.2000); Trailer Marine Transp., Corp. v. Fed. Mar. Comm’n, 602 F.2d 379, 389 n. 46 (D.C.Cir.1979). Further, a recent opinion, discussing § 13501 and § 14706’s long history, distinguished Berlanga and Project Hope and concluded that transportation to or from an adjacent foreign country can come under the Carmack Amendment so long as there is a through bill of lading governing the transportation. Sompo Japan Ins. Co. v. Union Pac. R.R. Co., 456 F.3d 54, 66 (2d Cir.2006).

 

The Court concludes, therefore, that the losses in the instant cases could be subject to Carmack under § 14706(a), but only if the goods were being transported “under a through bill of lading.”

 

Through Bill of Lading?

 

Neither the Carmack Amendment, the Federal Bills of Lading Act, 49 U.S.C. § 80101, et seq., nor the Uniform Commercial Code define a through bill of lading.

 

A simple bill of lading, however, is defined as “a document acknowledging the receipt of goods by a carrier or by the shipper’s agent and the contract for the transportation of those goods; a document that indicates the receipt of goods for shipment and that is issued by a person engaged in the business of transporting or forwarding goods.”BLACK’S LAW DICTIONARY 176 (8th ed.2004). It, or a receipt, should include the origin and destination points, number of packages, description of freight, and weight, volume or measurement of freight (if applicable to the rating of the freight).49 C.F.R. § 373.101.

 

Courts have defined a through bill of lading as a bill of lading in which a carrier agrees to transport goods from a point of origin to a designated point of destination, even though different carriers may perform a portion of the contracted shipment. See e.g., Altadis USA, Inc. ex rel. Fireman’s Fund Ins. Co. v. Sea Star Line, LLC, 458 F.3d 1288, 1289 (11th Cir.2006); Commercial Union Ins. Co. v. Sea Harvest Seafood Co., 251 F.3d 1294, 1302 (10th Cir.2001).

 

Whether a particular document is a through bill of lading is a question of fact, Union Pac. R.R. Co. v. Greentree Transp. Trucking Co., 293 F.3d 120, 127 (3d Cir.2002), to be determined by examining various factors such as “the final destination indicated on the document, the conduct of the shipper and the carriers, and whether the connecting carriers were compensated by the payment made to the initial carrier or by separate consideration from the shipper,” Tokio Marine & Fire Ins. Co. v. Hyundai Merchant Marine Co., 717 F.Supp. 1307, 1309 (N.D.Ill.1989); Seguros Comercial Américas, S.A. de C.V. v. Am. President Lines, Ltd., 910 F.Supp. 1235, 1239 (S.D.Tex.1995), vacated on other grounds, 105 F.3d 198 (5th Cir.1996).

 

APS’s summary judgment evidence to establish through bills of lading consists of two Spanish-language documents, called órdenes de remisión (Dkt. No. 61, Exs.4, 5), which were prepared by Trafago and said to contain the signature of a FEMA/Indiana driver (Dkt. No. 29, Am. Ex. F ¶¶ 7, 12). While the Carmack Amendment requires a carrier to issue a receipt or bill of lading, it also provides that failure to do so does not affect the carrier’s liability. § 14706(a)(1). On the surface, those provisions seem to be internally inconsistent. Nevertheless, as held in Mapfre Tepeyac, SA v. Robbins Motor Transp., Inc., the specific requirement in § 14706(a)(1)(C) of a “through bill of lading” necessarily requires a written instrument. No. H-05-1908, 2006 WL 3694502, at(S.D.Tex. Dec.13, 2006). There can be no such thing as an oral through bill of lading. Therefore, whether or not a written bill of lading is always needed under Carmack, it is clearly needed for Carmack to apply to loss or damage in an adjacent foreign country.

 

In her sworn declaration, Trafago’s President, Laura de la Miyar, states that the FEMA and Indiana drivers respectively “signed” the órden applying to his shipment. (Dkt. No. 41, Am. Ex. F ¶¶ 7, 12.) The FEMA órden does appear to contain a signature, albeit an illegible one. (Dkt. No. 61, Ex. 4.) The Indiana órden, however, contains a printed name, “Juan Soto,” but it does not appear to be an actual signature.(Id., Ex. 5.) Moreover, the remainder of the writings at the bottom of both órdenes appear to be done by the same hand. (See id., Exs. 4, 5.)

