Sodi Kart USA v. Geodis Wilson USA, Inc.
Filing
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ORDER granting 39 Motion for Summary Judgment. Closing Case. Motions Terminated: 39 MOTION for Summary Judgment filed by Geodis Wilson USA, Inc.. Signed by Judge Beth Bloom on 9/3/2014. (ls) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-CIV-22626-BLOOM/Valle
SODIKART USA,
Plaintiff,
v.
GEODIS WILSON USA, INC.,
Defendant.
________________________________________/
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Geodis Wilson USA, Inc.’s (“Defendant” or
“Geodis Wilson”) Motion for Summary Judgment, ECF No. [39] (the “Motion”). The Court has
reviewed the Motion, all supporting and opposing filings and submissions, and the record in the
case.
For the reasons that follow, Geodis Wilson’s Motion for Summary Judgment is
GRANTED.
I. PROCEDURAL BACKGROUND
Plaintiff Sodikart USA’s (“Plaintiff” or “Sodikart”) single-count Complaint seeks
damages against Geodis Wilson under the Carmack Amendment, 49 U.S.C. § 14706.1 ECF No.
[1]. Defendant timely answered the Complaint. See ECF No. [6]. The parties have engaged in
mediation, discovery and trial preparation. Defendant filed the instant Motion on July 30, 2014;
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While the Complaint makes reference to the Carriage of Goods by Sea Act, Ch. 228, 49 Stat. 1207 (1936)
(codified as a note to 46 U.S.C. § 30701) (“COGSA”), see Complaint ¶ 22, and Defendant dedicated considerable
space in its Motion to that provision, Plaintiff has clarified that “the only recovery sought in the complaint was
under the Carmack Amendment” and has eschewed any basis for relief in COGSA. ECF No. [40] at 2-3. The Court
will read the Complaint no more broadly than does Plaintiff itself, and will consider it as seeking relief only under
the Carmack Amendment.
Plaintiff timely responded on August 14, 2014, ECF No. [40] (the “Response”); and Defendant
timely replied on August 25, 2014, ECF No. [42] (the “Reply”). The parties have properly
submitted statements of facts and attendant evidence in support of and opposition to the Motion.
See ECF Nos. [38], [40-7], [41].
II. MATERIAL FACTS
Plaintiff is in the business of importing racing and rental karts for sale in the United
States. ECF No. [38] ¶ 1; ECF No. [40-7] ¶ 1. In January 2013, non-party Octane Raceway
purchased karts and various related accessories from Plaintiff. ECF No. [38] ¶ 2; ECF No. [407] ¶ 2. The karts were manufactured in Coureon, France by an affiliate of Plaintiff, non-party
Sodikart SA, and shipped by way of Le Havre, France, to Houston, Texas. The karts were then
transported by rail and truck to Octane Raceway in Scottsdale, Arizona. ECF No. [38] ¶¶ 4, 9;
ECF No. [40-7] ¶¶ 4, 9. Plaintiff asserts, and Defendant concedes, that the karts and accessories
arrived damaged by water and corrosion, as well as by concussion due to the tipping or falling of
pallets containing the karts in transit. See ECF No. [38] ¶ 5; ECF No. [40-7] ¶ 5; see also ECF
No. [38-6] at p. 3 of 38; ECF No. [38-7] at p. 11 of 23.
The parties dispute Defendant’s role in the transport of those karts and accessories from
France to their final destination in Arizona. Defendant contends that it did not transport or
handle the karts and took no active role in shipping them, but acted as a receiving agent in the
United States. ECF No. [38] ¶¶ 6, 13. Specifically, Defendant claims that the karts were
transported from Sodikart SA to port at Le Havre by non-party Trans-Containers du Maine, and
that Defendant arranged the shipment from Le Havre to port in Houston, and from there to
Arizona, for non-party Cargo Container Line Ltd., which in turn arranged for transport with
Mediterranean Shipping Company. Id. ¶¶ 7-9. Plaintiff does not dispute that Mediterranean
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Shipping Company actually transported the karts from France to their final destination. Plaintiff
claims that Defendant represented itself to Plaintiff as a “one stop shop” for “ocean shipping,
trucking, insurance and customs clearance” providing “the services of assembly, consolidation,
breaking, bulk and distribution,” as a “freight forwarder” for purposes of the transport. See ECF
No. [40-7] ¶¶ 6-7, 13; ECF No. [40-1] ¶¶ 5, 12. Plaintiff has also produced an email from an
employee of Defendant to a third party which states, with reference to Defendant, “As you may
already know, Sodikart has decided to change freight forwarders.” ECF No. [40-6] at 1.
