Nancy CHICK, Individually and as Administratrix of the Estate of David Chick.

v.

C & F ENTERPRISES, LLC and another.

 

Argued: Oct. 18, 2007.

Opinion Issued: Dec. 14, 2007.

 

BRODERICK, C.J.

Defendant C & F Enterprises, LLC (C & F) appeals an order of the Superior Court (Houran, J.) denying its motion to dismiss for lack of personal jurisdiction. We affirm and remand.

 

The record supports the following facts. On March 22, 2005, the plaintiff’s husband, David Chick, and defendant Gregory Combs were involved in a motor vehicle accident in Lebanon, Maine. Chick was transported from the accident scene to Frisbee Memorial Hospital in Rochester, where he later passed away. At the time of the accident, Combs was driving a commercial vehicle owned by C & F. The plaintiff, Nancy Chick, subsequently brought suit in superior court against both Combs and C & F, alleging that Combs’ negligence caused her husband’s death.

 

C & F is a New York corporation, engaged in the interstate transport of cars and utility trailers, with a principal place of business in New York. While C & F has never owned property or maintained a business office in New Hampshire, the company made deliveries to various locations in this state during 2005 and 2006. C & F drivers also passed through New Hampshire en route to Maine delivery points on several occasions during that time period. Given its use of this state’s highways, C & F has designated an agent for service of process in New Hampshire to comply with the federal Motor Carrier Act. See 49 U.S.C.A. § 13304(a) (West 2007); Rounds v. Rea, 947 F.Supp. 78, 82 (W.D.N.Y.1996) ( “Under this statute, carriers traveling in interstate commerce [are] required to establish an agent in each state in which the motor carrier operate [s]….”).

 

Both defendants moved to dismiss this action for lack of personal jurisdiction. In its order on the defendants’ motions, the trial court found that it lacked personal jurisdiction over Combs under RSA 510:4, I (1997), the New Hampshire long-arm statute. Notwithstanding this, the trial court ruled that C & F consented to personal jurisdiction in this state because-unlike Combs-it designated an agent for service of process pursuant to the Motor Carrier Act. The trial court found that this consent obviated any need to perform the customary “minimum contacts” test for personal jurisdiction under the long-arm statute. See, e.g., Vt. Wholesale Bldg. Prods. v. J.W. Jones Lumber Co., 154 N.H. 625, 628-30, 914 A.2d 818 (2006). C & F now challenges the trial court’s ruling on appeal.

 

We review a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction de novo. Lyme Timber Co. v. DSF Investors, 150 N.H. 557, 559, 842 A.2d 115 (2004). Ordinarily, “[t]he plaintiff bears the burden of demonstrating facts sufficient to establish personal jurisdiction over the defendant.”Jones Lumber, 154 N.H. at 628, 914 A.2d 818. “In determining whether the plaintiff has met its burden, we generally engage in a two-part inquiry.”Id.“First, the State’s long-arm statute must authorize such jurisdiction. Second, the requirements of the federal Due Process Clause must be satisfied.”Id. (quotation omitted); seeRSA 510:4, I.

 

*2However, “this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not.”Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 704-05, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).“Because the requirement of personal jurisdiction represents … an individual right [flowing from the Due Process Clause], it can, like other such rights, be waived.”Id. at 703.Thus, “[a] defendant may … consent or submit to the jurisdiction of a court which otherwise would not have jurisdiction over it.”Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1199 (8th Cir.1990); see also21 C.J.S. Courts § 87, at 93 (2006) (“In the absence of contrary statute, a court having jurisdiction of the subject matter may, as a general rule, acquire jurisdiction over the persons of the parties by their consent.”). Consent has long been recognized as a stand-alone basis for exercising personal jurisdiction, “existing independently of long-arm statutes.” Knowlton, 900 F.2d at 1199;see Paragon Homes Inc. v. Gagnon, 110 N.H. 279, 281, 266 A.2d 207 (1970); 4 R. Wiebusch, New Hampshire Practice, Civil Practice and Procedure § 2. 10, at 31-32 (2d ed.1997).

