United States District Court,

S.D. Mississippi,

Southern Division.

KUEHN, et al., Plaintiffs

v.

UNITED VAN LINES, LLC, Defendant.

April 25, 2005.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

GUIROLA, District Judge.

THE MATTER BEFORE THE COURT is Defendant’s Motion for Summary Judgment [11], filed March 2, 2005. There has been no response filed by the Plaintiffs. After due consideration of the Motion and the relevant law, it is the Court’s opinion that the Motion should be granted.

DISCUSSION

In July 1995, the Plaintiffs arranged with Defendant United Van Lines, LLC (“United”) to move their household goods from their residence in Florida to a storage facility in Biloxi, Mississippi. United completed delivery of Plaintiffs’ household goods shipment into Biloxi Transfer’s storage facility on September 6, 1995. Plaintiffs noticed damage to some of their items after removing them from the facility in 1997. They filed a claim for damage on February 4, 1998, but this claim was directed to the storage facility, and not United. United never directly received a claim from the Plaintiffs. On March 4, 1998, the Biloxi storage facility mailed a letter to Plaintiffs denying responsibility for the majority of the items claimed as damaged. Unsatisfied with this determination, Plaintiffs filed suit in Harrison County Circuit Court on July 21, 2000, and the case was removed to this Court on July 29, 2004. The claims are for negligence, loss of use, and breach of contract.

THE SUMMARY JUDGMENT STANDARD:

Fed.R.Civ.P. 56 permits any party to a civil action to move for a summary judgment upon a claim, counterclaim, or cross-claim as to which there is no genuine issue of material fact and upon which the moving party is entitled to prevail as a matter of law. In effect, Rule 56(c) provides that as a matter of law, upon admitted or established facts, the moving party is entitled to prevail. Summary judgment “is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists.” Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir.1940). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25, 106 S.Ct. 2548. The non-moving party may not rest upon mere allegations or denials in its pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256- 57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A motion for summary judgment cannot be granted simply because there is no opposition, even if failure to oppose violated a local rule. The movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the court may not grant the motion, regardless of whether any response was filed. Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985).

DEFENDANT’S MOTION:

Defendant United has provided evidence showing that it entered into an agreement to with Plaintiffs in July 1995, evidenced by a United Bill of Lading, which required that United deliver the Plaintiff’s shipment into permanent storage at Biloxi Transfer and Storage. (Attachment 2 to Defendant’s Motion). As part of the transportation contract, and noted on the reverse side of the Bill of Lading, were the requirements that any claim for loss or damages arising from the interstate move must be filed with United, in writing, within nine (9) months of the date that United delivered the household goods and any civil action must be filed within two years and one day from the date of notice in writing to the Plaintiffs that their claim had been disallowed. Id.

United completed delivery of Plaintiffs’ household goods shipment into Biloxi Transfer’s storage facility on September 6, 1995. (Attachment 3 to Defendant’s Motion). Plaintiffs filed a claim for damage on February 4, 1998, but this claim was directed to the storage facility, and not United. (Attachment 1 to Defendant’s Motion). United never directly received a claim from the Plaintiffs. Id. On March 4, 1998, the Biloxi storage facility mailed a letter to Plaintiffs denying responsibility for the majority of the items claimed as damaged. (Attachment 3 to Defendant’s Motion).

The Defendant contends that as a duly authorized interstate motor carrier of household goods and personal property, it is subject to the jurisdiction of the Interstate Commerce Commission (subsequently the Surface Transportation Board of the U.S. Department of Transportation). The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, preempts all state law remedies and exclusively governs all claims for loss, damage or delay relating to household goods transported in interstate commerce. Id. In discussing the preemptive effect of the Carmack Amendment in regard to state regulation of carrier liability, the Supreme Court in Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314(1913) said:

[a]lmost every detail of the subject is covered as completely that there can be no rational doubt that Congress intended to take possession of the subject and supersede all state regulation with reference to it…. But it has been argued that the non-exclusive character of this regulation is manifested by the proviso of the section, and that state legislation upon the same subject is not superseded, and that the holder of any such bill of lading may resort to any right of action against such a carrier conferred by existing state law. This view is untenable. It would result in the nullification of the regulation of a national subject and operate to maintain the confusion of the diverse regulation which it was the purpose of Congress to put an end to.

