United States District Court,

S.D. New York.

THE TRAVELERS INDEMNITY COMPANY OF ILLINOIS a/s/o Quality Carton, Inc.,

Plaintiff,

v.

SCHNEIDER SPECIALIZED CARRIERS, INC., et al., Defendants.

Feb. 10, 2005.

MEMORANDUM OPINION AND ORDER

HOLWELL, J.

This action arises out of the interstate shipment of a printing press owned by Quality Carton Inc. (“Quality Carton”) and delivered from California to Quality Carton’s place of business in New York. Quality Carton’s insurer and subrogee, Travelers Indemnity Company of Illinois (“Travelers Indemnity”), brought this action against Schneider Specialized Carriers, Inc. (“Schneider”) and North American Van Lines, Inc. (“NAVL”) (collectively “defendants”), asserting state statutory and common law claims (“state law claims”) of negligence, recklessness, breach of contract, breach of bailment and breach of Uniform Commercial Code (“UCC”) Section 7.

Defendant NAVL moved to dismiss plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that all of plaintiff’s state law claims were preempted by the Carmack Amendment to the Interstate Commerce Act (“Carmack Amendment”), 49 U.S.C. § 14706, which creates an exclusive federal remedy for claims arising out of the interstate transportation of goods by a common carrier.

With leave of the Court, plaintiff amended its complaint on September 17, 2004 to add federal claims for breach of contract pursuant to the Carmack Amendment against Schneider and NAVL. NAVL has not sought to dismiss the Carmack Amendment claim asserted against it.

Following full briefing of the motion to dismiss, the Court held a conference on December 3, 2004 and notified the parties at that time that the motion to dismiss would be treated as a motion for summary judgment under Rule 56. By unpublished order dated December 9, 2004, the Court instructed the parties to submit any additional materials in support of or opposition to NAVL’s motion. Both parties have submitted additional affidavits and memoranda in support of and in opposition to the converted Rule 56 motion.

For the reasons set forth below, the Court grants the motion for summary judgment in its entirety, thereby dismissing all state law claims asserted against NAVL.

BACKGROUND

The following facts relevant to this motion are derived from the complaint, affidavits and documents submitted by the parties. [FN1] From December 14, 2003 until December 24, 2003, Travelers Indemnity provided damage-in-transit insurance coverage for Quality Carton, located in New York. Prior to December 23, 2003, Quality Carton engaged Schneider to transport a printing press owned by Quality Carton to Quality Carton’s place of business in New York. Schneider then arranged for NAVL to deliver, by truck, the printing press.

FN1. The facts as herein recited are drawn from defendants’ Rule 56.1 Statement of Material Facts (“Defs.’ 56.1 ¶ __”) and attached exhibits; Defendant’s Memorandum of Points and Authorities in Support of Motion to Dismiss (“Def.’s Mem. in Supp. of Mot. to Dismiss at __”) and attached exhibits; Plaintiff’s Memorandum in Opposition to NAVL’s Motion to Dismiss (Pl.’s Mem. in Opp’n to Mot. to Dismiss at __”); Declaration of Thomas B. Coppola (Coppola Decl. ¶ __”) and attached exhibit; Defendant’s Reply to Declaration of Plaintiff and in Further Support of Motion to Dismiss (“Def.’s Reply Mem. at __”) and attached exhibits; Declaration of James Rodgers (Rodgers Decl. ¶ __”) and attached exhibits.

It is undisputed that Schneider and NAVL entered into a Master Transportation Contract, which governed the rates and charges, as well as the apportionment of loss. (Rodgers Decl., Ex. A.) At the time of the shipping, NAVL issued a comprehensive bill of lading and freight bill on December 17, 2003, which named Quality Carton as the consignee, Mark Container as the shipper and NAVL as the carrier. (Def.’s 56.1 ¶ 5; Def.’s Mem. in Supp. of Mot. to Dismiss, Ex. B; Def.’s Reply Mem., Ex. 2.) Schneider also issued a straight bill of lading on December 17, 2003, naming Quality Carton as the consignee and itself as the carrier. (Rodgers Decl., Ex. F.) NAVL holds a certificate of authority allowing it to operate as either a common carrier or contract carrier. (Def.’s Reply Mem., Ex. 1.)

