CASES (2023)

Rogers v. Tarbox

United States District Court for the Southern District of West Virginia, Charleston Division

September 26, 2023, Decided; September 26, 2023, Filed

CIVIL ACTION NO. 2:22-cv-00499

Reporter

2023 U.S. Dist. LEXIS 171631 *

PATRICIA ROGERS, Plaintiff, v. CRAIG A. TARBOX, et al., Defendants.

Core Terms

punitive damages, summary judgment, tractor–trailer, egregious, drivers, speed, driving, Route

Counsel: [*1] For Patricia Rogers, Plaintiff: Jennifer D. Roush, Robert A. Campbell, Stephen B. Farmer, LEAD ATTORNEYS, FARMER CLINE & CAMPBELL, Charleston, WV.

For Craig A. Tarbox, Riverside Transportation, Inc., Riverside Transport, Inc., and, Defendants: Julie Brennan, LEAD ATTORNEY, PION NERONE GIRMAN WINSLOW & SMITH, Pittsburgh, PA; Timothy R. Smith, LEAD ATTORNEY, PION JOHNSTON NERONE GIRMAN GLEMENTS & SMITH, Pittsburgh, PA.

Judges: THOMAS E. JOHNSTON, CHIEF UNITED STATES DISTRICT JUDGE.

Opinion by: THOMAS E. JOHNSTON

Opinion

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants Craig A. Tarbox, Riverside Transportation, Inc., and Riverside Transport, Inc.’s (“Defendants”) Motion for Partial Summary Judgment. (ECF No. 42.) For the reasons more fully explained below, the motion is GRANTED.

I. BACKGROUND

On October 23, 2020, Defendant Craig A. Tarbox (“Defendant Tarbox”) left a T.J. Maxx distribution center in Evansville, Indiana. (ECF No. 44-3 at 24:15-20.) He was bound for Beckley, West Virginia, hauling a load of merchandise in his tractor–trailer. (Id. at 26:4-6.) He drove mostly interstate—that is, until he approached the West Virginia Turnpike. (See id at 25:12-19, 28:6-15.) His employer, Defendant Riverside [*2] Transportation, Inc., prohibited its drivers from taking toll roads. (Id. at 28:16-23.) So, before reaching the first toll booth, Defendant Tarbox departed Interstate-64, opting to take Route 61 the rest of the way. (Id. at 28:13-20.)

Route 61 differs from the interstate. It’s two-lane. (Id. at 29:12-14.) The speed limit varies.¹ (ECF No. 44-2 at 21:16-18.) It’s chock-full of “switchbacks” and “hairpin curves.” (ECF No. 44-1 at 31:8-12; ECF No. 44-2 at 7:16-19.) Tractor–trailers get stuck on it with some frequency. (ECF No. 44-6 at 20:3-19.) Unsurprisingly, there are at least two large signs along Route 61 warning drivers that the road is “NOT SUITABLE FOR LARGE TRUCKS.”² (ECF No. 44-1 at 48:4-16; ECF No. 44-7.)

Shortly after turning on Route 61, Defendant Tarbox approached a tight, 90-degree lefthand turn. (ECF No. 44-2 at 9:16-20; ECF No. 44-3 at 29:21-30:2.) He slowed as he entered the turn, although the parties dispute exactly how much. Defendant Tarbox claims that he decelerated to five miles per hour, if not a complete stop. (ECF No. 44-3 at 39:20-24.) Jimmy Canterbury, who was riding in Plaintiff’s SUV, says that Defendant Tarbox was still traveling upwards of 25 miles per hour. [*3] (ECF No. 44-2 at 22:1-4.) Either way, trouble ensued. The turn was too tight for Defendant Tarbox’s tractor–trailer, and he crossed the median. (ECF No. 44-2 at 10:24-11:7.)

Plaintiff was traveling in the opposite lane and watched this scene unfold. On her telling, she “stopped dead in the road” and intended “to put it in ‘Reverse’ [to] let [Defendant Tarbox] get by, but he just kept coming.” (ECF No. 44-1 at 31:18-22.) Defendant Tarbox’s trailer and its tires then struck Plaintiff’s SUV, sideswiping the entire driver’s side. (ECF No. 44-2 at 11:11-21.) The impact sent Plaintiff’s SUV to the road’s edge, inches from the ditch. (ECF No. 44-1 at 42:6-16; ECF No. 44-8.) Defendant Tarbox came to a stop a short distance up the road. (ECF No. 44-2 at 12:23-13:4.)