Adams Express Co. v. Croninger, 226 U.S. at 505-06, 33 S.Ct. 148.

This interpretation of the preemptive effect of the Carmack Amendment, with regard to state law remedies against a carrier, has been given near universal effect by all courts considering the matter, including most recently the Fifth Circuit Court of Appeals in Hoskins v. Bekins Van Lines, 343 F.3d 769 (5th Cir.2003). There, the court held:

3 We are persuaded by the preceding decisions and analysis offered by the Supreme Court, and this Court, that Congress intended for the Carmack Amendment to provide the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier.

Id., 343 F.3d at 778. See also, Killinger v. North American Relocation Services, 2000 WL 297155 at *2 (N.D.Miss.2000) (“The Fifth Circuit has also determined that for ‘actions seeking damages for the loss of property shipped in interstate commerce by a common carrier under a receipt or bill of lading, the Carmack Amendment [to the Interstate Commerce Act] is the shipper’s sole remedy”).

In the present case, the only basis for liability against United is for loss of or damages arising out of the interstate shipment of Plaintiffs’ household goods which were transported by United in 1995 from Florida to Mississippi. Therefore, the Carmack Amendment preempts all of Plaintiffs’ state law claims. Plaintiffs are essentially left with a claim for breach of the contract of carriage under the Carmack Amendment. [FN1]

A. The Timeliness of the Claim

The Carmack Amendment allows carriers to limit the amount of time a shipper has to file a claim to nine months from the date of delivery. Louisiana & W.R. Co. v. Gardiner, 273 U.S. 280, 284, 47 S.Ct. 386, 71 L.Ed. 644 (1927) and Westhemeco Ltd. v. New Hampshire Ins. Co., 484 F.Supp. 1158, 1161 (S.D.N.Y.1980). The Carmack Amendment also permits a carrier to limit the time in which suit may be brought to two years and a day after the shipper receives written notice that the carrier has denied part or all of the shipper’s claim. 49 U.S.C. § 14706(e).

In this case, these limitations are found directly on the Bill of Lading. (Attachment 2 to Defendant’s Motion.) The Bill of Lading incorporated United’s published Tariffs by reference. Under the Interstate Commerce Act as it existed in 1995 at the time of this shipment, the contract of carriage binds both the carrier and the shipper with the force of law. The shipper is conclusively presumed to know the terms of the contract of carriage as set out in the bill of lading and any applicable tariffs. American Railway Express Company v. Daniel, 269 U.S. 40, 46 S.Ct. 15, 70 L.Ed. 154 (1925); Kansas City Southern Railway Company v. Carl, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683 (1913); Chicago & Alton Railroad Company v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033 (1912); Texas and Pacific Railway Company v. Mugg, 202 U.S. 242, 26 S.Ct. 628, 50 L.Ed. 1011 (1906). This rule applies to household goods carriers’ tariffs as surely as it applies to other tariffs required to be filed with the ICC, as United’s tariffs were at the time of the Plaintiffs’ interstate shipment. As the court held in White v. United Van Lines, Inc., 758 F.Supp. 1240 (N.D.Ill.1991):

White argues that she cannot be bound by the limitations provision because she had no actual knowledge of the provision when the contract was formed. However, it is well established that a shipper is chargeable with knowledge of a carrier’s tariff provisions that are properly filed with the Interstate Commerce Commission (“ICC”).

4 White v. United Van Lines, Inc., 758 F.Supp. at 1242. Therefore, United’s Tariff and the Bill of Lading together make up the contract of carriage governing the interstate transportation of the Plaintiffs’ goods and the Plaintiffs are presumed to have knowledge of the terms of the Bill of Lading and Tariffs, and are bound thereby.

Section 6 of United’s Bill of Lading signed by Plaintiff Roger Kuehn, as well as the provisions 49 CFR § 370.3, provide that a written claim for damage arising from an interstate shipment must be received by United within nine months from the date the goods were delivered. See Attachment 2 to Defendant’s Motion and 49 CFR § 370.3. Therefore, the terms of the contract of carriage required that any claim be filed within nine months after delivery at the Biloxi storage facility, or by June 6, 1996.