Travelers Indemnity alleges that on December 23, 2003, the tractor-trailer engaged and operated by NAVL struck a bridge pier and guardrail in Virginia, thereby damaging the printing press. Pursuant to the terms of the insurance policy issued to Quality Carton, Travelers Indemnity paid $153,329.35 to Quality Carton and was assigned Quality Carton’s right to recover against defendants by written agreement. On January 29, 2004, NAVL inspected the damages from the incident and completed a report. (Rodgers Decl., Ex. B.) Travelers Indemnity wrote letters to both Schneider and NAVL notifying them of the loss. (Id., Exs. D and E.) To date, neither party has issued any payment to Travelers Indemnity.

DISCUSSION

I. Conversion of NAVL’s Motion to Dismiss into a Motion for Summary Judgment

When matters outside the pleadings are presented in response to a 12(b)(6) motion, a district court must either “exclude the additional material and decide the motion on the complaint alone” or “convert the motion to one for summary judgment under [Rule 56] and afford all parties the opportunity to present supporting material.” Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000) (internal citations and quotations omitted); see Fed.R.Civ.P. 12(b). [FN2] Generally, the Court has discretion in converting the motion to dismiss into a motion for summary judgment, and “should give the parties explicit notice of its intention to convert such a motion.” Garcha v. City of Beacon, No. 04 Civ. 5981(CMM), 2005 WL 39749, at *3 (S.D.N.Y. Jan. 3, 2005) (citing In re G. & A. Books, Inc., 770 F.2d 288, 294-95 (2d Cir.1985)). There is no question that the parties were aware that NAVL’s motion to dismiss would be treated as a motion for summary judgment. See Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.1997) (the essential inquiry is whether a party “recognized the possibility that the motion might be converted into one for summary judgment or was not taken by surprise and deprived of reasonable opportunity to meet facts outside the pleadings.”)

FN2. Rule 12(b) provides: “If on a motion asserting the defense numbered (6) to dismiss for a failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

In converting defendant’s 12(b)(6) motion into a Rule 56 motion, the Court is required to draw all reasonable inferences and resolve all genuine disputes in favor of plaintiff. Goldman v. Belden, 754 F.2d 1059, 1071 (2d Cir.1985). Moreover, the Court must assess the evidence in “the light most favorable to the non-moving party.” Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997) (quoting Fed.R.Civ.P. 56(c)).

II. Travelers Indemnity’s Remedies Against NAVL

The central issue before this Court is whether the Carmack Amendment preempts Traveler Indemnity’s state law claims asserted against NAVL. NAVL argues that as a contract carrier, all of its activities and operations regarding the shipment of the printing press are governed by the Carmack Amendment, which preempts state law remedies. (Def.’s Mem. in Supp. of Mot. to Dismiss at 7.) In response, Travelers Indemnity generally asserts that discovery is necessary prior to dismissing any claims asserted against NAVL. (Pl.’s Mem. in Opp’n to Mot. to Dismiss at 5.)

A. Preemption

The Carmack Amendment, enacted in 1906, “governs the liability of common carriers for loss or damage to goods shipped or transported in interstate commerce.” Calka v. North American Van Lines, Inc., No. 00 Civ. 2733(AGS), 2001 WL 434871, at *2 (S.D.N.Y. Apr. 27, 2001) (internal citations and quotations omitted). Specifically, the Carmack Amendment “subjects a motor carrier transporting cargo in interstate commerce to absolute liability for loss to the cargo unless the carrier limits its liability by meeting certain requirements.” Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1185 (9th Cir.2002) (citing 49 U.S.C. § 14706(c)(1)(a)). The purpose of the Carmack Amendment is to “provide interstate carriers with reasonable certainty and uniformity in assessing their risks and predicting their potential liability.” Project Hope v. M/V IBN SINA, 250 F.3d 67, 73 n. 6 (2d Cir.2001) (citing Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 381 (5th Cir.1998)). As such, the Carmack Amendment establishes a “single uniform regime for recovery by shippers directly from [the] interstate common carrier in whose care their [items] are damaged … and by preempt[ing][the] shipper’s state and common law claims against a carrier for loss or damage to goods during shipment.” Id. (internal citations and quotations omitted).