Emergency personnel arrived about half an hour later, (ECF No. 44-2 at 15:15-22), and Detective Brian Fernandez (“Detective Fernandez”) of the Fayette County Sherriff’s Department soon began investigating, (ECF No. 44-6 at 7:2-7). He completed a West Virginia Uniform Traffic Crash Report and recorded both parties’ statements. (ECF No. 44-5.) He also determined that Defendant Tarbox (1) had a valid commercial driver’s license and (2) [*4] was not intoxicated, impaired, or distracted at the time of the wreck. (ECF No. 44-6 at 23:6-22.) In the end, though, Detective Fernandez concluded that Defendant Tarbox “[f]ailed to [k]eep in [the] [p]roper [l]ane” and was entirely at fault. (ECF No. 44-5.) However, despite finding Defendant Tarbox at fault, Detective Fernandez did not issue him a citation or warning. (ECF No. 44-6 at 16:4-8.) As for medical attention, paramedics were on-scene but, according to Detective Fernandez’s report, nobody received medical treatment. (Id. at 24:4-19.)

Plaintiff filed this civil action in the Circuit Court of Fayette County, West Virginia, on September 22, 2022. (ECF No. 1-1.) She sued Defendants Tarbox, Riverside Transportation, Inc., Riverside Transport, Inc., and John Doe Company. (Id.) Her complaint alleges Defendant Tarbox acted negligently and, alternatively, recklessly, and that his employer is vicariously liable for his actions. (Id.) Her complaint further alleges that she has suffered personal injuries and property damage because of the wreck. (Id.) She therefore seeks compensatory and punitive damages, interest thereon, and attorneys’ fees. (Id. at 7-8.)

Defendants removed the case [*5] to this Court on October 28, 2022, properly invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332. (ECF No. 1.) Defendants then filed a partial motion to dismiss and strike on November 4, 2022. (ECF No. 4.) This Court, by Memorandum Opinion and Order dated April 7, 2023, denied that motion in its entirety. (ECF No. 17.) Then, on August 17, 2023, Defendants filed a motion for partial summary judgment, asking this Court to dismiss the request for punitive damages only. (ECF No. 42.) Plaintiff responded on August 31, 2023, (ECF No. 44) and Defendants replied on September 7, 2023, (ECF No. 45). As such, the matter is now ripe for adjudication.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. In pertinent part, this rule states that a court should grant summary judgment if “there is no genuine issue as to any material fact.” Summary judgment should not be granted, however, if there are factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material’ when they might affect the outcome of the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating these factual issues, [*6] the Court must view the evidence “in the light most favorable to the opposing party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

“The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial . . . by offering ‘sufficient proof in the form of admissible evidence’ . . . .” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). “This burden may be met by use of the depositions and other discovery materials.” Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Once the moving party meets its burden, the burden shifts to the non-moving party to “make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Should a party fail to make a sufficient showing on one element of that party’s case, the failure of proof “necessarily renders all other facts immaterial.” Id. at 323.

“[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 256. “The mere existence of a scintilla of evidence” in support of the nonmoving party is not enough to withstand summary judgment; the judge must ask whether “the jury could reasonably find for the plaintiff.” Id. at 252.

III. DISCUSSION [*7]

In West Virginia,

[a]n award of punitive damages may only occur in a civil action against a defendant if [the] plaintiff establishes by clear and convincing evidence that the damages suffered were the result of the conduct that was carried out by the defendant with actual malice toward the plaintiff or a conscious, reckless and outrageous indifference to the health, safety and welfare of others.

W. Va. Code § 55-7-29(a). “This is no easy standard to meet.” Davis v. Milton Police Dep’t, No. 3:20-cv-00036, 2020 WL 2341238, at *8 (S.D. W. Va. May 11, 2020). Indeed, punitive damages awards are “the exception, not the rule.” Perrine v. E.I. du Pont de Nemours & Co., 694 S.E.2d 815, 909-10 (W. Va. 2010) (Workman, J., concurring in part and dissenting in part). “[T]he level of bad conduct on the part of a defendant must be very high in order to meet the punitive standard.” Id. at 910. Simple negligence does not cut it. Surber v. Greyhound Lines, Inc., No. 2:06-cv-00273, 2006 WL 3761372, at *4 (S.D. W. Va. Dec. 21, 2006). The defendant’s conduct must instead be “extreme and egregious.” Perrine, 694 S.E.2d at 909.

