United States District Court,

E.D. Pennsylvania.

PQ CORPORATION

v.

LANGER TRANSPORT CORPORATION

June 8, 2005.

 

ORDER-MEMORANDUM

 

PADOVA, J.

AND NOW, this 8th day of June, 2005, upon consideration of Defendant’s Motion for Summary Judgment (Doc. No. 30), Plaintiff’s Response thereto, and all attendant and responsive briefing, IT IS HEREBY ORDERED that said Motion is GRANTED IN PART and DENIED IN PART as follows:

1. By agreement of the parties, Defendant’s Motion is GRANTED with respect to Plaintiff’s common law claims in Count I (negligence), Count II (breach of contract), and Count III (indemnification), and these claims are DISMISSED.

2. Defendant’s Motion is DENIED with respect to Plaintiff’s Carmack Amendment claim in Count I.

This case involves a contaminated load of sodium silicate manufactured by Plaintiff PQ Corporation and tendered to Defendant Langer Transport Corporation for transport in a tank trailer from Chester, Pennsylvania to Plaintiff’s customer, Nyacol, in Ashland, Massachusetts. Plaintiff asserts that the sodium silicate load was contaminated by the residue from a non-compatible product that Defendant had previously transported in the unwashed trailer. Plaintiff seeks recovery under the Carmack Amendment, 49 U.S.C. § 14706, which governs the liability of common carriers in interstate commerce, for damages to those goods and to Nyacol’s facility. [FN1] Presently before the Court is Defendant’s Motion for Summary Judgment. Summary Judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

FN1. Plaintiff has compensated Nyacol for its damages.

Defendant argues that it is entitled to summary judgment as a matter of law because Plaintiff has failed to establish a prima facie case under the Carmack Amendment. To establish a prima facie case against a common carrier under the Carmack Amendment, the shipper must prove “(1) delivery of goods to the … carrier in good condition, (2) damage of the goods before delivery to their final destination, and (3) the amount of the damages.” Beta Spawn, Inc. v. FFE Transp. Servs., Inc., 250 F.3d 218, 223 (3d Cir.2001) (citation omitted). Defendant does not dispute that Plaintiff can establish that the sodium silicate load was damaged before its delivery to Nyacol. Nor does Defendant dispute that Plaintiff can precisely establish its monetary damages, although Defendant obviously takes issue with the actual amount of the loss suffered by Plaintiff in this case. Defendant argues only that Plaintiff has failed to prove that it delivered the sodium silicate load to Defendant in good condition. Specifically, Defendant contends that the uncontroverted evidence shows that Plaintiff did not release the sodium silicate load for delivery by Defendant until Plaintiff’s loading dock employee signed a Certificate of Analysis and created the bill of lading. (Hastings Dep. at 115-117.) By that point in time, the sodium silicate had already been loaded into Defendant’s tank trailer and exposed to the any residue contained therein. Thus, Defendant maintains that Plaintiff did not “deliver” the sodium silicate in good condition because any contamination of product occurred prior to Plaintiff’s release of the loaded shipment for delivery.

Defendant is correct that, as a general matter, the “delivery” of goods for shipment takes place when “there [is] no further action required by [the shipper] before transportation of the shipment by [the carrier]. At that point, [the shipper] release[s] the trailer to [the carrier] for immediate transportation and [the carrier] ha[s] complete and exclusive control of the goods.” Conair Corp. v. Old Dominion Freight Line, Inc., 22 F.3d 529, 532 (3d Cir.1994). However, Defendant implicitly concedes, and the evidence viewed in the light most favorable to Plaintiff independently confirms, that the sodium silicate was uncontaminated prior to being loaded into the tank trailer, and that the residue in the tank trailer was the exclusive source of any contamination to the product. Under these circumstances, courts have concluded that “delivery” occurs at the time of the initial loading. Compare Conair, 22 F.3d at 532 (determining delivery from point of release of shipment where damage to goods caused by third-party theft) with Kaiser Aluminum & Chem. Corp. v. Ill. Cent. Gulf R.R. Co., 615 F.2d 470, 475-76 (8th Cir.1980) (rejecting carrier’s contention that its liability did not commence until bill of lading issued where goods were uncontaminated at time of loading). As Plaintiff has raised a genuine issue of material fact as to whether it delivered the sodium silicate to Defendant in good condition, Defendant’s Motion is denied in this respect.

Once a plaintiff establishes a prima facie case of liability under the Carmack Amendment, “the burden shifts to the carrier to prove that it was free from negligence and that the damage was caused solely by ‘(a) the act of God; (b) the public enemy; (c) the act of the shipper [it]self; (d) public authority; (e) or the inherent vice or nature of the goods.” ‘ Beta Spawn, 250 F.3d at 226 (quoting Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964)); see also Martin Imps. v. Courier-Newsom Express, Inc., 580 F.2d 240, 242 (7th Cir.1978) (observing that “the law places upon the carrier a substantial double burden in order to avoid liability”). Defendant argues that it is entitled to judgment as a matter of law because it was free from negligence and the damage at issue was caused solely by the acts of Plaintiff. Defendant contends that it merely had a contractual duty to provide Plaintiff with a certificate indicating whether or not the truck has been cleaned. Although there is no dispute that Defendant provided Plaintiff with a certificate indicating that the truck had not been cleaned in this case, Plaintiff has produced sufficient evidence from which a reasonable juror could conclude that Defendant knew that it had to provide Plaintiff with a clean truck for the shipment of sodium silicate in situations where, as here, the last product transported by Defendant’s truck was not sodium silicate. For example, William Reeder, Plaintiff’s Logistics Planning Supervisor, testified that he had “multiple conversations” with Robert Langer, Defendant’s Chief Financial Officer, in which he instructed Langer that “[Defendant] was to wash trucks unless they were ‘top-loading,’ meaning loading [Plaintiff’s] sodium silicate on top of a prior load of [Plaintiff’s] sodium silicate.” (Reeder Aff. ¶ ¶ 2-3.) On December 19, 2000, Langer sent an e-mail to Reeder providing him with a price quote for the shipment of sodium silicate and advising him that the shipment “would be subject to the $100 cleaning charge per our Contract if top-loading is not applicable.” (Pl.’s Ex. E.) Leonard Butler, who is employed by Defendant as a truck dispatcher, testified that he could not recall ever “filling out a wash certificate that said the trailer had not been washed and dispatching [the trailer]” when “the prior product was not the same product being shipped as the current load [he] w[as] sending out.” (Butler Dep. at 44.) As Plaintiff has raised a genuine issue of material fact as to whether Defendant had a tort-based duty [FN2] to provide Plaintiff with a clean truck under the circumstances of the instant case, Defendant’s Motion is denied in this respect. [FN3]