 

The órdenes submitted by APS do not establish through bills of lading issued by Trafago, FEMA or Indiana, as carrier, to APS, as shipper. Each órden describes the goods carried, their weight, and the number of packages. The point of origin is Nuevo Laredo and the point of destination is Puebla/Xalapa. Each document reflects the name of the consignee as either Empacabados S.A. de C.V. (Dkt. No. 61, Ex. 4) or Grupo Maquilador de Xalapa S.A. de C.V (Dkt. No. 61, Ex. 5), neither of which is a party to this case.The sender is stated to be De la Miyar Garza Agencia Aduanal, S.C. The carrier for each shipment is Aril. Neither Defendants nor APS appear on the documents.Also, the documents do not reflect any agreements limiting common-law liability for losses occurring during shipment.

 

De la Miyar’s declaration suggests that these non-parties would be APS’s Mexican maquila partners. (Dkt. No. 41, Am. Ex. F ¶ 5.)

 

The Court assumes that there may be a relationship between Trafago and De la Miyar Garza Agencia Aduanal, S.C., in that Laura de la Miyar is the President of Trafago. Even so, the órdenes list a Nuevo Laredo address for the agencia aduanal and indicate it is the sender “From: Nuevo Laredo, Tamaulipas.” (Dkt. No. 61, Exs. 4, 5 (using English translation of “Origen”).) This language cannot be construed as a through bill of lading with a United States point of origin.

 

Further, each document reflects that payment is to be charged (“cobrar” ), but APS presents no evidence reflecting how Aril, or any other carrier, was to be compensated, nor the amount of compensation. Trafago’s President, Laura de la Miyar, avers without contest that the carriers who were to pick up the cargo in Nuevo Laredo “were arranged for, selected by, and contracted with, Plaintiff,” which at least suggests that APS was responsible for paying Aril. (Dkt. No. 41, Am. Ex. F ¶ 5.) Curiously, her affidavit also identifies these “carriers” as Transportes Ibarra and SEPSA Custodias de Valores, S.A. de C.V., but neither name appears on the órdenes.Their relationship to Aril is unclear.

 

APS argues that handwriting on the bottom of each órden amends the documents and somehow connects the wholly foreign transportation described in the órdenes with the over-the-border carriage, which began at Trafago’s warehouse in Laredo and had a destination in Nuevo Laredo. As the Court understands, APS’s argument is that Trafago, and perhaps FEMA/Indiana, are liable under Carmack based on three theories. The first is that the handwriting converts the órdenes to through bills of lading by Trafago to carry the goods from Laredo to Puebla/Xalapa. Alternatively, because of the handwritings, the órdenes become through bills of lading by Trafago, or perhaps FEMA/Indiana, for transportation from Laredo to Nuevo Laredo. Finally, Trafago, and perhaps FEMA/Indiana, are liable under Carmack based on oral agreements to transfer goods from Laredo to Nuevo Laredo. The Court rejects all three theories.

 

The Court concludes that the only way a carrier can be liable under Carmack for a loss in Mexico is if the loss occurred during transportation under a written through bill of lading, or similar document. The only documents that could possibly fit that description are the two órdenes in evidence. Those documents specifically pertain to transportation entirely between Mexican locales. Signatures or handwritten notes of uncertain origin on those documents cannot convert them into through bills of lading from Laredo to any Mexican locale.

 

Conclusion

 

For the reasons above, Plaintiff’s motions for summary judgment (Dkt. No. 29 in L-08-26 and Dkt. No. 36 in L-08-62) are DENIED. Defendants’ joint counter-motions for summary judgment (Dkt. No. 42 in L-08-26 and Dkt. No 44 in L-08-62) are GRANTED as to Plaintiff’s Carmack claims and DENIED as to all remaining claims.

 

The remaining claims are based on state tort or contract common law. The parties are DIRECTED to complete whatever discovery they deem appropriate on those claims and file a status report by April 27, 2009.

United States District Court,

C.D. California.

ALLSTATE INS. CO., as Subrogee for Brian Miller, Plaintiff,

v.

MAYFLOWER TRANSIT, LLC, and Does 1 to 20, Defendants.

No. EDCV 09-368-VAP (FMOx).

 

April 14, 2009.

 

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

VIRGINIA A. PHILLIPS, District Judge.

 

Defendant Mayflower Transit, LLC’s Motion for Summary Judgment came before the Court for hearing on April 13, 2009. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court GRANTS the Motion.

 

I. BACKGROUND

 

On January 5, 2009, Plaintiff Allstate Insurance Company (“Plaintiff”), as subrogee for Brian Miller, filed a form Complaint in the California Superior Court, Riverside County, against Defendant Mayflower Transit, LLC (“Defendant”), alleging the following claims: (1) “Motor Vehicle;” (2) “General Negligence;” and (3) “Equitable Subrogation.” (See Not. of Removal at 7.) Defendant removed the action to this Court on February 20, 2009.