In automobile accident cases, courts tend to reserve punitive damages for the most egregious of facts.³ These cases typically feature defendant-drivers that are drunk, speeding, passing when they should not be, or some combination of the three, and oftentimes end up convicted of non-trivial traffic offenses. In Perry v. Melton, for example, the defendant, who had a blood alcohol content of .19, tried using the emergency [*8] parking lane to pass another vehicle, but instead clipped a tractor–trailer parked on the shoulder, went airborne, and struck another car. 299 S.E.2d 8, 10 (W. Va. 1982). Both drivers died. Id. Likewise in Smith v. Perry, the defendant, who had also been drinking, was running between 20 to 30 miles an hour over the speed limit— and in a no-passing zone—when he crossed the double-yellow line and hit the plaintiff head-on. 359 S.E.2d 624, 625 (W. Va. 1987) (per curiam). He later pled guilty to reckless driving. Id. So too in Kenney v. Liston, where the defendant had a blood alcohol content over four times the legal limit and slammed into a stopped car without so much as tapping the brakes. 760 S.E.2d 434, 437 (W. Va. 2014). The defendant pled no contest to driving under the influence. Id. Finally, in Wilburn v. McCoy, despite having his license revoked for a prior DUI, the defendant nevertheless drove under the influence of several narcotics, hit a car head-on, and then fled the scene. No. 14-0054, 2014 WL 5712761, at *1 (W. Va. Nov. 3, 2014) (memorandum decision).

These cases stand in stark contrast to the garden-variety truck-wreck cases unworthy of punitive damages because, despite causing serious wrecks, the defendant-drivers did not exhibit extreme and egregious conduct. For instance, in White v. Swift Transportation Company of Arizona, [*9] LLC, the tractor–trailer driver-defendant was driving below the speed limit, yet still too fast for the snowy conditions, and rear-ended the car ahead of him. No. 1:12-cv-00020, 2013 WL 12108650, at *1 (N.D. W. Va. Mar. 15, 2013). The defendant tested negative for alcohol and controlled substances following the crash. See id. Judge Keeley thus dismissed the punitive damages claim because the defendant’s “behavior [did not] ris[e] to the required degree of egregiousness.” Id. at *2. In Hurley v. Averitt Express, Inc., the tractor–trailer driver-defendant went to switch lanes but instead wound up dragging a Saturn sedan 750 feet down the interstate. No. 2:11-cv-00624, 2012 WL 4742274, at *1 (S.D. W. Va. Oct. 3, 2012). The plaintiff presented no evidence that the defendant was impaired, distracted, or acted with malice. See id. Judge Copenhaver dismissed the punitive damages claim because, even when viewing the facts in the light most favorable to the plaintiff, they “reveal[ed] no conduct that could satisfy the punitive damage standard.” Id. at *4.

The same goes here. For starters, Defendant Tarbox, unlike the drivers in Melton, Smith, Kenney, and Wilburn, was not intoxicated or impaired when he caused the wreck. Nor was he speeding. Although the parties dispute his exact speed, viewing the facts in the light most favorable to Plaintiff, [*10] Defendant Tarbox was still traveling no faster than 25 miles per hour. Also, Defendant Tarbox did not hit Plaintiff while trying to pass in the wrong place; he simply misjudged the necessary angle to complete a 90-degree turn. Small surprise, then, that Defendant Tarbox was not ticketed, despite Detective Fernandez finding him at fault. Further, in contrast to Wilburn, Defendant Tarbox had valid driving credentials and did not try to flee the scene. He instead waited for Detective Fernandez to arrive and fully cooperated with his investigation. In the end, this case is no different than White and Hurley because it too lacks “the required degree of egregiousness” to “satisfy the punitive damage standard.” White, 2013 WL 12108650, at *2; Hurley, 2012 WL 4742274, at *4.

Plaintiff sees things differently. In her view, punitive damages are warranted here because Defendant Tarbox (1) drove his tractor–trailer on a rural route unsuitable for large trucks to save a few dollars on toll fees, and (2) continued driving over the center line despite seeing Plaintiff in the opposite lane. (ECF No. 44 at 6-12.)

