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Cases

Security Insurance v. Old Dominion

United States District Court,

S.D. New York.

SECURITY INSURANCE COMPANY OF HARTFORD, a/s/o JT International Holdings, B.A.,

Plaintiff,

v.

OLD DOMINION FREIGHT LINE, INC., and Concord Transportation, Inc., Defendants.

Aug. 22, 2003.

OPINION AND ORDER

LYNCH, J.

This dispute concerns a shipment of cigarettes transported by truck from North Carolina to Montreal, Canada, where it was stolen shortly after being deposited in a bonded warehouse pending inspection and release by the Canadian customs authorities. Plaintiff Security Insurance of Hartford (“Security”) is the subrogee of RJ Reynolds, Inc. (“RJR” or “the shipper”), which owned the cigarettes and contracted for their transportation to Canada. Security sues the trucking company that RJR hired to ship the cigarettes, Old Dominion Freight Line, Inc. (“Old Dominion” or “the carrier”), for the full value of the lost cargo. Security originally named Concord Transportation, Inc. (“Concord”), a Canadian transportation company that was Old Dominion’s subcontractor, as a co- defendant, but later withdrew its complaint against Concord. [FN1] Old Dominion, however, then filed a cross-claim against Concord which remains pending.

FN1. The action against Concord was dismissed without prejudice on April 27, 2002, upon plaintiff’s voluntary withdrawal of the complaint against Concord.

Several motions have been filed. Security has moved for summary judgment, arguing that Old Dominion is strictly liable for the loss of the cargo under the law relating to common carrier liability. Both Old Dominion and Concord moved either to dismiss the complaint on the grounds of forum non conveniens, or to stay this action pending resolution of a prior action in a Canadian court involving the same incident (the “Canadian Action”). The parties appeared for oral argument on the motions on June 30, 2003.

For the reasons that follow, the Court finds that Old Dominion is strictly liable for the loss of the cargo en route to its final destination in Canada. Therefore, Old Dominion’s motion for dismissal or stay based on forum non conveniens is denied, because there would be no additional convenience in trying a strict liability action between an American shipper and an American carrier in Canada. Moreover, because there are no issues of material fact in dispute, and because Old Dominion fails to raise an adequate defense to the prima facie case for liability, summary judgment is awarded to Security. Finally, because Old Dominion’s claim against Concord essentially concerns matters that are more appropriately tried in Canada, Concord’s motion to dismiss the cross-claim on grounds of forum non conveniens is granted.

BACKGROUND [FN2]

FN2. Except as otherwise indicated, the following facts are drawn from the parties’ affidavits and legal memoranda submitted in connection with the various motions before this Court. The Court notes that plaintiff never filed a Statement of Uncontested Facts with its Motion for Summary Judgment, as required by Local Rule 56.1, but instead provided a statement of facts in the multiple affirmations submitted by its counsel Michael J. Slevin. Plaintiff also failed to comply with Local Rule 7.1, which requires submission of a brief in support of or opposition to a motion, rather than submission of affirmations combining factual statements with legal argument. To avoid prejudicing the plaintiff because of errors of form, the plaintiff’s procedurally defective submissions will be considered on the merits. The Court notes, however, that its rules are designed to facilitate the identification of potential factual disputes, and that the failure to follow them significantly burdens the Court in dealing with complex summary judgment motions.

Carriage from North Carolina to Canada

On March 20, 1996, RJR entered into a Transportation Agreement or contract of carriage (“Contract”) with Old Dominion setting forth terms of carriage for shipments undertaken by Old Dominion. The Contract automatically renewed for one year periods unless cancelled in writing. Plaintiff alleges that on July 13, 1999, 604 cases of Camel Light cigarettes and 175 cases of Winston KS cigarettes were loaded into an Old Dominion truck on the premises of RJR in Winston-Salem, North Carolina. The straight bill of lading for that shipment identified the consignee as RJR Macdonald, Inc., in Montreal, Canada, c/o Collector of Customs. (Straight Bill of Lading dated July 13, 1999, Ex. A. to Affirmation of Michael J. Slevin, dated Jan. 21, 2003 (“Slevin Aff.”).)

Old Dominion transported the cargo to Greensboro, North Carolina, where it turned the cargo over to its subcontractor, Concord. (Slevin Aff. ¶ 4.) Concord trucked the cargo to Lewiston, New York, and over the border into Canada, on July 14, 1999. (Slevin Aff ., Ex. B.) At the direction of the Canadian customs authorities, Concord transported the cigarettes to a warehouse owned by Intermediate Terminals Warehousing (“Intermediate”) in Montreal on July 20, 1999, to be stored there in the Concord trailer pending customs release, at which time they were to be delivered to the consignee, RJR Macdonald in Montreal.

Theft of the Cigarettes

The parties agree that the cargo was subsequently stolen from the Intermediate warehouse by an unknown party. The plaintiff claims that the cigarettes were stolen on the same day they arrived at the warehouse, and that no one noted the theft until the consignee began looking for the missing shipment over a week later, after Canadian customs authorities had officially released the cigarettes.

Old Dominion was apparently unaware of the theft, and did not report it to the shipper in North Carolina or to the consignee in Montreal. When the cargo did not arrive at the final destination in Montreal by August 3, 1999, RJR Macdonald reported the loss to the Montreal police. The plaintiff claims to have learned, in the course of subsequent investigation, that the Concord trailer, missing its cargo, had been discovered by the Montreal police in front of some other warehouse on July 22, 1999. It appears undisputed that the police did not identify the origin of the trailer it found, nor did the bonded customs warehouse notice the theft of the trailer from its premises, until after RJR Macdonald had reported the missing cargo to the police.

Filing of the Claim

RJR filed a claim with Old Dominion for reimbursement for the lost cargo. None of the motion papers before the Court includes a copy of plaintiff’s claim letter, nor do the parties refer to the date of the claim, but on May 22, 2000, Old Dominion’s Director of Claims sent a letter to RJR referring to a claim in the amount of $133,436.05. The letter stated that because the shipment had been transferred to Concord, Old Dominion would transfer the file to Concord, and Concord “would resolve this matter with [RJR] direct [sic ],” and that Old Dominion was closing its file on the claim. (Letter from Ernie Benge to S. Appelbe/Frt Claims, Ex. A to Affidavit of Ernie S. Benge, dated Feb. 17, 2003 (“Benge Aff.”).)

The parties dispute whether the May 22 letter constituted a disallowance of RJR’s claim, sufficient to start the clock on the shipper’s time to initiate suit. Old Dominion argues that the letter was a clear rejection of liability for the claim. (Def. Mem. in Opp. to Summ. J. at 12.) Security argues that while the letter referred RJR to Concord for further proceedings on the claim, RJR had no reason to believe that Old Dominion had rejected its responsibility for the loss. The May 22 letter to RJR enclosed a letter from Concord to Old Dominion, wherein Concord advised Old Dominion that RJR had filed a claim against Concord, and that Concord had in turn filed a claim against the warehouse in Canada. (Letter from Jacqueline Craig to Eddie Wooten dated May 5, 2000, Ex. B to Reply Affirmation of Michael J. Slevin, dated Feb. 25, 2003 (“Slevin Reply Aff.”).) Concord agreed to advise Old Dominion “upon closure of RJ Reynold’s [sic ] claim against Concord Transportation Inc. when all pertinent matters have been attended to.” (Id.)

There was no further correspondence between the parties concerning the claim until nearly two years later, when counsel for Security, as subrogee to the shipper, [FN3] sent a letter to Old Dominion inquiring into the status of the claim. (Def. Mem. in Opp. to Summ. J. at 14; Letter from Michael J. Slevin to Old Dominion dated March 11, 2002, Slevin Reply Aff. Ex. A).

FN3. At some point, Security paid out $195,938 to RJR and/or its parent company Japan Tobacco International Holdings (“JTIH”), pursuant to an insurance policy held by JTIH. (Compl.¶ 2.) Security is therefore subrogated to the interests of JTIH and/or RJR in the claim.

The Canadian and U.S. Lawsuits

On June 17, 2002, Security brought suit in the Superior Court of the Province of Quebec, District of Montreal, against Concord, Intermediate, and Le Groupe de Securitethat is, against the Canadian subcontractor, warehouse, and security firm involved in the events surrounding the theft of the cargo (“Canadian Action”). (Declaration of Gregory Azancot dated Oct. 23, 2002 (“Azancot Decl.”), ¶ 3.) Old Dominion, a Virginia corporation with headquarters in North Carolina, was not named in the Canadian Action. In the Canadian Action, Security seeks damages equal to the $195,938 (U.S.) it had paid out on the claim, in addition to interest and statutory indemnity available under Canadian law. (Azancot Decl. Ex. A at 3.)