In the present case, the Defendant has provided evidence showing that Plaintiffs did not file any claim whatsoever with any party prior to sending correspondence regarding alleged damage to the Biloxi storage facility on February 4, 1998. This is outside the nine-month time period allowed, making the Plaintiff’s claim untimely.

B. The Timeliness of the Suit

Even if the notice of claim were timely, Plaintiffs were required by the terms of the Bill of Lading and Tariffs to file a civil action for damages within two years and one day from the date notice is given in writing to Plaintiffs that their claim, or any part thereof, has been disallowed. The Defendant has presented evidence that notice was given in March 1998. (Attachment 3 to Defendant’s Motion). This suit was filed July 21, 2000. As more than two years and one day elapsed between the date of notice and the date this suit was filed, the suit was untimely.

CONCLUSION

The Defendant has presented competent summary judgment evidence which shows that all state law claims raised by Plaintiffs in their Complaint against United are preempted by the Carmack Amendment to the Interstate Commerce Act. However, even if Plaintiffs had properly asserted a claim under the Carmack Amendment, the Defendant has shown that Plaintiffs would still be barred from recovery because they failed to timely file a claim and because they failed to timely institute a lawsuit against United. The Plaintiffs presented no summary judgment evidence tending to show the existence of a genuine issue of material fact in support of their claims. Therefore, Defendant is entitled to Judgment pursuant to Fed.R.Civ.P. 56 as a matter of law.

IT IS THEREFORE ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment [11] is GRANTED.

FN1. “The duty of due care grows out of the contract of carriage and breach of that duty gives rise to an action for breach of contract.” Gibson v. Greyhound Bus Lines, Inc., 409 F.Supp. 321, 325 (M.D.Fla.1976), affirmed, 539 F.2d 708 (5th Cir.1976).

United States District Court,

D. Minnesota.

JUST TAKE ACTION, INC., Plaintiff,

v.

GST (AMERICAS) INC., and Central Transport International, Inc., Defendants.

May 6, 2005.

MEMORANDUM OPINION AND ORDER

MONTGOMERY, J.

I. INTRODUCTION

On April 26, 2005, oral argument before the undersigned United States District Judge was heard on GST Corporation d/b/a NYK Logistics (Americas) Inc., GST Division’s (“GST”) and Central Transport International, Inc’s (“CTI’s”) respective Motions for Summary Judgment [Dockets No. 34, 45]. [FN1] In its Amended Complaint [Docket No. 26], Just Take Action, Inc. (“Just Take Action”) seeks damages, pursuant to the Carmack Amendment, LINK”http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=49USCAS14706&FindType=L”49 U.S.C. § 14706, and state law claims of negligence and breach of contract, stemming from the transport of fermenter tanks. For the reasons set forth below, GST’s Motion for Summary Judgment is denied and CTI’s Motion for Partial Summary Judgment is granted in part and denied in part.

FN1. The Amended Complaint incorrectly named GST as NYK Logistics (Americas), Inc. As neither party appears to contest GST is the appropriate Defendant, the caption has been corrected.

II. BACKGROUND [FN2]

FN2. For purposes of the instant Motion, the facts are viewed in the light most favorable to Plaintiff, the nonmovant. See Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995).

In November 2003, Just Take Action purchased two stainless steel fermenter tanks from Ithaca Beer Company (“Ithaca”), a New York-based brewery. Hoops Aff. [Docket No. 55] ¶ 2. Just Take Action contracted with GST to arrange transportation of the tanks from Ithaca Beer Company to Fitger’s Brewhouse (“Fitger’s”), located in Duluth, Minnesota and owned by Just Take Action. Id.; Jackson Decl. (GST Mem. in Supp. Mot. for Summ. J. [Docket No. 43] Ex. A) at 1 ¶ 3. [FN3] Prior to shipment, all communications between Just Take Action and GST were conducted by telephone between Dave Hoops (“Hoops”), head brewer of Fitger’s Brewhouse, and Chad Hubble (“Hubble”), an employee/representative of GST. Hoops Aff. ¶ 2. Hoops told Hubble that the used tanks were worth $15,000, communicated their size and weight and informed him that the tanks were needed as soon as possible since Fitger’s intended to use them as a centerpiece display. Id. ¶ 3. It is uncontested Hoops requested and Hubble assured full coverage for the value of the tanks in the event they were damaged during transport. Id.

