Volume 19 (2016)

Lofthouse Manufacturing Ltd. v. Ports America Baltimore, Inc.

United States District Court,

Maryland.

Lofthouse Manufacturing Ltd.

Ports America Baltimore, Inc.

Civil No. CCB-15-3821

Signed 09/07/2016

MEMORANDUM

Catherine C. Blake, United States District Judge

*1 Lofthouse Manufacturing Ltd. (“Lofthouse”) and Brawo Brassworking Limited (“Brawo”) have sued Ports America Baltimore, Inc. (“PAB”) and Ports America Chesapeake, LLC (“PAC”), alleging that the defendants’ negligence in transferring the plaintiffs’ cargo to a truck caused $500,000 in damages. The defendants—who argue that the case is barred, or their liability limited, by the Carriage of Goods by Sea Act (“COGSA”) or the Baltimore Marine Terminal Association (“BMTA”) Schedule—have filed motions to dismiss or, in the alternative, for summary judgment. Oral argument was heard on July 11, 2016, and supplemental briefing followed. For the reasons that follow, the first motion to dismiss or, in the alternative, for summary judgment will be denied as moot, and the second motion will be granted in part and denied without prejudice in part.

BACKGROUND

In or about November 2015, an LH electrical cabinet (“cabinet” or “machine”) owned by Lofthouse and Brawo was transported from Verona, Italy to Baltimore, Maryland. (First Am. Compl. ¶ 6, ECF No. 15.) The plaintiffs arranged for a trucking company to transfer their cargo, including the cabinet, from Baltimore to Ontario, Canada, where they are located. (See id. ¶¶ 1, 6.) PAB and/or PAC operated as terminal operator in Baltimore. (Id. ¶ 7.) On or about December 11, 2014, at the Port of Baltimore, “while [PAB] and/or PAC transferred the Machine” to one of the trucking company’s flatbed trailers, the cabinet “fell on its side to the ground resulting in extensive damage” totaling $500,000. (Id. ¶¶ 8, 10.) The cabinet arrived at the plaintiffs’ facility in damaged condition on December 16, 2014. (Id. ¶ 9.) The plaintiffs allege that PAB and/or PAC breached its duty to transfer the cabinet to the flatbed trailer “when its employees, agents and/or servants, through, inter alia, the use of defective lifting slings, improper rigging techniques and methods, and improper and/or lack of supervision of the lifting and transfer of the Machine caused the Machine to be dropped to the ground and extensively damaged.” (Id. ¶¶ 12, 16, 23.)

On December 15, 2015, the plaintiffs filed a complaint against PAB only. (Compl., ECF No. 1.) On January 22, 2016, PAB filed a motion to dismiss or, in the alternative, a motion for summary judgment, alleging, inter alia, that the plaintiffs had sued the wrong party. (PAB Mot. Dismiss, ECF No. 9.) In particular, PAB stated that PAC—not PAB—contracted with the National Shipping Company of Saudi Arabia (“NSCSA” or “Bahri”), the carrier or vessel operator in this case, to provide stevedoring and marine terminal services for the vessel’s cargo at the Port of Baltimore; discharged the cabinet from the vessel; and allegedly damaged the cabinet while loading it on to the truck. (Id. ¶ 2.) On February 9, 2016, the plaintiffs filed an amended complaint that named both PAB and PAC as defendants. (First Am. Compl.) The allegations of the amended complaint, now naming two defendants instead of one, remained largely the same. (Id.) On March 10, 2016, PAB and PAC filed a second, joint motion to dismiss or, in the alternative, for summary judgment (the “second motion”). (Second Mot. Dismiss, ECF No. 19.) In that motion, the defendants incorporate by reference PAB’s original motion, and argue that PAB had no involvement in the damage to the cargo and should be dismissed from the lawsuit. (Id. ¶ 5.) The defendants also argue that, pursuant to the bill of lading between the plaintiffs and Bahri, for which PAC acted as stevedoring firm and terminal operator, COGSA applies and the suit is barred by that law’s one-year statute of limitations or, in the alternative, damages are capped by its $500 limitation of liability. (Id. ¶¶ 6-8.) The plaintiffs filed a response in opposition, (Resp. Opp’n, ECF No. 20), and the defendants replied, (Reply, ECF No. 21).

*2 The court held a hearing on the pending motions on July 11, 2016. At that hearing, and in the supplemental briefing that followed, the defendants argued that, even if the services they provided at the time of the alleged loss were not covered by the bill of lading, they were covered by the terms of the BMTA Schedule, which also includes a one-year time bar and a $500 limitation on liability. (See Suppl. Mem., ECF No. 24.) The plaintiffs’ response to the supplemental motion requested more time for discovery pursuant to Federal Rule of Civil Procedure 56(d). (See Suppl. Resp., ECF No. 27.) The defendants replied. (See Suppl. Reply, ECF No. 28.)

STANDARD OF REVIEW

The defendants have moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. A court considers only the pleadings when deciding a Rule 12(b)(6) motion. Where the parties present matters outside of the pleadings and the court considers those matters, as here, the motion is treated as one for summary judgment. See Fed. R. Civ. P. 12(d); Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir. 1997); Paukstis v. Kenwood Golf & Country Club, Inc., 241 F. Supp. 2d 551, 556 (D. Md. 2003). “There are two requirements for a proper Rule 12(d) conversion.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Balt., 721 F.3d 264, 281 (4th Cir. 2013). First, all parties must “be given some indication by the court…that it is treating the 12(b)(6) motion as a motion for summary judgment,” which can be satisfied when a party is “aware that material outside the pleadings is before the court.” Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (internal quotation marks omitted); see also Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998) (commenting that a court has no obligation “to notify parties of the obvious”). “[T]he second requirement for proper conversion of a Rule 12(b)(6) motion is that the parties first ‘be afforded a reasonable opportunity for discovery.’ ” Greater Balt., 721 F.3d at 281 (quoting Gay, 761 F.2d at 177). Here, the plaintiffs had adequate notice that the defendants’ motion might be treated as one for summary judgment. The motion’s alternative caption and attached materials are in themselves sufficient indicia. See Laughlin, 149 F.3d at 260-61. Moreover, the plaintiffs referred to the motion in their opposition brief as one for summary judgment and submitted additional documentary exhibits and a Rule 56(d) request. Therefore, the court will consider the affidavits and additional materials submitted by the parties and will treat the motion of the defendants as a motion for summary judgment.

Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted “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) (emphases added). “A dispute is genuine if ‘a reasonable jury could return a verdict for the nonmoving party.’ ” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact is material if it ‘might affect the outcome of the suit under the governing law.’ ” Id. (quoting Henry v. Purnell, 652 F.3d 524, 548 (4th Cir. 2011)). Accordingly, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam), and draw all reasonable inferences in that party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the court must “prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

ANALYSIS

*3 As an initial matter, the defendants argue that PAB had no involvement in the alleged negligence at issue and, therefore, should be dismissed from the case. In the original motion, as incorporated in the second motion, Richard Surett, PAB’s senior vice president, provided an affidavit explaining that PAB is PAC’s parent corporation, and that PAC, not PAB, provided the cargo services related to the plaintiffs’ cabinet.1 (PAB Mot. Dismiss Ex. A, Surett Aff. ¶¶ 2-6, ECF No. 9-2.) The defendants also attached to the second motion an affidavit from Jon Palmbak, PAC’s chief financial officer, attesting to the fact that PAC operated as stevedore and terminal operator for NSCSA at the Port of Baltimore, and that it used a forklift to load the cabinet at issue onto the flatbed truck. (Second Mot. Dismiss Ex. 1, Palmbak Aff. ¶¶ 4, 6, ECF No. 19-2.)

In their response in opposition, Lofthouse and Brawo do not provide any counter to the argument that PAB is the wrong defendant. Because the plaintiffs have not responded to the argument that PAB is not the responsible party, they have abandoned their negligence claim against PAB. See Wood v. Walton, 855 F. Supp. 2d 494, 505 & n.35 (D. Md. 2012) (citing Mentch v. E. Sav. Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997)). Accordingly, the defendants’ motion will be granted as to the claim that the plaintiffs have sued the wrong defendant, and PAB will be dismissed.

Bill of Lading

The defendants argue that the plaintiffs’ lawsuit is barred by the one-year statute of limitations in COGSA or, in the alternative, that the plaintiffs’ damages are capped by that statute’s $500 limit on liability.

COGSA governs the terms of bills of lading issued by ocean carriers engaged in foreign trade. 49 Stat. 1207, as amended, note following 46 U.S.C. § 30701 (“COGSA”). It contains certain defenses, including that “the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.”2 COGSA § 3(6). It also contains a default limitation of liability for carriers of “$500 per package [or customary freight unit]…unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.”3 COGSA § 4(5); see also Schramm, Inc. v. Shipco Transp., Inc., 364 F.3d 560, 564 (4th Cir. 2004). Bills of lading may include Himalaya clauses, which extend COGSA’s defenses and limits on liability to third-party agents of carriers, such as stevedores and terminal operators. See Wemhoener Pressen v. Ceres Marine Terminals, Inc., 5 F.3d 734, 739, 740 (4th Cir. 1993).