The parties further dispute the authenticity and validity of the bill of lading issued with
respect to the transport. Defendant has exhibited copies of a single bill of lading for the transport
from Le Havre to Arizona (issued by Defendant’s French Affiliate, Geodis Wilson France). See
ECF No. [38-3] (“Bill of Lading”); ECF No. [38-4] (“Sea Waybill”); ECF No [38-2] at 15:7-9.
It supports the authenticity of those copies as true and correct with the unrebutted deposition
testimony of Defendant’s corporate representative to that effect, see ECF No. [38-2] at 19:21-24,
and with the corroborative testimony of Plaintiff’s corporate representative that, following the
routine practice between Defendant and Plaintiff in their three-year course of business,
Defendant would have provided Plaintiff a bill of lading like the copy evidenced for the transport
in question. See ECF No. [38-1] at 19:2-20:17.2 Controverting that evidence, Plaintiff stresses
that Defendant has not introduced the original and executed bill of lading, notes (based on a
sworn affidavit from its corporate representative) that Plaintiff could not locate an email from
Defendant with the bill of lading for the transport in question attached (email attachment being
the routine means of such communication between the parties), and highlights that the front and
back of the Bill of Lading are in different colored inks. See ECF No. [40-7] ¶ 11; ECF No. [402
Plaintiff’s corporate representative further testified that he did not remember if the Bill of Lading
evidenced at his deposition was, in fact, the one issued with the shipment in question. See ECF No. [38-1] at 19:1121.
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1] ¶¶ 8-10; Reply at 7-8. Plaintiff’s corporate representative stated (and Plaintiff argues), on
those bases, that the Bill of Lading was produced by Defendant after Plaintiff alerted Defendant
to their claim for damages. See ECF No. [40-1] ¶ 8.
III. SUMMARY JUDGMENT STANDARD
A party may obtain summary judgment “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). The parties may support their positions by citation to the record, including inter
alia, depositions, documents, affidavits, or declarations. Fed. R. Civ. P. 56(c). An issue is
genuine if “a reasonable trier of fact could return judgment for the non-moving party.”
Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it
“might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 477 U.S.
at 247-48). The Court views the facts in the light most favorable to the non-moving party and
draws all reasonable inferences in its favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir.
2006); Howard v. Steris Corp., 550 F. App’x 748, 750 (11th Cir. 2013) (“The court must view
all evidence most favorably toward the nonmoving party, and all justifiable inferences are to be
drawn in the nonmoving party’s favor.”).
“[T]he court may not weigh conflicting evidence to resolve disputed factual issues; if a
genuine dispute is found, summary judgment must be denied.”
Carlin Commc’n, Inc. v.
Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986); see also Aurich v. Sanchez,
2011 WL 5838233, at *1 (S.D. Fla. Nov. 21, 2011) (“If a reasonable fact finder could draw more
than one inference from the facts, and that inference creates an issue of material fact, then the
court must not grant summary judgment.” (citing Hairston v. Gainesville Sun Publishing Co., 9
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F.3d 913 (11th Cir. 1993)). The moving party shoulders the initial burden of showing the
absence of a genuine issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
2008). Once this burden is satisfied, “the nonmoving party ‘must make a sufficient showing on
each essential element of the case for which he has the burden of proof.’” Ray v. Equifax Info.
Servs., L.L.C., 327 F. App’x 819, 825 (11th Cir. 2009) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986)).
Accordingly, the non-moving party must produce evidence, going
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designating specific facts to suggest that a reasonable jury could find in
his favor. Shiver, 549 F.3d at 1343. “A mere ‘scintilla’ of evidence supporting the opposing
party’s position will not suffice; there must be enough of a showing that the jury could
reasonably find for that party.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160,
1162 (11th Cir. 2006). Even where an opposing party neglects to submit any alleged material
facts in controversy, the court must still be satisfied that all the evidence on the record supports
the uncontroverted material facts that the movant has proposed before granting summary
judgment. Reese v. Herbert, 527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United States v.
One Piece of Real Prop. Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1103 n.6
(11th Cir. 2004).
VI. ANALYSIS
Through this action, Plaintiff seeks recovery from Defendant under the Carmack
Amendment regarding karts and accessories shipped by Plaintiff and damaged in transit from
France to their final destination in Scottsdale, Arizona. Defendant, in the instant Motion, argues
that Plaintiff’s Carmack Amendment claim fails as a matter of law because (a) the shipment at
issue was governed by a single bill of lading for transport from a foreign country to a United
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States destination, with no separate bill of lading issued or required for the United Statesdomestic leg of transportation, rendering the Carmack Amendment inapplicable; and (b)
Defendant acted neither as a “motor carrier” nor a “freight forwarder” as required for application
of the Carmack Amendment. Defendant is correct on the first and, ultimately, dispositive issue.
A.
The Carmack Amendment Does Not Apply to the Shipment at Issue Here
The Carmack Amendment “provides the exclusive cause of action for interstate shipping
contract claims.”