It is thus well settled that Congress clearly intended the Carmack Amendment to preempt all state law claims against interstate carriers for loss or damage to goods during shipping. See Adams Express Co. v. Croninger, 226 U.S. 491, 505-07 (1913) (“Almost every detail of the subject is covered so completely that there can be no rational doubt that Congress intended to take possession of the subject, and supersede all state regulation with reference to it .”); Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir.2003) (“Congress intended for the Carmack Amendment to provide the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier.” ); Sorrentino v. Allied Van Lines, Inc., No. 01 Civ. 1449(AHN), 2002 WL 32107610, at *2 (D.Conn. March 22, 2002); Orlick v. J.D. Carton & Son, Inc., 144 F.Supp.2d 337, 345 (D.N .J.2001). Based on this interpretation, several courts have construed the Carmack Amendment to preempt completely state law causes of action. Hoskins, 343 F.3d at 778 (applying “complete preemption doctrine” and concluding that Carmack Amendment preempted claims of negligence, breach of contract and Texas Deceptive Trade Practices Act); Smith v. United Parcel Service, 296 F.3d 1244, 1246 (11th Cir.2002) (claims of fraud, negligence, wantonness or outrage preempted by Carmack Amendment); Ash v. Artpack Int’l, Inc., No. 96 Civ. 8440(MBM), 1998 WL 132932, at *4 (S.D.N.Y. March 23, 1998) (“The Carmack Amendment is an example of a statute that completely preempts the field it occupies.”).

B. Contract Carriers and the Carmack Amendment

Defendant NAVL thus seeks to avail itself of provisions of the Carmack Amendment, thereby dismissing plaintiff’s state law claims arising out of the allegedly negligent shipment of the printing press. While plaintiff begrudgingly acknowledges the preemptive scope of the Carmack Amendment, plaintiff asserts that NAVL has not established that it is a contract carrier, and that in any event, the Carmack Amendment only applies to common carriers. (Rodgers Decl. ¶ 8.)

1. NAVL’s Status as Contract Carrier

Travelers Indemnity first argues that because Schneider allegedly acted as a carrier alongside NAVL, the status of Schneider and the status of NAVL are both “in question.” (Id. ¶ 7.) In support, Travelers Indemnity asserts that Schneider listed itself as a “carrier” on the straight bill of lading and set forth agreed rates for transportation and liability. (Id., Exs. F and G.) Ultimately, the import of plaintiff’s contention is that if NAVL can be considered a broker by virtue of Schneider’s participation as a carrier, the Carmack Amendment will not apply to preempt state and common claims against NAVL. Chubb Group of Ins. Companies v. H.A. Transp. Systems, Inc., 243 F.Supp.2d 1064, 1068-69 (C.D.Cal.2002) (stating that “the Carmack Amendment does not apply to brokers.”).

49 U.S.C. § 13102 defines the term “carrier” as including “motor carrier,” which means “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102. A “broker” is defined 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.” Id. The complaint unequivocally alleges that “Schneider arranged for NAVL to deliver, by truck, the printing press to Quality Carton.” (Pl.’s Compl. ¶ 11.) [FN3] On its face, the complaint clearly alleges that NAVL acted as a carrier.

FN3. Plaintiff’s Amended Complaint contains the same allegation. (Pl .’s Am. Compl. ¶ 11.)

