Supreme Court of Tennessee,

at Nashville.

Charles D. MILLS

v.

CSX TRANSPORTATION, INC.

No. E2006-01933-SC-R11-CV.

 

June 2, 2009 Session.

Dec. 7, 2009.

 

JANICE M. HOLDER, C.J., delivered the opinion of the court, in which CORNELIA A. CLARK and WILLIAM C. KOCH, JR., JJ., and WALTER C. KURTZ, SP.J., joined.

 

OPINION

 

JANICE M. HOLDER, C.J.

 

The plaintiff railroad worker filed an action under the Federal Employers Liability Act alleging that the defendant railroad company violated its duty to provide a reasonably safe workplace during an off-site meeting by failing to anticipate that a stairway defect or debris on the stairway constituted a tripping hazard. The railroad company filed a motion for summary judgment arguing that the plaintiff was not within the scope of his employment when he fell, that he cannot prove that the railroad breached its duty under the Federal Employers Liability Act to provide a reasonably safe workplace, and that he cannot prove causation. The trial court granted the railroad company’s motion for summary judgment. The Court of Appeals reversed, holding that the trial court erred in its application of Tennessee’s summary judgment standard. We affirm the intermediate appellate court’s judgment and hold that the railroad company’s summary judgment motion fails to shift the burden of production to the plaintiff and, alternatively, that the plaintiff states a genuine issue of material fact. We remand the case to the trial court for further proceedings consistent with this opinion.

 

Facts

 

Charles D. Mills was employed as a “signal maintainer” for CSX Transportation (“CSX”), a railroad company. He and other CSX employees attended mandatory safety-certification training in Cartersville, Georgia, at a Quality Inn on February 4, 2003. Mr. Mills completed a test in the early afternoon and took advantage of a twenty-five-minute break between sessions to leave the second-floor meeting room to retrieve his blood pressure medication from his truck. He used the stairs located on the outside rear of the building, which offered the quickest route to the parking lot. Mr. Mills successfully descended the upper flight of stairs and two steps of the lower flight when he fell down the remaining three or four steps. As a result of the fall, Mr. Mills injured his head, neck, and right shoulder. Mr. Mills filed a complaint against CSX under the Federal Employers Liability Act (“FELA”) alleging that CSX negligently failed to provide a reasonably safe work place.

 

CSX moved for summary judgment, arguing that Mr. Mills’s fall did not occur within the scope of his employment and that he did not know what caused his fall. In support of its motion, CSX filed transcripts of two interviews of Mr. Mills conducted by CSX employees shortly after the incident and excerpts from a deposition of Mr. Mills. CSX also submitted photographs of the stairs in question taken some time after the day Mr. Mills fell. CSX argued that Mr. Mills could not identify the specific cause of his fall and that he therefore can only speculate as to whether he slipped, tripped, or fell for no reason.

 

Mr. Mills responded with the affidavit of Chris Miller, another CSX employee. In his affidavit, Mr. Miller described the stairway on which Mr. Mills fell as having an iron face and a concrete tread. The tread on the steps was slightly below the level of the face, creating a metal lip on each stair. Mr. Miller had tripped on the same stairs as Mr. Mills but was caught by a coworker. Mr. Mills argued that Mr. Miller’s affidavit, coupled with statements from the deposition and interviews in which Mr. Mills stated that he saw debris on the stairs, created genuine issues of material fact as to whether CSX breached its duty under the FELA to protect Mr. Mills from the danger and whether the lip, the debris, or both caused his fall.

 

The trial court granted CSX’s motion for summary judgment, reasoning that Mr. Mills offered “too many possible ways he could have fallen, and none of them which really causally can be … connected to the actual fall.” The trial court concluded, “I don’t think he knows how he fell. I don’t think a jury will have enough evidence to know how he fell.”

 

The Court of Appeals reversed, holding that CSX “failed to affirmatively negate an essential element of [Mr. Mills’s] claim or to conclusively establish an affirmative defense.” We granted CSX’s application for permission to appeal.

 

Analysis

 

The FELA, enacted by Congress in 1908, provides that “[e]very common carrier by railroad … shall be liable in damages to any person suffering injury while he is employed by such carrier … for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier….” 45 U.S.C. § 51 (2006).

 

A plaintiff may bring an FELA action in either federal or state court. 45 U.S.C. § 56 (2006). While federal substantive law always controls FELA claims, claims brought in state courts “are subject to state procedural rules.” St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985) (“As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.”); see Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007); see also Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 875 N.E.2d 919, 922 (Ohio 2007) (“State procedural rules therefore govern FELA claims in state court.”); Montgomery v. CSX Transp. Inc., 376 S.C. 37, 656 S.E.2d 20, 25 (S.C.2008) (“[An] FELA action brought in state court is controlled by federal substantive law and state procedural law.”).