Neither fact warrants punitive damages. Taking things in reverse order, the Court disagrees that Defendant Tarbox’s crossing the center line is sufficiently egregious [*11] to satisfy § 55-7-29(a). The undisputed facts show that Defendant Tarbox did not hit Plaintiff head-on, or even with the cab of his rig. Only his trailer and its tires made contact with Plaintiff’s SUV. Even then, the vehicles only sideswiped one another—that was it. Moving on to Plaintiff’s remaining contention, she cites no case where any court has ever awarded punitive damages because a tractor–trailer drove on the wrong road. This Court will not be the first.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for partial summary judgment on the issue of punitive damages is GRANTED.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

ENTER: September 26, 2023

/s/ Thomas E. Johnston

THOMAS E. JOHNSTON, CHIEF JUDGE

End of Document

¹The record contains conflicting evidence as to the posted limit where the wreck occurred. According to Plaintiff’s deposition testimony, the posted speed limit is 55 miles per hour where the accident occurred. (ECF No. 44-1 at 31:5-7.) Jimmy Canterbury, meanwhile, testified that he believed the speed limit was 25 miles per hour in the area. (ECF No. 44-2 at 21:16-24.)

²Defendant Tarbox does not recall seeing either sign. (ECF No. 44-3 at 42:21-43:3.) However, one such sign is located near Montgomery, West Virginia, through which his toll-free route took him. (ECF No. 44-6 at 18:8-11.) Because Plaintiff is the non-moving party, the Court will infer, as it must, that Defendant Tarbox drove past the sign and thus had reason to know his truck was not suitable for Route 61.

³The Court recognizes that West Virginia Code § 55-7-29(a) altered the punitive damages threshold slightly, Jordan v. Jenkins, 859 S.E.2d 700, 723 (W. Va. 2021), but nevertheless finds that pre-2015 punitive damages cases still “provide[] guidance as to when punitive damages are available to a plaintiff.” Billings v. Lowe’s Home Ctrs., LLC, No. 2:18-cv-00039, 2019 WL 1869936, at *5 (S.D. W. Va. Apr. 24, 2019).

Beaumont v. Vanguard Logistics Servs. United States, Inc.

United States District Court for the Southern District of New York

September 27, 2023, Decided; September 27, 2023, Filed

22-cv-6235 (MKV)

GARY BEAUMONT, Plaintiff, -against- VANGUARD LOGISTICS SERVICES (USA), INC., POLICE OFFICERS JOHN DOES 1-10, and ABC COMPANIES 1-10, Defendants.

Core Terms

bill of lading, district court, shipping, package, fair opportunity, reverse side, Reply, damaged, argues, cargo, partial summary judgment, forum selection clause, maritime, preempts, parties, notice

Counsel: [*1] For GARY BEAUMONT, Plaintiff: STEVEN D. ROTHBLATT, LEAD ATTORNEY, LAW OFFICES OF ROTHBLATT LAW, LLC, ISELIN, NJ.

For Vanguard Logistics Services (USA), Inc., Defendant: George N. Styliades, Cherry Hill, NJ.

Judges: MARY KAY VYSKOCIL, United States District Judge.

Opinion by: MARY KAY VYSKOCIL

Opinion

OPINION & ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

MARY KAY VYSKOCIL, United States District Judge:

Plaintiff Gary Beaumont brings this action against Defendant Vanguard Logistics Services (USA), Inc. (“VLS”) to recover money for damage that his property sustained when VLS shipped a container of his property from Sydney, Australia to New York. VLS moves for partial summary judgment, arguing that any damages are limited to $500 pursuant to the United States Carriage of Goods by Sea Act (“COGSA“), 46 U.S.C. § 30701, and the parties’ contract. For the reasons set forth below, the motion for partial summary judgment is DENIED.

