Stucco and Construction Matrials Inc v. Trans-Net Inc, No. 2:2008cv01299 - Document 88 (W.D. Wash. 2010)
Court Description: ORDER granting dft's 63 Motion for Summary Judgment and this action is dismissed by Judge Ricardo S Martinez.(RS)
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Stucco and Construction Matrials Inc v. Trans-Net Inc Doc. 88 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 STUCCO AND CONSTRUCTION MATERIALS, INC., 11 12 13 CASE NO. C08-1299RSM ORDER ON MOTION FOR SUMMARY JUDGMENT Plaintiff, v. TRANS-NET, INC., a Washington corporation, 14 15 Defendant. 16 17 18 19 This matter is before the Court for consideration of defendant’s motion for summary judgment, Dkt. # 63. Plaintiff has opposed the motion. The Court has fully considered the parties’ memoranda and exhibits and for the reasons set forth below, shall grant the motion. 20 21 22 FACTUAL BACKGROUND This case arises from damage to a shipment of 684 pails of acrylic polymer that were transported in a container from Knoxville, Tennessee to Odessa, Ukraine in May and June of 2008. Plaintiff Stucco 23 and Construction Materials, Inc. (“SCMI”) filed this action pursuant to the Carriage of Goods by Sea 24 Act, 46 U.S.C. § 30701, et seq., (“COGSA”) and general maritime law, alleging that defendant Trans- 25 Net, Inc., (“Trans-Net”) failed to properly transport and deliver the cargo in good condition. Trans-Net 26 now moves for summary judgment, asserting that plaintiff can not meet its burden of proof on the 27 28 ORDER ON MOTION - 1 Dockets.Justia.com 1 evidence available in this case. In opposition to the motion, plaintiff has filed declarations which will be 2 discussed in detail below. 3 The undisputed facts show that SCMI contracted with Trans-Net, a non-vessel operating 4 common carrier, for shipment of the pails of polymer compound by sea from a container yard in 5 Charleston, South Carolina to a container yard in Odessa, Ukraine. Declaration of Inna Bullock, Dkt. # 6 65, ¶ 6. Trans-Net also agreed to requisition an empty forty-foot “HQ” container to Perma-Chink 7 Systems, Inc., in Knoxville, Tennessee, where the pails of polymer would be loaded. Id. Trans-Net was 8 not involved in actually loading the container with the pails of polymer. Trans-Net did agree to arrange 9 for transport of the loaded container to the container yard at Charleston, and booked this transport with 10 Transportation Specialists, a trucking company. Id. The loaded container was picked up in Knoxville 11 on May 9, 2008 and delivered to the container yard in Charleston, South Carolina. Id. 12 The sea waybill issued by Trans-Net indicates that the cargo was to be transported “FCL 13 CY/CY.” Declaration of Inna Bullock, Dkt. # 65, Exhibit A. Defendant explains that this means “full 14 container load, container yard to container yard.” Id., ¶ 8. The container was to be transported by sea 15 by the steamship company CMA CGM. Id. The waybill indicates that the container was loaded aboard 16 the vessel Lahore Express on May 17, 2008. Id., Exhibit A. The final destination listed on the Trans- 17 Net waybill is Odessa, Ukraine. Id. Trans-Net was not informed that the container would be 18 transported onward by truck from the Port of Odessa to Kiev, and did not arrange for this transport. Id., 19 ¶9. 20 The container arrived at Odessa and was discharged from the vessel on June 12, 2008. Id., ¶ 10 21 and Exhibit D.1 The seals were observed that same day. Id. On June 28, 2008, the container left the 22 yard by truck for Kiev. Id., ¶ 10. On July 2, 2008, after arrival in Kiev, the container was opened and 23 inspected, and the cargo inside was found to be damaged. An expert assessment determined that the 24 buckets of polymer, which had been packaged on wooden trays bound with plastic tape, had “tipped 25 toward the driver’s cabin,” such that all but twenty-nine of the 684 buckets were damaged, leaking, 26 27 28 1 This document, the “container history” is in both Russian and English. ORDER ON MOTION - 2 1 broken, or so badly deformed that they were empty. Id., Exhibit F, p. 4. The opinion of the expert who 2 conducted the assessment was that the damage “happened as a result of an external influence (falling, 3 braking) which have [sic] caused an excessive tipping of the container toward the front wall.” Id., p. 3. 4 He or she specifically noted that the container was “filled not to its full capacity with transportation 5 packages containing plastic buckets with lids.” Id., p. 4. 6 Plaintiff filed this action seeking damages from Trans-Net for the damaged cargo. Trans-Net 7 now moves for summary judgment on the basis that SCMI cannot make a prima facie case under 8 COGSA. 9 DISCUSSION 10 a. Legal standard 11 Summary judgment should be rendered “if the pleadings, discovery and disclosure material on 12 file, and any affidavits show there is no genuine issue as to any material fact and that the movant is 13 entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if “a reasonable 14 jury could return a verdict for the nonmoving party” and a fact is material if it “might affect the outcome 15 of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The 16 evidence is viewed in the light most favorable to the non-moving party. Id. “[S]ummary judgment 17 should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could 18 return a verdict in its favor.” Triton Energy Corp. v. Square D Co., 68 F. 3d 1216, 1221 (9th Cir. 1995). 