 

To apply this interplay of state and federal law, we first look to federal substantive law to determine the elements of an FELA claim. An FELA claim has four elements, requiring that: (1) the employee was injured in the scope of employment; (2) the employee’s employment was in furtherance of the railroad’s interstate transportation business; (3) the railroad was negligent; and (4) the railroad’s negligence “played some part in causing the injury for which [the employee] seeks compensation under FELA.” Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 269 (6th Cir.2007).

 

After identifying the elements of the claim, we apply Tennessee Rule of Civil Procedure 56 to evaluate whether CSX is entitled to summary judgment. To be entitled to summary judgment, CSX must show that the case presents “no genuine issue as to any material fact and that [CSX] is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. By imposing this burden of production on the moving party, Rule 56 precludes summary judgment from disposing of issues of material fact. Cf. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 482 (Ky.1991) (“[R]uling on a summary judgment … requires a greater judicial determination and discretion since it takes the case away from the trier of fact before the evidence is actually heard.”).

 

CSX may satisfy its burden of production by either producing evidence or referring to evidence in the record that affirmatively negates an essential element of the nonmoving party’s claim or shows that the nonmoving party cannot prove an essential element of the claim at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn.2008). To affirmatively negate an essential element of the nonmoving party’s claim, CSX must point to evidence that tends to disprove a material factual allegation made by the nonmoving party. See Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008). CSX cannot satisfy its burden of production with a conclusory assertion that the nonmoving party has no evidence or with a “presentation of evidence that raises doubts about the nonmoving party’s ability to prove” a claim. Id. at 83-84. A trial court must dismiss the summary judgment motion if the moving party fails to satisfy this initial burden of production. Hannan, 270 S.W.3d at 5.

 

[10] If CSX satisfies its burden of production, we examine the evidence produced by Mr. Mills, the nonmoving party, to determine whether he has shown that the case presents genuine issues of material fact or that CSX is not entitled to judgment as a matter of law. In this FELA claim, we would again consult the FELA and federal cases applying the statute to answer whether any disputed facts are material. “A disputed fact is material if it must be decided in order to resolve the substantive claim or defense at which the motion is directed.” Martin, 271 S.W.3d at 84. If there are no issues of material fact, we “take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence” to determine whether CSX is entitled to a judgment as a matter of law. Blair v. W. Town Mall, 130 S.W.3d 761, 768 (Tenn.2004).

 

[11] In its motion for summary judgment, CSX challenges three elements of Mr. Mills’s FELA claim. CSX first argues that Mr. Mills was not within the scope of his employment when he fell because he exited the meeting room using the rear stairs and was engaged in a “purely private activity” while retrieving his blood pressure medication. To support its motion, CSX argues that Mr. Mills “made the decision to use the rear exit stairs rather than using the front entrance” and that he was not in a training session when he fell.

 

[12] In an FELA claim, the scope of employment includes both actual work and acts that are necessarily incidental to actual work. Baker v. Balt. & Ohio R.R. Co., 502 F.2d 638, 642 (6th Cir.1974). Acts incidental to actual work include “coming to and leaving work while on the employer’s premises and resting while on duty.” Id. (citations omitted). The record contains facts that Mr. Mills was being compensated for training, that he was on the premises of the training site when he fell, and that he was to return to training that afternoon. The evidence offered by CSX does not affirmatively negate the essential scope-of-employment element of Mr. Mills’s claim by tending to disprove a material factual allegation by Mr. Mills. Nor does this evidence show that Mr. Mills cannot prove at trial that he was within the scope of his employment when he fell. CSX has not shown that Mr. Mills’s use of the rear steps during his training break or the activity of retrieving his blood pressure medication are not acts incidental to actual work under the FELA. CSX, therefore, has failed to satisfy its burden of production as to this element.

 

[13][14][15][16] CSX next argues that Mr. Mills cannot prove that CSX was negligent. We again consider federal substantive law to determine the elements of negligence under the FELA. An FELA claimant must prove the common law elements of negligence. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543-44, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994); Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.1990). “Under FELA, a railroad has a duty to provide its employees with a reasonably safe workplace .” Van Gorder, 509 F.3d at 269. CSX concedes that under the FELA it has a non-delegable duty to its employees to provide a reasonably safe workplace even when the duty requires the railroad to cross onto a third party’s premises over which the railroad has no control. See Empey v. Grand Trunk W. R.R. Co., 869 F.2d 293, 296 (6th Cir.1989) (citing Shenker v. Balt. & Ohio R.R. Co., 374 U.S. 1, 7, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963)). CSX argues that Mr. Mills cannot prove that CSX breached this duty. To prove a breach of duty under the FELA, an employee must show that the railroad “ ‘knew, or by the exercise of due care should have known’ that prevalent standards of conduct were inadequate to protect [the employee] and similarly situated employees.” Van Gorder, 509 F.3d at 269-70.