On July 10, 2002, less than a month after filing the Canadian Action, plaintiff filed the instant lawsuit against Old Dominion and Concord, demanding damages in the amount of $195,938, plus interest, costs and attorneys fees. (Compl. at 5-6.) After having withdrawn its claims against Concord, plaintiff is left with two lawsuits in two countries concerning the same theft, with no overlap of defendants between the suits (except to the extent that Concord remains in this action as a defendant on Old Dominion’s cross-claim).

DISCUSSION

The Court is faced with a set of intertwined motions concerning procedural questions (defendant and cross-claim defendant’s motions for stay or dismissal based on forum non conveniens), as well as questions on the merits (plaintiff’s motion for summary judgment). Essentially, plaintiff argues that the doctrine of strict liability under common carrier law applies to this dispute, and that there is no practical barrier to this Court exercising jurisdiction because the Court is fully capable of interpreting the Contract, which was executed in the United States. Furthermore, plaintiff argues that the Court should award summary judgment in its favor and find Old Dominion strictly liable for the lost cargo because plaintiff made a timely loss claim, and because plaintiff has established an unrebutted prima facie case of carrier liability.

Old Dominion, on the other hand, argues that strict liability is not the appropriate standard here because the Contract provides that a negligence standard applies to loss in cases such as this one. Under Old Dominion’s negligence theory, there are numerous contested issues of fact concerning the depositing of the cigarettes in the customs warehouse, which would require discovery into the details of the security at the warehouse, and the theft itself. Because the theft occurred in Canada and all witnesses to the depositing of the cargo in the warehouse are in Canada, and because this Court does not have the power to compel testimony or issue discovery orders enforceable in Canada, Old Dominion argues that Canada is the proper forum for this dispute. To the extent that Old Dominion might not otherwise be subject to Canadian jurisdiction, it offers to submit to the jurisdiction of the Quebec court as a condition of the dismissal it seeks here.

I. Forum Non Conveniens

Since the most fundamental issue is whether the Court should exercise jurisdiction, we turn first to the forum non conveniens analysis. Under the doctrine of forum non conveniens, a district court has broad discretion to dismiss an action, over which jurisdiction is otherwise proper, based on the convenience of the parties and the interests of justice. See Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527 (1947); R. Maganlal & Co. v. M.G. Chem. Co., Inc., 942 F.2d 164, 167 (2d Cir.1991) (“A district court has broad discretion in deciding whether to dismiss an action on grounds of forum non conveniens.” ); Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 145 (2d Cir.2000) (“We have recognized that our review of a forum non conveniens dismissal is limited to whether a district court abused its broad discretion to dismiss on such grounds.”).

District courts apply a two-part test in determining whether to grant a motion to dismiss based on forum non conveniens. Specifically, “[t]o prevail on a motion to dismiss based on forum non conveniens, a defendant must demonstrate that an adequate alternative forum exists and that, considering the relevant private and public interest factors set forth in [Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947) ], the balance of convenience tilts strongly in favor of trial in the foreign forum.” Maganlal, 942 F.2d at 167.

In this case, the Court need not decide the adequacy of Canada as a forum because the second prong of the Gulf Oil test is dispositive of the forum non conveniens analysis. The key to the weighing of public and private interest factors here is the location of the sources of proof, which would dictate the convenience, and indeed, the practicability, of discovery and trial. Therefore, the linchpin to the forum non conveniens analysis is the applicable standard of liability. If plaintiff is correct that this is a strict liability case, then the circumstances surrounding the theft of the cargo in Canada are irrelevant to the resolution of the claim. No additional convenience would be gained from pursuing Security’s claim in Canada, because no Canadian discovery would be required to determine the merits of a strict liability action based on the United States-executed contract of carriage. However, if defendant is correct that a negligence standard applies, then discovery into the security at the warehouse and the circumstances of the theft would be necessary to determine liability. In that event, the balance of convenience might very well tip in favor of the Canadian forum (assuming it were found to be adequate) because the sources of proof concerning the theft, and the care taken to prevent it, lie for the most part in Canada, easily accessible to the Canadian court but beyond the reach of this one. Because the Court finds that strict liability applies, there is no need for discovery in Canada, and therefore Old Dominion’s motion to dismiss or stay based on forum non conveniens is denied.

A. Standard of Liability

At common law, a common carrier is liable as a virtual insurer for cargo it transports, with some significant exceptions. See Shippers Nat’l Freight Claim Council, Inc. v. ICC, 712 F.2d 740, 745 (2d Cir.1983). The Interstate Commerce Act of 1887 (“ICA”) codified this common law rule. Under the Carmack Amendment to the ICA (enacted as part of the Hepburn Act of 1906, ch. 3591, sec. 7, 34 Stat. 584, 593-95 (1906)), a common carrier transporting goods interstate or from the United States to an adjacent country under a through bill of lading is liable to the person entitled to recover under the bill of lading for actual loss of property. If the carrier can establish a common law exception, then the carrier is held to a negligence standard. The Carmack Amendment’s strict liability provisions were carried over into the ICC Termination Act of 1995 (“ICCTA”), effective January 1, 1996. See 49 U.S.C. § 14706(a)(1). Significantly, under the ICCTA, registered motor carriers may also enter a contract with the shipper, and may waive rights and remedies under the statute. 49 U.S.C. § 14101(b). In effect, this allows parties to contract around the strict liability rule. See Saul Sorkin, Goods In Transit § 6.01[7][c] (2003).

While, as a general rule, common carriers are strictly liable for loss that occurs during shipment, a different liability standard applies after delivery has been tendered if the cargo remains in the carrier’s possession. In the absence of a valid agreement to the contrary, the liability of a common carrier for possession of a shipper’s goods after completion of transportation and tender of delivery is the negligence standard applicable to a warehouseman or bailee. In other words, if a carrier transports the goods and tenders delivery, but the consignee does not accept delivery, then the carrier is only liable for losses resulting from its negligence during the time it stores the cargo subsequent to consignee’s rejection. See e.g., General Am. Transp. Corp. v. Indiana Harbor Belt R. Co., 191 F.2d 865, 870 (7th Cir.1951).

Here, the Contract between Old Dominion and RJR provided that Old Dominion would assume “liability at the full actual value (wholesale selling price of the property in the quantity shipped), such liability to exist from the time of the receipt of any of said goods by [Old Dominion] until proper delivery has been made.” (Contract ¶ 6(a), Ex. C. to Slevin Aff.) The Contract thus creates a general rule essentially the same as the common law rule that Old Dominion is liable as an insurer for the cargo. The Contract further specifies that under certain circumstances, Old Dominion’s liability will be reduced to the negligence standard applicable to a warehouseman: “If a shipment is refused by the consignee, or [Old Dominion] is unable to deliver it for any reason, [Old Dominion’s] liability as a warehouseman shall not begin until it has placed the goods in a public warehouse or other storage facility under reasonable security.” (Contract ¶ 6(c), Ex. C to Slevin Aff.)

Old Dominion argues that when Canadian customs halted the cargo for further inspection, Old Dominion became “unable to deliver” the cargo to the consignee, and when the cargo was then deposited in a bonded customs warehouse pending further action, Old Dominion’s liability was reduced to that of a warehouseman by operation of Paragraph 6(c) of the Contract. At a minimum, it contends, discovery is required into conditions at the warehouse to determine whether the “reasonable security” requirement of Paragraph 6(c) was met, thus satisfying the requirements triggering the negligence standard under the Contract.

By its own plain terms, however, and as a matter of law, Paragraph 6(c) does not apply to this situation. The paragraph, properly read, does not extend the conditions under which the shipper’s liability is limited to negligence; rather, it restricts those conditions, providing that if the conditions arise that under common law would trigger a shift from strict liability to liability for negligence, the shift is delayed “until [Old Dominion] has placed the goods in a public warehouse or other storage facility under reasonable security.” Before the question of “reasonable security” even arises, it must be determined whether those triggering conditions have occurred, since Paragraph 6(c) only applies (1) “[i]f a shipment is refused by the consignee,” or (2) if Old Dominion “is unable to deliver it for any reason.”