By its terms, COGSA covers “the period from the time when the goods are loaded on to the time when they are discharged from the ship.” COGSA § 1(e). The Harter Act, which was superseded in large part by COGSA, still applies “prior to the time when the goods are loaded on or after the time they are discharged from the ship,” Schramm, Inc., 364 F.3d at 565 (citation omitted), and its application extends until “proper delivery,” 46 U.S.C. § 30704. “The ‘discharge’ of goods from a vessel thus marks the transition of coverage from COGSA to the Harter Act, unless the parties have agreed to extend COGSA, and the Harter Act then applies until delivery is made.” Schramm, Inc., 364 F.3d at 565. The Harter Act permits limitations, although not complete absolutions, of liability. See Wemhoener Pressen, 5 F.3d at 739.

*4 The parties in this case appear to agree that the bill of lading between Bahri and Lofthouse, the company listed in the document as the consignee or merchant, extended COGSA to the statutory limit of the Harter Act, or the point of “proper delivery,”4 and that the bill’s Himalaya clause would reach any PAC conduct that occurred before “proper delivery” while COGSA still applied.5 (See Second Mot. Dismiss Ex. 1, Mem. Law 10-11, ECF No. 19-1; Resp. Opp’n 3.) The issue, therefore, is when “proper delivery” occurred. If delivery was complete before the cabinet was damaged, COGSA would not apply and PAC would not be entitled to invoke the law’s statute-of-limitations or limitation-of-liability defenses. If delivery had not yet occurred at the time the cabinet was tipped over, COGSA would apply and the plaintiffs would be precluded from bringing this suit.6 “Proper delivery” for Harter Act purposes means “either actual or constructive delivery. Actual delivery consists [of] completely transferring the possession and control of the goods from the vessel to the consignee or his agent. Constructive delivery occurs where the goods are discharged from the ship upon a fit wharf and the consignee receives due and reasonable notice that the goods have been discharged and has a reasonable opportunity to remove the goods or put them under proper care and custody.” Wemhoener Pressen, 5 F.3d at 741-42 (alteration in original). The Harter Act “establishes the minimum requirements, but parties are free to contract for further obligations.” Id. at 742.

The court cannot say there is no genuine dispute about whether the bill of lading covered PAC’s services at the time the cabinet was damaged. As an initial matter, the court disagrees with the defendants’ contention that the bill of lading clearly requires “actual,” and not “constructive,” delivery. Section 5 states that the carrier shall be liable “until the time the Goods have been delivered to the Merchant at the Port of Discharge,” and Section 17 states that a merchant must provide notification if it “wishes to have a damage survey after taking delivery of the Goods from the discharge terminal,” but neither section defines the term “delivery.” (Bill of Lading §§ 5, 17.) The defendants also emphasize the “custody” language of Section 16, which states that, “[u]nless notice of loss of or damage to the Goods…be given in writing to the Carrier at the place of delivery before or at the time of the removal of the Goods into the custody of the person entitled to delivery…, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods in good order.” (Bill of Lading § 16.) But the Fourth Circuit’s definition of constructive, not actual, delivery uses the “custody” language. Further, Section 16 also says that notice may be given before goods are removed into the custody of the person entitled to delivery, potentially suggesting the possibility of constructive delivery. (Id.)7

Further, there are genuine disputes about when delivery occurred. In particular, it appears that the cabinet was damaged while PAC loaded it onto the flatbed truck of Convoy Logistics Providers (“Convoy”), the trucking company the plaintiffs hired to transport the cargo from Baltimore to Ontario.8 PAC sent an invoice to Convoy, requesting $435.59 for delivering the cargo listed in the bill of lading at issue. (Resp. Opp’n Ex. 2, Invoice, ECF No. 20-2.) If PAC was operating on Bahri’s behalf during the loading process, it should be protected by COGSA’s defenses. If PAC was operating on Convoy’s behalf, however, it seems likely that delivery already had occurred when the cargo was damaged.9

*5 The Fourth Circuit cases to which the defendants cite do not resolve this dispute. In Wemhoener Pressen, Koppers, and B. Elliott, the Fourth Circuit emphasized that the respective stevedoring firms were acting on behalf of the carriers, and not the consignees, when the cargo was damaged. See Wemhoener Pressen, 5 F.3d at 736, 742 (noting that the service the terminal operator was undertaking when the cargo was damaged was charged to the carrier); Koppers Co., Inc. v. S/S Defiance, 704 F.2d 1309, 1312 (4th Cir. 1983) (The carrier “gave [the terminal operator] all instructions relative to the handling of the cargo prior to any delivery to the overland trucker. Under these circumstances, it is clear that [the terminal operator] was [the carrier’s] agent.”); B. Elliott (Canada) Ltd. v. John T. Clark & Son of Md., Inc., 704 F.2d 1305, 1307 (4th Cir. 1983) (“[The merchant] concedes that [the stevedore] was the agent of [the carrier]”); id. at 1308 (“At no time did [the merchant] contact [the stevedore] with instructions regarding the care and handling of the cargo. All instructions relating to [the stevedore’s] activities were received directly from [the carrier].”). In Schiess-Froriep Corp. v. S. S. Finnsailor, the Second Circuit remanded the case back to the district court because, inter alia, “[n]either party submitted any evidence to the district court regarding [the terminal operator’s] status while engaged in loading the delivery truck,” and “neither attorney was able to inform the court who was paying [the terminal operator] for its truck-loading services or whether a separate contract had covered this work.” 574 F.2d 123, 126, 127, 128 (2d Cir. 1978). And in a case remarkably similar to this one, where the terminal operator separately invoiced the merchant approximately $326 for loading crates onto a truck that the merchant sent to the terminal facility, a court in the Southern District of New York found that the bill of lading did not apply because the stevedore “was not acting as a servant, agent, or subcontractor of [the carrier] when it loaded the truck.” Komori Am. Corp. v. Howland Hook Container Terminal, Inc., 1998 WL 614194, at *4 (S.D.N.Y. Sept. 14, 1998).10

In B. Elliott, the Fourth Circuit held that the “pier to pier” designation in that case’s bill of lading required the carrier “to have the cargo removed from the container and placed in or on the overland truck.” 704 F.2d at 1308. At oral argument, the defendants contended that the term “port to port,” which appears in Section 5(a) of the bill of lading in this case, has the same meaning. The defendants represented that cases dealing with “port to port” bills of lading cite to cases addressing “pier to pier” bills of lading. Although this may be true, it appears that “port to port” may simply extend COGSA’s application until delivery, without providing a definition of “delivery.” In one of the cases cited by the defendants at the motions hearing, for example, the court in fact found that the plaintiff had failed to prove that the term “port to port”—which, as in this case, appeared as the heading to Subsection 5(a) of an NSCSA bill of lading—determined the point at which delivery occurred. Crompton Greaves, Ltd. v. Shippers Stevedoring Co., 921 F. Supp. 2d 697, 726 & n.10 (S.D. Tex. 2013). The court instead held that the term simply meant that the carrier’s responsibility was extended “beyond discharge.” Id. at 726 n.10. Likewise, in another case cited by the defendants at the hearing, the court simply said that “port to port” movement meant that the carrier was responsible for the cargo until it was “delivered” to the consignee. Compania Chilena De Navegacion Interoceanica, S.A. v. D.H.C. Trucking, Inc., 2016 WL 1722425, at *1 (S.D. Fla. Apr. 29, 2016). And in Suzlon Wind Energy Corp. v. Shippers Stevedoring Co., the court looked to the facts of the case and which party was responsible for the cargo when it was damaged to determine whether delivery occurred under a “port-to-port” bill of lading. See 2008 WL 686206, at *18 (S.D. Tex. March 7, 2008). Accordingly, use of the phrase “port to port” in the bill of lading does not require judgment in favor of PAC.

Because there is a genuine dispute about whether the bill of lading covered PAC’s services at the time the cabinet was damaged, the defendants’ motion for summary judgment on that ground will be denied.

III. BMTA Schedule

At oral argument on July 11, 2016, the defendants argued for the first time that, even if the services PAC provided at the time of the alleged loss were not covered by the bill of lading, they would be covered by the BMTA Schedule, which also includes a one-year time bar and $500 limitation on liability. The court ordered supplemental briefing on this issue.

*6 A marine terminal operator’s schedule, such as the BMTA Schedule, may include “limitations of liability for cargo loss or damage” and, if it is made available to the public, the schedule “is enforceable by an appropriate court as an implied contract without proof of actual knowledge of its provisions.” 46 U.S.C. § 40501(f); see also 46 C.F.R. § 525.2(a)(2) (“Any schedule that is made available to the public by the marine terminal operator shall be enforceable by an appropriate court as an implied contract between the marine terminal operator and the party receiving the services rendered by the marine terminal operator, without proof that such party has actual knowledge of the provisions of the applicable terminal schedule.”). The Code of Federal Regulations, however, clarifies that, “[i]f the marine terminal operator has an actual contract with a party covering the services rendered by the marine terminal operator to that party, an existing terminal schedule covering those same services shall not be enforceable as an implied contract.” 46 C.F.R. § 525.2(a)(3). Here, the plaintiffs do not appear to contest that the BMTA Schedule had been made public and was in effect before the cargo was damaged, (see Palmbak Suppl. Aff. ¶¶ 3-4, ECF No. 24-2), or that it includes a $500 limitation of liability and a one-year time bar, (see BMTA Schedule Rule 34-2(2), (5), ECF No. 24-3). Accordingly, the applicability of the BMTA Schedule turns on whether there was an “actual contract” between PAC and Convoy.