Additionally, plaintiff has failed to present any evidence suggesting that NAVL operated as a broker or otherwise. Instead, Travelers Indemnity simply argues that certain documents render Schneider’ s involvement in the transaction ambiguous. Despite the fact that Schneider listed itself as a carrier in the straight bill of lading, “what a party labels itself and what a party is registered as [are] not controlling.” Custom Cartage, No 98 Civ. 5182, 1999 WL 965686, at *12; Schramm v. Foster, 341 F.Supp.2d 536, 549 (fact that entity was listed as “carrier” on bill of lading did not establish that it was a carrier). Indeed, “[w]hether a company is a broker or a carrier/freight forwarder is not determined by how it labels itself, but by how it holds itself out to the world and its relationship to the shipper.” Lumbermans Mut. Cas. Co. v. GES Exposition Servcs., Inc., 303 F.Supp.2d 920, 921 (N.D.Ill.2003) (internal citations and quotations omitted).

In any event, that Schneider may have acted as a carrier “alongside NAVL” does not undermine a finding that NAVL acted as a carrier for the purposes of the Carmack Amendment. The allegations in plaintiff’s complaint, the bill of lading issued by NAVL and the Master Transportation Contract setting the rates and charges between NAVL and Schneider all support the conclusion that NAVL acted as a contract carrier for this shipment. (Def.’s 56.1 ¶ 5; Def.’s Mem. in Supp. of Mot. to Dismiss, Ex. B; Def.’s Reply Mem., Ex. 2; Rodgers Decl., Ex. A.) Plaintiff has failed to present any evidence refuting NAVL’s showing or raising an issue of material fact as to NAVL’s status as a contract carrier. Accordingly, the Court finds that NAVL acted as a contract carrier for the purposes of this motion.

2. The Carmack Amendment’s Applicability to NAVL

Plaintiff contends that, even assuming that NAVL is a contract carrier, the Carmack Amendment does not apply to contract carriers. (Rodgers Decl. ¶ 8.) On its face, the statutory language of the Carmack Amendment is “not limited to common carriers and does not exclude contract carriers from its purview. Custom Cartage, Inc. v.. Motorola, 1999 WL 965686, at *12 (N.D.Ill. Oct. 15, 1999). Significantly, Section 11707 of the Carmack Amendment was originally “entitled ‘Liability of Common Carriers …’ and specifically discussed the liabilities of common carriers.” William Wrigley, Jr. Co. v. Stanley Transportation, Inc., No. 98 Civ. 2988, 1999 WL 608710, at *1 (Aug. 4, 1999). In 1996, Congress “substantially amended the statute, deleting the word ‘common’ as a limitation on ‘carrier.” ‘ Custom Cartage, Inc., 1999 WL 965686, at *12. As the Supreme Court has instructed, “[f]ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” Benjamin v. Fraser, 343 F.3d 35, 46- 47 (2d Cir.2003) (quoting INS v. Carodza-Fonseca, 480 U.S. 421, 442-43 (1987)) (stating that where Congress “includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended.”) Congress in this instance expressly deleted the limiting term “common” from the previously enacted version of the Carmack Amendment and effectively broadened the scope to apply to all carriers. See Custom Cartage, 1999 WL 965686, at *12. Plaintiff’s request that this Court reinsert “common” as a limiting term would render meaningless Congress’ deliberate act of deleting that very word from the Carmack Amendment. Accordingly, the Court concludes that Carmack Amendment applies with equal force to contract carriers and common carriers.

Plaintiff alternatively suggests that NAVL waived any protection afforded by the Carmack Amendment through certain provisions contained in the Master Transportation Contract. (Rodgers Decl. ¶ 6.) To escape the reaches of the Carmack Amendment, the parties must “in writing, expressly waive any or all rights and remedies under this part for the transportation covered by the contract.” 49 U.S.C. § 14101(b)(1). The only evidence plaintiff marshals in favor of its argument are two provisions contained in the Master Transportation Contract between Schneider and NAVL setting forth the rates and procedures for handling cargo liability claims. (Rodgers Decl. ¶ 6; id., Ex. A.) Neither of these provisions mentions the Carmack Amendment or indicates any intention to waive the rights and remedies secured under the Carmack Amendment. Absent an express agreement waiving the protections of the Carmack Amendment, the Court finds that NAVL has not opted out of the Carmack Amendment’s scope. Custom Cartage, 1999 WL 965686, at *12 (finding, as matter of law, that Carmack Amendment applied to contract carrier which did not waive its rights or remedies thereunder). [FN4]