 

In support of its motion, CSX points to two interviews and a deposition of Mr. Mills in which Mr. Mills states that he was unsure what caused his fall, that gravel or small pebbles caused his fall, and that a defect on the stairs caused his fall. The record shows that Mr. Mills stated at times that he could not identify what caused his fall but that something caused his fall:

 

• “[A]fter I hit the ground, I didn’t know nothing much.”

 

• “[T]here must have been something on it, because my left foot, it just slid out from under me.”

 

• “I know that there was something there that caused me to [fall].”

 

• “But, there had to be something there, and I don’t know what it was that caused me to fall that day.”

 

At other times, Mr. Mills stated that he saw debris or a possible defect on the stairs:

• “There was some loose sand or something down there, it looked like, but these steps had been worn in different places there .”

 

• “It was little bitty pebble like of a sandy, I don’t know, concrete mixture or something like that…. Just a few pieces. There wasn’t four or five pieces.”

 

• “I looked and when I went back up these stairs, and there was some kind of little, looked like little gravel … and I figured that might have been what I slipped on, but I was in such a state right then, I didn’t know for sure”;

 

• “There was something there that, maybe a round rock or something that I slipped on, made me trip.”

 

CSX argues that these statements show that Mr. Mills cannot state with certainty what caused his fall. CSX contends that since Mr. Mills does not know the cause of his fall on the stairway, he is unable to prove that CSX breached its non-delegable duty to provide a reasonably safe workplace.

 

CSX again fails to satisfy its burden of production. The record shows that Mr. Mills stated that the steps were worn and had loose sand on them. CSX’s repeated identification of Mr. Mills’s multiple statements concerning the cause of his fall does not tend to disprove that CSX breached its duty under the FELA to provide a reasonably safe workplace. Nor does the variety of Mr. Mills’s statements demonstrate that Mr. Mills cannot prove that CSX breached its duty. Although Mr. Mills’s statements show uncertainty, he never contradicts the factual assertion that a stairway defect or debris on the stairway caused his fall, and he repeatedly denies that he might have fallen for no reason. CSX therefore has not satisfied its burden of production.

 

[17][18] Finally, CSX argues that Mr. Mills cannot prove causation at trial. Under the FELA, this element requires the claimant to prove that the employer’s negligence “played any part, even the slightest, in producing the injury … for which damages are sought.” Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) . Again, the record shows that at various times Mr. Mills stated that debris on the stairs, a stairway defect, or both caused his fall. In support of its motion, CSX again argues that Mr. Mills’s statements show that he can only “speculate” as to the cause of his fall and subsequent injury. This evidence is insufficient to meet CSX’s burden of production. In McCarley v. West Quality Food Service, for example, we held that the moving party, a restaurant, failed to negate an essential element of causation when it identified in the record alternative causes of the nonmoving party’s food poisoning. 960 S.W.2d 585, 588 (Tenn.1998). Mr. Mills’s inability to articulate the specific cause of his fall ultimately may impair his ability to prove causation at trial. See Moore v. Chesapeake & Ohio Ry. Co., 340 U.S. 573, 578, 71 S.Ct. 428, 95 L.Ed. 547 (1951) (affirming a grant of a motion notwithstanding the verdict because “[s]peculation cannot supply the place of proof”). In pointing to Mr. Mills’s inability to articulate the specific reason for his fall, however, CSX neither shows that Mr. Mills cannot prove the essential element of causation at trial nor does it affirmatively negate that element. CSX therefore has not satisfied its burden of production.

 

Although the above burden-shifting analysis can be an important tool in deciding whether summary judgment is appropriate, it is not always necessary to engage in this exercise when the nonmoving party has clearly stated a genuine issue of material fact that would preclude summary judgment as a matter of law. Tenn. R. Civ. P. 56.04; see Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 819 (Tenn.2008) (finding a genuine issue of material fact that precluded summary judgment); Bennett v. Trevecca Nazarene Univ., 216 S.W.3d 293, 295 (Tenn.2007) (“Because material facts remain in dispute between the parties in this case …, the trial court erred when it granted summary judgment to the defendant.”). In response to CSX’s motion for summary judgment, Mr. Mills produced the affidavit of Mr. Miller, who stated that a metal lip caused him to trip on the same stairs shortly after Mr. Mills had fallen. Mr. Miller’s affidavit creates a genuine issue of material fact regarding whether there was a conspicuous defect on the stairs. Resolving this issue is necessary to determine whether CSX breached its duty under the FELA to provide its employees a reasonably safe workplace and whether that failure caused Mr. Mills’s injuries. Without regard to whether CSX met its burden of production, this issue of material fact precludes summary judgment.