 

“A variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of the court .”Bauxites, 456 U.S. at 703. “One of the most solidly established ways of giving such consent is to designate an agent for service of process within the State.”Knowlton, 900 F.2d at 1199. But cf. Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 183 (5th Cir.1992) (compliance with Texas agent registration statute did not serve “as consent to be hauled into Texas courts on any dispute with any party … concerning any matter”), cert. denied,506 U.S. 1080, 113 S.Ct. 1047, 122 L.Ed.2d 356 (1993). This includes, in particular, the designation of an agent for service of process pursuant to the federal Motor Carrier Act. See Ocepek v. Corporate Transport, Inc., 950 F.2d 556, 557-58 (8th Cir.1991); Rounds, 947 F.Supp. at 83-84;McKamey v. Vander Houten, 744 A.2d 529, 532 (Del.Super.Ct.1999); Mittelstadt v. Rouzer, 213 Neb. 178, 328 N.W.2d 467, 470 (Neb.1982); Brinkmann v. Adrian Carriers, Inc., 29 A.D.3d 615, 815 N.Y.S.2d 196, 199 (App.Div.2006).

 

The Motor Carrier Act provides, in pertinent part:

A motor carrier or broker providing transportation … shall designate an agent in each State in which it operates by name and post office address on whom process issued by a court with subject matter jurisdiction may be served in an action brought against that carrier or broker.

 

49 U.S.C.A. § 13304(a). In passing this statute, “Congress wanted to make it easy to hold interstate carriers responsible for their actions[,] … to eliminate potential jurisdictional problems and to provide injured parties with reasonably easy access to the courts, having in mind that the injured party is frequently a resident of some state other than that in which the accident has occurred.”Ocepek, 950 F.2d at 559-60. “The whole purpose of requiring designation of an agent for service is to make a nonresident suable in the local courts.”Knowlton, 900 F.2d at 1199. “The effect of such a designation can be limited to claims arising out of in-state activities, and some statutes are so limited ….“ Id.The relevant section of the Motor Carrier Act, however, contains no such limitation. Ocepek, 950 F.2d at 559. “[The statute] speaks of ‘a court with subject matter jurisdiction’ and ‘an action brought against the carrier,’ both phrases indicating no limitation in terms of the place where the action has arisen.” Id. (quoting 49 U.S.C. § 10330(b), predecessor to 49 U.S.C.A. § 13304(a); brackets omitted). Moreover, as the Nebraska Supreme Court has observed:Nowhere does [the statute] manifest a preference for the state in which a prospective plaintiff dwells, nor for one in which the defendant lives, nor for the one in which the cause of action arose. It treats all states in which a process agent has been appointed with equal impartiality.

 

Mittelstadt, 328 N.W.2d at 470 (quotation omitted).

 

[10] As a result, nearly all federal and state courts which have considered the effect of the Motor Carrier Act have held that it enables courts to obtain personal jurisdiction over an interstate carrier in states where the carrier may or may not do business, but in which it has a registered agent, for incidents occurring in a third state. McKamey, 744 A.2d at 532 n. 14 (citing cases). By designating an agent in a given state pursuant to the Motor Carrier Act, a corporation undertakes a “voluntary, reasoned act,” Leonard v. USA Petroleum Corp., 829 F.Supp. 882, 886 (S.D.Tex.1993), acknowledging that it may be sued in that state as a result of its interstate commercial enterprise-irrespective of where it may have committed the tort at issue. We therefore hold that upon designating an agent for service of process in New Hampshire pursuant to 49 U.S.C.A. § 13304(a), C & F expressly consented to personal jurisdiction in our state courts, “at least as to any cause of action arising out of its activities as a motor carrier in interstate commerce.”Mittelstadt, 328 N.W.2d at 470.