FN2. Because the Court concludes that there is a genuine issue of material fact as to whether Defendant had a tort duty to provide a clean truck under the circumstances of this case, the Court need not resolve Plaintiff’s contention that Defendant also had an express contractual duty to provide a clean truck. See Roc-Noc Indus., Inc. v. Kenneth Schuck Trucking, Inc., Civ. A. No. 93-5098, 1994 WL 665558, at 11 (E.D.Pa. Nov. 21, 1994) (holding that carrier acted negligently by failing to follow shipper’s verbal instructions, even though no such instructions appeared in bill of lading); see also Project Hope v. M/V IBN Sina, 96 F.Supp.2d 285, 295 (S.D.N.Y.2000) (“A carrier’s duty to provide suitable transportation flows from its obligation to care for the cargo entrusted to its possession, and not from the form of documentation it receives.”), aff’d in part, vacated in part, 250 F.3d 67 (2d Cir.2001).

FN3. Defendant also argues that, even if it did act negligently in failing to provide a clean truck, Plaintiff’s decision to accept the unclean truck was the superseding cause of the damages suffered in this case. A plaintiff’s intervening acts may constitute a superseding cause and thus relieve the defendant from liability where the acts are “so extraordinary as to not have been reasonably foreseeable.” Singleton-Stone v. Amquip Corp., Civ. A. No. 98-4691, 2000 WL 1448817, at *3 (E.D.Pa. Sept. 29, 2000) (quoting Parks v. Allied Signal, Inc., 113 F.3d 1327, 1334 (3d Cir.1997)). Viewing the record evidence in the light most favorable to Plaintiff, a factfinder could reasonably conclude that Plaintiff’s decision to accept the unclean truck did not have such intervening force as to constitute the superseding cause of the loss. Id. Accordingly, Defendant’s Motion is denied in this respect.

Defendant alternatively seeks partial summary judgment with respect to Plaintiff’s damages under the Carmack Amendment. Defendant argues that Plaintiff’s damages should, as a matter of law, be limited to the diminished value of the contaminated shipment because Defendant could not have reasonably foreseen the damages to Nyacol’s facility. The Carmack Amendment states that carriers are subject to “liability … for the actual loss or injury to the property” transported. 49 U.S.C. § 14706. “Despite the apparent statutory limitation to recovery of damage caused to property itself transported,’ the Supreme Court ‘from its earliest interpretation has consistently construed the Amendment’ as imposing much more.” Am. Nat’l Fire Ins. Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 931 (7th Cir.2003) (quoting Air Products & Chems., Inc. v. Ill. Cent. Gulf R.R. Co., 721 F.2d 483, 485 (5th Cir.1983)). “In the words of the Supreme Court, the Carmack Amendment is ‘comprehensive enough to embrace all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination,” ‘ id. (quoting Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29, 57 S.Ct. 73, 81 L.Ed. 20 (1936)), including all reasonably foreseeable consequential damages. Air Products, 721 F.2d at 485. Foreseeability is a “primarily factual determination.” Id. at 488.

The Court concludes that there is a genuine issue of material fact as to whether Plaintiff’s damages should be limited to the loss of sodium silicate load. Viewing the evidence in the light most favorable to Plaintiff, Defendant knew it had a duty to provide Plaintiff with a clean truck for the shipment of the sodium silicate load because the previous load transported in the truck was incompatible with sodium silicate. Thus, a reasonable juror could conclude that Defendant had been put on actual notice that the sodium silicate load required “special handling of some kind,” Paper Magic Group, Inc. v. J.B. Hunt Transp., Inc., 318 F.3d 458, 462 (3d Cir.2003) (citation omitted), and that Defendant’s failure to comply with those special handling requirements would foreseeably result not only in contamination of the transported product, but also in contamination of the facility to which the product was delivered by Defendant. See Air Products, 721 F.2d at 488 (holding that carrier was liable for cost of decontaminating large storage tank, the entire contents of which was contaminated after carrier delivered incorrect product to consignee, because “even without knowing the exact properties of the chemicals delivered, the [carrier’s] employees should reasonably have anticipated … that a mixture of chemicals would result in contamination of the entire contents of the large storage tank”); V.R. Compounding Corp. v. Occidental Chem. Corp., Civ. A. No. 99-8087, 2000 WL 1368045, at 4 (N.D.Ill. Sept.15, 2000) (suggesting that carrier may be liable under Carmack Amendment for environmental contamination that resulted from spillage of chemicals during unloading). Accordingly, Defendant’s Motion is denied in this respect.

For the foregoing reasons, Defendant’s Motion is granted in part and denied in part.