FN3. The paragraphs in Jackson’s Declaration are misnumbered. As a result, references to his declaration will contain both the page number and the paragraph number.

GST retained CTI to transport the tanks to Duluth. Id. ¶ 4; Jackson Decl. at 2 ¶ 1. Just Take Action had no input in GST’s decision to select CTI to perform the transport of the tanks, did not know CTI was retained, and did not communicate with anyone from CTI prior to the delivery of the tanks in Duluth. Hoops Aff. ¶ 4. Hubble of GST provided CTI and Ithaca instructions for the pickup of the fermenter tanks. 11/26/03 E-mail (Hoops Aff. Ex. B). He told Ithaca the tanks should be standing upright and that he would send a truck with sufficient capacity to ship the tanks in that position. Id. The first CTI truck to arrive did not have sufficient clearance to ship the tanks upright. Id. Ithaca contacted Hubble who told it to direct the truck to leave and promised to make arrangements for a suitable truck. Id. The driver of the second truck did not use a load bar to secure the tanks. Id. Although an Ithaca employee suggested a load bar should be used, the driver said he did not have a load bar and believed the tanks could nevertheless be transported undamaged. Id. The tanks were undamaged when they left New York. Id.; Hoops Aff. ¶ 5; Ithaca Fermenter Tank Photos (Hoops Aff. Ex. A).

The fermenter tanks arrived in Duluth on broken pallets with punctures, scratches and dents. Hoops Aff. ¶ 5; Duluth Fermenter Tank Photos (Hoops Aff. Ex. C). The only documentation provided by CTI at delivery was the delivery receipt, which notes the damage to the tanks. Hoops Aff. ¶ 6; Delivery Receipt (Hoops Aff. Ex. D); CTI’s Resp. to Req. for Admis. (Lundgren Aff. [Docket No. 56] Ex. E) Resp. 6. The damage was also recorded in an inspection report done by MTI Inspector Services at GST’s request. MTI Inspection Report (Hoops Aff. Ex. E). The bill of lading was signed “clear” and the delivery receipt notes the tanks arrived with damage. CTI’s Resp. to Req. for Admis. Resp. 6.

When the damaged tanks arrived, Hoops immediately contacted Hubble. Hoops Aff. ¶ 7. In that conversation and subsequent telephone conversations, Hubble assured Hoops that the tanks would be repaired at no cost to Just Take Action. Id. ¶ ¶ 7-8. On the day the tanks were delivered, Hoops also sent Hubble an e-mail outlining the damages, reiterating the tanks’ intended display and emphasizing that Fitger’s was losing revenue as a result of the tanks’ condition. Hoops Aff. ¶ 7; 11/25/03 E-mail (Hoops Aff. Ex. F). After it was determined the tanks could be repaired, Hubble told Hoops that GST would pay for the cost of the repairs. Hoops Aff. ¶ 8. After Just Take Action solicited several bids for the tanks’ repair, Hubble directed Just Take Action to have the repairs performed by a company called Jamar. Id.; Jamar Estimate (Hoops Aff. Ex. G). Following the repairs, GST and Central Transport contested liability for the cost of the repairs and the claim for lost revenue as a result of the damaged fermenter tanks.

Although GST admits preparing a bill of lading “for the sake of convenience,” it is uncontested such a bill was never provided to Just Take Action or signed by Just Take Action or its employees. Jackson Decl. at 3 ¶ 8; Hoops Aff. ¶ 10; GTI’s Resp. to Req. for Admis. (Lundgren Aff. Ex. D) Resp. 2. While Hoops informed Hubble of the value of the tanks and importance of coverage, Just Take Action was never given the opportunity to select a level of liability for shipment of the tanks. Hoops Aff. ¶ 10. Just Take Action was also not informed of CTI’s tariff or any other liability limitations. Id. For the first time, in its voluntary Rule 26 disclosure, GST produced an unsigned bill of lading. GST Bill of Lading (Lundgren Aff. Ex. A). GST admits it never signed a bill of lading for the fermenter tanks. Jackson Decl. at 3 ¶ 9.