The plaintiffs represent that “[f]acts and documents needed to determine whether there was an actual contract between Convoy and Ports America are not available to plaintiffs as Convoy has not agreed to voluntarily produce them.”11 (Suppl. Resp. 2.) Accordingly, they have requested additional time either to obtain consent from Convoy or subpoena Convoy to testify and produce documents at deposition. (Id.) Federal Rule of Civil Procedure 56(d) states that, “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Rule 56(d) motions with supporting affidavits are “broadly favored and should be liberally granted because the rule is designed to safeguard non-moving parties from summary judgment motions that they cannot adequately oppose.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Balt., 721 F.3d 264, 281 (4th Cir. 2013) (citation omitted). Additionally, “[a] Rule 56(d) motion must be granted ‘where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.’ ” McCray v. Md. Dep’t of Transp., 741 F.3d 480, 483-84 (4th Cir. 2014) (quoting Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)). But if the additional evidence that would be gained from discovery would not itself create a genuine issue of material fact, the Rule 56(d) motion should be denied. See Strag v. Bd. of Trs., 55 F.3d 943, 954 (4th Cir. 1995).12

Here, the plaintiffs’ Rule 56(d) request is supported by the affidavit of James D. Skeen, the plaintiffs’ attorney, along with attached exhibits documenting their unsuccessful attempts to obtain information from Convoy about an “actual contract” between the trucking company and PAC. The combination of (a) PAC’s invoice, even if in line with the rates in the BMTA Schedule, (b) the fax that states that the terminal and truck loading charges associated with the bill of lading at issue should be charged to the “account of Convoy Logistics,” and (c) the fact that the plaintiffs are requesting discovery on the discrete issue of whether an actual contract existed, is enough to persuade the court that the Rule 56(d) request is not simply a fishing expedition. See Adams v. Giant Food, Inc., 225 F. Supp. 2d 600, 607 (D. Md. 2002) (“The purpose of [Rule 56(d)] is not to allow the non-moving party to engage in a fishing expedition.”). Although it is true that, as in the Fortis case cited by the defendants, the invoice rate matches the rate listed in the BMTA Schedule, (see Invoice (listing the rate as $19.69)); BMTA Schedule Rule 34-6(2)(A)(2) (listing $19.69 per net ton as the price for loading or unloading “pre-palletized and skidded and unitized cargo”), a fact which ultimately may become determinative, it is also true that, unlike in Fortis, the plaintiffs have not had the opportunity to determine through discovery whether there is evidence of an actual contract separate from the BMTA Schedule. See Fortis Corp. Ins., Co. v. M/V Lake Ontario, 2005 WL 3710253, at *6 (N.D. Ind. March 8, 2005). Instead, discovery on the specific issue of whether an actual contract existed could produce facts necessary for the plaintiffs to prove their case, or at least create a genuine dispute sufficient to overcome a motion for summary judgment. Further, the court is not convinced that any information about an actual contract has been at the plaintiffs’ disposal throughout the course of this litigation. See McCray, 741 F.3d at 484 (“[N]onmovants do not qualify for Rule 56(d) protection where they had the opportunity to discover evidence but chose not to.”). There is no dispute that the plaintiffs hired Convoy to transfer their cargo. At oral argument, however, the plaintiffs represented that Convoy is an independent contractor, and the exhibits attached to Skeen’s affidavit support the plaintiffs’ contention that they have been trying, but have been unable, to obtain documents from the company. And in his affidavit, Skeen avers that communications in this case were through the plaintiffs’ Canadian counsel, from whom he received a copy of the fax, and that he reached out to Convoy directly only after the July 11 hearing. (Skeen Aff. ¶¶ 3, 4.)

*7 Accordingly, PAC’s motion for summary judgment will be denied without prejudice, and the plaintiffs’ Rule 56(d) request will be granted as to the limited issue of whether an “actual contract” existed.

CONCLUSION

For the reasons stated above, the first motion to dismiss or, in the alternative, for summary judgment will be denied as moot, and the second motion will be granted in part and denied without prejudice in part. Counsel will be contacted to set a schedule for limited discovery. A separate order follows.

All Citations

Slip Copy, 2016 WL 4662337

Footnotes

PAB’s original motion to dismiss, which was filed before the plaintiffs’ amended complaint, will be denied as moot. Because, however, the defendants incorporated into their second motion the original motion’s arguments about whether PAB is the proper defendant, the court has considered the first motion for that purpose.

The bill of lading between Bahri and the plaintiffs also states that “the Carrier, Vessel Owners, operators, managers or Sub-Contractor, [defined to include terminal operators and stevedores], shall be discharged from all liabilities whatsoever unless suit is brought within one year from the date that the Goods have been delivered or when the Goods should have been delivered.” (Second Mot. Dismiss Ex. 4 p. 5, Bill of Lading § 17, ECF No. 19-5.)

The bill of lading at issue also includes a $500 limit on liability, and the plaintiffs did not declare an alternative value for the cargo. (Bill of Lading § 9(a), (b).)

The bill of lading states that “the Carrier shall be liable from the time [ ] the Goods are received at the loading port until the time the Goods have been delivered to the Merchant at the Port of Discharge.” (Bill of Lading § 5(a) (emphasis added).)

The bill’s Himalaya clause states that “[i]f any litigation or claim is brought against the Vessel owners, operators, managers or Sub-Contractor, [defined to include stevedores and terminal operators], employed by the Carrier to perform this contract of carriage, such a person shall be entitled to the defenses and limits of liability which the Carrier is entitled to invoke under this contract.” (Bill of Lading § 4(b).)

The plaintiffs appear to concede that their claim is barred if COGSA applies, even if their amended complaint relates back to the date of their original pleading. (See Resp. Opp’n 2 (“If the Cargo was damaged at a point in time that COGSA was applicable, then the Defendants’ motions should be granted.”).) Accordingly, it is unnecessary for the court to address whether the amendment relates back.

Even if the bill of lading required actual delivery, the court cannot be sure from the photograph provided by the defendants that actual delivery had not occurred when the cargo was damaged. (Second Mot. Dismiss Ex. 4 p. 3, Photograph, ECF No. 19-5.)

The amended complaint, for example, states that the cabinet was damaged “while [PAB] and/or PAC transferred the Machine to a flat bed trailer.” (First Am. Compl. ¶ 8 (emphasis added).) A handwritten note in the dock receipt, which was signed by Convoy’s driver, states that the “case tipped over to the ground while loading.” (Second Mot. Dismiss Ex. 4 p. 2, Dock Receipt, ECF No. 19-5 (emphasis added).) And Convoy, presumably acting as Lofthouse’s agent, sent PAC a “letter of intent to claim” stating that the crate that contained the cabinet “likely sustained damage during [the] loading process at Dundalk Marine Terminal on December 12 as witnessed by the truck driver.” (Id. Ex. 4 p. 1, Letter of Intent to Claim, ECF No. 19-5 (emphasis added).)

At oral argument and in their response to the supplemental briefing, the plaintiffs produced a copy of a fax from Klaus Joerg, senior project manager at Convoy, to a customer service account at “Ports America,” in which Joerg requests “loading appointments for the 3 trailer loads” and writes: “All your terminal and truck loading charges for account of Convoy Logistics.” (Skeen Aff. Ex. A, Fax, ECF No. 27-1.) The subject line of the fax references the bill of lading between Bahri and Lofthouse. (Id. (“RE: loading appointments / crane scheduling B/L NSAUJZ004LVBA012”).) The document, however, indicates no date or time, is addressed to an unknown customer service account at “Ports America,” and includes no response. It, therefore, cannot alone resolve the question whether PAC was operating on Convoy’s behalf when the cargo was damaged.

Unpublished opinions are cited for the soundness of their reasoning, not for any precedential value.

At oral argument, plaintiffs’ counsel represented that he was not aware of any contract between Convoy and PAC beyond the invoice and fax he had produced. Given that the summary judgment standard favors the plaintiffs as the nonmoving party, no discovery has occurred, and the applicability of the BMTA Schedule was raised for the first time at the hearing, the court will not treat counsel’s statement as an admission.

The court notes that, in arguing that the plaintiffs have not met the Rule 56(d) standard, the defendants cite several cases outside the Fourth Circuit. (See Suppl. Reply 5-6.) Further, several of the Fourth Circuit cases on which the defendants rely—Harrods Ltd., 302 F.3d at 244, Y.B. v. Bd. of Educ. of Prince George’s Cty., 895 F. Supp. 2d 689, 702 (D. Md. 2012), and Nautilus Ins. Co. v. REMAC Am., Inc., 956 F. Supp. 2d 674, 683 (D. Md. 2013)—dealt with instances where the nonmoving party did not file a Rule 56(d) affidavit.

Zumba Fitness, LLC, Plaintiff, v. ABF Logistics, Inc., d/b/a ABF Multimodal, Inc., and Quick Cool Transport, LLC

United States District Court,

W.D. Arkansas, Fort Smith Division,

Fort Smith Division.

Zumba Fitness, LLC, Plaintiff,

ABF Logistics, Inc., d/b/a ABF Multimodal, Inc., and Quick Cool Transport, LLC, Defendants.