 

On February 25, 2009, Defendant filed a “Motion to Dismiss Complaint.” Plaintiff filed Opposition on March 9, 2009; Defendant filed a Reply on March 16, 2009. On the face of Plaintiff’s Complaint, it is unclear whether Brian Miller hired Defendant to move his belongings within California or outside of the state. On March 18, 2009, the Court, sua sponte, converted Defendant’s Motion to Dismiss into a Motion for Summary Judgment to consider evidence of the interstate nature of the move and whether or not the Carmack Amendment completely preempts Plaintiff’s California state law claims.

 

Pursuant to the Court’s March 18 Order, Defendant filed a “Statement of Uncontroverted Facts and Conclusions of Law” (“SUF”), a supplemental brief, and the Declaration of Tina Gaugh (“Gaugh Declaration”) on March 30, 2009. Plaintiff filed Opposition, a “Statement of Genuine Issues” (“SGI”), and the Declaration of Sandra D. Lovern (“Lovern Declaration”) on April 6, 2009.

 

II. LEGAL STANDARD

 

A motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250.

 

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

 

When the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party’s case. Celotex, 477 U.S. at 325. Instead, the moving party’s burden is met by pointing out there is an absence of evidence supporting the non-moving party’s case. Id.

 

The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252;see also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial, 14:144.

 

A genuine issue of material fact will exist “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir.1991); T.W. Electrical Serv. Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987).

 

III. UNCONTROVERTED FACTS

 

The following material facts are supported adequately by admissible evidence and are uncontroverted. They are “admitted to exist without controversy” for the purposes of this Motion. See Local Rule 56-3.

 

On or about May 25, 2007, Plaintiff’s insured Brian Miller (“Mr.Miller”) entered into a contract with Defendant “to transport certain of his household goods and effects from Anza, California to Golden Valley, Arizona.”(Def.’s SUF ¶ 1.) At all relevant times, Defendant “operated as an interstate motor common carrier for household goods ….”(Id. at ¶ 6.)

 

Defendant moved Mr. Miller’s belongings under a “Mayflower Combined Uniform Household Goods Bill of Lading (“Bill of Lading”), pursuant to [Defendant’s] interstate operating authority.”(Id. at ¶ 7.)

 

As Defendant, carrying Mr. Miller’s personal belongings, was en route to the latter’s Arizona residence, Defendant’s truck crashed, damaging some of Mr. Miller’s property. (Id. at ¶¶ 2, 4.) Defendant delivered some of his belongings on or about May 30, 2007 to his Arizona residence. (Id. at ¶ 3.) For the damage to Mr. Miller’s property caused by the accident, Plaintiff paid $33,552 to Mr. Miller under his homeowner’s liability insurance policy with Plaintiff. (Id. at ¶ 5.)

 

IV. DISCUSSION

 

Defendant moves for summary judgment on two grounds: (1) the Carmack Amendment entirely preempts Plaintiff’s claims, warranting their dismissal; and (2) Mr. Miller failed to file timely his written claim for damages with Defendant, thus barring Plaintiff’s claim for violation of the Carmack Amendment. (See Def.’s Supp. Br.)

 

A. Preemption under Carmack Amendment

 

The Carmack Amendment, 49 U.S.C. § 14706, provides the exclusive remedy for damages claims arising out of an interstate shipping contract, and the statute completely preempts a state law contract claim for recovery of such damages. Hall v. N. Am. Van Lines, Inc ., 476 F.3d 683, 688 (9th Cir.2007). Furthermore, “[i]t is well settled that the Carmack Amendment constitutes a complete defense to common law claims alleging all manner of harms. It applies equally to fraud and conversion claims arising from a carrier’s misrepresentations as to the conditions of delivery or failure to carry out delivery.” Id. at 689 (internal citations and quotations omitted).

 

Here, the parties do not dispute the following material facts: (1) Mr. Miller hired Defendant to move his personal belongings from California to Arizona; and (2) the traffic accident occurred as Defendant was transporting Mr. Miller’s belongings from California to Arizona. (See Def.’s SUF ¶ 1; Pl.’s SGI ¶ 1.) As this case involves the liability of an interstate carrier, the Carmack Amendment applies. See Hughes Aircraft Co. v. North American Van Lines, Inc., 970 F.2d 609, 611 (9th Cir.1992); 49 U.S.C. § 14706.

 

Defendant shows Plaintiff seeks $33,552.27 for damage to Mr. Miller’s property, paid by Plaintiff pursuant to Mr. Miller’s insurance policy, resulting from Defendant’s alleged negligence in packing its delivery truck, causing its instability, and ultimately turning over during the drive. (See Def.’s SUF ¶¶ 4, 5.) By doing so, Defendant shows Plaintiff’s California state law claims seek enforcement of liability against an interstate carrier. Accordingly, Defendant meets its burden on this Motion to show Plaintiff’s claims are preempted by the Carmack Amendment. See Celotex Corp., 477 U.S. at 323. Now, the burden shifts to Plaintiff to demonstrate a genuine issue of material fact that must be resolved at trial. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256.