The first triggering event, if the “shipment is refused by the consignee,” is clearly inapplicable. This condition would involve a tender of delivery to the consignee, who refused to accept. That did not happen in this case, as delivery was never tendered.

The second event that could trigger negligence liability is if the carrier is “unable to deliver for any reason.” This condition encompasses situations where the carrier has not tendered delivery to the consignee because delivery is impossible. The question here is whether the halting of the cargo by Canadian customs constituted an action which made delivery to the consignee impossible, or merely a temporary interruption of transportation leading to incidental storage of the cargo by the carrier (or in this case, by its subcontractor).

The detention of the cargo by Canadian customs authorities has the hallmarks of a mere interruption in transportation, and in fact, an interruption that the parties could easily have foreseen. The detention of cargo did not make delivery impossible – it was the theft that made delivery impossible. Barring the theft, Canadian customs would have cleared the cargo for entry into Canada (as, in fact, it did, at which point the consignee discovered that the cargo was missing), and the carrier would have been able to deliver the cargo to the consignee. Parties contracting to ship goods across an international border necessarily contemplate that the goods will have to clear customs, a process that might entail some delay. The possibility that the goods will be so delayed, requiring storage by the carrier, like the possibility that progress will be interrupted by weather or traffic conditions, does not constitute a condition that renders the carrier “unable to deliver” the shipment, but simply an anticipated interruption in the course of carriage and delivery. Under common carrier law, storage incidental to carriage is insufficient to convert a carrier into a warehouseman. See Baloise Ins. Co. v. United Airlines, Inc., 723 F.Supp. 195, 199 (S.D.N.Y.1989). See also Nippon Fire & Marine Insurance Co., v. Skyway Freight Systems, Inc., 45 F.Supp.2d 288, 292 (S.D.N.Y.1999) (noting that courts have rejected theories of warehouseman’s duty under state law where storage was only incidental to transport).

The delay at Canadian customs did not make delivery impossible. Old Dominion does not even allege that the stop by Canadian customs was anything other than a routine customs inspection. The cargo was not impounded by Canadian customs, and no one contends that the cargo would have been permanently refused entry, rendering the carrier “unable to deliver” the goods to the consignee. [FN4] Under the terms of the Contract, deposit of the cargo in a warehouse alone does not trigger the warehouseman’s standard. For instance, if the carrier temporarily deposits the goods in a warehouse en route to the destination because of a brief delay due to inclement weather or because of a sick truck driver, its liability does not change. Under the Contract, the shift to negligence liability occurs only if the carrier is unable to make delivery, and then deposits the cargo in an appropriately secured warehouse. The detention by Canadian customs merely delayed delivery, but would not have precluded it, had the cargo not been stolen. [FN5]

FN4. If a customs authority impounded contraband goods that were prohibited entry into the destination country, it might well follow that the carrier was “unable to deliver” the goods. In such a case, where the goods might require indefinite storage pending the shipper’s instruction of where to transport the goods that were refused entry and thus impossible to deliver, it would be logical that the strict liability of the carrier should end once appropriate warehousing was obtained. Here, however, there is no suggestion that the Canadian customs authority prevented the cargo from entering Canada; on the contrary, the goods were in fact cleared for delivery.

FN5. Old Dominion cannot claim that its liability changed to that of a warehouseman because a theft occurred. It is true that the theft rendered Old Dominion “unable to deliver” the goods, and thus in principle could trigger Paragraph 6(c). But it would be absurd to argue that the loss of the property in itself defeats strict liability because it makes delivery impossible, and the Contract in fact does no such thing. Under Paragraph 6(c), an event that makes delivery impossible only causes a shift to warehouseman’s liability after the carrier reacts to the event by placing the goods in a properly secured warehouse, something that cannot occur when the triggering event is the theft or loss of the goods.

That the parties to the Contract could have foreseen the eventual detention of cigarettes for customs inspection is apparent from the nature of the shipment (international transportation of highly-taxed tobacco products). Moreover, the bill of lading itself, which indicates that the shipment is to “RJR Macdonald Inc. c/o Collector of Customs” and that “[t]his shipment will clear customs in Lacolle, Quebec,” demonstrates that they did foresee that possibility. (Through Bill of Lading, Slevin Aff. Ex. A.) Had the parties intended to hold the carrier only to a negligence standard for cargo held in the carrier’s possession during customs inspection, they could have so contracted. Indeed, that is precisely what occurred in H.P.I. Int’l Corp. v. Yellow Freight System, Inc., No. 84 Civ. 3800, 1987 WL 8069 (E.D.N.Y. Feb. 24, 1987), a case cited by Old Dominion. In H.P.I., unlike this case, the tariff specifically stated that “[f]reight held in carrier’s possession … for customs clearance or inspection … will be considered stored immediately.” H.P.I., 1987 WL 8069. Thus, far from supporting Old Dominion’s position, H.P.I. highlights the fact that the Contract here failed to provide that the carrier is held to warehouseman’s liability for goods stopped for customs inspection.

Because the Court finds that as a matter of law, the depositing of the cargo in the bonded customs warehouse to facilitate Canadian customs inspection was incidental to the carriage, and because the detention for routine customs inspection did not imply an inability to finally deliver the cargo, it follows that Paragraph 6(c) of the Contract was not triggered and Old Dominion’s liability remained that of an insurer.

B. Forum Non Conveniens Analysis

Courts in this circuit follow the Gulf Oil analysis of public and private factors when weighing the relative convenience of different potential fora. See Murray v. British Broadcasting Corp., 81 F.3d 287, 292 (2d Cir.1996). Under the Gulf Oil test, the requisite private factors include:

[1] the relative ease of access to sources of proof; [2] the availability of compulsory process for attendance of unwilling witnesses; [3] the cost of obtaining attendance of willing witnesses; [4] … all other practical problems that make trial of a case easy, expeditious, and inexpensive–or the opposite; [and][5] [i]ssues concerning the enforceability of a judgment.

Murray, 81 F.3d at 294. Public factors include:

[1] the administrative difficulties flowing from court congestion; [2] the local interest in having controversies decided at home; [3] the interest in having a trial in a forum that is familiar with the law governing the action; [4] the avoidance of unnecessary problems in conflict of laws or in the application of foreign law; and [5] the unfairness of burdening citizens in an unrelated forum with jury duty.

Murray, 81 F.3d at 293. Here, given the applicability of the strict liability standard, the balance of conveniences weighs in favor of this Court’s continuing jurisdiction.

Considering first the private factors, it is clear that New York is a convenient forum for this dispute. Because Old Dominion is held to a strict liability standard, the security conditions at the warehouse in Canada and circumstances of the theft are irrelevant to the liability analysis. [FN6] To the extent that contract interpretation is required, this Court is fully capable of interpreting the Contract, which was executed in the United States. To the extent parole evidence would be required to interpret the Contract, the witnesses to its formation appear to be available in this jurisdiction, as they might not be in Canada. Public factors similarly favor this Court’s continuing jurisdiction. United States law applies, the parties are United States corporations, and there is no reason to remove this case from a United States docket only to burden a Canadian court and potentially a Canadian jury with it. Because the balance of convenience factors tips in favor of this Court’s jurisdiction, Old Dominion’s motion for denial or stay on the grounds of forum non conveniens is denied.

FN6. Unless Old Dominion could successfully assert certain common law defenses to strict liability, in which case it would be held to a negligence standard. However, that is not the case here. See infra II.C and II.D.

II. Summary Judgment Against Old Dominion

A. Standard for Summary Judgment

Summary judgment is appropriate when there are no genuine issues of material fact in dispute and when, viewing the evidence in the light most favorable to the nonmoving party, no reasonable trier of fact could disagree as to the outcome of the case. See Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir.2000). While all ambiguities in the evidentiary record must be resolved in favor of the nonmoving party, “the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). In addition, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996). Summary judgment is then appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits … show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

To establish a genuine issue of material fact, the party opposing summary judgment ” ‘must produce specific facts indicating’ that a genuine factual issue exists.” Scotto, 143 F.3d at 114 (quoting Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations omitted). “The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Pocchia v. NYNEX Corp., 81 F.3d 275, 277 (2d Cir.1996) (quoting Liberty Lobby, 477 U.S. at 252).

B. Timeliness of Claim

Before addressing the merits of Security’s claim, it is necessary to consider Old Dominion’s argument that Security cannot prevail because this action was commenced too late under a contractual limitations clause. Alternatively, Old Dominion contends that summary judgment may not be granted because at the very least discovery into the facts of the alleged declination of the claim is required in order to determine the merits of this defense.