FN4. Plaintiff also suggests that the absence of the applicable tariff governing the shipment of the goods precludes summary judgment on the preemption issue. (Rodgers Decl. ¶ 4.) Under the Carmack Amendment, a carrier is liable for the “the actual loss or injury to the property,” 49 U.S.C. § 14706(a)(1), unless it limits its liability by (1) maintaining a tariff in compliance with the requirements of the Interstate Commerce Commission; (2) giving the shipper a reasonable opportunity to choose between two or more levels of liability; (3) obtaining the shipper’s agreement as to his choice of carrier liability limit; and (4) issuing a bill of lading prior to moving the shipment that reflects any such agreement. Rohner Gehrig Co., Inc. v. Tri-State Motor Transit, 950 F.2d 1079, 1081 (5th Cir.1992) (en banc); Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir.1987), cert. denied, 485 U.S. 913. While the production of the tariff may be relevant to whether NAVL has successfully limited its liability under the Carmack Amendment, it is irrelevant to the preliminary issue of whether the transaction fits within the purview of the Carmack Amendment.

C. Consignees and the Carmack Amendment

Travelers Indemnity contends that as subrogee to Quality Carton, the consignee, it is not bound by the Carmack Amendment. According to Travelers Indemnity, the Carmack Amendment only applies to shippers. (Rodgers Decl. ¶ 10.) Under the Carmack Amendment, a carrier must issue a bill of lading for property it receives for transportation. 49 U.S.C. § 14706(a)(1). The bill of lading subjects the carrier to liability to “the person bound by the bill of lading” for any losses arising out of the shipment of the goods. Id.; Calka, 2001 WL 434871, at *2. Indeed, the Supreme Court has specifically stated that “[b]y virtue of the Carmack Amendment, 34 Stat. 584, amended, 38 Stat. 1196, 49 U.S.C.A. s 20(11), [a] bill of lading determines the rights of the consignee.” Mexican Light & Power Co., Ltd. v. Texas Mexican Railway Co., 331 U.S. 731, 733 (1947); Air Products and Chemicals, Inc. v. Illinois Central Gulf R. Co., 721 F.2d 483, 486-87 (5th Cir.1983) (purpose of the Carmack Amendment was to “provide a uniform rule that the carrier issuing the bill of lading would be responsible to the consignee for all loss, damage, or delay arising out of the contract to transport the goods so shipped.” (emphasis added); S & H Hardware & Supply Co. v. Yellow Transp., Inc., No. 02 Civ. 9055, 2004 WL 1551730, at *3 n. 6 (E.D.Pa. July 8, 2004) (remarking that a consignee has “standing to bring an action under the Carmack Amendment to recover the value of goods lost”). Accordingly, the Court concludes that Quality Carton, as consignee, and Travelers Indemnity, as subrogee to Quality Carton, are bound by the Carmack Amendment.

III. Conclusion

The Court grants defendant NAVL’s motion for summary judgment [7] in its entirety, thereby dismissing plaintiff’s claims sounding in negligence, breach of contract, breach of bailment, and breach of UCC Section 7 asserted against NAVL.

SO ORDERED

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

 

Court of Appeal of Louisiana,

Second Circuit.

STATE of Louisiana, Appellee

v.

Richard Thomas PIGFORD, Appellant.

Jan. 26, 2005.

 

Before WILLIAMS, STEWART and MOORE, JJ.

STEWART, J.

Richard Pigford (“Pigford”) was convicted of possession of marijuana with the intent to distribute, and sentenced to eight years at hard labor, from which he now appeals. For the reasons that follow, we find that the evidence was insufficient to support the defendant’s conviction and sentence, and we reverse and render a judgment of acquittal.

FACTS

On September 25, 2000, a computer weight monitoring station set up on I-20 by the weight and standards division of the state police, registered an eastbound Volvo eighteen-wheeler 3000 pounds over the state weight limit of 80,000 pounds. The vehicle, driven by the defendant, was directed to pull over into the nearest weight station. Carol Pigford, the defendant’s wife and the registered owner of the tractor, was a passenger in the vehicle. The record does not establish the registered owner of the trailer. The trailer was not sealed, but was locked only with a padlock. The defendant had the key to the padlock.