ABF Logistics, Inc., d/b/a ABF Multimodal, Inc Cross, Claimant,

Quick Cool Transport, LLC Cross, Defendant.

CASE NO. 2:15-cv-02151

Signed 08/30/2016

Attorneys and Law Firms

Adam G. Rabinowitz, Broad and Cassel, Fort Lauderdale, FL, C. Michael Daily, Michael A. LaFreniere, Daily Woods PLLC, Fort Smith, AR, for Plaintiff.

William A. Waddell, Jr., Friday, Eldredge & Clark, Little Rock, AR, for Defendants.

MEMORANDUM OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

*1 Now pending before the Court are cross-Motions for Partial Summary Judgment filed by Defendant ABF Logistics, Inc. (“ABF Logistics”) (Doc. 25), and Plaintiff Zumba Fitness, LLC (“Zumba”) (Doc. 31), and a Motion to Strike filed by Zumba (Doc. 35). The motions have been fully briefed and are ripe for decision. For the reasons stated herein, Zumba’s Motion to Strike (Doc. 35) is DENIED. ABF Logistics’ Motion for Partial Summary Judgment (Doc. 25) is GRANTED IN PART and the Court DEFERS RULING in part. Zumba’s Amended Motion for Partial Summary Judgment (Doc. 31) is DENIED.1

BACKGROUND

This case involves a shipment of fitness apparel and DVDs that was stolen en route from Miami to Orlando for a fitness convention and trade show. Zumba is a Florida LLC with its principal place of business in Hallandale Beach, Florida. It is a widely-known global lifestyle and fitness brand that provides products and services—most notably its dance fitness program—to customers worldwide. ABF Logistics is an Arkansas corporation with its principal place of business in Fort Smith, Arkansas. It is a wholly owned subsidiary of ABF Logistics II, Inc., which in turn is a wholly owned subsidiary of ArcBest Corporation. ArcBest also has a wholly owned subsidiary called ABF Freight Services, Inc. According to its website, ABF Logistics “provides third-party logistics services including brokerage, intermodal, ocean transport, transportation management, warehousing and household moving.” (Doc. 27-2, p. 27). And, when “shipments do not fit on ABF vans or need special equipment,” its d/b/a ABF Multimodal, Inc., “offers alternative options from a network of reliable carriers.” Id. at 29. Quick Cool Transport, LLC (“Quick Cool”) defaulted in this case, but is apparently a Florida LLC with its principal place of business in Hialeah, Florida.

In June of 2014, Zumba sought to transport certain goods from Miami, Florida to Orlando, Florida for a fitness convention at the Orlando Convention Center. Working with Ozburn-Hessey Logistics, LLC (“OHL”)—a company it uses for warehousing and related services—Zumba engaged ABF Logistics to arrange the transportation of five2 freight trailers from Miami to Orlando. ABF Logistics then engaged Oliva Delivery Corp. (“Oliva”) and Gemcap Trucking to effect the transportation of the goods. The goods were to be picked up on August 8, 2014 at OHL’s Miami warehouse, and transported to Orlando in time for August 11, 2014.

*2 On August 7, 2014, a representative from Oliva informed ABF Logistics that it could not provide a truck for one of the five shipments. David Moore of ABF Logistics then contacted Quick Cool to see if it could take Oliva’s place in transporting one of the trailers. Quick Cool agreed, and ABF assigned it to transport the shipment corresponding with Bill of Lading 426306509 (“BOL 509”). Quick Cool’s driver, however, ended up with Bill of Lading 426306506 (“BOL 506”). Both BOLs are signed by Alfredo Muñoz, an employee of a company called lnfoSonic, Inc. that was located at OHL’s Miami warehouse at the time. Both BOLs also identify Oliva as the carrier.

The shipment transported by Quick Cool never made it to Orlando. Instead, the driver of the truck parked in a BJ’s Wholesale parking lot, and the truck was stolen. It was later found unlocked and unsecured, with all of its contents removed. On October 17, 2014, Zumba filed a claim with ABF Logistics, indicating a $464,874.94 loss. In a letter dated October 23, 2014, an employee of ABF Freight named Christopher A. Boatright denied Zumba’s claim, relying on a $5.00 per pound or $100,000 per trailer limitation of liability provision found in the bill of lading.3

Zumba then filed a Complaint (Doc. 1) in this Court on August 3, 2015, seeking a declaration of its rights under the bill of lading, and alleging breach of contract against ABF Logistics and Quick Cool. It later filed an Amended Complaint (Doc. 23) adding a negligence claim against both Defendants. ABF Logistics answered both (Docs. 8, 24), generally denying the claims against it and filing a cross claim against Quick Cool. The Court held a Case Management Hearing with the parties on December 21, 2015. Therein, the Court noted a “fundamental disagreement as to whether, how and to what extent this dispute is governed by the ‘Carmack Amendment’ [49 U.S.C. § 14706].” (Doc. 19, p. 2) (Interim Case Management Order). The parties agreed that “the scope and expense of the litigation can be best managed by focusing on this ‘threshold issue,’ prior to engaging in full merits and damages discovery.” Id. Accordingly, the Court set interim deadlines for discovery and dispositive motions related to the threshold issue of whether, how, and to what extent the Carmack Amendment applies in this case. Pursuant to those deadlines, ABF Logistics filed its Motion for Partial Summary Judgment (Doc. 25) on July 6, 2016. Exhibit C to the Statement of Facts filed contemporaneously with that Motion is an affidavit of Alfredo Muñoz, (Doc. 27-3), which Zumba has moved to strike (Doc. 35). Zumba filed its Motion for Partial Summary Judgment on July 6, 2016 (Doc. 28), and filed an Amended Motion for Partial Summary Judgment (Doc. 31) a day later. All three motions are ripe for decision.

SUMMARY JUDGMENT LEGAL STANDARD

A party moving for summary judgment must establish both the absence of a genuine dispute of material fact and its entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat’l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). The same standard applies where, as here, the parties have filed cross-motions for summary judgment. When there exists no genuine issue as to any material fact, “summary judgment is a useful tool whereby needless trials may be avoided, and it should not be withheld in an appropriate case.” United States v. Porter, 581 F.2d 698, 703 (8th Cir. 1978). Each motion should be reviewed in its own right, however, with each side “entitled to the benefit of all inferences favorable to them which might reasonably be drawn from the record.” Wermager v. Cormorant Twp. Bd, 716 F.2d 1211, 1214 (8th Cir. 1983); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998). In order for there to be a genuine issue of material fact, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

III. DISCUSSION

Zumba’s Motion to Strike

*3 Zumba asks the Court to strike the affidavit of Alfredo Muñoz, which is attached to ABF Logistics’ Statement of Facts. (Doc. 27-3). It asserts two bases for striking the affidavit. First, Zumba contends that ABF Logistics failed to disclose Muñoz as a potential witness in its Rule 26 disclosures. Alternatively, Zumba suggests that Muñoz’ affidavit is internally inconsistent with ABF’s Statement of Facts and the positions it has taken in this matter, and must be stricken for those substantive reasons. ABF Logistics admits that it did not specifically identify Muñoz in its Rule 26 disclosures, but counters that the following statement from its disclosures satisfies Rule 26: “In addition to the foregoing [list of potential witnesses], ABF reserves the right to use as witnesses any persons … identified as persons with knowledge or potential witnesses by any party in discovery.” (Docs. 38, pp. 4-5; 35-1, p. 3; 35-1, p. 7). In OHL employee Cari Cossio’s deposition, that argument continues, she identified Muñoz as the signee of the bill(s) of lading at issue in this case, bringing him within the scope of the aforementioned clause. Alternatively, ABF Logistics submits that any failure to disclose Muñoz was substantially justified and was harmless, and that there are no substantive issues with his affidavit that would warrant striking it.

Federal Rule of Civil Procedure 26(a)(1)(A)(i), “Initial Disclosures, provides that a party must disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. Rule 26(e) then provides that “[a] party who has made a disclosure under Rule 26(a) … must supplement or correct its disclosure or response … if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Finally, under Rule 37(c)(1), “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion … unless the failure was substantially justified or is harmless.”

To be sure, best practice would have been for ABF Logistics’ counsel to supplement his initial disclosures to specifically identify Muñoz. Nonetheless, ABF Logistics’ actions were consistent with Rule 26. Under Rule 26(e), a party must supplement or correct its initial disclosures only “if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Ironically, a case provided to the Court by Zumba illustrates how Rule 26(e) applies favorably to ABF Logistics in the instant case. In Green v. Logan’s Roadhouse, Inc., 2014 WL 6871196 (S.D. Miss. Dec. 3, 2014), the court declined to strike an affidavit because the moving party “knew [the witness’s] identity and his alleged role in the events leading to this lawsuit throughout the entire discovery period.” Id. at 1. While the non-moving party in Green did more to notify his opponent of the witness, the principle carries to the instant case. Cari Cassio was the first witness deposed by the parties, see Doc. 30-3, p. 8, and she discussed Muñoz’ involvement in the case at length, id. pp. 6-7. Moreover, Muñoz signed the bill(s) of lading at issue in this case. (Docs. 27-1, p. 4; 30-4, p. 4). It would stretch credulity to assume that Zumba’s counsel was unaware of Muñoz’ identity and his role in the events leading to this lawsuit.