 

Conclusion

 

Based on the foregoing analysis, the trial court erred in granting CSX’s motion for summary judgment because CSX neither affirmatively negated an essential element of Mr. Mills’s claim nor showed that Mr. Mills cannot prove an essential element of his claim at trial. In addition, Mr. Mills identified an issue of material fact that must be addressed to determine whether CSX breached its duty under the FELA and whether the breach, if any, caused Mr. Mills’s injuries. The existence of a genuine issue of material fact precludes summary judgment. The matter is remanded to the trial court for proceedings consistent with this opinion. The costs of this appeal are assessed against CSX Transportation, Inc., for which execution may issue if necessary.

 

Although Mr. Miller’s affidavit states that he tripped on February 4, 2004, a full year after Mr. Mills’s incident, the statement’s context and additional references in the record indicate that Mr. Miller tripped in 2003, “[s]hortly after” Mr. Mills.

 

 

Tennessee’s Workers’ Compensation Law is the exclusive remedy for employees subject to that statute. Tenn.Code Ann. § 50-6-108 (2008). The statute, however, does not apply to “[a]ny common carrier doing an interstate business while engaged in interstate commerce, which common carrier and the interstate business are already regulated as to employer’s liability … by act of Congress.” Tenn.Code Ann. § 50-6-106(1)(A) (2008). CSX is a railroad company engaged in interstate commerce, and its liability for employee injuries is instead determined by applying the FELA.

 

The United States Supreme Court has held that “[t]he weight of the evidence under the Employers’ Liability Act must be more than a scintilla before the case may be properly left to the discretion of the trier of fact-in this case, the jury.” Brady v. S. Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 88 L.Ed. 239 (1943). This holding is relevant to motions for directed verdict when a trial court’s failure to grant the motion may subject the defendant to a verdict based on “legally unfounded claims.” Id. at 479-80. However, it is inapplicable to motions for summary judgment, a procedure that is similar to but distinct from a motion for directed verdict. Although the granting of either motion will preclude the trier of fact from considering the case, summary judgment is entered before the nonmoving party has had the opportunity to fully present its evidence at a trial while a directed verdict is requested “at the close of the evidence offered by an opposing party or at the close of the case.” Tenn. R. Civ. P. 50.01; see Blair, 130 S.W.3d at 768 (stating that both procedures’ use of the same standard to evaluate evidence does not mean “that any case which results in a directed verdict should have been resolved by summary judgment”); Hamrick v. Spring City Motor Co., 708 S.W.2d 383, 389 (Tenn.1986) (distinguishing summary judgment and directed verdict as one depending “upon a partial record developed through depositions or affidavits; the other after an evidentiary record developed as fully as the parties see fit”).

 

It is not entirely clear which standard of causation Rogers applies to FELA cases-the common law standard or a relaxed standard. In a concurrence to Norfolk Southern Railway Co. v. Sorrell, Justice Souter, joined by Justices Scalia and Alito, argued that the concept of a relaxed causation standard in FELA actions is incorrect and is the result of a misreading of Rogers. Sorrell, 549 U.S. at 172-77 (Souter, J., concurring). Justice Ginsburg, however, disagreed. In her opinion, the Sorrell majority’s decision not to address which causation standard applies in FELA cases left intact an earlier pronouncement by the Court that Rogers established a relaxed causation standard in FELA cases. See id. at 177-78 (Ginsburg, J., concurring). A resolution of this issue, however, is not necessary to the disposition of this case.

United States District Court,

N.D. Illinois,

Eastern Division.

RIDUCO, S.A., Colombia corporation, and Best Used Machinery Co., an Illinois corporation, Plaintiffs,

v.

A.P. MOLLER-MAERSK A/S, a Danish corporation, and Norfolk Southern Railway, Inc., a Virginia corporation, Defendants.

No. 08 C 3008.

 

Dec. 7, 2009.

 

MEMORANDUM OPINION AND ORDER

 

GEORGE W. LINDBERG, Senior District Judge.

 

Before the court are plaintiffs’ motion for summary judgment, defendant A.P. MollerMaersk’s (“Maersk”) motion for summary judgment, and defendant Norfolk Southern Railway’s (“Norfolk Southern”) motions for summary judgment. For the reasons stated below, plaintiffs’ motion is denied, and Maersk’s and Norfolk Southern’s motions are granted.