I. BACKGROUND¹

A. Facts

Plaintiff Gary Beaumont entered into an agreement with Defendant Vanguard Logistics Services (USA), Inc. (“VLS”) to ship Beaumont’s property from Sydney, Australia to New York. See VLS Bill of Lading; Beaumont Bill of Lading; see also Beaumont Aff. ¶ 9. The property consisted of “1 CRATE” containing a “USED MOTORCYCLE/RIDING GEAR,” as well [*2] as one bicycle, a collection of DVDs, and assorted framed prints. See VLS Bill of Lading; Beaumont Bill of Lading; see also Beaumont Aff. ¶ 12 (describing the motorcycle as “a hand built Italian Ducati Multi Strada 1200 MTS 1200”). There is no dispute that the shipment consisted of one package [ECF No. 37 (“Pl. Opp.”) at 1 (“one crate”)]. See VLS Bill of Lading (“Total No. of Pkgs. 1”); Beaumont Bill of Lading (“Total No. of Pkgs. 1”).

Through its “non-vessel operating common carrier in Hong Kong,” VLS issued a bill of lading for the shipment [ECF No. 33 ¶ 2; ECF No. 34 (“Def. Mem.”) at 1]. See Pl. Opp. at 1; VLS Bill of Lading; Beaumont Bill of Lading. However, the parties dispute what, precisely, was sent to Beaumont. That is, the parties agree that the bill of lading has a “back” page or “REVERSE SIDE” that lists various terms and conditions. VLS Bill of Lading; Beaumont Bill of Lading; Pl. Opp. at 2; Reply at 2. Specifically, the back page includes a paragraph entitled “LIMITATION OF LIABILITY,” which states that “the value of the cargo shall be deemed to be $500 per package” unless “otherwise provided” and mentions COGSA. VLS Bill of Lading ¶ 19. But Beaumont maintains that he [*3] “never saw the reverse side of the Bill of Lading” because he “placed the shipping order via email,” and then “only the top half of the [bill of lading] was sent” back to his shipping agent. Beaumont Aff. ¶ 16.

Beaumont offers evidence that, after his shipment arrived at a warehouse in New Jersey, VLS accidentally damaged his property when a “forklift” dropped a “much larger item on top of [his] cargo” [ECF No. 36-1, Ex. A]. Beaumont alleges that his motorcycle was destroyed and seeks to recover $39,089.35 [ECF No. 18 (“AC”) ¶¶ 15, 18].

B. Procedural History

Beaumont filed a complaint in state court in New Jersey, and VLS removed the case to the United States District Court for the District of New Jersey on the basis of diversity jurisdiction and maritime jurisdiction [ECF No. 1]. VLS then moved to transfer the case to the Southern District of New York pursuant to a forum selection clause on the back of the bill of lading [ECF No. 6]. Beaumont opposed that motion, arguing that: (1) no admiralty jurisdiction exists because his property was damaged on land in a warehouse; (2) the forum selection clause was an unenforceable contract of adhesion and that a “reasonably prudent person” would [*4] not have been aware of the forum selection clause in “very tiny” print on the back of the bill of lading; and (3) COGSA does not apply because the property was damaged on land [ECF No. 8].

The New Jersey district court granted the motion of VLS to transfer the case [ECF No. 11]. Beaumont v. Vanguard Logistics Servs. (USA), Inc., 615 F. Supp. 3d 253, 258 (D.N.J. 2022). The court ruled that admiralty jurisdiction exists because the “bill of lading requires substantial carriage of goods by sea,” and “thus it is a maritime contract.” Beaumont, F. Supp. 3d at 258 (quoting Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 27 (2004)). The court ruled that the forum selection was enforceable even if it were “part of an adhesion contract.” Beaumont, F. Supp. 3d at 260 (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)). With respect to the applicability of COGSA, the New Jersey district court observed:

Because the cargo was damaged on land, Plaintiff contends that COGSA is inapplicable. However, “[a]ll cargo shipments carried by sea to or from the United States are subject to COGSA.” [Fireman’s Fund Ins. Co. v. M.V. DSR Atlantic, 131 F.3d 1336, 1339 (9th Cir. 1997)]. Moreover, the [bill of lading] expressly extends the application of COGSA to “the entire time the Carrier is responsible for the Goods,” including “after discharge from the vessel.” B/L, ¶ 4(a). By the [bill of lading’s] express terms, COGSA governs the land transport of the goods at issue. See Kirby, 543 U.S. at 29, 125 S.Ct. 385 (recognizing that parties may extend COGSA‘s applicability [*5] by contract to the entire period in which goods would be under carrier’s responsibility, including period of inland transport). Accordingly, Defendant argues that COGSA preempts Plaintiff’s state law claims. See Polo Ralph Lauren, L.P. v. Tropical Shipping & Const. Co., Ltd., 215 F.3d 1217, 1220 (11th Cir. 2000) (“COGSA, when it applies, supersedes other laws.”); Amazon Produce Network, LLC v. M/V LYKES OSPREY, 553 F. Supp. 2d 502, 506 (E.D. Pa. 2008) (COGSA “provides an exclusive remedy for damage to cargo incurred during carriage between foreign and United States ports.”). However, the Court need not resolve this dispute to rule on the pending transfer motion.