But even if ABF Logistics’ counsel’s failure to supplement its initial disclosures violated Rule 26, that failure was substantially justified and harmless. In evaluating a failure to disclose, courts should consider “the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008); see a/so Jenkins v. Med. Labs. of E. Iowa, Inc., 880 F. Supp. 2d 946, 956 (N.D. Iowa 2012) (applying the Wegener factors and finding that a failure to disclose was substantially justified and harmless).

*4 The Court’s analysis focuses on the first two Wegener factors. As to the reason for noncompliance, ABF Logistics’ counsel “believed Mr. Muñoz has been disclosed by Zumba’s witness in discovery and that no further disclosure of Mr. Muñoz was necessary.” (Doc. 38, p. 4). This was certainly a reasonable assumption for counsel to draw, and it serves as a factor against striking the affidavit. Next, as discussed above, there is no surprise or prejudice to Zumba. Muñoz was identified early on in the discovery process, and Zumba was well aware of his role in the events leading up to the case. Far from coming out of left field, Muñoz is a witness positioned squarely within the infield diamond. Moreover, including Muñoz’ affidavit as an exhibit to ABF Logistics’ Motion does not prejudice Zumba because all of the material information contained in the affidavit is also found in Cossio’s uncontroverted deposition testimony. Indeed, given Cossio’s deposition, Muñoz’ affidavit has no effect on the outcome of the parties’ cross-Motions for Partial Summary Judgment.

Finally, Muñoz’ affidavit is not “internally inconsistent with ABF’s Statement of Facts and the positions it has taken in this matter.” (Doc. 35, p. 3). Zumba offers two examples that supposedly show an internal inconsistency. The first is that ABF Logistics’ Statement of Facts claims “the driver was given [BOL 506] by Alfredo Muñoz,” (Doc. 27, ¶ 17 (citing to Muñoz’ affidavit)), yet “nowhere in the Affidavit does Mr. Muñoz state that he was the one who gave the driver the Bill of Lading.” (Doc. 35, ¶ 10). This minor discrepancy between the exact phraseology of Muñoz’ affidavit and ABF Logistics’ Statement of Facts does not create an internal inconsistency anywhere near sufficient to warrant striking the affidavit: The exact manner in which the bill(s) of lading changed hands from Muñoz to the drivers is simply unimportant to the Court’s adjudication of the instant Motions for Partial Summary Judgment.

Zumba’s second example similarly does not evince an internal inconsistency. It argues that because Muñoz—who signed the relevant bill(s) of lading—identifies himself as neither an employee of Zumba or OHL, his affidavit is inconsistent with ABF Logistics’ argument that Zumba is bound by the bill(s) of lading. This is certainly a legal argument that Zumba has made, but Zumba’s disagreement with ABF Logistics about the legal consequences of Muñoz’ involvement does nothing to render his affidavit inconsistent with ABF Logistics’ position. To the contrary, as the Court will discuss below, that position is quite consistent.

In sum, Zumba’s Motion to Strike (Doc. 35) is DENIED. ABF Logistics did not violate Rule 26, and even if it did, its failure to disclose was substantially justified and harmless. Muñoz’ affidavit also is not internally inconsistent with any of ABF’s positions. Finally, the Court notes that the inclusion of Muñoz’ affidavit in these proceedings does not affect the Court’s adjudication of the parties’ Motions for Partial Summary Judgment.

Applicability of the Carmack Amendment to ABF Logistics

Having disposed of Zumba’s Motion to Strike, the Court turns its attention to the parties’ cross-Motions for Partial Summary Judgment. As noted above, the parties have a fundamental disagreement about the applicability of the Carmack Amendment to this case. This disagreement manifests itself in two forms. First, the parties disagree on whether the Carmack Amendment is at all applicable to Zumba’s claims against ABF Logistics. Second, assuming it is applicable, the parties disagree on whether a limitation of liability provision included in the relevant pricing schedule and bill(s) of lading complies with the Carmack Amendment. The Court finds that the Carmack Amendment does not apply to Zumba’s claims against ABF, so it does not reach the second part of the parties’ dispute.

Carmack Amendment Legal Principles

*5 The Carmack Amendment provides, in relevant part, that “[a] carrier providing transportation or service … shall issue a receipt or bill of lading for property it receives for transportation …. That carrier and any other carrier that delivers the property and is providing transportation or service … are liable to the person entitled to recover under the receipt or bill of lading.” 49 U.S.C. § 14706(a)(1). “The purpose of the Carmack Amendment was to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.” Reider v. Thompson, 339 U.S. 113, 119 (1950). A carrier may, however, limit its liability under certain circumstances by establishing

rates for the transportation of property … under which the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.

49 U.S.C. § 14706(c)(1)(A).

Crucially, it is well established that the Carmack Amendment applies to carriers and freight forwarders, not brokers. E.g., Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997) (“The Carmack Amendment … imposes liability … on ‘carriers’ and ‘freight forwarders.”); Hewlett-Packard Co. v. Brother’s Trucking Enters., Inc., 373 F. Supp. 2d 1349, 1352 (S.D. Fla. 2005) (“The Carmack Amendment governs carriers, not brokers.”); Lumbermens Mut. Gas. Co. v. GES Exposition Servs., Inc., 303 F. Supp. 2d 920, 921 (N.D. III. 2003) (“[T]he question is whether GES was a broker (in which case it is not liable under the amendment) or a carrier or freight forwarder (in which case it is liable).) The Carmack Amendment defines “Broke” as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2). The term “Carrier” means “a motor carrier, a water carrier, and a freight forwarder.” Id. at 13102(3). “Motor Carrier,” in turn, is defined as “a person providing motor vehicle transportation for compensation.” Id. at 13102(14). And, a “Freight Forwarder” is

a person holding itself out to the general public … to provide transportation of property for compensation and in the ordinary course of its business—

(A) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments;

(B) assumes responsibility for the transportation from the place of receipt to the place of destination; and

Id. at 13102(8). A pertinent federal regulation adds (and simplifies):

Broker means a person who, for compensation, arranges, or offers to arrange, the transportation of property by an authorized motor carrier. Motor carriers, or persons who are employees or bona fide agents of carriers, are not brokers within the meaning of this section when they arrange or offer to arrange the transportation of shipments which they are authorized to transport and which they have accepted and legally bound themselves to transport.

49 C.F.R. § 371.2.

The question facing this Court, then, is whether ABF Logistics was a broker or a carrier or freight forwarder. “The difference between a carrier and a broker is often blurry.” CGU Intern. Inc, PLC v. Keystone Lines Corp, 2004 WL 1047982, at *2 (N.D. Cal. May 5, 2004). Relying on 49 C.F.R. § 371.2, some courts have described the “crucial distinction” between the two as “whether the party legally binds itself to transport.” ASARCO LLC v. England Logistics Inc., 71 F. Supp. 3d 990, 995 (D. Ariz. 2014). That is, “if the defendant accepted responsibility for ensuring delivery of the goods, regardless of who actually transported them, then the defendant qualifies as a carrier.” Id. (alterations omitted) (quoting CGU, 2004 WL 1047982, at *2). On the other hand, if “the defendant merely agreed to locate and hire a third party to transport the shipment, then it was acting as a broker.” Id. (alterations omitted). This inquiry generally rests on “how [the company] holds itself out to the world and its relationship to the shipper.” Lumbermens, 303 F. Supp. 2d at 922; ASARCO, 71 F. Supp. 3d at 995 (“Whether a company is a broker or a carrier is not determined by what the company labels itself, but by how it represents itself to the world and its relationship to the shipper.” (quoting Hewlett Packard, 373 F. Supp. 2d at 1352)); Travelers Ins. v. Panalpina Inc., 2010 WL 3894105, at *5 (N.D. III. Sept. 30, 2010) (stating that the “carrier” or “broker” analysis “focuses on the nature of the relationship between [the parties], not the label put on [the carrier’s or broker’s] services”).4

The Relationship Between Zumba and ABF Logistics: Documents and Written Communications

*6 The first step in the Court’s analysis will be examining the relationship between Zumba and ABF Logistics. Of tremendous consequence to the Court’s disposition are the voluminous references in documents and communications between the parties describing ABF Logistics as a broker, and distinguishing it from carriers. Cf. CGU, 2004 WL 1047982 at *2 (finding party to be a broker in part because the relevant contract identified it as “the broker” and another party as “the carrier”); Paul Arpin Van Lines, Inc. v. Universal Transp. Servs., Inc., 988 F.2d 288, 292 (1st Cir. 1993) (distinguishing between a “broker” and a “household goods agent” based on the language of the relevant contract). For example, both BOL 506 and 509 identify “Oliva Delivery Corp” as the “carrier.” (Docs. 27-1, p. 4; 30-4, p. 4). Both state that “for payment, carriers should bill” ABF Multimodal. Id. Both detail ABF Multimodal’s cargo liability limitation, and then state “Carrier’s cargo liability shall be as set forth” in a separate document. Id. Perhaps most importantly, both BOLs contain the following provision:

ABF Multimodal, Inc. (“ABF Multimodal”) performs transportation services under this bill of lading as a licensed Property Broker and your agent. Carrier(s) hired by ABF Multimodal to perform services for you are your subagent(s) and only a non-agent independent contractor to ABF Multimodal. Cargo has been received in good order, except as noted … which ABF Multimodal agrees to arrange for you to be carried to destination by carrier(s).

