United States District Court, D. South Carolina, Columbia Division
P Trucking Company Inc, Plaintiff, Counter Defendant: Casper
Fredric Marcinak, III, Robert Daniel Moseley, Jr, LEAD
ATTORNEYS, Smith Moore Leatherwood, Greenville, SC.
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.
USA Inc, Zurich American Insurance Company, as subrogee of
SKF USA Inc, Counter Claimants: Eric Richard Tonnsen, Eller
Tonnsen Bach, Greenville, SC.
B. Seymour, Senior United States District Judge.
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.
Factual and Procedural Background
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. 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
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. 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
issue. Id. at 13. That hearing was held on July 29,
2015. ECF No. 57.
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 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.
Law and Analysis
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. 
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)
Whether the bill of lading indicates the final destination
for the goods
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
the listing of SKF's Tennessee address in the consignee
box as being an indication of the final destination of the
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.
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 ...