 

I. Factual Background

 

The following facts are undisputed. Plaintiff Riduco, S.A. (“Riduco”) is a Colombian company that manufactures plastic and metal products. In May 2006, Riduco bought an industrial plastics injection machine from plaintiff Best Used Machinery Co. (“BUMCO”). Riduco and/or BUMCO arranged with Global Marine Transportation (“Global Marine”), a freight transportation broker, to ship the machine from Ohio to Colombia. Global Marine contracted with defendant Maersk, an international shipping company, to transport the machine. Maersk, in turn, arranged for defendant Norfolk Southern to transport the machine by rail from Ohio to South Carolina.

 

The machine was shipped in multiple pieces, in multiple containers. Maersk initially accepted the containers, and then the containers were loaded onto a Norfolk Southern train. On May 26, 2006, the Norfolk Southern train derailed in Tennessee, and one of the containers sustained damage. After the derailment, some of the contents of that container were salvaged, and eventually were transported to Riduco in Colombia.

 

Plaintiffs’ fourth amended complaint alleges claims against Maersk and Norfolk Southern for breach of contract and of duties under the Carmack Amendment, 49 U.S.C. § 11706. Riduco dismissed the claims it previously had filed against Global Marine. The parties agree that federal jurisdiction exists, either pursuant to 28 U.S.C. § 1331 or § 1332. Plaintiffs, Maersk, and Norfolk Southern all have filed motions for summary judgment.

 

II. Legal Standard

 

Summary judgment shall be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court must draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The moving party bears the initial burden of demonstrating that no material issue exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion, the nonmoving party must offer specific facts demonstrating that a material dispute exists, and must present more than a scintilla of evidence to support its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the parties file cross-motions for summary judgment, the court “considers the merits of each cross-motion separately and draws all reasonable inferences and resolves all factual uncertainties against the party whose motion is under consideration.” Murray v. HSBC Auto Fin., Inc., No. 05 C 4040, 2006 WL 2861954, at(N.D.Ill. Sept.27, 2006); see also McKinney v. Cadleway Properties, Inc., 548 F.3d 496, 504 n. 4 (7th Cir.2008).

 

III. Analysis

 

The court first considers whether the Carmack Amendment to the Interstate Commerce Act applies to the shipment in this case. Defendants take the position that the Carmack Amendment does not apply because the shipment was an international and intermodal  shipment covered by a “through” bill of lading, citing Capitol Converting Equip., Inc. v. LEP Transp., Inc., 965 F.2d 391 (7th Cir.1992). Plaintiffs do not dispute that a through bill of lading governed the shipment, but argue that the Carmack Amendment nevertheless applies to the shipment here. This issue is significant because according to defendants, if the Carmack Amendment does not apply, a one-year time bar precludes plaintiffs’ claims. By contrast, plaintiffs’ claims would be timely under the Carmack Amendment’s minimum two-year statute of limitations. See 49 U.S.C. § 11706(e).

 

An intermodal shipment is a shipment that involves transportation by both sea and land. See Indemnity Ins. Co. of N. Am. v. Hanjin Shipping Co., 348 F.3d 628, 631 (7th Cir.2003).

 

A “through” bill of lading is a single bill of lading that governs a shipment’s entire trip, including both ocean and inland transportation. See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 25-26, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004).

 

The relevant provision of the Carmack Amendment provides:

 

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

 

The liability imposed under this subsection is for the actual loss or injury to the property caused by-

 

(1) the receiving rail carrier;

 

(2) the delivering rail carrier; or

 

(3) another rail 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. § 11706(a). The Surface Transportation Board’s jurisdiction includes transportation by rail carrier in the United States, “between a place in … the United States and a place in a foreign country.” 49 U.S.C. § 10501(a)(2).

 

In Capitol Converting Equip., Inc. v. LEP Transp., Inc., 965 F.2d 391 (7th Cir.1992), the Seventh Circuit considered whether jurisdiction under the Carmack Amendment existed for a shipment from a foreign country to the United States under a through bill of lading. Relying on a 1986 Eleventh Circuit case and a 1950 Supreme Court case, the Seventh Circuit held that the Carmack Amendment did not apply to such an import shipment, because the domestic leg of the shipment was not covered by a separate domestic bill of lading. Capitol Converting Equip., Inc., 965 F.2d at 394 (citing Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701 (11th Cir.1986) and Reider v. Thompson, 339 U.S. 113, 117, 70 S.Ct. 499, 94 L.Ed. 698 (1950)). Thus, where a separate domestic bill of lading is in place, the domestic leg is treated as a shipment that is separate from the international leg, and the Carmack Amendment applies. By contrast, where a through bill of lading governs, the entire shipment is considered to be a shipment from a foreign country to the United States, and the Carmack Amendment does not apply.

