American Road Service Company v. Consolidated Rail Corporation

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0396P (6th Cir.)
File Name: 03a0396p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AMERICAN ROAD SERVICE
COMPANY,
Plaintiff-Appellant,
v.
CONSOLIDATED RAIL
CORPORATION,
Defendant-Appellee.
X
-
-
-
->
,
-
-
-
-
-
N
No. 02-1475
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-74640—Victoria A. Roberts, District Judge.
Argued: September 9, 2003
Decided and Filed: November 6, 2003
Before: MOORE and GILMAN, Circuit Judges; MILLS,
District Judge.*
2 Am. Road Serv. Co. v.
Consolidated Rail Corp.
No. 02-1475
_________________
COUNSEL
ARGUED: David A. Byers, Eden Prairie, Minnesota, for
Appellant. Jonathan F. Ball, JANSSEN & KEENAN,
Philadelphia, Pennsylvania, for Appellee. ON BRIEF:
David A. Byers, Eden Prairie, Minnesota, for Appellant. Paul
D. Keenan, JANSSEN & KEENAN, Philadelphia,
Pennsylvania, Dirk H. Beckwith, FOSTER, SWIFT,
COLLINS & SMITH, Farmington Hills, Michigan, for
Appellee.
_________________
OPINION
_________________
RICHARD MILLS, District Judge. American Road
Services Company (“American”) filed a subrogation action
against Consolidated Rail Corporation (“Conrail”) seeking
compensation for damaged property.
The district court concluded that American’s complaint was
untimely and entered summary judgment for Conrail.
We AFFIRM.
I. FACTS AND PROCEDURAL BACKGROUND
Larry Krueger, a Ford Motor Company (“Ford”) employee,
was stationed on an overseas work assignment in the Czech
Republic. At the conclusion of his stay, his household goods
and personal belongings were packed, crated, and placed in a
container by Interdean, an international moving company, and
shipped to port at Bremerhaven, Germany. Mark VII, an
international transportation company, issued a bill of lading
to Interdean and forwarded the goods overseas via Maersk

-- 1 of 4 --

No. 02-1475 Am. Road Serv. Co. v.
Consolidated Rail Corp.
3
1Conrail denied the claim because American failed to provide a more
explicit description of its claim.
Sea Lines to port at Newark, New Jersey. Conrail transported
Krueger’s goods by rail to their final destination in Detroit,
Michigan. Two days later, Conrail employees discovered that
the 45-foot container holding Krueger’s goods had been
broken into and set on fire. American, an affiliate of Ford,
paid Krueger $182,587.60 for his loss.
On September 23, 1998, American notified Conrail of its
intent to pursue subrogation and on January 25, 1999 gave
notice of the final amount of the claim. Conrail denied the
claim on June 8, 1999.1 On October 18, 2000, American filed
suit in district court alleging a negligence claim and a claim
pursuant to the Carmack Amendment.
On March 13, 2002, the district court entered summary
judgment in favor of Conrail because American’s complaint
was untimely.
On appeal, American claims that the district court erred
when it failed to provide American notice and an opportunity
to respond before entering summary judgment sua sponte.
American also claims genuine issues of material fact
precluded summary judgment. Finally, American argues that
the district court erred when it considered testimony of a
witness who was not disclosed in accordance with Rule 26 of
the Federal Rules of Civil Procedure.
II. ANALYSIS
A. Sua Sponte
American claims that the district court’s order granting
judgment in favor of Conrail was inappropriate because the
time for filing dispositive motions had expired. American
4 Am. Road Serv. Co. v.
Consolidated Rail Corp.
No. 02-1475
2Even if it were possible to characterize the grant of summary
judgment as sua sponte, Ame rican suffered no prejudice, as is evident in
Section B of this opinion.
claims that the court entered summary judgment sua sponte
and did not allow American an opportunity to respond.
“The clearly established rule in this circuit is that a district
court must afford the party against whom sua sponte
summary judgment is to be entered ten days notice and an
adequate opportunity to respond.” Yashon v. Gregory, 737
F.2d 547, 552 (6th Cir. 1984). “Noncompliance with the time
provision of the rule deprives the court of authority to grant
summary judgment, unless the opposing party has waived this
requirement, or there has been no prejudice to the opposing
party by the court’s failure to comply with this provision of
the rule.” Helwig v. Vencor, Inc., 251 F.3d 540, 552 (6th Cir.
2001) (quoting Kistner v. Califano, 579 F.2d 1004, 1006 (6th
Cir. 1978)).
At the final pretrial conference, according to both parties,
the district court requested that the parties brief certain
dispositive issues. At the end of Conrail’s Brief, Conrail
requested “the entry of judgment as a matter of law.”
American responded to the issues raised and asked the court
to deny Conrail’s request for judgment.
American therefore had notice, was aware of the relevant
issues, had an opportunity to respond and did in fact respond
to Conrail’s request for judgment as a matter of law.
Accordingly, the Court rejects American’s characterization of
the judgment in this case as sua sponte.2
B. Genuine Issue of Material Fact
The district court found that the Mark VII bill of lading was
a through bill of lading and that the Carmack Amendment’s