Under Contract Paragraph 6(h), a provision authorized by 49 U.S.C. § 14706(e)(1), [FN7] the Shipper has two years and one day from the date of a written disallowance of a claim to file suit. Old Dominion argues that it disallowed RJR’s claim by letter on May 22, 2000, starting the limitations clock, and that RJR therefore had until May 23, 2002, to file suit. Because RJR’s subrogee filed the instant lawsuit on July 8, 2002, Old Dominion argues that the claim is time-barred.

FN7. This statute provides in pertinent part that: “A carrier may not provide by rule, contract or otherwise … a period of less than 2 years for bringing a civil action against it under this section. The period for bringing a civil action is computed from the date the carrier gives a person written notice that the carrier has disallowed any part of the claim specified in the notice.”

The Second Circuit has specified that in order to trigger a contractual limitations clause of this kind, a written communication must “operate as a clear, final and unequivocal disallowance [of the claim],” and has warned carriers against using “words that are susceptible of more than one meaning, [as] it increases the risk that later it will be found not to have started the time limitations clock ticking.” Combustion Engineering, Inc. v. Consolidated Rail Corp., 741 F.2d 533, 537 (2d Cir.1984). The question here is whether Old Dominion’s May 2000 letter was sufficient to trigger the limitations period in the Contract and render this action untimely.

In the May 2000 letter, Old Dominion’s Director of Claims notified RJR that upon receipt of the claim, the file was transmitted to Concord for further handing and therefore Old Dominion was “closing [its] files.” (Benge Aff. Ex. 1.) Security argues that the May 2000 letter is at best ambiguous, since it indicated only that the claim was being passed on to the subcontractor, but did not definitively reject the claim. Rather, Security claims, the “clear, final and unequivocal disallowance” of the claim did not occur until an April 2, 2002, letter from Old Dominion’s Director of Claims to Security’s attorney stated that “[w]e decline liability under completion of contract or authority of law.” (Slevin Aff. Ex. D.) As Security points out, the April 2002 letter, which uses unambiguous language denying the claim, does not refer to any prior disallowance of the claim.

The Court agrees with Security that the language of the May 2000 letter is susceptible of multiple interpretations. It could easily mean, as Security contends, that Old Dominion expected the subcontractor to pay the claim, and that Old Dominion therefore need not do so. Old Dominion cited no reason why it was not ultimately responsible for the claim, as it did in the April 2002 letter, and did not indicate that “closing the file” constituted a definitive rejection of the claim. The May 2000 letter thus could be interpreted as a mere deferral of the claim, pending the subcontractor’s response. As a sophisticated actor engaged in the business of interstate and international shipping, Old Dominion can be expected to heed the Second Circuit’s warning and clearly decline a claim when that is, in fact, what it is doing. The vague language of the May 2000 letter does not meet the legal standard of a disallowance. Because that letter was not a “clear, final and unequivocal disallowance” of the claim as required in this Circuit, the time limit for the shipper to file suit did not begin to run until the definitive disallowance of the claim on April 2, 2002. Therefore, Security’s suit was timely brought and Old Dominion’s defense is rejected. [FN8]

FN8. Contrary to Old Dominion’s alternative argument, this question presents no factual issues, and no discovery is necessary to resolve it. Whether the May 2000 letter constituted a “clear, final and unequivocal disallowance” of the claim is essentially a question of law that depends on a reading of the text of the letter. Because the carrier has the power to fix the time when the limitations period begins to run, courts have required a clear and unequivocal date for the start of the limitations period. Combustion Engineering, 741 F.2d at 536. The purpose of the rule is to permit a claimant to file suit once it knows that its claim is not going to be paid voluntarily. Since a reasonable reader would have found the May 2000 letter ambiguous, and could have believed that it was still possible that the claim would be voluntarily paid by Old Dominion or Concord, the letter is not sufficiently “clear, final and unequivocal” to trigger the limitations clause.

C. Prima Facie Case of Carrier Liability

In order to make a prima facie case of carrier liability under the Carmack Amendment, a shipper must show that the cargo was delivered to the carrier in good condition, arrived at the destination in damaged condition (or failed to arrive at all), and damages. See Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619, 625 (2d Cir.1980). Once a prima facie case has been established, the burden is on the carrier to show both that it was not negligent and that the damage or loss was due to one of the excepted causes relieving the carrier from liability. Id. at FN 10. The excepted causes are: act of God, of public enemy, of the shipper, or of public authority, or the inherent vice of the cargo. See Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137 (1964). Because the defendant agrees that the cargo was stolen from the Canadian warehouse and thus never arrived at the destination, the second element is met and plaintiff need only present evidence of the first and third elements of the prima facie case. For the reasons that follow, the Court finds that plaintiff has established a prima facie case, which defendant fails to rebut.

1. Condition of the Cargo

Old Dominion argues that plaintiff has failed to present evidence that the cargo was delivered in good condition to the carrier, because the cigarettes were in sealed packages and the carrier could not inspect the condition or quantity of cargo upon receipt. A clean bill of lading is ordinarily prima facie evidence of delivery to the carrier in good condition. See Caemint Food Inc. v. Lloyd Brasiliero Co., 647 F.2d 347 (2d Cir.1981). However, “[a] clean bill of lading does not … constitute prima facie evidence of the condition of goods shipped in sealed packages where the carrier is prevented from ‘observing the damaged condition had it existed when the goods were loaded.” ‘ Bally, Inc. v. M.V. Zim America, 22 F.3d 65, 69 (2d Cir.1994), quoting Caemint, 647 F.2d at 352. In the case of a sealed container, the shipper must present other evidence to show that the goods were delivered to the carrier in good order. See Bally, 22 F.3d at 69. The question here is whether plaintiff has presented evidence that the cigarettes were provided to Old Dominion in good condition in the amounts specified.

Security has alleged that 175 boxed of Winston cigarettes and 604 boxes of Camel Light cigarettes were loaded onto Old Dominion trucks on July 13, 1999, at RJR’s Central Distribution Center. In support of this allegation, plaintiff cites: (1) the Straight Bill of Lading, which indicates the number of boxes and the weight of the cargo and bears what plaintiff claims is the signature of the Old Dominion truck driver who accepted the cargo; (2) an affidavit of the consignee’s Director of Taxation and Insurance attaching the invoice for the shipment and customs receipt for the shipment (Affidavit of Robert McMaster, sworn to Dec. 22, 2002 (“McMaster Aff.”), attaching invoice as Ex. B and Revenue Canada customs receipt as Ex. C); and (3) the affidavit of Walter F. Nowicki, a Distribution Manager at the RJR Central Distribution Center at the time of the shipment (Affidavit of Walter F. Nowicki, sworn to Jan. 22, 2003, (“Nowicki Aff.”)).

Old Dominion argues that based on the Nowicki Affidavit, it appears “that the cargo was loaded and sealed by RJ Reynolds” and that therefore the bill of lading does not constitute prima facie evidence of the condition of the cargo because defendant could not inspect it. Because the Nowicki Affidavit is unclear about the nature of the cargo’s packaging, the defendant has raised an issue of fact as to the packaging. However, that does not preclude summary judgment if there is other evidence of quality and quantity from which a factfinder could only conclude that plaintiff has established good condition upon delivery to the carrier. Even assuming that the cargo was packaged in such a way that prevented inspection, there is sufficient other evidence of quantity and quality demonstrating delivery in good order to the carrier, and Old Dominion has failed to present any evidence creating a contested issue of material fact concerning the condition of cargo upon receipt.

As to quantity, the Consignee’s invoice and the bill of lading state the number of boxes of cigarettes and their weight. Old Dominion does not dispute the weight of the shipment upon delivery or thereafter, or suggest that the cargo weighed less than what that amount of cigarettes should weigh. Since the carrier had a contractual duty to weigh the cargo (Contract ¶ 2(d)), its failure to contest that the weight of the cargo conformed to the purported number of boxes in the shipment confirms that the cargo contained the number of cigarettes indicated on the bill of lading.