White v. Mayflower Transit, LLC, 543 F.3d 581, 584 (9th Cir. 2008).
Generally, the Carmack Amendment governs interstate cargo claims, controls and limits the
liability of common carriers for in-transit cargo and preempts common or state law remedies that
increase a common carrier’s liability beyond the actual loss or injury to the property. See, e.g.,
Smith v. United Parcel Serv., 296 F.3d 1244, 1246 (11th Cir. 2002) (“The Carmack Amendment
creates a uniform rule for carrier liability when goods are shipped in interstate commerce.”);
Hansen v. Wheaton Van Lines, Inc., 486 F. Supp. 2d 1339, 1343-44 (S.D. Fla. 2006) (Carmack
Amendment preempt all state, common and statutory law regarding the liability of an interstate
common carrier for claims arising out of shipments within its purview). It was enacted in 1906
as an amendment to the Interstate Commerce Act of 1887 codifying a common law rule of strict
liability on common carriers, and is now part of the Interstate Commerce Commission
Termination Act of 1995, 49 U.S.C. § 14706. The Carmack Amendment imposes strict liability
on “motor carriers” and “freight forwarders” and provides, in relevant part:
(1) Motor carriers and freight forwarders. — A carrier providing transportation or
service subject to jurisdiction under subchapter I or III of chapter 135 shall issue a
receipt or bill of lading for property it receives for transportation under this part.
That carrier and any other carrier that delivers the property and is providing
transportation or service subject to jurisdiction under subchapter I or III of chapter
135 or chapter 105 are liable to the person entitled to recover under the receipt or
bill of lading. The liability imposed under this paragraph is for the actual loss or
injury to the property caused by
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(A) the receiving carrier,
(B) the delivering carrier, or
(C) another carrier over whose line or route the property is transported in
the United States or from a place in the United States to a place in an
adjacent foreign country when transported under a through bill of lading
and, except in the case of a freight forwarder, applies to property
reconsigned or diverted under a tariff under section 13702.
Failure to issue a receipt or bill of lading does not affect the liability of a carrier.
A delivering carrier is deemed to be the carrier performing the line-haul
transportation nearest the destination but does not include a carrier providing only
a switching service at the destination.
(2) Freight forwarder. — A freight forwarder is both the receiving and delivering
carrier. When a freight forwarder provides service and uses a motor carrier
providing transportation subject to jurisdiction under subchapter I of chapter 135
to receive property from a consignor, the motor carrier may execute the bill of
lading or shipping receipt for the freight forwarder with its consent. With the
consent of the freight forwarder, a motor carrier may deliver property for a freight
forwarder on the freight forwarder’s bill of lading, freight bill, or shipping receipt
to the consignee named in it, and receipt for the property may be made on the
freight forwarder’s delivery receipt.
49 U.S.C. § 14706(a); see also UPS Supply Chain Solutions, Inc. v. Megatrux Transp., Inc., 750
F.3d 1282, 1285-86 (11th Cir. 2014) (“The Carmack Amendment is a strict liability statute.
When a shipper shows delivery of goods to a carrier in good condition and non-delivery or
delivery in a damaged condition, there arises a prima facie presumption of liability.”).
However, the Carmack Amendment does not apply to shipments from a foreign country
to a final destination in the United States unless the domestic leg of transportation is governed by
a separate bill of lading. Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701
(11th Cir. 1986) (“[W]hen a shipment of foreign goods is sent to the United States with the
intention that it come to final rest at a specific destination beyond its port of discharge, then the
domestic leg of the journey (from the port of discharge to the intended destination) will be
subject to the Carmack Amendment as long as the domestic leg is covered by separate bill or
bills of lading.” (emphasis added)); Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S.
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89, 100 (2010) (adopting rule in Swift and holding that the Carmack Amendment does not apply
to a shipment originating overseas under a single through bill of lading, i.e., without a separate
bill of lading issued for the domestic, inland segment of an overseas import shipment); Altadis
USA ex rel. Fireman’s Fund Ins. Co. v. Sea Star Line, LLC, 458 F.3d 1288, 1293 (11th Cir.
2006) (a separate, domestic bill of lading is required for application of the Carmack
Amendment).
Here, since there was no separate bill of lading issued for the domestic leg of transport –
the rail and truck transportation of the karts from port in Houston, Texas to their final destination
in Scottsdale, Arizona – the Carmack Amendment does not apply. The Bill of Lading provides
for combined transport, through shipment from Le Havre, France to Scottsdale, Arizona. ECF
No. [38-3]; ECF No. [38-4]. “Carmack does not apply if the property is received at an overseas
location under a through bill that covers the transport into an inland location in the United
States.” Kawasaki, 561 U.S. 103.