 

At first blush, it would seem that the Seventh Circuit’s decision in Capitol Converting Equip., Inc. is inconsistent with the plain language of the statute that extends the Surface Transportation Board’s jurisdiction to shipments “between a place in … the United States and a place in a foreign country,” since this language suggests that all exports and imports between the United States and all other foreign countries are governed by the Carmack Amendment. See 49 U.S.C. § 10501(a)(2). However, because this language was added as part of the recodification of the Interstate Commerce Act in 1978, and the recodification was not intended to work a substantive change, the language must be read in conjunction with the pre-1978 version of the Interstate Commerce Act. See Keene Corp. v. U.S., 508 U.S. 200, 209, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (courts should not presume that a comprehensive revision “changed the underlying substantive law unless an intent to make such a change is clearly expressed.”).

 

Until 1978, Congress limited the application of the Carmack Amendment to domestic interstate transportation, and transportation “from any point in the United States to a point in an adjacent foreign country.” See Aaacon Auto Transp., Inc. v. State Farm Mut. Ins. Co., 537 F.2d 648, 652 n. 7 (2d Cir.1976) (quoting 49 U.S.C. § 20(11)). In 1978, Congress recodified the Interstate Commerce Act and related laws. See Pub.L. No. 95-473, 92 Stat. 1337. In the recodified statute, Congress made transportation under the Carmack Amendment subject to the Interstate Commerce Commission’s  jurisdiction, and included in that jurisdiction transportation within the United States that is “between a place in … the United States and a place in a foreign country.” See Pub.L. No. 95-473, 92 Stat. 1337 (49 U.S.C. § 10501).

 

The Surface Transportation Board later replaced the Interstate Commerce Commission. See ICC Termination Act of 1995, Pub.L. No. 104-88, 109 Stat. 803.

 

Despite the omission of the “from … to” and “adjacent” language in the 1978 recodification, Congress made clear that it did not intend to work a substantive change in the law. The stated purpose of the 1978 Act was “to revise, codify, and enact without substantive change the Interstate Commerce Act and related laws….” Pub.L. No. 95-473, 92 Stat. 1337 (1978) (emphasis added). A House Report similarly described the purpose of the 1978 recodification as “restat[ing] in comprehensive form, without substantive change, the Interstate Commerce Act and related laws …” H.R.Rep. No. 95-1395, at 4 (1978), reprinted in 1978 U.S.C.C.A.N. 3009, 3013 (emphasis added).

 

Although the court in Capitol Converting Equip., Inc. did not explain how it reached its conclusion that the Carmack Amendment does not apply to a shipment from a foreign country to the United States under a through bill of lading, that conclusion is consistent with reading the 1978 recodification as working no substantive change from the limited way in which the Carmack Amendment previously was applied. By logical extension of Capitol Converting Equip., Inc., this court should similarly interpret the application of Carmack Amendment to exports as limited to exports to adjacent foreign countries, notwithstanding the omission of the “adjacent foreign country” language in the 1978 recodification. Based on this interpretation, the court finds that the Carmack Amendment does not apply to the shipment in this case from the United States to Colombia, a non-adjacent foreign country, under a through bill of lading.

 

The court notes that the circuits are split on the issue of whether the Carmack Amendment applies in cases involving imports under a through bill of lading, the issue considered in Capitol Converting Equip., Inc. The Fourth, Sixth, and Eleventh Circuits have taken the same position as the Seventh Circuit: that the Carmack Amendment does not apply under such circumstances. See Am. Rd. Serv. Co. v. Consol. Rail Corp., 348 F.3d 565, 568 (6th Cir.2003); Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir.1993); Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701 (1 Vh Cir.1986). The Second and Ninth Circuits have taken the opposite view. See Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd., 557 F.3d 985, 995 (9th Cir.2009); Sompo Japan Ins. Co. v. Union Pacific R.R. Co., 456 F.3d 54, 68-69 (2d Cir.2006). The Supreme Court granted certiorari in Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd. See No. 08-1553, 2009 WL 1725959 (Oct. 20, 2009), but has not yet issued a decision.

 

The court further notes that even if the Carmack Amendment applied to the shipment in this case, it would not apply to defendant Maersk, an ocean carrier. As stated above, the relevant provisions of the Carmack Amendment apply to “rail carrier[s].” The statute defines a “rail carrier” as “a person providing common carrier railroad transportation for compensation,” with certain exceptions not relevant here. See 49 U.S.C. § 10102(5); see also id. § 10501. The court agrees with the Second Circuit’s conclusion that this definition does not encompass carriers such as Maersk, which arrange for rail transportation but do not themselves own or operate a railroad. See Rexroth Hydraudyne B.V. v. Ocean World Lines, Inc., 547 F.3d 351, 363 (2d Cir.2008) ( “we do not construe ‘[a] rail carrier providing transportation’ to include another, separate class of common carriers that do not own or operate rail lines or other equipment used in connection with a railroad.”). Cf. Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd., 557 F.3d 985, 993-94 (9th Cir.2009) (holding that an ocean carrier that arranged for railroad transportation and itself had contact with the shipped goods qualified as a “rail carrier” under the statute).