In support of its Motion for Summary Judgment, CTI produced a copy of a bill of lading apparently signed by an Ithaca employee. CTI Bill of Lading (Bour Aff. [Docket No. 48] Ex. 1). The bill of lading states, in part:

… It is mutually agreed, as to each carrier of all or any of said property, overall all or any portion of said route to destinations, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the terms and conditions of the Uniform Bill of Lading set forth (1) in Uniform Freight Classification or in effect on the date hereof if this is a rail or water shipment, or (2) in the applicable motor carrier classification or tariff if this is a motor carrier shipment. Shipper hereby certifies that he is familiar with all the terms and conditions of said bill of lading set forth in the classifications or tariff which governs the transportation of this shipment, and the said terms and conditions are hereby agreed to by the shipper and accepted for himself and his assigns.

Id. (emphasis added). The bill of lading also provides that “[t]he agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding ____ per ____.” Id. Although the weight of the cargo is recorded as 1570 pounds, no declared value appears in the space provided. Id. Just Take Action denies ever seeing this bill of lading, consenting to its terms or agreeing to limit liability based on CTI’s tariffs. Hoops Aff. ¶ 11. Neither Just Take Action’s name or the name of any Just Take Action employee appears on the bill of lading. CTI Bill of Lading.

In March 2004, Just Take Action’s attorneys contacted CTI requesting damages from transport of the fermenter tanks. April 16, 2004 Letter (Lundgren Aff. Ex. G). In response, CTI enclosed a copy of its tariff and proof of payment of $50. Id. CTI’s accompanying letter stated:

Central Transport International was contracted by GST Corporation to handle the shipment in question. In our agreements to handle freight for GST Corporation our Rules Tariff CTII would apply.

Id. The letter did not contain a copy of the bill of lading.

In responses to requests for admissions, for purposes of Carmack Amendment liability, GST alleges it played the role of “broker” rather than a “shipper” or a “carrier.” GST’s Resp. to Req. for Admis. Resp. 1; GST Mem. in Supp. Mot. for Summ. J. at 7. Although CTI admits it acted as a “carrier” in shipping the fermenter tanks, it contends GST, rather than Just Take Action, was the “shipper.” CTI’s Mem. in Supp. of Mot. for Partial Summ. J. [Docket No. 47] at 7. Both GST and CTI claim Just Take Action was not a party to the shipment. GST’s Resp. to Req. for Admis. Resp. 2-5; CTI’s Resp. to Req. for Admis. Resp. 2-6.

III. DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); YPERLINK”http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1986132674″Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995). The nonmoving party may not “rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.” Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).

B. GST

In its Complaint, Just Take Action asserts GST is liable for damages stemming from the transportation of the fermenter tanks under the Carmack Amendment and state law claims of negligence and breach of contract. Each of these causes of action will be addressed in turn.

1. Carmack Amendment

The Carmack Amendment imposes liability on carriers for “actual loss or injury” to goods damaged in interstate transport. 49 U.S.C. § 14706(a)(1). Chubb Group of Ins. Cos. v. H.A. Transp. Systems Inc., 243 F.Supp.2d 1064, 1068 (C.D.Ca.2002). To recover under the Carmack Amendment, the plaintiff does not have to prove negligence. To establish a prima facie case under the Carmack Amendment, plaintiff must show: (1) the goods were undamaged prior to shipment; (2) the goods arrived in damaged condition; and (3) the action caused plaintiff’s damages. Id. Once plaintiff establishes a prima facie case, the burden shifts to defendant to show it is excepted from liability for damages. Id.; see also Plaid Giraffe, Inc. v. United Parcel Service, Inc., 1994 U.S. Dist. LEXIS 14364, *6-7 (D.Kan. Sept. 26, 1994). The Carmack Amendment liability scheme distinguishes between “carriers,” “freight forwarders” and “brokers.” Under the Carmack Amendment, only “carriers” and “freight forwarders,” not “brokers” can be liable to the shipper of goods for damages during transit. Chubb Group of Ins. Cos., 243 F.Supp.2d at 1068-69. The Carmack Amendment serves as a shipper’s exclusive remedy for damaged property and preempts common law causes of actions; however, since “brokers” are excluded from the Amendment’s remedial provisions, they can be held liable under state common law tort or breach of contract theories. See Intech, Inc. v. Consol., Freightways, Inc., 836 F.2d 672, 677 (1st Cir.1987); R.H. Fulton v. Chicago, Rock Island & Pacific R.R. Co., 481 F.2d 326, 331-32 (8th Cir.1973); Professional Communications, Inc. v. Contract Frieghters, Inc., 171 F.Supp.2d 546, 550 (D.Md.2001). The Carmack Amendment incorporates common law principles of damages, including joint and several liability. Camar Corp. v. Preston Trucking Co., Inc., 221 F.3d 271, 277 (5th Cir.2000); Project Hope v. Mill Transp. Co., 250 F.3d 67, 76 (2nd Cir.2001).