Beaumont, F. Supp. 3d at 262 n.9.

After the New Jersey district court transferred the case to this Court, Beaumont filed the Amended Complaint, which is the operative pleading [ECF No. 18 (“AC”)]. In the Amended Complaint, Beaumont asserts claims: for common law negligence, AC ¶¶ 11-18; pursuant to COGSA, AC ¶¶ 19-21; for breach of maritime contract, AC ¶¶ 22-25; for liability under “federal maritime common law of bailment,” AC ¶¶ 26-30; and under the New Jersey Consumer Fraud Act, AC ¶¶ 31-40.

VLS filed the pending motion for partial summary judgment [ECF Nos. 31, 32, 33, 34 (“Def. Mem.”)]. It argues that COGSA and the terms of the bill of lading limit any damages to $500 and that COGSA preempts Beaumont’s other claims. Beaumont filed an opposition [*6] [ECF Nos. 36, 37 (“Pl. Opp.”)], and VLS filed a reply [ECF Nos. 38, 39, 40 (“Reply”), 41].

II. LEGAL STANDARD

Summary judgment should be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court “may not make credibility determinations or weigh the evidence.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). The court “must resolve all ambiguities and draw all permissible inferences in favor of the non-moving party.” Id. If there is evidence in the record that supports a reasonable inference in favor of the opposing party, summary judgment is improper. See Brooklyn Ctr. For Indep. of the Disabled v. Metro. Transportation Auth., 11 F.4th 55, 64 (2d Cir. 2021)

III. DISCUSSION

The United States Carriage of Goods by Sea Act (“COGSA“), 46 U.S.C. § 30701, states that “[n]either the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package.” COGSA § 4(5). This per package limitation on liability does not apply, however, “if the shipper does not have a fair opportunity to declare higher value and pay an excess charge for additional protection.” Nippon Fire & Marine Ins. Co. v. M.V. Tourcoing, 167 F.3d 99, 101 (2d Cir. 1999). Here, the parties dispute whether Beaumont had a “fair opportunity” to [*7] declare a higher value for the contents of the package he shipped.

VLS argues that COGSA applies to this case, since the New Jersey district court ruled that the bill of lading is a maritime contract, and Beaumont now asserts a claim under COGSA. See Def. Mem. at 4-5. VLS further argues that the “Bill of Lading validly extended the protection of COGSA throughout the time that VLS was responsible for Beaumont’s property,” and that, since the “Amended Complaint relies on the Bill of Lading,” Beaumont “is bound by the terms thereof.” Def. Mem. at 4-5. VLS stresses that there is no question Beaumont’s “1 crate” constitutes one package under COGSA. Def. Mem. at 6. Finally, VLS argues that COGSA preempts Beaumont’s other claims. Def. Mem. at 7-9. Thus, VLS contends, it is entitled to a ruling that its total potential liability cannot exceed $500.

VLS, however, entirely fails to contend with the fair opportunity doctrine in its opening brief. To be sure, where a bill of lading “explicitly incorporate[s] COGSA‘s provisions or refer[s] in some way to the $500 per package limitation,” this “constitute[s] prima facie evidence of fair opportunity.” Royal Ins. Co. v. M.V. ACX Ruby, No. 97-cv-3710 (MBM), 1998 WL 524899, at *3 (S.D.N.Y. Aug. 21, 1998). And VLS submits in support of its motion a version [*8] of the bill of lading that contains the relevant paragraph, entitled “LIMITATION OF LIABILITY,” which states that “the value of the cargo shall be deemed to be $500 per package” unless “otherwise provided” and mentions COGSA. VLS Bill of Lading ¶ 19. However, Beaumont submits evidence that he “never saw the reverse side of the Bill of Lading” because he “placed the shipping order via email,” and then “only the top half of the [bill of lading] was sent” back to his shipping agent. Beaumont Aff. ¶ 16. He submits a version of the bill of lading that does not contain the relevant language. See Beaumont Bill of Lading. Thus, there is evidence in the record to support Beaumont’s position. See Brooklyn Ctr. For Indep. of the Disabled, 11 F.4th at 64.