 

Since the Carmack Amendment does not apply, the terms of the parties’ agreements govern the shipment. The court turns to Maersk’s motion for summary judgment, which urges the court to find that plaintiffs’ claims against Maersk are time-barred under the bill of lading. Maersk’s statement of facts asserts the following facts, supported by affidavits:

 

• Maersk’s confirmation to Global Marine for the booking of the shipment stated that the shipment was “subject to the terms, conditions and exceptions of the governing Maersk Line Combined Transport Bill of Lading,” and stated that those terms, conditions and exceptions were accessible on Maersk’s website.

 

• The “Combined Transport Bill of Lading” was Maersk’s standard form bill of lading, issued by Maersk in the normal course of its business. Maersk published the terms and conditions of the bill of lading on its website.

 

• Maersk’s standard bill of lading provided, in pertinent part: “the Carrier shall be discharged from all liability whatsoever unless suit is brought within one year after … delivery [of the goods] or the date when they should have been delivered.”

 

• Prior to the derailment, delivery of the containers to Riduco in Colombia was estimated for June 6, 2006.

 

• The salvaged portion of the shipment was delivered to Riduco in Colombia on October 24, 2006.

 

• Riduco filed this action on May 23, 2008.

 

Plaintiffs did not respond to Maersk’s statement of facts, and accordingly these facts are deemed admitted. See LR 56.1(b)(3) (C).

 

The undisputed facts establish that Riduco filed this action more than one year after delivery was expected and completed. Accordingly, plaintiffs’ claims against Maersk are time-barred. Maersk’s motion for summary judgment is granted.

 

Next, the court considers Norfolk Southern’s motion for summary judgment. As an initial matter, the court notes that Norfolk Southern filed a single document to serve both as its response to plaintiffs’ statement of facts in support of their motion for summary judgment, and as its submission in support of its own motion for summary judgment. This practice makes it difficult for the court to consider the various motions separately. The court will construe Norfolk Southern’s statement of additional facts to be its statement of facts in support of Norfolk Southern’s motion for summary judgment, and will disregard all other “facts” to which Norfolk Southern refers in its briefing.

 

Norfolk Southern asserts the following facts in support of its motion for summary judgment:

 

• When Maersk tendered Riduco’s containers to Norfolk Southern, the waybill contained the reference “NSPQ-0001001.00.”

 

• The “NSPQ-0001001.00” number in the waybill signifies that the goods were being shipped under the Intermodal Transportation Contract between Norfolk Southern and Maersk.

 

• The Intermodal Transportation Contract requires shippers to “comply with the procedures for making claims set forth in the Intermodal Rules.” The contract defines “Intermodal Rules” as “Norfolk Southern Intermodal Rules Circular # 1, or a successor document, in effect the date a shipment is made pursuant to this Contract, incorporated by reference into this Contract.” Norfolk Southern Intermodal Rules Circular # 2 was issued on November 8, 2000, and is the successor document to Norfolk Southern Intermodal Rules Circular # 1.

 

• Norfolk Southern Intermodal Rules Circular # 2 provides, in pertinent part:

 

As a condition precedent to any right of recovery, any lawsuit or arbitration proceeding involving a claim for loss, damage or delay to cargo must be commenced within one year after receipt of written notice from [Norfolk Southern] declining the claim in full or in part. If suit is not filed or request for arbitration received by [Norfolk Southern] within that one-year period, claimant shall have no right of recovery.

 

• Norfolk Southern Intermodal Rules Circular # 2 provides that its terms and conditions apply to all shipments on Norfolk Southern, unless Norfolk Southern agrees to different terms in writing.

 

• Maersk submitted a claim to Norfolk Southern relating to the damage to Riduco’s container. Norfolk Southern declined Maersk’s claim on December 4, 2006.

 

Based on these facts, Norfolk Southern argues that plaintiffs’ claims were untimely.

 

Plaintiffs attempt to deny that the Intermodal Transportation Contract governed the shipment in this case. They respond to Norfolk Southern’s statements of fact regarding the Intermodal Transportation Contract and Intermodal Rules Circular # 2 in conclusory and confusing fashion, as follows:

 

Denied. The ITA is not a legal binding contract as to Riduco nor were its terms ever offered to Riduco. This is a statement of law not of fact and should be stricken. Riduco never received any notice of election regarding Carmack Liability. (SOF in support of Summary Judgment for the Fourth Amended Complaint ¶ 14. Maersk failed to offer any response it is therefore admitted and Norfolk filed an improper response and it is therefore admitted.)

