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G&P Trucking Co. v. Zurich American Insurance Co.

United States District Court, D. South Carolina, Columbia Division

August 19, 2015

G& P Trucking Co., Inc., Plaintiff,
v.
Zurich American Insurance Company, as subrogee of SKF USA, Inc.; SKF USA, Inc., Defendants

          For G& P Trucking Company Inc, Plaintiff, Counter Defendant: Casper Fredric Marcinak, III, Robert Daniel Moseley, Jr, LEAD ATTORNEYS, Smith Moore Leatherwood, Greenville, SC.

         For Zurich American Insurance Company, as subrogee of SKF USA Inc, other, SKF USA Inc, SKF USA Inc, Defendants: Eric Richard Tonnsen, Eller Tonnsen Bach, Greenville, SC.

         For SKF USA Inc, Zurich American Insurance Company, as subrogee of SKF USA Inc, Counter Claimants: Eric Richard Tonnsen, Eller Tonnsen Bach, Greenville, SC.

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         ORDER AND OPINION

         Margaret B. Seymour, Senior United States District Judge.

         Before the court are motions for summary judgment by both Plaintiff G& P Trucking, Inc. (" G& P" ) and Defendants SKF USA, Inc. (" SKF" ) and Zurich American Insurance Company (" Zurich" ). ECF Nos. 20 (G& P) & 26 (SKF). Zurich is insurer and subrogee of SKF. In this action, G& P seeks a determination of its liability for a trucking accident and a determination as to any limitation of liability available to it. ECF No. 1.

         I. Factual and Procedural Background

         On January 14, 2014, G& P moved the court for summary judgment in its favor and asked the court to find that it had no liability under the " Ocean or Combined Transport Waybill," ECF Nos. 20-3 & 26-5 (hereinafter the " Bill of Lading" ), or, alternatively, that its liability was limited to $50.00 by the terms of the Delivery Order, ECF Nos. 20-6 & 26-3, or $500.00 by the Carriage of Goods by Sea Act (" COGSA" ), Note following 46 U.S.C. § 30701 . ECF No. 20. On March 2, 2015, SKF and Zurich also moved for summary judgment on the issue of liability, asking the court to hold that G& P had not presented evidence of a viable limitation of liability. ECF No. 26.[1] G& P filed a consolidated response in opposition to SKF's motion and reply on April 2, 2015. The court held a hearing on the summary judgment motions on April 14, 2015. On May 6, 2015, the court entered an order requesting supplemental briefing from the parties on the issue of the condition of the goods when they were delivered to G& P in Savannah. ECF No. 43. The parties completed this briefing by May 18, 2015. ECF Nos. 45 & 46.

         On June 19, 2015, the court issued an order addressing some of the issues raised by the parties in their summary judgment motions. ECF No. 49 (" June 19 Order" ). In that order, the court summarized the underlying facts and various details of the shipping documents involved. Id. at 2-6.[2] The court noted the parties' disagreement about the applicable law--COGSA or the Carmack Amendment, 49 U.S.C. § 14706__ and provided background about each provision. Id. at 7-9. The court further observed that whether the Bill of Lading is a through bill determines whether COGSA or the Carmack Amendment applies. Id. at 6. The court held the through bill of lading question to be a question of fact resolvable by the court as an exercise of the court's admiralty jurisdiction. Id. at 9. The court found the record to be ambiguous and scheduled an evidentiary hearing on the through bill of lading

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issue. Id. at 13. That hearing was held on July 29, 2015. ECF No. 57.

         Considering the record as a whole, including the exhibits, depositions, and witness testimony, the court finds that the Bill of Lading is a through bill of lading. COGSA governs the shipment at issue in this case. G& P's liability is limited by a valid Himalaya clause[3] in the Bill of Lading. For the reasons set forth below, the court grants G& P's motion for summary judgment and denies SKF's motion for summary judgment. This order renders G& P's motion in limine (ECF No. 35) moot; it is, therefore, denied as moot.

         II. Law and Analysis

         A bill of lading " records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage." A through bill of lading covers both the ocean and inland portions of the transport in a single document. Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 94, 130 S.Ct. 2433, 177 L.Ed.2d 424 (2010) (quoting Norfolk So. R. Co. v. James N. Kirby, Pty. Ltd., 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004)). Bills of lading may contain a so-called " Himalaya clause," " which extends the bills' defenses and limitations on liability to parties that sign subcontracts to perform services contemplated by the bills." Id. [4]

         Determining whether a shipment is governed by a through bill of lading is a question of fact. Am. Rd. Serv. Co. v. Consol. Rail Corp., 348 F.3d 565, 568 (6th Cir. 2003); see also Capitol Converting Equip., Inc. v. LEP Transp., Inc., 965 F.2d 391, 394 (7th Cir. 1992). In an admiralty proceeding, it is the duty of the court to settle factual disputes. New Jersey Steam Navigation Co. v. Merchant's Bank of Boston, 47 U.S. 344, 423, 12 L.Ed. 465 (1847) (" [I]t is our duty to settle facts in an admiralty proceeding, when they are material to the merits." ). Whether a particular bill of lading is a through bill is to be determined with reference to various factors, including: " (1) whether the bill of lading indicates the final destination for the goods; (2) whether the freight for the entire shipment was prepaid; and (3) whether a separate, domestic bill of lading ever issued." Custom Rubber Corp. v. ATS Specialized, Inc., 633 F.Supp.2d 495, 504 (N.D. Ohio 2009). The court may also consider other general aspects of the conduct of the shipper and the carriers. Marine Office of Am. Corp. v. NYK Lines, 638 F.Supp. 393, 399 (N.D.Ill. 1985) (collecting cases).[5]

         1. Whether the bill of lading indicates the final destination for the goods

         As the court noted in its June 19 Order, the Bill of Lading leaves the " Place of Delivery" blank, and does not, therefore, indicate clearly on its face the final destination of the goods. See ECF No. 26-5. G& P urges the court to construe

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the listing of SKF's Tennessee address in the consignee box as being an indication of the final destination of the goods.

         A consignee is the " person named in a bill to whom or to whose order the bill promises delivery." Black's Law Dictionary (10th ed. 2010), consignee. Looking only at the document itself, there is ambiguity as to whether the address of the consignee is the final destination of the goods and was so understood by the parties, or, alternatively, whether the final destination of the goods was unclear and was to be provided by the consignee at some date after the issuance of the Bill of Lading.

         The deposition of Philip Stender (" Stender" ), Panalpina's corporate designee pursuant to Federal Rule of Civil Procedure 30(b)(6), resolves this ambiguity in G& P's favor. During the deposition, counsel for SKF questioned Stender about a shipment communication platform printout, " an internal document" that gives various information about the shipment. ECF No. 60 at 12 (Stender Depo.); see also ECF No. 60-1 at 11 (Printout). When he was asked whether Savannah was the final destination, Stender demurred. For example:

Q: What is the final destination listed under the file characteristics for the Pantainer Hong Kong Limited waybill?
A: Savannah. And then we delivered it on to Crossville, Tennessee as part of ...

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