The truck was weighed on the stationary scales at the weight station, and again determined to be 3,000 pounds overweight. The defendant was directed to pull over and stop the truck, and to get out with his papers. Sergeant Brierre Thomas, with the Department of Transportation, Weights and Standards Unit, and Deputy Danny Williams, a K-9 officer with the Caddo Parish Sheriff’s Office, interviewed the defendant. The defendant told them he was traveling to New York; however, the bill of lading showed the defendant was hauling a load of grapes from California to Pennsylvania.

Because they were concerned about the discrepancy in the destination and cargo given by the defendant and the destination on the bill of lading and that the defendant seemed to be traveling “out of his way” to get to New York, Sergeant Thomas and Deputy Williams asked the defendant to open the back of the trailer, so they could see what he had as cargo. The defendant refused to open the trailer, telling the officers he was a member of the NAACP, and that he knew he had a right to refuse to allow the search. In fact, at the hearing on the defendant’s motion to suppress, Sergeant Thomas admitted that he and Deputy Williams had no authority to make the defendant open the trailer.

Immediately after the defendant refused to open the trailer, Sergeant Thomas called Peggy Adley, an agent with the Public Service Commission. She was across the interstate at the westbound weight station. Sergeant Thomas testified that the reason he called her was that she would need to know what was in the trailer; the company the defendant drove for was not a familiar company, and that Adley would need to check his “single state registration” and insurance, and inspect his load to see if it matched his bill of lading. Sergeant Thomas told her that he had a trucker who was refusing to open the trailer, and he had conflicting statements about the load and the destination.

Officer Adley arrived in a couple of minutes and inspected Pigford’s papers. Afterwards, she told him that she had the right to inspect the trailer without his consent, so he unlocked the padlock and opened the doors. The trailer contained a load of boxes of grapes, stacked nearly to the top of the trailer. Officer Adley did not inspect the load, but asked Officer Thomas to do so. Officer Thomas climbed up onto the back of the trailer and looked at the load. As Sergeant Thomas inspected the load, he either saw or felt a large package sitting on top of the boxes of grapes, less than an arm’s length from the back end of the load. The package was wrapped in clear plastic wrap and duct tape, and was about a foot wide and six-and-a-half to seven feet long. The package was not visible until Sergeant Thomas got up onto the back of the trailer.

Sergeant Thomas asked the defendant about the package, and the defendant told him he didn’t know anything about it. Carol Pigford also denied knowing anything about the package. Sergeant Thomas and Deputy Williams pulled the package down. One of the bundles in the package was opened up, revealing marijuana. The total weight of marijuana was approximately 52 pounds, with a street value of $52,000. The defendant and his wife were arrested for possession of marijuana with the intent to distribute. After the arrest, the defendant’s bill of lading was determined to be in good order. No fingerprints were found on the package.

Prior to the trial, Pigford filed a motion to suppress that was denied by the trial court. During the time leading up to the trial, Pigford retained and fired three different attorneys before deciding to represent himself in defense of the charges against him. The trial court strongly warned the defendant that he was facing a serious felony charge and that he needed counsel. In fact, the trial court offered to continue the matter to allow the defendant to consider getting new counsel.

Nonetheless, Pigford responded by stating that he still wanted to represent himself. The trial court then advised the defendant he would be tried by a jury unless he specifically waived the right, and that he had a right to subpoena witnesses. After the trial court further advised the defendant of the delays in subpoenaing witnesses, he was allowed to represent himself.

After several delays, trial began on November 19, 2002. On November 18, 2002, the defendant made an oral motion to be appointed counsel, which was argued and denied by the trial court. The trial court advised the defendant as to the proper procedure in conducting a jury voir dire.