As to quality, the Nowicki Affidavit provides detailed information on the retrieval system at the RJR facility. The multiple checks on inventory and the precise system described, in addition to the highly regulated nature of the cargo, provide ample basis for a factfinder to infer that the cargo was received in good condition. Once again, Old Dominion presents no evidence from which a factfinder could draw any other conclusion. In any event, the issue of quality is something of a red herring. This is not a case in which goods were delivered to the consignee in poor condition, and the question is whether they were originally shipped that way or the damage occurred during carriage. Here, the goods were never delivered, and there is no dispute that they were stolen during carriage. Under these circumstances, the issue of quality could at most bear on damages, and not on the carrier’s liability.

2. Damages

The proper measure of damages in a Carmack Amendment case is “actual loss,” defined as “the fair market value of the lost or damaged goods at destination.” Jessica Howard Ltd. v. Norfolk Southern Railway Co., 316 F.3d 165, 168 (2d Cir.2003). Security claims damages in the amount of $195, 938 (U.S.), the amount that Security paid its insured, the consignee RJR Macdonald, on the claim. Needless to say, an insurer is unlikely to pay an insured more than its actual loss. Moreover, Old Dominion has failed to raise a contested issue of fact concerning the amount of damages. In support of its damages claim, Security submits the affidavit of the Director of Taxation and Insurance at JTI-Macdonald Corp., formerly known as RJR-Macdonald Corp., who testifies that Security paid RJR-Macdonald $195, 938 (U.S.) on the claim for the lost cargo. (McMaster Aff. ¶ 11.) Old Dominion does not dispute either the fact or amount of the insurance payment. Plaintiff has thus met the final element of the prima facie test.

Accordingly, Security has established a prima facie case of carrier liability. Absent a genuine issue of material fact about one of the limited defenses available to a carrier, it would be entitled to summary judgment. Old Dominion has offered only one defense, that the loss resulted from an act of public authority.

D. Public Authority

Old Dominion argues that it is not strictly liable under the Contract because the loss of the cargo resulted from the actions of the Canadian customs authorities in halting the goods. Old Dominion attempts to invoke the force majeure provision of the contract (¶ 19(c)), which states that “neither shipper nor carrier shall be liable for damages for any … failure to perform any of the terms and provisions of this Agreement arising from causes beyond its control, including but not limited to … acts of civil or military authority.” This provision is consistent with the excepted causes of loss or damage under the Carmack Amendment.

The argument fails, because the force majeure clause on its face only applies when an action of the sovereign caused the loss. Here, the loss was caused not by the detention of the goods, but by the theft. Unlike the situation in which goods are confiscated by governmental authority, the Canadian government itself did not take nor destroy the cargo. That the goods were stolen while the goods were in the carrier’s custody pending an entirely foreseeable customs inspection does not make the Canadian government the “cause” of the loss, any more than bad weather could be blamed if the goods were stolen while the driver was parked in a rest stop waiting out a storm. Old Dominion has not cited and research has not revealed any authority that applies the concept of force majeure in such circumstances, to a loss that was the product of a theft that occurred during, rather than because of, the interruption of a journey due to predictable events.

E. Summary

Security, as subrogee of RJR, is entitled to summary judgment against Old Dominion, because there is no genuine issue of material fact as to its prima facie case of strict liability, and because the only defenses presented by Old Dominion, untimeliness of the lawsuit and the applicability of the force majeure provision of the contract, fail as a matter of law.

III. Old Dominion’s Cross-Claim against Concord

It may well be that Old Dominion’s cross-claim against Concord is subject to a similarly simple analysis. However, Old Dominion has not moved for summary judgment against Concord, so that the Court does not have a record upon which to assess the ease or difficulty of adjudicating this claim. Moreover, both parties to the cross-claim, Old Dominion and Concord, have consistently argued that it would be more convenient to litigate this claim in Canada, where, in addition, the rights of either or both of them against the warehouse and the security firm that protected it can be adjudicated. (Transcript of June 30, 2002, oral argument (“Tr.”), at 24-25.) In furtherance of its forum non conveniens argument, Old Dominion consented to the jurisdiction of the Canadian court (Def. Mem. in Supp. of Mot. to Dismiss at 5) and agreed that United States law will apply to this dispute (Tr. 19) and that Old Dominion would not take advantage of any statute of limitations defense available in Canada but not in the United States (Tr. 29). The same conditions should properly apply to Concord in its defense of the cross-claim brought by Old Dominion.

There is no reason not to grant these parties their wish to proceed in Canada. Accordingly, Concord’s motion to dismiss Old Dominion’s cross-claim against it is granted on consent on the conditions that Concord (1) agree that United States law will apply to the adjudication of the claim in a Canadian forum; and (2) waive any defenses it would have in Canada that are unavailable in the United States.

CONCLUSION

For the foregoing reasons, Old Dominion’s motion to dismiss or stay based on forum non conveniens is denied. Plaintiff’s motion for summary judgment for damages in the amount of $195,938 plus interest and costs is granted. Concord’s motion to dismiss Old Dominion’s cross-claim is granted on consent, on the conditions stated, without prejudice to Old Dominion’s right to reinstitute its claim should Concord fail to adhere to the stated conditions or should the Canadian court decline to hear the dispute.

QBE Insurance v. P&F Container

Superior Court of New Jersey,

Appellate Division.

QBE INSURANCE COMPANY, Plaintiff-Appellant,

v.

P & F CONTAINER SERVICES, INC., Jimmy Bedon, and Ioannis Kollas, Defendants,

and

Augustin Semeina and The Connecticut Indemnity Company, Defendants-Respondents.

Submitted May 7, 2003.

Decided July 30, 2003.

Before Judges WEFING, WECKER and LISA.

The opinion of the court was delivered by

WECKER, J.A.D.

This appeal involves the scope of coverage required for a leased vehicle under a federally-mandated endorsement to an interstate trucker’s liability policy. The Law Division judge decided cross-motions for summary judgment in favor of coverage shortly after the complaint was filed and before any discovery had taken place. We now reverse and remand for a determination whether the leased vehicle was involved in interstate commerce either by virtue of the terms of the lease agreement or the nature of the trip.

On January 16, 2001, a tractor owned by defendant Ioannis Kollas, leased to defendant P & F Container Services, Inc. (P & F), and operated without an attached trailer by P & F’s employee, defendant Jimmy Bedon, collided with a passenger vehicle operated by defendant Augustin Semeina. Semeina sustained personal injuries. The accident occurred while the tractor was en route to the Elizabeth Marine Terminal at P & F’s direction to pick up a shipment of goods allegedly intended for delivery elsewhere in New Jersey. The terminal, also known as Port Elizabeth, is operated by the Port Authority of New York and New Jersey.

P & F is a motor carrier registered with the Surface Transportation Board (the Board) of the United States Department of Transportation (DOT) for transportation of property. [FN1] See 49 U.S.C.A. §§ 13901, 13902. The Kollas tractor apparently was not carrying a DOT placard or other sign identifying it as a vehicle registered for interstate transport on the date of the accident. [FN2] P & F carried liability insurance under a trucker’s liability policy issued by plaintiff, QBE Insurance Corporation (QBE). Kollas insured the vehicle under a non-trucker’s policy issued by defendant Connecticut Indemnity Company (Connecticut) (also known as a “bobtail” policy). The Connecticut policy covered the tractor when it was not involved in business trucking activities.

FN1. The Surface Transportation Board replaced the Interstate Commerce Commission (I.C.C.) as of January 1, 1996. See ICC Termination Act, 109 Stat. 803 (1995), Pub.L. 104-88, effective Jan. 1, 1996. United States Code sections governing motor carriers were renumbered by that enactment. Prior registration as a motor carrier with the I.C.C. remained effective under the Board. 49 U.S.C.A. § 13905(a).

FN2. The police accident report contains spaces for entering “USDOT Carrier No.” and “ICC Carrier No.” Those spaces were left blank.

The tractor was not listed on the QBE policy’s schedule of covered vehicles. The policy included, however, Endorsement MCS-90, as mandated by Sections 29 and 30 of the Motor Carrier Act of 1980. See 49 C.F.R. § 387.7(d)(1), which requires insurance companies who insure vehicles owned or leased by interstate trucking companies to include this additional coverage, up to the required levels, 49 C.F.R. §§ 387.9 and 387.303, regardless of whether the vehicle is listed as a covered vehicle on the policy. 49 C.F.R. § 387.15, adopted pursuant to 49 U.S.C. § 13906(a)(1) and (f). A “lease” is defined under 49 U.S.C.A. § 13102 and 49 C.F.R. § 376.2(e) as “a contract or arrangement in which the owner grants the use of the equipment … to an authorized carrier for use in the regulated transportation of property.”