In its reply brief, VLS asserts that the district court judge in New Jersey previously rejected the contention that Beaumont lacked notice of the reverse side of the bill of lading. Reply at 1. This assertion is incorrect. Based on this Court’s review of the record, Beaumont never argued in his briefing to the New Jersey district court that the COGSA $500-per-package limitation does not apply because VLS failed to send the reverse side of the bill of lading. Rather, Beaumont argued that the forum selection [*9] clause was an unenforceable contract of adhesion and that a “reasonably prudent person” would not have been aware of the forum selection clause in “very tiny” print on the back of the bill of lading [ECF No. 8]. In response, the New Jersey district court ruled that it did not matter whether the bill of lading was a contract of adhesion. Beaumont, F. Supp. 3d at 260. The New Jersey district court also commented that there was no issue as to whether Beaumont had sufficient notice, citing a version of the bill of lading supplied by VLS. Beaumont, F. Supp. 3d at 261. None of that reasoning applies here, since COGSA requires a fair opportunity to declare higher value than its $500 limitation, and, as explained, above Beaumont does offer evidence that he lacked sufficient notice.

VLS also argues in its reply that Beaumont had a fair opportunity because the front of the bill of lading states: “FOR EXCESS AD VALOREM VALUE SEE CLAUSE 19 ON REVERSE SIDE.” Reply at 2. According to VLS, this was sufficient to put Beaumont on notice that the bill of lading had a reverse side. Beaumont, meanwhile, points out that the front of the bill of lading says “Page 1 of 1,” suggesting that there was no second page. See Beaumont Bill of Lading. At this stage of [*10] the case, the Court cannot weigh the conflicting evidence and decide whether the front of the bill of lading provided Beaumont with sufficient notice and a fair opportunity to avoid the $500 limitation on liability. See Jaegly, 439 F.3d at 151.

Rather, the Court’s role on summary judgment is only to determine whether there is a material dispute, and it is clear there is such a material factual dispute here. Moreover, since it remains to be seen whether COGSA imposes any limitation on VLS’s liability, it is premature to decide whether COGSA preempts Beaumont’s other claims. Cf. Alpina Ins. Co. v. Trans American Trucking Serv., Inc., 2004 WL 1673310, at *4 (S.D.N.Y. July 28, 2004) (“When COGSA limits liability, it preempts state law. . . .”) (emphasis added).

IV. CONCLUSION

For the reasons set forth above, the motion for partial summary judgment is DENIED. The Clerk of Court respectfully is requested to close the motion at docket entry 31. The parties shall appear for a Post Discovery Conference on October 26, 2023 at 10:00 a.m. A joint status letter and any pre-motion submissions are due one week before the conference.

SO ORDERED.

Date: September 27, 2023

New York, NY

/s/ Mary Kay Vyskocil

MARY KAY VYSKOCIL

United States District Judge

End of Document

¹The facts are drawn from the declarations, affidavits, and exhibits that the parties submitted in connection with this motion [ECF Nos. 32, 36, 38, 39, 41]. VLS properly submitted a statement of facts pursuant to Local Civil Rule 56.1 and the Court’s Individual Rules [ECF No. 33]. Beaumont failed to do the same. As such, VLS contends that its own statement of facts should be “deemed admitted,” and the Court should rule that there is no material dispute of fact in this case [ECF No. 40 (“Reply”) at 1]. However, as explained below, Beaumont submits an affidavit and exhibits that make clear there is a material dispute about whether VLS sent Beaumont the portion of the bill of lading that discloses the $500 per package limitation on liability and, therefore, provides a fair opportunity to declare higher value and pay an excess charge for additional protection [ECF No. 32-2 (“VLS Bill of Lading”); ECF No. 36-1, Ex.1 (“Beaumont Aff.”) ¶¶ 16, 17, 18; ECF No. 36-1, Ex. C (“Beaumont Bill of Lading”), ECF No. 36-1, Ex. D]. See Nippon Fire & Marine Ins. Co. v. M.V. Tourcoing, 167 F.3d 99, 101 (2d Cir. 1999).