 

In sum, a nonresident corporation’s compliance with the agent designation requirement of 49 U.S.C.A. § 13304(a) serves as consent to be sued in the courts of this state given the objectives of that statute. Our ruling does not, however, prevent a defendant from filing a motion to dismiss based upon the doctrine of forum non conveniens. See Stankunas v. Stankunas, 133 N.H. 643, 646, 582 A.2d 280 (1990).

 

Accordingly, since C & F concedes that it appointed an agent in this state pursuant to the Motor Carrier Act, the plaintiff has been relieved of her customary burden of showing facts sufficient to demonstrate personal jurisdiction over the defendant. Cf. Jones Lumber, 154 N.H. at 628, 914 A.2d 818. We agree with the trial court that C & F has consented to personal jurisdiction in New Hampshire as a matter of law, and affirm its denial of the corporation’s motion to dismiss. In light of this ruling, we need not address the parties’ arguments regarding personal jurisdiction over C & F under the long-arm statute.

 

Affirmed and remanded.

 

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

INTERESTED UNDERWRITERS, Appellant,

v.

SEAFREIGHT LINE, LTD., et al., Appellees.

 

Nov. 28, 2007.

 

Before GREEN, ROTHENBERG, and SALTER, JJ.

SALTER, J.

Interested Underwriters appeals a final judgment summary judgment in favor of SeaFreight Line, Ltd. and SeaFreight Agencies, Inc. (together, “SeaFreight”) in a case involving the application of the statutory loss limitation in the Carriage of Goods by Sea Act (“COGSA”). The trial court granted summary judgment based on the case of Groupe Chegaray v. De Chalus v. P & O Containers, 251 F.3d 1359 (11th Cir.2001), finding that a container filled with eight pallets (each containing 140 cartons of perfume) and 55 loose cartons of perfume constituted 63 “packages” for purposes of COGSA’s $500-per-package limitation.

 

We reverse, finding ample evidence in the record below that each carton of perfume was a “package” and thus that there were a total of 1,175 packages,  and that the Groupe Chegaray decision turned on an express agreement between shipper and carrier that a pallet would be considered a “package” for COGSA purposes. In this case, there was no such agreement.

 

We review a summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party-here, the appellant, Interested Underwriters. If the “slightest doubt” exists, we must reverse. Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

 

The Bills of Lading and the Insured Loss

 

Dinamis Trading, not a party below or here, sought to ship 1,175 cartons of perfume from Venezuela to Borealis Trading’s warehouse in Miami via SeaFreight. The goods never reached the consignee, and Insured Underwriters paid the insured amount of $583,573.06-approximately $487 per carton-to its insured for the loss. Insured Underwriters (as subrogee) then sued SeaFreight and a Florida ground transportation company.

 

During discovery, the parties identified three bills of lading relating to the shipment. Each carried the logo and name of SeaFreight, but only one was stamped “original” and apparently signed by someone on behalf of SeaFreight. The original bill of lading was dated February 3, 2003. Under the form’s heading, “NO. OF PKGS.,” the typewritten number “1” appears. The parties agree that this is a reference to the single 20-foot container and is not a reference to the number of COGSA “packages” shipped. The description of the container’s contents under the heading “DESCRIPTION OF PACKAGES AND GOODS” is:

8 PALLETS CON 1.120 CARTONES

55 CATONES SUELTOS

TOILLET PREPARATIONS

 

The parties agree that the English and correctly-spelled translation of that description is “8 pallets with 1,120 cartons, 55 loose cartons, perfume.”

 

The second of the three bills of lading identified during discovery is unsigned, stamped “non-negotiable,” bears the same date as the original, and includes substantially the same description of the goods. The third bill of lading, also unsigned and stamped “non-negotiable,” is dated four days after the original (February 7, 2003) and describes the packages and goods as “TOILET PREPARATIONS 1175 PCS.”

 

The parties did not, unfortunately, use the term “package” in the typewritten description of goods in any of the bills of lading so as to memorialize an agreement that the cartons, pallets, or both would be “packages” for COGSA purposes.

 

What Did Congress Mean by “Package?”