19 It should also be granted where there is a “complete failure of proof concerning an essential element of 20 the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The mere existence 21 of a scintilla of evidence in support of the non-moving party’s position is not sufficient” to prevent 22 summary judgment. Triton Energy Corp., 68 F. 3d at 1221. 23 b. Analysis 24 By its terms, COGSA applies “to all contracts for carriage of goods by sea to or from ports in the 25 United States in foreign trade.” 46 U.S.C. § 1312 (1982). The term “contract of carriage” includes only 26 those “contracts of carriage covered by a bill of lading or any similar document of title, insofar as such 27 document relates to the carriage of goods by sea, including any bill of lading or any similar document as 28 ORDER ON MOTION - 3 1 aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or 2 document of title regulates the relations between a carrier and a holder of the same.” Id. § 1301(b). 3 Under COGSA, a shipper has the burden of proving that the cargo was damaged while in the 4 custody of the carrier (i.e., loaded in good condition, discharged in damaged condition). 46 U.S.C. §§ 5 1302, 1303; American Home Assur. Co. v. American President Lines, Ltd., 44 F.3d 774, 777 (9th 6 Cir.1994). Once such evidence has been received, a prima facie case has been shown and the burden of 7 proof shifts to the carrier to establish that the loss came under a statutory exception to COGSA. Taisho 8 Marine & Fire Ins. v. M/V Sea-Land Endurance, 815 F.2d 1270, 1274-75 (9th Cir.1987). Sections 4(2) 9 and 4(4) of COGSA provide a number of exceptions to the imposition of liability on the carrier, such as 10 acts of God, acts of war, and other causes arising without the actual fault of the carrier. 46 U.S.C. §§ 11 1304(2), 1304(4). If the loss does not fall within one of the enumerated exceptions, then the carrier is 12 subject to liability under COGSA. 13 The evidence presented by the parties in the summary judgment motion fails to establish that the 14 goods were discharged from the ship at Odessa in damaged condition. Plaintiff has presented 15 declarations from two witnesses in the Ukraine, namely the director of Ukr-eksimtrans, the trucking 16 company which transported the cargo from the Port of Odessa to the warehouse at Kiev, and the 17 manager of that warehouse. Declaration of A.M. Komarov, Dkt. # 69; Declaration of B.V. 18 Semenchenko, Dkt. # 70. Both state in their declarations that no damage to the shipment occurred 19 during their companies’ handling of the cargo; neither during transport from Odessa to Kiev, nor during 20 warehousing in Kiev; and no damage to the cargo inside the container was observed until it was opened 21 by customs officials. Id. Specifically, the director of the trucking company states that 22 23 24 [o]n or about June 27, 2008, Ukr-eksimtrans received container CAXU 4866960 (“the Container”) at the Odessa Commercial Sea Port for surface carriage and delivery in Kiev, Ukraine. 25 26 27 28 The surface transportation of the Container and all subsequent activities while the Container was within Ukr-eksimtrans’ custody proceeded normally and without incident or mishap through delivery of the container to a warehouse operated by Global Logistics. No damage was inflicted to the Container or its contents while the Container was within Ukr-eksimtrans’ ORDER ON MOTION - 4 1 custody on June 27, 2008 and June 28, 2008. 2 No reports of any mishap were issued by Ukr-eksimtrans or its personnel. If damage or any other mishap had transpired while the container was within Ukr-eksimtrans’ custody, a report would have been issued in accordance with our standard operating procedure. No such reports were issued. 3 4 Declaration of B.V. Semenchenko, Dkt. # 70, ¶¶ 2- 4. 5 Similarly, the manager of Global Logistics, the warehouse, states, 6 7 On or about June 28, 2008, Global Logistics received container CAXU 4866960 (“the Container”) from trucking company Ukr-eksimtrans at Global Logistics warehouse facility located in Kiev, Ukraine 8 9 10 11 12 The storage of the Container and all subsequent activities while the Container was within Ukr-eksimtrans’ [sic] custody proceeded normally and without incident or mishap between June 28, 2009 [sic] and June 30, 2008. No damage was inflicted to the Container or its contents while the Container was within Global Logistics’ custody. No reports of any mishap were issued by Global Logistics or its personnel. If damage or any other mishap had transpired while the container was within Global Logistics’ custody, a report would have been issued in accordance with our standard operating procedure. No such reports were issued. 