Id. (emphasis added).

The pricing schedule “used by ABF Multimodal for this shipment,” Doc. 29, ¶ 9 (citing Doc. 27-1, p. 6), contains identical language. (Doc. 27-1, p. 6).5 The tariff applicable to the transaction—Tariff MM-100—distinguishes ABF Multimodal as a broker, rather than a carrier, no less than 15 times.6 E.g., (Doc. 27-1, p. 11) (ABF Multimodal “is a property broker of transportation services ….”); id. (“ABF Multimodal provides transportation brokerage services ….”); id. at 12 (The Bill of Lading “shall govern shipments arranged by ABF Multimodal.”) (emphasis added); id. at 14 (Customers may be liable for “any such charges imposed on ABF Multimodal by the transporting carrier.”); id. at 15 (“ABF Multimodal or the carrier shall not be liable ….”); id. at 16 (“ABF Multimodal may assist the claimant in filing claims with the transporting carrier.”). Finally, in an email chain leading up to the August 8, 2014 pickup date, Multimodal Account Manager Scott Sharpe wrote, “[t]he deliveries are also all set with the carriers,” and “we will let the carrier know[,] we have two carriers doing all of these for us,” and “[t]he deliveries are also all set with the carriers.” (Doc. 27-2, pp. 30, 33, 34 (emphasis added)).

*7 In noting the overwhelming number of references to ABF Multimodal as a broker and other parties as carriers, the Court is cognizant that “[w]hether a company is a broker or a carrier is not determined by what the company labels itself ….” ASARCO, 71 F. Supp. 3d at 995. However, a party’s bare assertion that it is a broker rather than a carrier is highly distinguishable from repeated contractual references to a party’s role and identity in a transaction. Compare Travelers Ins., 2010 WL 3894105, at *6 (discounting company president’s testimony that it was a “broker”), with CGU, 2004 WL 1047982, at *2 (relying on references to “broker” and “carrier” in the contract). This is so because the purpose of the Court’s inquiry is to determine the relationship of the parties. Looking to how the parties were described in the documents that governed their relationship (and in communications between the parties) has tremendous probative value towards that end.

The Relationship Between Zumba and ABF Logistics: The Parties’ Conduct

The way the parties’ relationship is described on paper is not the sole factor in defining the nature of that relationship. The Court must also look to how the parties actually conducted themselves throughout the transaction in question. This inquiry only supports what the aforementioned documents so strongly suggest: ABF Logistics was a broker.

First, ABF Logistics did not supply the trucks or the drivers to transport Zumba’s shipment. This fact alone is not outcome-determinative, as “[o]ne is not precluded from being a motor carrier by the mere fact that none of its own motor vehicles are used in the transporting of goods.” Custom Cartage, Inc. v. Motorola, Inc., 1999 WL 9655686, at *8 (N.D. III. Oct. 15, 1999). But, it is a factor that when taken together with others suggests that ABF Logistics was acting as a broker.

Second, ABF Logistics had no role in packing or loading Zumba’s goods. See Lumbermans, 303 F. Supp. 2d at 921 (finding a question of fact as to whether the defendant was a carrier or broker in part because it “packed and loaded the equipment onto [the] truck”); Delta Research Corp. v. EMS, Inc., 2005 WL 2090890, at *6 (E.D. Mich. Aug. 29, 2005) (finding a question of fact in part because the alleged carrier agreed to “load and supply trucking,” and handled the “specialized lifting and loading” for a piece of equipment). In fact, ABF Logistics “never took physical possession” of the goods at all. CGU, 2004 WL 1047982, at *2. The trucks were loaded at OHL’s Miami warehouse, entirely by OHL’s employees (and Alfredo Muñoz). (Doc. 30-3, pp. 6-7) (Cossio Dep.).

Third, Zumba and OHL instructed ABF Logistics as to the pickup times at OHL’s Miami warehouse. Heidy Hernandez of OHL emailed Scott Sharpe of ABF Logistics on August 6, 2014, to tell him that “the appt. times are 10, 11, 12, 1, 2, & 3 pm.” (Doc. 27-2, p. 30); see also id. at 33 (Hernandez instructing Sharpe to “please schedule the truckers to arrive as follows: 9 am, 10 am, 11 am, 2 pm and 3 pm”). That OHL and Zumba, not ABF Logistics, controlled the pickup times—along with the pickup location and the physical packaging and loading—evinces that ABF Logistics had a low degree of control over the actual transportation of Zumba’s goods. See Hewlett-Packard, 373 F. Supp. 2d at 1352 (considering the measure of control exerted over the transportation process as a factor in the carrier-or-broker analysis). This, in turn, is evidence that ABF Logistics did not “accept[ ] responsibility for ensuring delivery of the goods,” but rather “agreed to locate and hire a third party to transport the shipment.” CGU, 2004 WL 1047982, at *2.

Fourth, Zumba and OHL were well-aware that third-party carriers would be transporting the goods. This fact was referenced repeatedly in documents and emails, and would have been known to OHL personnel through their first-hand observations during the scheduled pickups. Again, while this fact is not wholly dispositive of ABF Logistics’ status, it is relevant to the relationship of the parties, and how ABF Logistics held itself out to Zumba and OHL. See Delta Research Corp., 2005 WL 2090890, at *6 (shipper’s president’s testimony that he was unaware “that someone other than [the alleged carrier] would actually transport [the equipment]” helped create a genuine issue of material fact).

The Relationship Between Zumba and ABF Logistics: Zumba’s Counterarguments

*8 Taken together, the four factors discussed above compliment the written descriptions of the parties’ relationship to show definitively that the nature of their relationship was one of a broker and a shipper, not a carrier and a shipper. Zumba offers several arguments to undermine this conclusion, but none achieve their intended purpose. Two are worth discussing in some detail.

Zumba’s main counterargument revolves around ABF Logistics’ alleged failure to disclose Quick Cool as the transporter of the eventually stolen truck. As a result of Quick Cool’s undisclosed status, Zumba argues, Quick Cool must be considered an agent of ABF Logistics. It then follows that ABF Logistics was an “agent of a motor carrier,” and thus not a broker under the Carmack Amendment. 49 U.S.C. § 13102(2).

This argument fails for two reasons. First, the Court disagrees that Quick Cool was undisclosed to Zumba. OHL was “extremely busy” on August 8, 2014, when the trucks arrived to pick up Zumba’s shipment. (Doc. 30-3, p. 6) (Cossio Dep.). Accordingly, OHL “authorized” Muñoz to sign off on the shipments, even though he wasn’t an OHL employee. Id.7 Muñoz, acting as OHL’s agent, who was in turn acting as Zumba’s agent, interacted with Quick Cool’s driver and signed off on the shipment that Quick Cool picked up. Id. at 6-7; (Doc. 27-3) (Muñoz Dep.). This included copying “the person’s driver’s license,” signing bill(s) of lading under the “shipper signature” field, marking the relevant “seal” and “trailer” numbers, and noting the truck’s time of arrival. (Doc. 27-3). Acting as an agent to OHL, Muñoz signed off on Quick Cool picking up Zumba’s goods, despite the bill(s) of lading referring to “Oliva Delivery Corp” as the carrier, (Docs. 27-1, p. 4; 30-4, p. 4), and despite ABF Multimodal’s “Shipper’s Loading Instructions,” which state: “Please confirm that this carrier requesting the load is the carrier named on the bill of lading. If someone other than the named carrier is requesting this load, please call 877-279-8090 immediately,” (Doc. 27-1, p. 5).

Even if, despite OHL’s grant of authority to Muñoz, Quick Cool could somehow be considered “undisclosed” as to Zumba, the fact that a carrier’s identity may be undisclosed does not de facto transform a broker into a carrier for purposes of the Carmack Amendment. See Active Media Servs., 2012 WL 4462031, at *4 (“That AMS was not told the name of the carrier does not negate the fact that AMS retained AWIS for a particular purpose.”). The cases relied on by Zumba for the opposite proposition are readily distinguishable. In Travelers, 2010 WL 3894105, the court found the defendant to be a carrier not because it failed to disclose the identity of a third-party carrier, but because it failed to notify the shipper that it would be using a third-party carrier at all. Id. at 5 (“Panalpina never knew about the second Delivery Order or Buckley’s role in transporting the containers.” (emphasis added)).

*9 Zumba also assigns more weight to Titan Transp., Inc. v. O.K. Foods, Inc., 2013 Ark. App. 33, than it can bear. This is so for two reasons. First, Titan Transportation involved questions of Arkansas common law, not the Carmack Amendment or any other provision of federal law. Second, even assuming (without deciding) that Arkansas law would be the applicable state law to determine whether an agency relationship existed between ABF Logistics and Quick Cool, Titan Transportation would not support a positive finding. That case states:

Although it is well established that a broker cannot be held personally liable to the third party upon a contract for a disclosed principal, and if the third party knew, or had sufficient knowledge to create an inference, that the broker was acting for another, then the broker is not liable. [B]ut, if he does not disclose his principal nor the fact that he is acting as a broker and deals personally, then he is liable ….