The endorsement in the prescribed form reads, in relevant part:

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere.

 

The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.

[49 C.F.R. § 387.15 and Illustration I.]

Under the express terms of the MCS-90 (also referred to as “the endorsement”), its scope supercedes any limitations, exclusions, exceptions, or conditions of the base policy.

The history and policy behind federal regulation of interstate carriers, specifically with respect to their use of leased tractor-trailers, has been set forth in many cases, both federal and state. E.g., T.H.E. Ins. Co. v. Larsen Intermodal, 242 F.3d 667, 672 (5th Cir.2001); Progressive Casualty Ins. Co. v. Hoover, 570 Pa. 423, 809 A.2d 353, 359 n. 9, n. 10 (2002). The Fifth Circuit in T.H.E. Ins. Co. summarized that history and the underlying public policy:

The MCS-90 was required under the regulations of the now-defunct Interstate Commerce Commission (“ICC”). When the ICC was abolished, its authority to regulate carriers was transferred to the Department of Transportation, but the old regulations remain in effect until new ones are promulgated. John Deere Ins. Co. v. Nueva, 229 F.3d 853, 855 n. 3 (9th Cir.2000). This Court has stated that ICC endorsements are governed by federal law. Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 610 (5th Cir.1989), modified on other grounds, 901 F.2d 45 (5th Cir.1990) (citing Carter v. Vangilder, 803 F.2d 189, 191 (5th Cir.1986)).

We have also held that the policy embodied in the ICC regulations “was to assure that injured members of the public would be able to obtain judgments collectible against negligent authorized carriers.” Canal v. First Gen., 889 F.2d at 611. Thus, the insurer’s obligations under the MCS-90 are triggered when the policy to which it is attached provides no coverage to the insured. The First Circuit has aptly described the obligation placed upon the insurer by the MCS-90 as one of suretyship. “[W]e consider the ICC endorsement to be, in effect, suretyship by the insurance carrier to protect the public–a safety net…. [I]t simply covers the public when other coverage is lacking.” Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir.1995).

[T.H.E. Ins. Co., 242 F.3d at 672.]

The insurer’s obligations under the MCS-90 are triggered when the policy to which it is attached otherwise would provide no coverage to the insured. Ibid. In other words, under the endorsement, the insurer becomes a surety for the interstate carrier in any case where there is no other coverage provided, either by that carrier or indirectly by the owner of the leased vehicle. See Progressive Casualty, 809 A.2d at 360 n. 11. The overriding purpose of the MCS-90 is to protect innocent, injured members of the public, like Semeina. See T.H.E. Ins. Co., 242 F.3d at 673; John Deere Ins. Co. v. Nueva, 229 F.3d 853, 857-58, 860 (9th Cir.2000). Federal statutes and regulations governing interstate truckers’ use of leased tractors are aimed at protecting the public by applying safety and financial responsibility rules both to owned and leased vehicles. See, e.g., Harris v. Mitchell, 358 N.J.Super. 504, 507-08, 818 A.2d 443, 444-45 (App.Div.2003); Moore v. Nayer, 321 N.J.Super. 419, 428 and n. 7, 729 A.2d 449, 454 and n. 7 (App.Div.1999); Casey v. Selected Risks Ins. Co., 176 N.J.Super. 22, 31, 422 A.2d 83, 87 (App.Div.1980); see also Pierre v. Providence Washington Ins. Co., 99 N.Y.2d 222, 227-230, 754 N.Y.S.2d 179, 181- 84, 784 N.E.2d 52 (2002).

The motion judge concluded that the MCS-90 endorsement was applicable in this case even if this accident occurred on a trip that was entirely intrastate, simply because P & F was a federally-registered interstate carrier. The judge said:

[T]he Defendant, the carrier, the hauler in this particular case, P & F, is registered in interstate commerce, whenever they lease a tractor, whether or not it’s in interstate commerce, the carrier [is] required to provide liability insurance to cover that vehicle.

In this case therefore, I find that … regardless of the fact that the vehicle was not being used in interstate commerce, that it was nonetheless required to be covered, [FN3] and that therefore QBE owes a duty to defend the driver and owner of the vehicle as well as P & F, and therefore, I will order a summary judgment in favor of the Defendant[s] … compelling QBE to defend and cover to the limit of $250,000, P & F, Kollas, and Bedon.

FN3. As we shall explain, this conclusion is not warranted based upon the record before us or the applicable law.

[ (emphasis added).]

Thus the motion judge ordered QBE to provide a defense and indemnification to P & F, Bedon, and Kollas, thereby benefitting Semeina.

The issue on this appeal is whether the operative regulation, 49 C.F.R. § 387.15, and the required MCS-90 endorsement, require QBE to defend and cover Semeina’s claims against these defendants. In order to make that determination we must consider the scope of the federal regulation, that is, whether coverage under the MCS-90 endorsement applies (1) to all vehicles operated by a registered interstate carrier on all trips in the course of its trucking business, including trips within the state, as the Law Division judge concluded; or (2) in the somewhat narrow circumstances when the trip “involves” interstate commerce either because the vehicle was available for interstate transport pursuant to the lease or because the trip was one leg of a shipment that originated in or was intended for transport through interstate commerce; or (3) only under more narrow circumstances, when the trip itself either originated or was intended to conclude out of state.

The motion judge relied on Cox v. Bond Transportation, Inc., 53 N.J. 186, 249 A.2d 579 (1969), and Planet Ins. Co. v. Anglo American Ins. Co., 312 N.J.Super. 233, 711 A.2d 899 (App.Div.1998), to conclude that New Jersey courts define “interstate commerce” broadly, and that under controlling federal law, the MCS-90 requires coverage for all transport undertaken by or on behalf of a registered interstate carrier (alternative # 1 above). The judge also concluded that it was legally irrelevant whether the tractor displayed an interstate carrier’s placard.

On appeal, QBE argues that alternative # 3 above is the controlling rule of law. Connecticut and Semeina argue that alternative # 3 is contrary to Cox and Planet. They contend that for purposes of this case it does not matter whether we adopt alternative # 1 or # 2 above because even if not all of P & F’s trucking is in interstate commerce and covered by the endorsement, this trip to Port Elizabeth obviously involved cargo that originated out of state. Connecticut and Semeina urge us to take judicial notice of the fact that the port handles almost exclusively interstate shipments, that this trip must be deemed to involve interstate commerce, and therefore that the endorsement applies.

QBE also argues that these dispositive motions were heard before it had the opportunity for discovery, and it is entitled to the opportunity to learn the details of the tractor’s mission on the day of the accident. We will return to the discovery issue.

Careful reading of Cox convinces us that it is neither alternative # 1 nor alternative # 3, but rather alternative # 2 above, that describes the scope of coverage under the MCS-90 endorsement. Cox, which arose out of a 1965 accident, arose in a somewhat different procedural posture than the case at hand. There the injured plaintiffs won verdicts on their negligence claims against an interstate trucking company and the owner-operator of its leased tractor-trailer. The Appellate Division reversed, and the plaintiffs appealed. The Supreme Court described the issue before it:

The basic issue is whether by reason of the Interstate Commerce Commission regulations defendant [trucking company] as a certificated interstate carrier, should be deemed to have had such possession and control over the tractor at the time of the accident as to make it liable for [the owner-operator’s] negligent operation. The trial court held that under the evidence adduced the issue was a factual one for jury determination.

[Cox, 53 N.J. at 191, 249 A.2d at 581.]

The Court agreed and reinstated the jury verdict, holding that under I.C.C. regulations, Bond was liable for damages caused by a collision between its leased, owner-operated tractor-trailer and a member of the public. [FN4]

FN4. Cox was decided before the enactment of a federal regulation mandating the MCS-90 endorsement. On its face, the lawsuit was between the injured plaintiff and the trucking company; it was not tried as an insurance coverage case.

In Cox, where the operator was not a regular employee of the interstate carrier, there was a material question of fact respecting the relationship between the operator and the carrier. The I.C.C. decal was therefore significant circumstantial evidence that the operator and the leased tractor were engaged in the carrier’s interstate business, and the presumption created by the I.C.C. decal was not rebutted. The Court left no doubt, however, that once a master-servant relationship was found between them, federal law required the interstate carrier to accept responsibility for injuries caused by the operator’s negligence.