13 14 15 16 17 While the Container was at the Global Logistics warehouse in Kiev, Ukrainian customs officials opened the container on June 30, 2008 in my presence and the presence of personnel from Sheet & Mech. At that time, we discovered that the Container’s contents were damaged. Declaration of A..M. Komarov, Dkt. # 69, ¶¶ 2-5. Plaintiff has also filed a declaration of Daniel Johnson, Technical Sales Manager for Stuc-O-Flex 18 International, Inc., the company that loaded the container. Mr Johnson reviewed the company’s records 19 for loading of the container, and reviewed photographs of the condition of the container’s contents when 20 it was opened in Kiev. Mr. Johnson states that in his capacity as Technical Sales Manager, he is 21 “familiar with the weight and dimension characteristics of the cargo.” Declaration of Daniel Johnson, 22 Dkt. # 68, ¶ 4. He further states that he is “knowledgeable based on experience with the force that 23 would be required to move the 21 tons of freight within the container to the degree demonstrated in 24 post-delivery photographs.” Id. He then concludes, 25 26 The movement and damage depicted in the post-delivery photographs could only have been caused by a tremendous force inconsistent with road transit absent an accident sufficient to severely damage the truck. Historically road transit shipments never encounter this type or severity of damage. 27 28 ORDER ON MOTION - 5 1 2 3 4 5 It is not surprising that no outside damage to the container was noted at the Port of Odessa or elsewhere before delivery to the purchaser. No outside impact to the container would be necessary to cause this damage. Rather, it could have been caused by its back end falling downwards while its front end remained suspended, or similar mechanism while being loaded on to or unloaded off from the ocean carrying vessel. Id., ¶¶ 5, 6. Defendant has moved to strike Mr. Johnson’s testimony in ¶¶ 2, 4, and 5 of his declaration as 6 representing expert opinion which he is not qualified to give, and ¶ 6 as pure speculation. Mr. Johnson 7 was never identified as an expert witness and he has never been qualified as such. The foundation for 8 his opinions regarding forces within the container has not been stated. He was not personally present at 9 either the loading or the unloading of the container, so he cannot testify from personal experience. His 10 speculative statement that the damage could have occurred by “the back end falling downward” is 11 contrary to the opinion of the expert who actually examined the cargo and found that the damage 12 resulted from falling or braking, either of which caused excessive tipping of the container toward the 13 front wall, not backwards. Further, the Court notes that Mr. Johnson’s declaration omits the fact 14 observed by the expert in Kiev, that the container was not filled to capacity. This would be an important 15 factor in the assessment of forces necessary to cause the damage. 16 The Court finds that Mr. Johnson is not qualified as an expert and his opinions represent mere 17 speculation. Defendant’s motion to strike ¶¶ 2, 4, 5, and 6 of his declaration shall accordingly be 18 GRANTED. 19 The remaining declarations filed by plaintiff fail to meet the burden under COGSA of 20 demonstrating that the cargo was received in good condition by Trans-Net and discharged in a damaged 21 condition. American Home Assur. Co. v. American President Lines, Ltd., 44 F.3d at 777. Since no one 22 opened the container and inspected the cargo at the container yard at the Port of Odessa, where the 23 container was discharged from Trans-Net’s care, there is no evidence whatsoever that the damage was 24 present at that time. The declarations of the trucking company manager and warehouse manager fail to 25 26 27 28 ORDER ON MOTION - 6 1 create a genuine factual issue as to that crucial point.2 As plaintiff’s failure to demonstrate that the 2 cargo was discharged in damaged condition means that it has failed to make a prima facie case under 3 COGSA, summary judgment shall be granted as to this claim. 4 5 Summary judgment shall also be granted as to plaintiff’s claim under general maritime tort law. Defendant asserts that this claim is preempted by COGSA and plaintiff has not argued otherwise. 6 7 8 9 CONCLUSION Defendant’s motion for summary judgment (Dkt. # 63) is GRANTED and this action is DISMISSED. The Clerk shall enter judgment in favor of defendant in this matter. 10 11 Dated this 11th day of February, 2010. A 12 13 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 2 27 The declaration of the trucking company manager also fails to conclusively establish that no hard braking event occurred during transport of the container from Odessa to Kiev, as it is not based on personal knowledge but simply a review of the records. However, the Court’s ruling on summary judgment is based solely on the absence of evidence of any damage at the time of discharge, not on the absence of evidence regarding what might have occurred later. The Court declines to apply the “Last Carrier Rule” as suggested by defendant. This maritime rule establishes a presumption of liability upon the last carrier when a through bill of lading is issued. The Madow Company v. S.S. Liberty Exporter, 569 F.2d 1183, 1186 (2nd Cir.1978). A through bill of lading is a single document governing the transshipment of goods through the hands of more than one common carrier. See, e.g., AIG Europe, S.A. v. M/V MSC Lauren, 940 F.Supp. 925 (E.D.Va.,1996). The trucking company here was not on a through bill of lading. 28 ORDER ON MOTION - 7 23 24 25 26
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