 

Paragraph 14 of plaintiffs’ statement of facts in support of their motion for summary judgment, which plaintiffs repeatedly reference in their responses to Norfolk Southern’s statements of fact, states merely: “At no time did the Defendants offer the Plaintiffs the option of Carmack liability in any of the Bills of Lading or any other document provided to the Plaintiffs.” Plaintiffs offer no citations to the record to support their denials, as required by Local Rule 56.1(b)(3)(B).

 

Aside from their bare conclusion in their responses to Norfolk Southern’s statements of fact noted above, plaintiffs offer no argument on the issue of the application of the Intermodal Transportation Contract and the Intermodal Rules Circular, as an alternative to their Carmack Amendment argument. Instead, they rest on their argument that the Carmack Amendment governs this case. The court finds that plaintiffs have waived the argument that the terms contained in the Intermodal Transportation Contract and the Intermodal Rules Circular do not apply here. See Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1237 (7th Cir.1997) (a “party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered.”); Cent. States, SE & SW Areas Pension Fund v. Midwest Motor Express, Inc., 181 F.3d 799, 808 (7th Cir.1999) (“Arguments not developed in any meaningful way are waived.”).

 

The court assumes that docket entry 119, titled “Reply to Memorandum in Support of Motion for Summary Judgment,” is plaintiffs’ memorandum in response to Norfolk Southern’s motion for summary judgment. Plaintiffs’ many filings in this case are confusing, as plaintiffs labeled each of their responses and replies as a “reply.”

 

Even if the court considered arguments plaintiffs make in connection with other motions, they fail to show that the Intermodal Transportation Contract and the Intermodal Rules Circular do not apply. For example, although plaintiffs argue in support of their own motion for summary judgment that the court should disregard limitation of liability terms found in Norfolk Southern Intermodal Rules Circular # 2, this argument is based on the assumption that the Carmack Amendment applies. In addition, although plaintiffs argue in that brief that Norfolk Southern cannot rely on the terms of the Intermodal Rules because reasonable notice of the terms was not provided to the shipper, plaintiffs offer no evidence that Maersk-the shipper in this leg of the shipment-was unaware of the terms.

 

The one-year limitation period contained in Norfolk Southern Intermodal Rules Circular # 2 applies, starting from the date of receipt of Norfolk Southern’s written notice that it was declining the claim in full or in part. Norfolk Southern contends that it declined Maersk’s claim in a December 4, 2006 letter, and that plaintiffs had one year from that date in which to file this lawsuit.

 

Plaintiffs argue that a question of fact exists as to whether Norfolk Southern’s December 4, 2006 letter actually declined Maersk’s claim, because the letter left the claim open pending the submission of additional material. The court disagrees. It is true that in its December 4, 2006 letter, Norfolk Southern stated that it had not received certain information, and that the claim would remain on file. However, the letter also stated that until Norfolk Southern received the information, Maersk’s “claim shall be considered respectfully declined in its entirety.” Plaintiffs offer no legal support for their conclusory argument that this language was ineffective under the circumstances. The Seventh Circuit has recognized a similar claim disallowance as sufficient. See Yamazen U.S.A., Inc. v. Chicago & NW Transp. Co., 790 F.2d 621, 622, 624 n. 1 (7th Cir.1986) (agreeing with the district court’s conclusion that a railroad’s letter informing a claimant that it would not act on a claim because of a lack of information amounted to a “disallowance” because otherwise, “the period of limitations on suits might be extended indefinitely.”). Norfolk Southern has established that it notified Maersk on December 4, 2006 that it was declining Maersk’s claim.

 

Since Riduco did not file its claims against Norfolk Southern within one year after December 4, 2006, the claims are barred. The court notes that it would reach the same result if the bill of lading supplied the terms, as discussed above in relation to Maersk’s motion for summary judgment. Norfolk Southern’s motion for summary judgment is granted.

 

Finally, because the Carmack Amendment does not apply in this case, plaintiffs’ motion for summary judgment on their claims under the Carmack Amendment is denied.

 

ORDERED: Plaintiffs’ motion for summary judgment [97] is denied. Defendant A.P. Moller-Maersk A/S’s motion for summary judgment [106] is granted. Defendant Norfolk Southern Railway’s motions for summary judgment [111, 113] are granted. Plaintiffs’ motion to strike Norfolk Southern’s Rule 56.1 responses [122] and motion to strike Maersk’s Rule 56.1 responses [126] are denied as moot: in arriving at its decision, the court did not rely on the responses to which plaintiffs object. Judgment in favor of defendants and against plaintiffs will be set forth on a separate document and entered in the civil docket. See Fed.R.Civ.P. 58(a); 79(a).