For purposes of this Motion only, both GST and CTI assume Just Take Action has established a prima facie case of negligence under the Carmack Amendment. However, GST asserts it is a “broker” and, therefore, can not be held liable under the Carmack Amendment. Just Take Action contends GST is a “motor carrier.” Just Take Action does not argue GST is a “freight forwarder.” The Carmack Amendment defines “broker” as:

a person, other than a motor carrier, or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, or arranging for, transportation by motor carrier for compensation.

49 U.S.C § 13102(2). The statute defines “motor carrier” as “a person providing motor vehicle transportation for compensation.” 49 U.S.C § 13102(3). The definition of “transportation” includes:

(A) a motor vehicle, … property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use; and 5 (B) services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.

49 U.S.C § 13102(21).

Although GST can not be liable as a broker under the Carmack Amendment, the Court finds there is a factual dispute over whether GST played the role of broker or motor carrier in shipping the fermenter tanks. GST’s actions, through Hubble, were not limited to arranging CTI’s transport of the fermenter tanks. GST assured Hoops that the tanks would have full liability coverage, drafted the bill of lading and directed how and when the shipment would take place. Hoops Aff. ¶ 12; Jackson Decl. at 3 ¶ 8; 11/26/03 E-mail. Hubble told Itahca how the tanks should be loaded, determined the size of the truck for shipment and directed CTI to bring a larger truck when the first truck was too small. 11/26/03 E-mail. In addition, prior to shipment, GST served as the only point of contact for Just Take Action. Hoops Aff. ¶ 4. Finally, after the tanks were damaged, Just Take Action submitted the bids it received for repair of the tanks to GST and abided by GST’s choice of contractor. Hoops Aff. ¶ 8; Jamar Estimate. Based on these facts, a reasonable factfinder could find GST served as a “motor carrier,” rather than a “broker,” in shipping the fermenter tanks. As a result, summary judgment on Just Take Action’s Carmack Amendment claim against GST is inappropriate. See Consol, Freightways Corp. v. Travelers Ins. Co., 2003 WL 22159468, *6 (N.D.Cal. March 28, 2003) (finding summary judgment inappropriate because Defendant performed some transportation functions that indicated it might be characterized as a “motor carrier” rather than a “broker”).

2. Negligence

In the event the Carmack Amendment does not attach liability to GST as a broker, Just Take Action contends GST is liable for negligence. To state a claim of negligence, a plaintiff must show: (1) duty; (2) a breach of that duty by the defendant; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) an injury suffered by the plaintiff. Minneapolis Employees Retirement Fund v. Allison Williams Co., 224 Wis.2d 372, 591 N.W.2d 176, 182 (Minn.1994). GST argues its duty was limited to finding an appropriate carrier and that it fulfilled this sole duty. GST claims it never saw or had physical possession of the fermenter tanks, so it could not be responsible for any damage.

In general, courts have held that a broker’s duty to a shipper is limited to arranging for transportation with a reputable carrier. See Chubb Group of Ins. Cos., 243 F.Supp.2d at 1071. However, Just Take Action hired GST to arrange for transportation of the tanks with the understanding that the tanks would be shipped with full coverage. In doing so, Just Take Action expanded its duty beyond merely finding a reputable carrier to ensuring the tanks would be shipped with full coverage. See Allison Williams Co., 519 N.W.2d at 182 (holding professionals have a duty to exercise due care in executing all instructions given by their client). In effect, GST served as Just Take Action’s agent in arranging transportation of the fermenter tanks. See Olson v. Penkert, 252 Minn. 334, 90 N.W.2d 193, 199 (Minn.1958). This argument is strengthened by the fact that GST is listed as the shipper on the signed bill of lading. CTI Bill of Lading. As Just Take Action’s agent, GST had a duty to fully and fairly disclose all facts affecting the rights and interests of Just Take Action. See id . at 200; White v. Boucher, 322 N.W.2d 560 (Minn.1982).