 

Congress enacted COGSA in 1936, and its $500 per “package” limitation has never been upwardly adjusted. Perhaps unaware of the proclivity of lawyers to argue endlessly about the simplest of terms, Congress included no definition of “package” in COGSA and left no legislative history to guide those of us who follow.This has spawned literally dozens of cases on the point, as well as at least one thorough and scholarly law review comment.

 

Generations of judges have done their best to bring order to the case law and to apply prior decisions to new methods of packaging and transporting goods by sea. Cartons of orange juice, men’s jackets, and all manner of goods have been characterized as “packages,” while other decisions have focused on which party-shipper or carrier-prepared the goods for shipment, or on the visibility of the shipped goods to the carrier. In a case such as this, “the bill of lading refers to both the container and ‘other units susceptible of being COGSA packages’ ” and is therefore “inherently ambiguous.” MacClenny Products, Inc. v. Tropical Shipping and Construction Co., Ltd., 832 So.2d 888, 890 (Fla. 4th DCA 2002) (citation omitted) (reversing summary judgment in favor of carrier).

 

In this case it is also useful to consult the dictionary for the definitions of “package,” “pallet,” and “carton,” as these are the terms in contention. Webster  defines package as “a small or moderate sized pack,” or “a commodity in its container: a unit of a product uniformly processed, wrapped, or sealed for distribution,” as in a “package of cigarettes.” A pallet in this context is “a portable platform of wood, metal, or other material designed for handling by a forklift truck or crane and used for storage or movement of materials and packages in warehouses, factories, or transport vehicles” (emphasis supplied). A “carton” is “a cardboard box or container; esp.: a relatively small container that when filled with merchandise is enclosed in a larger and stronger container for shipping” (emphasis supplied).

 

Applying these terms from the bills of lading to the cartons of perfume on pallets for shipment in a container, the plain and ordinary meaning of the terms is obvious. The cartons are the “packages” placed on pallets, which are in turn placed in a container for shipping. Had the parties described the goods simply as eight pallets of perfume and 55 loose cartons, SeaFreight likely would have prevailed. But on the original bill of lading and the later, unsigned bill of lading on SeaFreight’s form, the parties apparently thought it important to specify the total number of cartons being shipped.

 

SeaFreight cites DCI Management Group, Inc. v. M.V. Miden Agan, No. 03 Civ. 448(DLC), 2004 WL 1078667 (S.D.N.Y. May 14, 2004) for a case in which eight pallets for the shipment of 595 individual cartons of frozen blood plasma were held to constitute only eight COGSA “packages.” In that opinion, the trial court distinguished three separate cases-including one from the United States Court of Appeals for the Eleventh Circuit-reaching a contrary conclusion, and there was an important fact that is not in this record. In DCI Management Group, the bill of lading was prepared by the shipper, DCI, and it described the cartons as placed on eight pallets. In one facsimile describing the shipment, DCI’s chief financial officer described the cargo as “eight pallets” and made no mention of the number of cartons of plasma. Id. at *4. Accordingly, we disagree that the analysis in DCI Management Group is controlling or applicable.

 

Conclusion

 

SeaFreight and its co-defendant below obtained a summary judgment based on a case in which the on-board bill of lading referred to the pallets as “packages.” Groupe Chegaray, 251 F.3d at 1365.The original bill of lading and other unsigned versions evidenced no such intention or agreement in this case.

 

Reversed.

 

46 U.S.C. app. § 1300-1315 (2003) (current version at 46 U.S.C. § 30701 (2007)).

 

The economic significance of this difference, before the addition of any prejudgment interest, is the difference between an aggregate loss limitation of $31,500 versus $587,500.

 

That defendant below, Florida Transportation Services, settled with Interested Underwriters for an amount which will be credited against any further sum recoverable by Interested Underwriters.

 

See Hartford Fire Ins. Co. v. Pacific Far East Line, Inc., 491 F.2d 960, 963 (9th Cir.1974).

 

Nancy A. Sharp, Comment, What Is a COGSA Package?, 5 PACE INT’L L.REV. 115 (1993).

 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED EDITION (1986).