The transcript reveals that Pigford put forth a more than adequate defense for himself, displaying a significant level of confidence and proficiency in using the rules of evidence to impeach witness testimony, assert objections, and effectively cross examine witnesses. Pigford attacked the credibility of the officers involved, and argued that the state’s evidence could not exclude the possibility that the marijuana was put in the trailer by someone who helped load the trailer.

On cross examination of Sergeant Thomas, Pigford established that the load of grapes came through a broker. He also established that an overweight load was a common occurrence, usually involving writing a citation and letting the trucker leave. The defendant also established that although Sergeant Thomas had just testified that the marijuana was in “plain view,” it was actually on the top of the load of grapes, two or three feet above his head, and was discoverable only by reaching over with his hand and feeling around.

The defendant got Deputy Williams to admit that it was possible that someone loading the load could have placed the marijuana into the truck while the defendant was sorting out the paperwork, and someone else could have taken the marijuana off at the other end, and “… the defendant would never have known what he was carrying.” The defendant also got Williams to admit that he did not remember if he ever asked the defendant if he watched the truck being loaded.

The next witness for the state was Agent Peggy Adley, enforcement agent for the Louisiana Public Service Commission. On cross examination, the defendant, despite objections by the state, got Agent Adley to admit that the package of marijuana was not in “plain view” and was not visible to someone standing on the ground. The defendant also got Agent Adley to acknowledge that she found nothing wrong with his paperwork.

The defendant chose not to return to finish the trial, but fled the state instead. The trial court completed the trial in the defendant’s absence. The jury convicted the defendant as charged. The defendant was represented by counsel during his sentencing where he was sentenced to eight years at hard labor. Pigford then filed a pro se motion for new trial.

On April 29, 2004, this court on a writ of mandamus, noted that the applicant was sentenced, and the appeal granted, before the trial court heard “… an unidentified post-trial motion.” The writ was granted “… solely to remand the matter to the district court to give it jurisdiction to act on the post-trial motion.” State v. Pigford, 38,933-KH (La.App.2d Cir.4/29/04). On May 18, 2004, the trial court heard and denied the defendant’s motion for new trial, and resentenced the defendant to eight years at hard labor. This appeal followed.

DISCUSSION

Insufficiency of evidence

Pigford argues the evidence failed to establish that he constructively possessed the marijuana found in the trailer full of grapes. We agree.

Our finding that the evidence was insufficient as a matter of law pretermits a discussion of the other issues raised by the instant appeal.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 1996-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94- 3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

To be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987.

A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910.

It is always the function of the jury to assess the credibility of witnesses and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App.2d Cir.1992), writ denied, 617 So.2d 905 (La.1993). Where the trier of fact has made a rational determination, an appellate court should not disturb it. Indeed, in the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for the requisite factual conclusion. State v. Thomas, supra; State v. Combs, 600 So.2d 751 (La.App.2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

Possession with intent to distribute is defined in La. R.S. 40:966(A)(1) which provides:

A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:

(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I;

The facts of this case pose an unusual constructive possession problem; that is, can a truck driver engaged in hauling cargo in interstate commerce be found to constructively possess drugs found hidden in the cargo, absent any evidence of knowledge of the drugs, and based solely on the truck driver having access to the trailer? The answer to this question could have far-reaching implications to interstate commerce. In the present case, the defendant’s eighteen-wheeler was stopped for an overweight load. The defendant had a key to the door of the trailer. A search of the trailer uncovered 52 pounds of marijuana. The defendant denied knowledge of the drugs. The state adduced no other evidence.

The case is readily distinguishable from the many reported cases where a private vehicle is pulled over and searched and drugs or other contraband are found in the interior compartment or the trunk of the vehicle. The case is also distinguishable from cases where an eighteen-wheeler is searched and drugs are found in the cab of the tractor, not the trailer or cargo area. See State v. Cash, 2003-853 (La.App. 3d Cir.12/10/03), 861 So.2d 851.