Without the knowledge, input or consent of Just Take Action, GST selected CTI to transport the tanks and prepared a bill of lading that purportedly did not provide for such coverage. Hoops Aff. ¶ ¶ 4, 10; Jackson Decl. at 3 ¶ 8. At oral argument GST admitted the bill of lading was never signed, or even shown, to Just Take Action, but claimed it was not GTS’s duty to do so. GST also coordinated the pickup of the tanks and gave instructions on what size of truck should be used and how the tanks should be loaded. Following the damage to the tanks, GST assured Just Take Action it would remedy the damages and selected the contractor to repair the tanks. Hoops Aff. ¶ 8, Jamar Estimate. GST’s conduct creates an inference it may have believed it had a duty to Just Take Action that exceeded arranging for reputable transportation. If the bill of lading is a valid limit of liability, a reasonable factfinder might find GST failed to exercise due care in executing Just Take Action’s instructions or failed to make a full and fair disclosure of Just Take Action’s rights to obtain additional liability coverage. As a result, Just Take Action’s negligence claim against GST survives summary judgment.

3. Breach of Contract

Finally, in the event GST acted as a “broker,” Just Take Action asserts a common law breach of contract claim. GST does not contest the parties entered into an oral contract for GST to arrange transport of the fermenter tanks. However, GST claims the contract did not include a responsibility to ensure adequate coverage for the tanks or to be responsible for lost income if the tanks were damaged.

An essential element of a contract is a definite and unequivocal agreement, or meeting of the minds, between the parties. See Tatter v. Bd. of Educ., 490 F.Supp. 494, 497 (D.Minn.1980), aff’d, 653 F.2d 315 (8th Cir.1981); Bergstrom v. Sambo’s Restaurants, Inc., 687 F.2d 1250, 1256 n. 9 (8th Cir.1982) “The test of contractual formation is an objective one, to be judged by the words and actions of the parties and not by their subjective mental intent.” Hill v. Okay Constr. Co., 312 Minn. 324, 252 N.W.2d 107, 114 (1977).

It is clear that Just Take Action contracted with GST to transport the fermenter tanks from New York to Minnesota. The parties disagree as to whether they believed GST would arrange for the transportation of the tanks or whether GST itself was responsible for the transportation. Just Take Action claims GST was responsible for transportation and contracted with CTI to assist in this duty while GST argues its contractual duty was limited to finding an appropriate carrier. It is undisputed Just Take Action expressed its desire that the tanks have full liability coverage and GST assured Just Take Action it could meet this condition. Hoops Aff. ¶ 3. GST’s initial assurances that it would pay for the tanks’ repair and its involvement in selecting the contractor to perform those repairs provides some circumstantial evidence as to the contract’s terms. Hoops Aff. ¶ 8, Jamar Estimate. Sufficient evidence exists to create a material dispute as to the terms of the contract.

GST subsequently retained CTI and prepared a bill of lading without the knowledge or consent of Just Take Action. Assuming the bill of lading limits the liability for damage to the fermenter tanks or that GST had a contractual obligation to ensure the tanks arrived in Duluth undamaged, a reasonable factfinder could hold GST breached its contractual duties. As a result, GST’s motion for summary judgment on Just Take Action’s breach of contract claim is denied.

C. CTI

1. Carmack Amendment

Just Take Action claims that, under the Carmack Amendment, CTI is liable for “actual loss or injury” to the fermenter tanks. CTI argues that its liability is limited by the bill of lading to the amount specified in its tariff.

The Carmack Agreement permits carriers the ability to limit their liability by establishing the value of the transported property through a written declaration of the shipper or by agreement between the carrier or freight forwarder and the shipper. 49 U.S.C. § 10730(b)(1). To effectively limit its liability, a carrier must: (1) maintain an approved tariff; (2) obtain a shipper’s agreement as to his choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a bill of lading prior to shipment. Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415-16 (7th Cir.1987); Plaid Giraffe, Inc., 1994 U.S. Dist. LEXIS at 34. Assuming, for the purposes of this motion, that Just Take Action has established a prima facie case under the Carmack Amendment, the burden is on CTI to show it limited its liability. Id. at *6-7.