Plaintiff attempts to create a factual dispute by challenging the validity and authenticity
of the Bill of Lading. However, the Court need not addresses this issue of fact to resolve
Defendant’s Motion.
Assuming (despite Plaintiff’s generally unavailing evidence) that the
through Bill of Lading produced by Defendant is invalid, and even assuming, as Plaintiff
implies, that Defendant never issued a bill of lading prior to the shipment in question, Plaintiff’s
Carmack Amendment fails because there was no separate bill of lading issued or required for the
inland shipment from Houston to Scottsdale.
Swift, Altadis, Kawasaki and their progeny
uniformly hold that it is the existence of, or requirement for, a domestic bill of lading that
determines whether the Carmack Amendment applies.
See Kawasaki, 561 U.S. 102-03
(“Carmack applies only to transport of property for which Carmack requires a receiving carrier
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to issue a bill of lading, regardless of whether that carrier erroneously fails to issue such a bill.”);
Altadis, 458 F.3d at 1291 (Carmack Amendment does not apply unless the domestic, overland
leg of transport is itself covered by a separate bill of lading); see also UPS Supply Chain
Solutions, 750 F.3d at 1286 n.2 (Carmack Amendment would not apply to shipment from
overseas to inland U.S. location “under one logistical plan”); Amer. Road Serv. Co. v. Consolid.
Rail, 348 F.3d 565, 568 (6th Cir. 2003) (the Carmack Amendment does not apply “to a shipment
under a through bill of lading unless a domestic segment of the shipment is covered by a separate
domestic bill of lading.”); Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir. 1993)
(same). If there is no separate bill of lading for the domestic, inland segment of the shipment,
and no such bill of lading is required, the Carmack Amendment does not apply.
Plaintiff does not contend that a separate bill of lading for the Houston-to-Scottsdale
segment of the shipment was actually issued by Defendant (or any other party).
Rather,
accepting arguendo the factual dispute manufactured by Plaintiff, Defendant did not issue any
valid or binding bill of lading at all. While, if the Carmack Amendment is otherwise applicable
to Defendant, Defendant was required to issue a bill of lading pursuant to 49 U.S.C. § 14706(a),
Defendant was not required to issue a separate bill of lading for the domestic leg of the kart and
accessories transportation.
See Kawasaki, 561 U.S. 104-05 (explaining that the Carmack
Amendment and COGSA permit through bills of lading for shipments from overseas to an inland
U.S. destination, and do not require a separate bill of lading for the domestic leg of such a
shipment). Therefore, whether Defendant issued a valid through bill of lading or none at all is
not a genuine issue of material fact to be resolved. The domestic, inland leg of the combined,
through transportation of the karts and accessories from Le Havre, France via Houston, Texas to
Scottsdale, Arizona was not governed by a separate bill of lading. As such, the Carmack
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Amendment does not apply, and Defendant must be afforded summary judgment on this
independent ground.
B.
The Court Need Not Address Whether Defendant Qualifies as a Freight
Forwarder Under the Carmack Amendment
Defendant argues, in the alternative, that the Carmack Amendment does not apply
because Defendant was not a “freight forwarder” with respect to the shipment at issue here. The
Carmack Amendment defines a “freight forwarder” as:
[A] person holding itself out to the general public (other than as a pipeline, rail,
motor, or water carrier) 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
(C) uses for any part of the transportation a carrier subject to jurisdiction
under this subtitle.
The term does not include a person using transportation of an air carrier subject to
part A of subtitle VII.
49 U.S.C. § 13102(8).
By sworn affidavit of its designated representative, Plaintiff contends that Defendant
represented itself to Plaintiff and generally functions as a “one stop shop” for what amounts to
international sea and land shipping and transportation, providing services including all of those
listed in the relevant statutory definition of a freight forwarder. See ECF No. [40-7] ¶¶ 6-7, 13;
ECF No. [40-1] ¶¶ 5, 12. It has also produced an email in which Defendant’s employee
describes Defendant to a third party as a “freight forwarder,” with specific reference to Plaintiff.
See ECF No. [40-6]. In other words, Plaintiff contends that a genuine factual dispute precludes
summary judgment on this material issue, i.e., whether Defendant is a freight forwarder within
the meaning of the Carmack Amendment. While, seemingly, a factual issue may be raised, it has
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no import. As the Court finds that the Carmack Amendment is inapplicable to the shipment at
issue here, see supra Section IV.A, it need not reach or address this issue.
V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED and ADJUDGED that Defendant
Geodis Wilson USA Inc.’s Motion for Summary Judgment, ECF No. [39], is GRANTED.
The Clerk of Court is directed to CLOSE this case and TERMINATE any impending
deadlines, and any pending motions are DENIED as moot.
DONE and ORDERED in Fort Lauderdale, Florida, this 3rd day of September, 2014.
____________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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