The obvious problem is that one cannot apply private vehicle case law regarding constructive possession to drugs found in the cargo area of a common carrier involving the transportation of goods or persons. It should be noted that all of the cases cited by the state in support of the conviction involve constructive possession of drugs found in the interior compartment or the trunk of private passenger vehicles. None address the issue in this case, where drugs were found hidden in a cargo area among forty tons of someone else’s produce, loaded into the cargo area by someone other than the driver.

The cargo area of a vehicle licensed and used in interstate commerce may be accessed by numerous other people involved in the loading and unloading of that cargo area. The mere fact that the driver of such a vehicle may also have access to the cargo area of his vehicle is not sufficient proof of constructive possession of any contraband subsequently found in the cargo. To convict, there must be some other evidence to preclude the possibility that the contraband was put there by third persons during the loading of the cargo, or evidence proving the driver’s knowledge of the contraband in the cargo area. To convict a driver only on the evidence that he had access to the cargo area creates a dangerous precedent for the many drivers involved in commercial transportation of goods that happen to have access to the cargo they are carrying.

As we have found no state appellate cases addressing the instant issue, we look to other courts for guidance. Specifically, the United States Fifth Circuit, in addressing this issue, has consistently required more evidence than the truck driver merely having access to the trailer. In U.S. v. Morales, 854 F.2d. 65 (5th Cir.1988), the Fifth Circuit affirmed the conviction of a truck driver found carrying 386 pounds of marijuana in a trailer-load of onions, because the government adduced testimony from the employees that loaded the onions into the trailer, to establish that the marijuana was not put in the trailer when the onions were loaded. The Fifth Circuit found that from this evidence, the jury could have reasonably inferred that the marijuana was placed in the trailer after the driver took possession of the load.

In U.S. v. Moreno-Hinojosa, 804 F.2d 845 (5th Cir.1986), the Fifth Circuit reversed the government’s conviction of a passenger in an eighteen-wheeler found to be carrying 400 pounds of marijuana in an empty trailer noting that the government did not make any showing, even circumstantially, that Moreno had any knowledge that the vehicle he was riding in was involved in the distribution of marijuana.

In U.S. v. Carreon-Palacio, 267 F.3d 381 (5th Cir.2001), the Fifth Circuit affirmed a conviction of a truck driver involved in the transportation of 1,200 pounds of marijuana based on the additional evidence that the truck driver, and his truck, were seen near the site where the marijuana was loaded, and the marijuana was wrapped in trash bags identical to trash bags purchased by the truck driver at a nearby store, just prior to the marijuana being loaded.

We note that the state did not present a thorough case, perhaps because it was dealing with a defendant representing himself. Nonetheless, no effort was made to adduce evidence to establish that the marijuana was not present in the trailer when the grapes were loaded. As a result, the defendant was even able to get the state’s witness to acknowledge that it was possible that the marijuana was put in the trailer by the people who loaded the grapes. The state’s evidence does nothing to exclude that possibility.

The officers testified that the defendant denied any involvement in loading the grapes, and nothing in the evidence establishes that he was present at the loading other than the fact that he picked up the load. The defendant’s fingerprints were not found on the package. Nor was the package in clear view from the ground when locking or unlocking the trailer doors. Mere presence in the area where narcotics are discovered is insufficient to support a finding of possession. However, the fact finder may draw reasonable inferences based upon the evidence presented at trial. State v. White, supra. The state has given scant evidence to draw any reasonable inference that the defendant either possessed or had actual knowledge of the marijuana in the trailer.

The ownership of property in which the contraband is found is also a factor to consider in determining constructive possession. State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. It is noteworthy that, although the state adduced evidence that the Volvo tractor was licensed in North Carolina to the defendant’s wife, no evidence was adduced to establish ownership of the trailer, which the bill of lading shows was licensed in Florida. The evidence in the record does not preclude the possibility that the defendant may have backed his Volvo tractor up to someone else’s loaded trailer, hitched the trailer to his tractor, locked the trailer doors, and driven off. As such, we cannot say that the evidence was sufficient as a matter of law to sustain the defendant’s conviction and sentence.

CONCLUSION

For the foregoing reasons, we reverse the defendant’s conviction and sentence and enter a judgment of acquittal.

REVERSED AND RENDERED.