 

Plaintiff presents no argument or evidence to show the Carmack Amendment does not preempt its claims. Instead, Plaintiff argues, despite its failure to plead a Carmack Amendment claim, its allegations are sufficient to state a claim under the Carmack Amendment. (See Opp’n at 6.) Plaintiff misunderstands its burden in opposing this Motion; a party cannot overcome a summary judgment motion by its adversary with unsupported factual allegations in the Complaint. See Anderson, 477 U.S. at 249. Accordingly, Plaintiff fails to raise a triable issue of fact that its claims are not preempted by the Carmack Amendment.

 

The Court finds Plaintiff’s California state law claims seek to enforce liability against Defendant, an interstate carrier; thus, they are preempted completely by the Carmack Amendment. Hall, 476 F.3d at 689.

 

B. Timeliness of Mr. Miller’s Claim

 

Defendant also moves the Court to grant summary judgment in its favor because it argues Mr. Miller never presented his claim to Defendant and Plaintiff sent a claim letter to Defendant in an untimely fashion. (See Supp. Br. at 5-8.) The terms and conditions of Defendant’s Bill of Lading required that any claim for loss or damage to cargo must be filed within nine months of delivery of the cargo or, if there was a failure to make delivery, within nine months after a reasonable time for delivery elapsed. (Def’s. SUF ¶ 8.) Mr. Miller accepted delivery of a portion of his personal belongings from Defendant on May 30, 2007. (Id. at ¶ 3.) Defendant argues and presents evidence Mr. Miller never filed a written claim for loss or damage to his personal property and Plaintiff sent Defendant a claim letter past the nine month deadline. (Id. at ¶¶ 9, 10.)Accordingly, Defendant meets its burden on this Motion to show Plaintiff’s claims are untimely. See Celotex Corp., 477 U.S. at 323. Now, the burden shifts to Plaintiff to demonstrate a genuine issue of material fact that must be resolved at trial. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256.

 

In Opposition, Plaintiff presents the Declaration of Sandra D. Lovern, a claims adjuster employed by Plaintiff, who declares under penalty of perjury that she sent a claim letter to Defendant on November 28, 2007, well before the nine month deadline, to notify Defendant of Plaintiff’s subrogation claim arising from the damage to Mr. Miller’s property. (See Lovern Decl. at ¶ 3.) Plaintiff attaches the claim letter to Ms. Lovern’s Declaration, as Exhibit 1.(Id. at Ex. 1 (“Initial Notice of Subrogation Claim”).) Plaintiff’s claim form identified Mr. Miller as the “insured” and stated a subrogation claim was forthcoming.

 

Defendant objects to the authenticity of this document. (See Reply at 3.) The Court overrules this objection and finds the Lovern Declaration lays the proper foundation to establish the document’s authenticity.

 

As Defendant argues in its Reply, this claim form was insufficient to provide notice of Plaintiff’s subrogation claim. See49 C.F.R. § 1005.2(b) (written claim arising out of bill of lading must contain: (1) facts sufficient to identify the shipment; (2) an assertion of liability for the loss; and (3) making a claim for payment of specified or determinable amount of money.) On the face of Exhibit 1, Plaintiff’s form did not contain facts sufficient to identify the shipment. As such, Plaintiff’s claim letter did not provide Defendant with sufficient notice of the claim. Accordingly, Plaintiff fails to raise a triable issue of fact that it presented its claim to Defendant in a timely fashion.

 

At the hearing, Plaintiff’s counsel urged the Court to consider two non-binding cases, ( Salzstein v. Bekins Van Lines Inc., 993 F.2d 1187 (5th Cir.1993) and Nedlloyd Lines, B.V., Corp. v. Harris Transport Co. Inc., 922 F.2d 905 (1st Cir.1991)) that purportedly found there is an exception in insurance cases, whereby insurance companies are not required to comply with the strict notice requirement dictated by 49 C.F.R. § 1005.2(b). The Court has considered both cases cited by counsel. Both focus on the third prong of § 1005.2(b) and concern whether or not a claim must contain the actual amount of damages or be determinable in order to recover. See Salzstein, 993 F.2d at 1190-91; Nedlloyd Lines, 922 F.2d at 908-09. Although the Court finds the cases actually support Defendant’s position here, the Court need not reach this argument because the Court has determined Plaintiff’s claim did not contain facts sufficient to identify the shipment; whether or not Plaintiff satisfied the third prong of § 1005.2(b) is of no consequence because it has not satisfied the first prong.

 

V. CONCLUSION

 

For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary Judgment as to all of Plaintiff’s claims.