Here, unlike the circumstances in Cox, it was P & F’s regular employee, Bedon, who was driving the leased vehicle. There can be no question that the leased tractor was being operated for P & F’s benefit, whether or not P & F’s I.C.C. decal was displayed at the time. Thus there is no question of P & F’s vicarious liability raised in this appeal. The question of fact here is whether the Kollas vehicle either was actually involved in, or was available for, the transport of goods in interstate commerce.

A careful reading of Cox informs our decision. These were the facts in Cox. Under the terms of an oral lease, the tractor’s owner was to undertake both interstate and intrastate oil deliveries on behalf of Bond and was to receive a percentage of Bond’s revenues from those deliveries. On the day of the accident, the owner had transported four or five loads of oil from the Paragon Oil Company in Newark to a Bond customer in Whippany, a trip that was obviously entirely within the state. On arriving back at Bond’s terminal, the driver discovered that his personal vehicle would not start. He decided to drive the tractor home and return it to the terminal the next day, something he did often with Bond’s knowledge. On his way home he was involved in an accident. The truck was carrying a handmade cardboard sign identifying the trucker by name and I.C.C. number.

After dismissing the plaintiff’s common law vicarious liability claim because he found the operator to be an independent contractor, the judge allowed the jury to answer the question “whether [the trucking company] was vicariously liable for [the operator’s] negligence because he was a lease- operator whose tractor bore either a metal decal or a sign indicating that he was operating it on the public highway[s] under [the trucking company’s] I.C.C. franchise and within the activity authorized by it.” Cox, 53 N.J. at 196, 249 A.2d at 583. The jury answered “Yes.”

The Appellate Division reversed on the ground that the operator “was not operating his tractor in interstate commerce at the time of the accident and therefore Bond could not be deemed to be in possession and control of it within the meaning of the Interstate Commerce Commission regulations.” Id. at 196- 97, 249 A.2d at 584. As an independent contractor, the Appellate Division held that the operator’s negligence did not warrant vicarious liability. Id. at 197, 249 A.2d at 584. It was undisputed in Cox that “with the exception of one interstate movement all of [the operator’s] trucking for [the interstate carrier] was intrastate.” Id. at 194, 249 A.2d at 583. The Court continued:

But it does not follow therefrom that his lease-operator agreement was limited to intrastate work. There is substantial evidence to show that his engagement was an unqualified one–to assist generally in the transportation operations of [the trucking company] without any specification or restrictions respecting either interstate or intrastate operation.

[Ibid.]

The Supreme Court found that the federal statute and regulations “eliminate the common law distinction between an independent contractor and an employee. They create a type of statutory employment….” Id. at 205, 249 A.2d at 589. The Court analyzed the issue under federal law and quoted the I.C.C.’s own identification of the problem that prompted a regulatory remedy:

“It is clear that the hard core of the problem confronting the Commission * * * has been the owner-operator trip lease and its attendant evils, such as widespread indifference to carrier responsibility, to safety of operations, and to the scope of carrier operating authority.”

There can be no doubt that the Commission regarded the trip-leasing arrangement as a device which made it difficult for a member of the public injured by the operation of a vehicle so leased to fix carrier responsibility. The regulatory aim was to remedy that evil and Congress concurred in the objective.

[Id. at 200-01, 249 A.2d at 586 (citation omitted).]

Bond had argued that it was not responsible for the tractor owner-operator’s negligence because he was on a trip entirely within New Jersey when the accident occurred. The Court addressed the trucking company’s argument that the federal regulations “apply only when the equipment actually is engaged in its business on a public highway in interstate commerce.” 53 N.J. at 202, 249 A.2d at 587.

If a franchised carrier needs the use of owner-operated tractors in his business, he may lease them exclusively for intrastate or exclusively for interstate transportation, or he may engage them to be available for both intrastate and interstate operation. If he engages the lessor-operator expressly for intrastate carriage alone, and exercises no control over the operation of the vehicles, ordinarily the lessor is an independent contractor and the I.C.C. regulations would not apply to the localized transportation. If the lease is for interstate transportation, manifestly Section 1057.4 of the regulations does apply. [FN5] If, however, there is evidence, even though conflicting, showing that the lessor-operator was engaged to be available generally in the carrier’s business, both interstate and intrastate, and that the carrier by overt acts qualified him for such operation, and the jury finds that he was so engaged and qualified, then under the regulations the carrier must be held to have assumed “exclusive possession, control and use of” and to be responsible for the operation of the vehicle whenever it is being driven on the public highway in the interest of the carrier.

FN5. The provisions of that section of the Code, since renumbered, provided that the carrier assumed full responsibility for use of leased tractors during the lease term “as if the motor vehicles were owned by the motor carrier.” 49 C.F.R. § 376.11. See 49 U.S.C.A. § 14102(a)(4), formerly § 11107.

[Ibid. (emphasis added).]

Thus the Court’s broad interpretation of the scope of federal regulation of the carrier’s leased tractors nonetheless was not without limits. The Court reasoned:

It is neither sensible nor consistent with the basic intention of the Commission–protection of the public against dangers incident to the operation of franchise-authorized vehicles–to apply such a vacillating standard as Bond suggests for determining whether the carrier is responsible under Section 1057.4(a)(4) of the regulations for a particular movement of an owner-operated leased vehicle. For example, franchised carriers are required to provide liability insurance not only to cover vehicles owned and used by them in authorized transportation, but also for non-owned equipment leased from the owner-operator to be used in such transportation. See 49 U.S.C. § 315; Vance Trucking Co. v. Canal Insurance Co., [249 F.Supp. 33, 39 (D.S.C.1966).] Insurance coverage which would protect an injured member of the public one day when the lessor-operated tractor was in interstate carriage, and which would shift away the next day because the leased equipment was in intrastate operation making the operator an independent contractor, thus relieving the carrier of vicarious liability, cannot be the result envisaged by Congress or the Interstate Commerce Commission.

[Id. at 202-03, 249 A.2d at 587-88.]

“The court stated unequivocally that I.C.C. regulation over the use of leased equipment must be construed most liberally in the interest of members of the public using the highways.” 53 N.J. at 203, 249 A.2d at 588. The Court clearly interpreted the federal regulation to be applicable to all carriage by a leased vehicle that was available for interstate transport on behalf of an I.C.C. certificated carrier, even if the specific travel at the time of the accident was entirely within the state.

[I]t has been said that a person engaged in intrastate commerce by motor vehicle as a regular occupation is not exempt from Interstate Commerce Commission regulation “if he undertakes also even casual or occasional transportation” in interstate commerce. Bass v. United States, 163 F.Supp. 1 (W.D.Va.1958). In fact, the Commission by administrative ruling has indicated that the leasing regulations apply unless the non-owned lessor-operated equipment is used solely in intrastate commerce. Adm. Ruling No. 104, 2 C.C.H. Fed. Carr. Rep. § 25, 104 (1957). This ruling gives recognition to the Congressional intention that the use and operation of leased vehicles be put on a parity with equipment owned and operated by the authorized carrier and operated by its own employees. Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524 (Mo.Sup.Ct.1968).

[Id. at 204, 249 A.2d at 588 (emphasis added).]

The Court explained:

We have already indicated that there is no absolute requirement that the lessor-operator must be driving in interstate transportation at the time of an accident in order for the type of statutory employment envisioned by the regulations to exist. In our view when a lessor-operator is engaged for and authorized to operate in interstate business, as may be inferred upon the furnishing of a decal and a carrier name-sign for the leased equipment, and from the actual use thereof in interstate transportation on one occasion within a short time after the inception of the relationship, the carrier’s responsibility for the negligence of the operator may be found during the period of the lease whenever the operation, whether intra or interstate, is in any way with the knowledge and for the benefit of the carrier.

[Id. at 206, 249 A.2d at 589 (emphasis added).]

The significance of Cox for the case before us is that it establishes New Jersey law respecting the application of federal regulations to a registered interstate carrier who operates a leased vehicle on New Jersey highways. So long as the leased vehicle is available to the carrier for both interstate and intrastate trips, even if the specific trip is intrastate, federal rules of financial responsibility apply, including the MCS-90 insurance endorsement.

More recently, in Planet, 312 N.J.Super. 233, 711 A.2d 899, we held that under an MCS-90 endorsement, an I.C.C. carrier’s insurer was responsible for coverage on claims arising out of the operation of a leased tractor, and a bobtail policy issued by another insurer did not cover the accident. [FN6] As in Cox, the issue in Planet was vicarious liability.

FN6. Unlike the arguments in Planet, we see no contention in this appeal that there is liability coverage for this accident under the Connecticut bobtail policy.