Id. at *2 (first emphasis added, second emphasis in original). In Titan Transportation, Titan “did not disclose that it was merely a broker,” but instead “held itself out to be a carrier.” Id. at 3. The same cannot be said of ABF Logistics. The instant case is also distinguishable from Titan Transportation because, here, the identity of the carrier did not remain undisclosed so that the supposed-broker could “maximize its profit on the transaction.” Id. at 4. Rather, the previously identified carrier—Oliva Delivery Corp.— informed ABF Logistics the day before it was supposed to pick up the shipment that it was one truck short. The change in identity of the carrier was made by ABF Logistics at the last minute, in an attempt to benefit its agent, Zumba, not itself.

Zumba’s other counterargument is that a number of responsibilities assumed by ABF Logistics indicate that it was acting as a carrier. For this, Zumba relies on Hewlett-Packard and Custom Cartage. Both cases are distinguishable and, more importantly in this Court’s view, stretch the definition of “carrier” too far. For example, Custom Cartage lists as one factor indicating that a party was a carrier, not a broker, the party’s “discretion to hire whom it chose to ship the goods.” 1999 WL 965686, at *8. Of course, selecting carriers to transport goods for a shipper is exactly what brokers are supposed to do. Similarly, the Hewlett-Packard Court relied on the defendant’s statements that it could provide value through “consistent and timely transit times with quality carriers” and that it asked its “teams to run an average of 50mph” as indicia of being a carrier, not a broker. 373 F. Supp. 2d at 1352. In this Court’s view, promising to select prompt, reliable carriers “might make [a party] a responsible broker, but it does not make it a carrier.” Active Media Servs., 2012 WL 4462031, at *4.

ABF Logistics Did Not “Hold Itself Out” as a Carrier

Having concluded that ABF Logistics was a broker based on the nature of the relationship between the parties, the Court also believes it appropriate to determine whether ABF Logistics “[held] itself out to the world” as a carrier. Lumbermens, 303 F. Supp. 2d at 922. In arguing that it did, Zumba relies on statements from ABF.com. See Doc. 30-2, p. 2. The website differentiates ABF Freight from ABF Logistics, and then under the latter’s heading states:

ABF Logistics is a sister company to ABF Freight and provides third-party logistics services including brokerage, intermodal, ocean transport, transportation management, warehousing and household moving. We have the skill and the will to build and deliver seamless, customized supply chain solutions powered by advanced technology with access through a single point of contact.

*10 Id. Under ABF Logistics’ logo, the website describes the company as offering “comprehensive end-to-end transportation and logistics solutions to a broad customer base.” Id. Another section of the website states:

ABF Logistics, an ArcBest company and a sister company to ABF Freight, offers third-party logistics services including brokerage, intermodal, ocean shipping, transportation management, warehousing and household goods moving. We cover all your needs in one place with inclusive shipping and moving services, utilizing ground, air and ocean channels.

Id. at 3. Yet another section of the website, which ABF Logistics includes as an exhibit to its Motion for Partial Summary Judgment, focuses on the services of ABF Multimodal specifically. In relevant part, that section states: “ABF Multimodal is offered in association with ABF Logistics, an ArcBest company. When shipments do not fit on ABF vans or need special equipment, ABF Multimodal offers alternative options from a network of reliable carriers.” (Doc. 27-2, p. 29) (emphasis added). The website then lists three steps a customer can take to obtain ABF Multimodal’s services. The second step is the most relevant: “Submit your quote. By requesting a quote, ABF Multimodal will seek out the best price and service provider for your shipments.” Id. (first emphasis in original, second emphasis added).

The descriptions of ABF Logistics’ services are entirely unremarkable for purposes of this lawsuit. The website states that ABF Logistics provides a number of listed “logistics services” including (most pertinently) brokerage. Neither lists “truck” or “trailer” or “ground” or “road” carrier services. And, even if the references to “intermodal” or “ocean transport” could broadly be interpreted as references to carrier-like services, both are far outside the scope of the services sought by Zumba in this case, which in this Court’s view decreases their relevance. Nor does ABF Logistics’ claim of offering “comprehensive end-to-end transportation and logistics solutions” indicate that it is a carrier. (Doc 30-2, p. 2). The Court will not lay inference upon inference to find that advertisements promoting broad and vague categories of services like “transportation” solutions and “logistics” solutions create questions of material fact about whether ABF Logistics was a carrier.

More importantly, the bill(s) of lading, pricing schedule, and tariff in this case all refer specifically to ABF Multimodal.8 This makes the section of ABF’s website dedicated to its Multimodal entity the most relevant to determining how the company “held itself out.” That section unambiguously describes ABF Multimodal’s services as being broker-like in nature.

ABF Logistics Was Not a Freight Forwarder

Finally, Zumba contends that even if ABF Logistics was not a carrier under the Carmack Amendment, it was a freight forwarder. To prove that a defendant is a Freight Forwarder, a plaintiff must show each of the following:

[the person held itself] out to the general public … [as providing] transportation of property for compensation and in the ordinary course of its business—

(A) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments;

*11 (B) assumes responsibility for the transportation from the place of receipt to the place of destination; and

49 U.S.C. § 13102(8); Chemsource, 106 F.3d at 1361.9 “With respect to clause (A) above, the Supreme Court has held that the term ‘assembles and consolidates’ means the assembly or consolidation of less than carload quantities into carload shipments.” Chemsource, 106 F.3d at 1361 (citing Chicago, Milwaukee, St. Paul & Pac. R.R. Co. v. Acme Fast Freight, Inc., 336 U.S. 465, 467 (1949)). The Supreme Court has elaborated upon its understanding of what a freight forwarder does in some detail:

Forwarders utilize common carriers by rail and motor truck to transport goods owned by others. They solicit and obtain many small shipments, from various points within an area, and cause them to be carried in less than truck-load or carload lots to a concentration center within the area. There they are assembled by the forwarder for further transportation in truck-load or carload lots. Although the forwarder gives owners of individual small shipments his own contract corresponding in form to through bills of lading and assumes responsibility for safe through carriage, the forwarder customarily arranges for the pickup, assembly and transportation of the shipments by carriers for hire. And the forwarders, not the owners of the goods, select the carriers and route the shipments. Upon arrival of a truck-load or carload of the assembled small shipments at a distribution center, the bulk shipment is broken up, the forwarder separates and takes possession of the original small shipments and arranges, where necessary, their further carriage to their various final destinations in the area served by the particular distribution point. In this final carriage of the small shipment to its ultimate destination, the forwarder again utilizes carriers for hire to move these less than truck-load or carload lots. Thus, forwarders may use the service of carriers to assemble shipments of less than truck-load or carload lots at their concentration center, to transport the assembled truck-load or carloads to a distribution center and to carry the broken up small shipments beyond their break-bulk distribution center.

United States v. Chicago Heights Trucking Co., 310 U.S. 344, 345-46 (1940) (emphases added). In plainer terms, a freight forwarder: (i) collects a number of small shipments from a particular area; (ii) combines them to make one big shipment; (iii) arranges transportation of the big shipment to a central location; (iv) breaks the big shipment back down into a number of small shipments; and (v) arranges transportation for the small shipments to reach their intended destinations.

*12 Zumba has failed to present any evidence that ABF Logistics either operated as a freight forwarder in this particular case, or generally held itself out to the general public to be a freight forwarder. First, it cannot be seriously contended that ABF Logistics acted as a freight forwarder in this case. Applying the first prong of the statute and the Supreme Court’s description thereof, ABF Logistics performed none of the services customarily performed by a freight forwarder. It did not arrange for the consolidation of several small shipments into a large truck-sized shipment; instead, Zumba’s shipment filled five trucks. It did not break a shipment down at a central location; instead, the shipments were to be transported directly to their final destination.

Second, the only evidence Zumba offers to suggest that ABF Logistics held itself out as providing freight-forwarding services are the statements from ABF.com discussed supra in Section 111(B)(5). None of those statements declare or even suggest that ABF Logistics provided freight-forwarding services. If anything, they suggest the opposite. ABF Freight operates a “less-than-truckload” network, and ABF Multimodal solicits shipments that “do not fit on ABF vans,” to broker out to third parties. (Doc. 27-2, pp. 27, 29). Thus, while freight forwarders accept small shipments and combine them into large shipments, ABF Multimodal holds itself out as taking large shipments that ABF Freight cannot accommodate, and finding third parties that can.

Applicability of the Carmack Amendment to ABF Logistics: Summary

To summarize the Court’s lengthy analysis, the Carmack Amendment does not apply to this case because ABF Logistics was a broker—not a shipper or carrier—for purposes of that statute. Both the relevant documents and the parties’ respective actions show that their relationship was one between a broker and a shipper. And, ABF Logistics did not “hold itself out” as a carrier. It also did not actually perform the services of, or hold itself out to be, a freight forwarder. Zumba’s arguments to the contrary are unavailing, and in particular its argument that Quick Cool was an undisclosed third party is inaccurate given the status of Alfredo Muñoz as an agent of OHL’s. Finally, even if it were accurate, it would not change the nature of the parties’ relationship for purposes of the Carmack Amendment.

The Parties’ Remaining Arguments

Three pending questions remain unresolved in this case. First, the parties both contest whether ABF Logistics effectively limited its liability under the Carmack Amendment, assuming that Amendment applies. There is no need for the Court to reach this question, as it has already determined that the Carmack Amendment does not apply in this case. Second, ABF Logistics argues that, assuming the Carmack Amendment applies, Zumba’s breach of contract and negligence claims are preempted by it. Again, since the Court has now determined that the Amendment does not apply, it need not reach this question. Third, ABF Logistics argues that, regardless of the applicability of the Carmack Amendment, Zumba’s negligence claim is preempted by the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. § 14501(c)(1).