-- 2 of 4 --

No. 02-1475 Am. Road Serv. Co. v.
Consolidated Rail Corp.
5
two-year period of limitation for filing a civil action therefore
did not apply. The court then examined the Mark VII bill of
lading to determine whether the time to commence a suit was
limited by contract. Section XVIII of the Mark VII bill of
lading states, “Carrier shall be discharged from all liability for
loss of damage to goods unless suit is brought within 9
months after delivery of the goods.” Based on that language,
the district court found American’s complaint, filed almost
two years after the fire in the rail yard, was untimely.
American argues on appeal that the Carmack Amendment
applies to this case and that a genuine issue of material fact
precluded summary judgment. We review a district court’s
grant of summary judgment de novo. Cherrington v. Skeeter,
344 F.3d 631, 636 (6th Cir. 2003).
The Carmack Amendment was enacted in 1906 as an
amendment to the Interstate Commerce Act of 1887 and
addresses the liability of common carriers for goods lost or
damaged during a shipment over which the Interstate
Commerce Commission (“ICC”) has jurisdiction. Capitol
Converting Equipment, Inc. v. LEP Transport, Inc., 965 F.2d
391, 394 (7th Cir. 1992). The Amendment requires, among
other things, that a carrier transporting property issue a bill of
lading to the shipper, and makes the carrier liable to the one
entitled to recover under the bill of lading for loss of or injury
to the property.
“A bill of lading issued in a foreign country to govern a
shipment throughout its transportation from abroad to its final
destination in the United States, is termed a ‘through’ bill of
lading.” Capitol, 965 F.2d at 394. The ICC’s jurisdiction
does not extend 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. See 49 U.S.C. § 10501; Swift
Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701
(11th Cir. 1986); Capitol, 965 F.2d at 394; Shao v. Link
Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir. 1993).
6 Am. Road Serv. Co. v.
Consolidated Rail Corp.
No. 02-1475
Determining whether a shipment is governed by a through
bill of lading is a question of fact. Capitol, 965 F.2d at 394.
In Capitol, LEP Transport was hired by Capitol to arrange for
the transportation of machinery from Italy to Chicago. The
machinery never arrived and Capitol sued LEP under the
Carmack Amendment. The district court held that the
shipment was governed by a through bill of lading, making
the Carmack Amendment inapplicable, because the bill of
lading was issued in Italy, showed Chicago as the place of
delivery, was prepaid and was not followed by a separate,
domestic bill of lading. Id.
Here, the district court concluded that the shipment was
covered by a through bill of lading because (1) the final
destination was included in the bill of lading issued by Mark
VII to Interdean; (2) the freight was prepaid for the entire
shipment to Detroit; and (3) no separate bill of lading was
issued for the trip from Newark to Detroit.
American disputes the accuracy of the district court’s
findings. Specifically, American claims there is evidence
Conrail issued a domestic bill of lading. That evidence is
found in Conrail’s claim notes, which state that “this
document does not constitute a claim within the meaning of
section 2(b) of bill of lading contract.” American states that
a “section 2(b)” is not listed in the bills of lading issued by
Maersk or Mark VII and argues “[w]hether there is a third
Conrail bill of lading that also governs the transaction is a
question of fact that precludes summary judgment.”
To support a claim under the Carmack Amendment,
American must present some proof that a domestic bill of
lading was issued. Speculation, unsupported by facts in the
record, is insufficient to create a genuine issue of material fact
and falls short of what is required to survive summary
judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986) (holding that “[t]he mere existence of a scintilla
of evidence in support of the plaintiff’s position will be

-- 3 of 4 --

No. 02-1475 Am. Road Serv. Co. v.
Consolidated Rail Corp.
7
3American raises another issue on appeal: whether the district court
abused its discretio n when it considered the d epo sition testimony of
Maersk’s claims manager, Massoud M esskoub. American argues that the
testimony was inadmissible because Co nrail failed to disclose M esskoub’s
identity until nine months after the witness disclosure deadline. The
district court relied o n M esskoub’s testim ony to conclude that American’s
complaint was untimely even if the Carmack Amendment applied.
Because the Court has concluded the Carmack A mendme nt is
inapplicable, a ruling on whether M esskoub’s testim ony wa s adm issible
is unnecessary.
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff”).
Without evidence to the contrary, the Court agrees with the
district court’s finding that the Mark VII bill of lading was a
through bill of lading. Such a finding renders the Carmack
Amendment inapplicable to the shipment at issue.3
As a result, the Mark VII bill of lading’s nine-month period
of limitation controls and American’s negligence claim, filed
almost two years after the goods were destroyed by fire, was
too late.
AFFIRMED.

-- 4 of 4 --