The central issue is whether at the time of the accident, the tractor was being “used in the course and scope of the commercial business of the [i]nsured.” We find that it was, and thus Anglo’s policy does not provide coverage.

[Planet, 312 N.J.Super. at 238, 711 A.2d at 902.]

We held that the trip involved in Planet, which was undertaken for the purpose of “getting the tractor repaired[,] inured to [the trucking company’s] benefit,” and therefore the endorsement applied. Id. at 240, 711 A.2d at 903. Implicitly if not explicitly, we found the repairs to be part of the carrier’s interstate operation.

Under Cox, the leased vehicle’s availability for use in the motor carrier’s interstate trucking operation triggers Board jurisdiction and liability coverage under the MCS-90 endorsement required by federal regulation. If this trip itself involved interstate commerce, that also triggers coverage. If this trip did not involve interstate commerce, that fact may be evidence of the limited terms of the lease, even though the intrastate trip would not necessarily remove the vehicle from the Board’s regulatory jurisdiction.

Cox and Planet are consistent with a substantial body of federal case law that looks to the nature and course of a cargo’s transport, not merely the individual leg of its trip, to determine whether that leg is deemed to be in interstate or intrastate commerce. Some background in the applicable federal law will help to define the relevant facts to be developed on remand in this case.

Whether the ICC/DOT regulation and the MCS-90 endorsement apply to the trip in question is “predicated on the recognized federal power over interstate commerce.” Leonard Exp., Inc. v. United States, 298 F.Supp. 556, 560 (W.D.Pa.1969). See Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U.S. 257, 48 S.Ct. 107, 72 L.Ed. 270 (1927); see also Hudson Transp. Co. v. United States, 219 F.Supp. 43 (D.N.J.1963). To distinguish interstate from intrastate commerce in hauling, the essential character of the commerce must be analyzed. Atlantic Coast Line R. Co., supra, 275 U.S. at 268, 48 S.Ct. at 110, 72 L.Ed. at 274. In that case, the United States Supreme Court found intrastate commerce where the Standard Oil Company of Kentucky transported imported oil by rail and motor from coastal storage facilities to inland bulk stations throughout Florida. Id. at 269-70, 48 S.Ct. at 110-11, 72 L.Ed. at 275. Title to the oil did not pass to Standard until after the oil had been delivered in Florida. The Court noted: “The important controlling fact in the present controversy, and what characterizes the nature of the commerce involved, is that [Standard’s] whole plan is to arrange deliveries of all its oil purchases on the seaboard of Florida so that they may all be there stored for convenient distribution in the state….” Id. at 269, 48 S.Ct. at 111, 72 L.Ed. at 275.

The mere fact that cars received on interstate movement are reshipped by the consignee, after a brief interval, to another point, does not, of course, establish an essential continuity of movement to the latter point. The reshipment, although immediate, may be an independent intrastate movement.

[Baltimore & Ohio South-Western R.R. Co. v. Settle, 260 U.S. 166, 173-74,

43 S.Ct. 28, 31, 67 L.Ed. 189, 193 (1922).]

The Eighth Circuit Court of Appeals addressed the very issue before us in Century Indem. Co. v. Carlson, 133 F.3d 591 (8th Cir.1998). That court found a shipment of corn from within the State of Minnesota to a seaport in that State to be interstate commerce where the carrier knew the corn would be shipped to other states. Thus, the court concluded, the accident was covered by the carrier’s liability policy pursuant to the MCS-90 endorsement. The court reasoned that the farmer making the shipment had a “fixed and persistent intent” to send his corn to the river grain terminal, from which he knew that the corn would be shipped out-of-state, even though the shipment occurred wholly within the state and the farmer had a subjective belief that the shipment was being made within intrastate commerce. Id. at 598-99.

The Eighth Circuit drew a similar distinction in an earlier case, Roberts v. Levine, 921 F.2d 804 (8th Cir.1990). There the plaintiff had been cited in a criminal misdemeanor complaint for operating a motor carrier without the appropriate Minnesota permit. Id. at 805. However, a state permit was not required for interstate commerce, due to preemption, and there could be no offense if an operation was in interstate commerce. Id. at 814- 15. The complaint concerned different products and separate trips, all commenced and completed entirely within the state. One shipment involved fertilizer, which, after being shipped to a warehouse in the state, was to be moved by rail to a location in Canada. The court found this shipment to be interstate in nature because the hauler had a “fixed and persisting intent” to engage in interstate commerce. Id. at 814.

The hauler also made two shipments of soybeans to processing plants in the state. The soybeans were to be made into soybean meal and soybean oil and then shipped out of state. The court found that these shipments to the processing plants were intrastate in nature because the hauler did not have a fixed and persisting intent to ship the soybeans beyond the processing plants. Id. at 816.

In Progressive Casualty Ins. Co. v. Hoover, 570 Pa. 423, 809 A.2d 353 (2002), the Pennsylvania Supreme Court reversed summary judgment in favor of a personal injury plaintiff and against the insurance company which had issued a trucker’s policy that included the MCS-90 endorsement. The Court ruled that whether the tractor-trailer was engaged in intrastate or interstate commerce at the time of the accident was a factual question that barred summary judgment. Id. at 368. On the same ground, the Court rejected the insurance company’s argument that “since it was undisputed that the shipment via [this] truck occurred entirely within Pennsylvania, the MCS-90 was inapplicable as a matter of law…. [T]his analysis is misleading in its failure to confront the controlling question of whether and to what degree the interstate and intrastate phases of the transportation of the [shipment] should be deemed interrelated….” 809 A.2d at 368. [FN7]

FN7. The Pennsylvania Supreme Court did not address, as did the New Jersey Supreme Court in Cox, the leased vehicle’s availability for interstate transport (under the terms of the lease) as a basis for federal regulatory jurisdiction. We cannot tell whether that is because the Pennsylvania court considered and rejected that approach, or because the argument was not made, “the parties [having] agree[d] that the determination of whether Progressive’s [MCS-90] mandates payment … depends upon which general regulatory scheme (federal or state) applies to the transportation, and, concomitantly, its interstate versus intrastate character.” 809 A.2d at 358(emphasis added)(footnote omitted).

The mixed question of law and fact essential to resolve the coverage question before us is whether the Kollas tractor is deemed to have been engaged in interstate commerce at the time of the accident, either based upon the lease agreement or the nature of the trip. Unfortunately, the terms of the lease and the nature of the relationship between P & F and Kollas are not clearly ascertainable from the record before us. [FN8] Neither the terms of the agreement between P & F and Kollas, nor the tractor’s use before the accident, nor the details of the trip and the intended shipment, are sufficiently evident to permit us to answer the question whether the tractor was operating in interstate commerce. It may well be that P & F’s use of the Kollas tractor was sufficiently involved in interstate activity to fall under endorsement MCS-90 issued by QBE even if the trip itself was entirely within New Jersey. There is also the possibility that the tractor falls within the narrow window of intrastate commerce as defined by the Supreme Court in Baltimore & Ohio and Atlantic Coast Line R.R. Co. and by the Eighth Circuit in Roberts.

FN8. Contrary to federal law, there may have been no written lease between P & F and Kollas. See 49 U.S.C.A. § 14102(a); 49 C.F.R. § 376.11(a).

We recognize that on its motion for summary judgment, QBE bore the burden of establishing that the tractor was leased for use and actually used solely within the State of New Jersey. QBE obviously failed to avail itself of the opportunity to obtain in discovery any of the background facts it might have relied upon to meet that burden before filing its summary judgment motion. On the other hand, on the cross-motion for summary judgment declaring that QBE’s endorsement applied, it was Connecticut’s and Semeina’s burden to establish the interstate nature of the truck lease or the trip on the day of the accident. Because we are satisfied that the motion judge overstated the holding of Cox, it is appropriate to remand the matter for a determination of coverage under the correct rule of law. On remand, the parties shall have an opportunity to discover all the facts relevant to the coverage question.

Discovery should be aimed at producing evidence that will allow the court to make a finding whether the tractor was available for interstate travel under the terms of the lease agreement and whether the trip that P & F’s driver made with the leased Kollas tractor was “interstate in nature.” [FN9]

FN9. Despite the default of P & F, Bedon, and Kollas in this lawsuit, the parties from whom such discovery most likely would be needed, the subpoena power of the court is available on remand.

Reversed and remanded for further proceedings consistent with this opinion.

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