Given that the focus of the cross-Motions for Partial Summary Judgment was the applicability of the Carmack Amendment, the third issue is one that was hardly briefed by the parties. ABF Logistics dedicated only a short paragraph to the issue in its Brief in Support of Motion for Partial Summary Judgment (Doc. 26, pp. 11-12), and Zumba included only two paragraphs of analysis in its Response (Doc. 36, pp. 12-13). The Court’s initial review of the case law reveals a split on the question of whether the ICCTA preempts state negligence actions against brokers. Compare ASARCO LLC v. England Logistics Inc., 71 F. Supp. 3d 990, 1004-07 (D. Ariz. 2014) (finding preemption), with Works v. Landstar Ranger, Inc., 2011 WL 9206170 (G.D. Cal. April 13, 2011) (not finding preemption). And, there is apparently no Eighth Circuit precedent on the matter. Given the Court’s ruling that the Carmack Amendment does not apply, the question of ICCTA preemption is now of central importance to Zumba’s case. Accordingly, the Court will defer ruling on the question at this time, and invite the parties to submit supplemental briefing, as outlined below.

CONCLUSION

*13 For the reasons stated herein, Zumba’s Motion to Strike (Doc. 35) is DENIED. ABF Logistics’ Motion for Partial Summary Judgment (Doc. 25) is GRANTED IN PART and the Court DEFERS RULING in part. As to the question of whether the ICCTA preempts Zumba’s negligence claim, the Court invites ABF Logistics to supplement its Motion (Doc. 25) with a brief not to exceed 10 pages in length. The brief shall be submitted no later than 30 days from the entry of this Order. Zumba may supplement its Response (Doc. 36) with a brief not to exceed 10 pages in length, no later than 14 days after ABF Logistics files its supplement. ABF Logistics may then submit a reply brief not to exceed 5 pages in length, no later than 7 days after Zumba supplements its Response Brief. Finally, Zumba’s Motion for Partial Summary Judgment (Doc. 28) is MOOT, and its Amended Motion for Partial Summary Judgment (Doc. 31) is DENIED.

IT IS SO ORDERED on this 30th day of August, 2016.

All Citations

Slip Copy, 2016 WL 4544355

Footnotes

In addition, Zumba’s original Motion for Partial Summary Judgment (Doc. 28) is MOOT.

It is somewhat unclear to the Court whether the shipment included five or six trailers. The Complaint alleged five, (Doc. 23, ¶ 16), and one email from Heidy Hernandez of OHL lists five pickup times for the trailers. (Doc. 27). However, another email from Hernandez lists six pickup times, id., and ABF’s Statement of Undisputed Facts vacillates between listing “five” and “six” as the correct number of trailers. (Doc. 27, ¶¶ 12-15). Whether there were five or six trailers involved is ultimately unimportant to the Court’s decision, but the Court will continue to use the figure “five” to avoid confusion.

To clarify why an employee of ABF Freight, and not ABF Logistics, was handling Zumba’s claim, the bottom of the letter states that “ABF Freight is a cargo claim processing agent for ABF Multimodal, Inc. and merely manages all claims in relation to cargo loss and damage for Multimodal Customers.” (Doc. 27-7).

The Court notes some disagreement in the case law about whether the relevant inquiry is how the party “held itself out” to the world generally, or to the shipper specifically. Compare Lumbermans, 303 F. Supp. 2d at 922, with Active Media Servs., Inc. v. GAG Am. Cargo Corp., 2012 WL 4462031, at *3 (S.D.N.Y. Sept. 26, 2012) (declaring that “entities that hold themselves out to be carriers may be subject to carrier liability, but only if they hold themselves out as carriers in the specific transaction at issue” (emphasis in original)). This is a dispute the Court need not resolve, as either way, ABF Logistics did not hold itself out as a carrier.

ABF Multimodal Account Manager Scott Sharpe’s affidavit declares that the pricing schedule attached to his affidavit—“Pricing Schedule #: DPK2211624”—was the pricing schedule he sent to Zumba “for the shipment at issue in this case.” (Doc. 27-1, pp. 2, 6). ABF Logistics states the same in its Statement of Facts. (Doc. 27, ¶ 9). In its Response to ABF Logistics’ Statement of Facts, Zumba appears to not dispute that DPK2211624 is the relevant pricing schedule, stating: “The pricing schedule has been supplied to the Court and has the terms provided; however, those terms do not comply with the Carmack Amendment ….” (Doc. 37, ¶ 9 (emphasis added)). However, in the Statement of Facts accompanying its own Motion for Partial Summary Judgment, Zumba references a pricing schedule with the number “NT72212124-E,” which does not contain the above-quoted language.

To the extent that this creates an issue of fact about which pricing schedule applies, the Court finds that it is not an issue of material fact. Regardless of which pricing schedule applies, the totality of the documentary evidence, actions of the parties, and manner in which ABF Logistics (and, more importantly, ABF Multimodal) “held itself out” to Zumba and the public establishes that no reasonable jury could find ABF Logistics to be a carrier or freight forwarder under the Carmack Amendment.

Zumba contends that the Court should not consider the tariff because “it was never provided to Zumba,” and although it was “ ‘made available upon request’ within the terms of the pricing schedule,” that scheme of “reference to another document is disallowed by the Carmack Amendment, (Doc. 36, p. 4). As to the latter part of Zumba’s argument, its assumption that the Carmack Amendment applies is a classic example of circular reasoning. The entire purpose of looking to the documents that define the parties’ relationship is to determine whether the Carmack Amendment applies. As one of the documents that define the parties’ relationship, the tariff is of course probative of whether ABF Logistics was a broker or a carrier.

With respect to Zumba’s point that the tariff was never provided to it, the pricing schedule explicitly states: “By accepting service hereunder, you agree to the terms, conditions, and pricing contained in the … MM-100 Series tariff (available upon request or at abfmultimodal.com),” (Doc. 27-1, p. 7). BOLs 506 and 509 contained materially identical clauses. (Docs. 27-1, p. 4; 30-4, p. 4). The Court will not ignore the terms of a document so clearly incorporated into the parties’ agreement simply because Zumba failed to read it. See Bryton Dairy Prods., Inc. v. Harborside Refrigerated Servs., Inc., 991 F. Supp. 977, 984 (N.D. III. 1997) (rejecting argument that party “had never been made aware of ‘Terms and Conditions of Service’ printed in small type” on invoices, because its “asserted ignorance [was] no basis for declining to apply” a term of the invoices).

The key part of Cossio’s deposition reads as follows:

Q: … So is it always the case that when [a bill of lading] says, [“]shipper, OHL,[”] that it would be someone associated with OHL who is signing that document?

A: Someone that’s in the warehouse at that time; that’s correct.

Q: Okay. In this case, it just so happened to be someone [Muñoz] who worked for InfoSonics?

A: That’s in our facility; correct.

Q: So how does that work? How is he acting on behalf of OHL?

A: Well, we’re a small operation and we had lnfoSonics in-house as well as our team. If we have an overflow of merchandise coming in and out, at times he would come over and just help, meaning he’s not interacting directly, indirectly with the freight and giving us some support.

Q: In that case, would he be authorized then to deal with the carrier?

A: In that particular case, he was authorized to actually sign off.

Id. at 7.

In addition, Zumba named ABF Multimodal as a “d/b/a” in this case.

There are at least three different interpretations of this definition that can be extrapolated from the case law. Under the broadest interpretation, the phrase “holding itself out to the general public modifies the remainder of the definition, such that a plaintiff need only show that a defendant holds itself out to offer the enumerated services. See Metro. Shipping Agents of ill. v. United States, 342 F. Supp. 1266, 1269 (D.N.J. 1972) (“To qualify as a ‘freight forwarder’ one need not actually perform all of the functions authorized under [the definition]. As long as a party proffers all of the services … it will qualify as a ‘freight forwarder.’ ” (emphasis in original)). Another interpretation is that the phrase “holding itself out to the general public” modifies only the clause “to provide transportation of property for compensation, such that a plaintiff must show that a defendant actually performs the enumerated services. Accord Bryton Dairy Prods., 991 F. Supp. at 982 (“Whether an entity will be considered a freight forwarder as to a particular shipment for which it does not perform all the freight forwarder services may depend on the frequency with which its other brokerage/forwarding work involves providing all the freight forwarder services.”). A more narrow interpretation suggests that the services must be provided in the actual transaction at issue. See Pac. Austral Party, Ltd. v. lntermodal Exp., Inc., 1990 WL 141010, at *2 (N.D. III. Sept. 26, 1990) (“That defendant may, in the ordinary course of its business, have provided freight consolidation services in other instances is insufficient to make the Carmack Amendment applicable, since that statute requires both that such services be provided in the particular instance at issue and that those services have been provided in the ordinary course of business.”).

While the Court believes the second interpretation to be the most consistent with sound principles of statutory interpretation, it applies the first interpretation in the instant case, as ABF Logistics cannot be found to be a freight forwarder under even the broadest understanding of the statute.