CTI contends the plain language incorporated into the bill of lading effectively limits its liability. The bill of lading provides:

… every service to be performed hereunder shall be subject to all the terms and conditions of the Uniform Bill of Lading set forth … (2) in the applicable motor carrier classification or tariff if this is a motor carrier shipment.

CTI Bill of Lading. The United States Supreme Court has stated, “[t]he bill of lading is the basic transportation contract between the shipper-cosignor and the carrier” and its terms have “in effect the force of a statute, of which all affected must take notice.” Southern Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 342-43, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982). Since GST, who CTI alleges is the shipper of the tanks, issued the bill of lading, CTI argues it satisfied the second and third requirements for limiting its liability. Finally, CTI notes the bill of lading was issued by GST and signed before the tanks were picked up at Ithaca.

Despite CTI’s arguments, the Court finds there is sufficient evidence to raise a question of material fact as to whether CTI obtained the shipper’s agreement as to the choice of liability, offered the shipper various levels of liability or issued a bill of lading prior to shipment of the fermenter tanks. It is undisputed that CTI never contacted Just Take Action to ascertain the desired level of coverage on the tanks or to offer Just Take Action its choice of different levels of liability. Hoops Aff. ¶ ¶ 10-11. Furthermore, the bill of lading was not signed by a Just Take Action employee and Just Take Action never received a copy until after the instant litigation commenced. Id.; CTI Bill of Lading.

CTI argues that it was under no obligation to contact Just Take Action because GST was the shipper and the law imposes no obligation for CTI to determine what instructions Just Take Action may have given to GST. CTI also claims the bill of lading clearly stated that the:

shipper hereby certifies that he is familiar with all of the terms and conditions of the said bill of lading set forth in the … tariff which governs the transportation of this shipment, and the said terms and conditions are hereby agreed to by the shipper and accepted for himself….

CTI Bill of Lading. CTI argues it is not necessary that Just Take Action had actual knowledge of the bill of lading or CTI’s tariff because a presumption exists that the shipper had knowledge of the carrier’s tariff due to the “overriding nature of the tariff in relationships between shippers and carriers.” Paulson v. Greyhound Lines, Inc., 804 F.2d 506, 507 (8th Cir.1986). However, GST avers it acted as a broker and not a shipper. Furthermore, the bill of lading contains the signature of an Ithaca employee, an entity that was not a party to the shipment contract, rather than GST. Finally, “actual notice is necessary for a limitation to be enforced.” Tempel Steel Corp. v. Landstar Inway, Inc., 211 F.3d 1029, 1030 (7th Cir.2000); see also Hughes, 829 F.2d at 1417, 1419-20 (finding the shipper must agree to liability limitations “in the same sense that one agrees or assents to enter into a contractual obligation”). Where Just Take Action was not aware that CTI had been hired, never saw the bill of lading prior to shipment, and gave specific instructions that the fermenter tanks should only be shipped with full coverage, presuming Just Take Action’s knowledge of CTI’s tariff is inappropriate. For the aforementioned reasons, CTI’s Motion for Summary Judgment on Just Take Action’s Carmack Amendment claim is denied.

2. Negligence and Breach of Contract

In its Complaint, Just Take Action also asserts CTI is liable for damages stemming from the transportation of the fermenter tanks under state common law claims of negligence and breach of contract. In its Memorandum of Law in Response to Defendant Central Transport International Inc.’s Motion for Summary Judgment [Docket No. 53] and at oral argument, Just Take Action admitted CTI is a “motor carrier” under the Carmack Amendment and, as a result, its state law claims against CTI are preempted. Just Take Action Mem. in Response to CTI’s Mot. for Summ. J. at 9. See Intech, Inc., 836 F.2d at 677; R.H. Fulton, 481 F.2d at 331-32.

IV. CONCLUSION

Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. Defendant GST’s Motion for Summary Judgment [Docket No. 34] is DENIED, and

2. Defendant CTI’s Motion for Partial Summary Judgment [Docket No. 45] is GRANTED as to Plaintiff’s common law negligence and breach of contract claims and DENIED as to Plaintiff’s Carmack Amendment claim.