Camar Corp. v. Preston Trucking Co., Inc., No. CIV. A. 96-40092-NMG.

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: Gorton
• Citation: 18 F.Supp.2d 112
• Parties: CAMAR CORPORATION, Plaintiff, v. PRESTON TRUCKING CO., INC., Defendant.
• Docket Number: No. CIV. A. 96-40092-NMG.
• Decision Date: 20 August 1998

Page 112

18 F.Supp.2d 112 CAMAR CORPORATION, Plaintiff,
v.
PRESTON TRUCKING CO., INC., Defendant. No. CIV. A. 96-40092-NMG. United States District Court, D. Massachusetts. August 20, 1998.

Page 113

Steven R. Maher, Worcester, MA, for Plaintiff.

Wesley S. Chused, Looney & Grossman, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

GORTON, District Judge.

In September, 1995, the plaintiff, Camar Corporation ("Camar"), learned that its written bid of $215 for 156 pieces of used marine equipment, including turbines, propellers, indicators and other component parts to the United States Navy's Defense Reutilization and Marketing Service ("DRMS") had been accepted. Camar then arranged, by telephone, to have the defendant, Preston Trucking, Inc. ("Preston"), take possession of and transport the equipment from the Naval Supply Center in Oakland, California to Worcester, Massachusetts.

In October, 1995, Preston informed Camar that it had lost the equipment in transit, and, after Preston refused to pay Camar $137,500 for its loss, as Camar had demanded, Camar filed this action in April, 1996, seeking damages of $353,370 under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 (formerly 49 U.S.C. § 11707).¹ Pending before this Court are the cross-motions of Camar and Preston for summary judgment under Fed.R.Civ.P. 56(c) and Preston's motion to strike exhibits and affidavits.

I. The Background Facts

Camar, headquartered in Worcester, Massachusetts, buys surplus naval equipment from the United States government and refurbishes and resells that equipment, usually to foreign governments. In the past, Camar has bought and resold DRMS surplus goods to the Brazilian Navy at enormous profit.

During a period of approximately two years prior to September, 1995, Preston, a common carrier, transported 80 shipments of freight for Camar. Camar prepared and delivered to Preston bills of lading for those shipments.

In September, 1995, Camar bid $215 for a 600 pound lot of marine equipment which it hoped to resell for $300,000 or more. Knowing only that, according to the DRMS invitation to bid, the equipment ranged in age from 9 to 16 years old and originally cost the Navy $275,000, Camar never inspected that equipment or reviewed maintenance records for it.

After learning that it was the successful bidder, Camar telephoned Preston to arrange transportation and sent to it by facsimile a copy of Camar's DRMS Notice of Award indicating the $215 bid price. Neither Camar nor Preston prepared a bill of lading in connection with the shipment, and Camar did not inform Preston of its value.

In mid-October, 1995, WestEx, Inc., the originating carrier, took possession of Camar's equipment and transferred it to Preston. Preston then lost the entire shipment.

On October 27, 1995, Camar submitted a claim for loss to Preston in the amount of $137,500 (one-half of the original cost of the equipment to the U.S. Navy). On November 10, 1995, Preston responded that its liability

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was limited to ten cents per pound or a total of $60 in accordance with its tariff, ICC PRES 1000-L, published with the former Interstate Commerce Commission. The filing of this action followed in due course.

II. The Motion for Summary Judgment

A. The Legal Standard

The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990)). The burden is upon the moving party to show, based upon the pleadings, discovery on file and affidavits "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant, however, may not rest upon mere allegation or denial of the pleadings. Fed.R.Civ.P. 56(e). The Court must view the record in the light most hospitable to the non-moving party and indulge all reasonable inferences in his favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.1993).

B. Discussion

In support of its motion for summary judgment, Camar argues that

1) it is entitled to summary judgment with respect to Preston's liability because Preston admits that it was responsible for losing Camar's equipment;

2) under the Carmack Amendment, damages should be awarded for Camar's "actual loss or injury" because Preston failed effectively to limit its liability;

3) its actual loss equals the market value of the lost equipment which is not properly measured by the auction price of $215 but rather by its prior sales of similar items to Camar's customers; and

4) evidence of prior sales of equipment similar to that listed in the DRMS Invitation For Bid establishes that the lost equipment had a market value of $353,370.05.

In opposition to Camar's motion and in support of its cross-motion, Preston argues that

1) Camar cannot establish a prima facie case under the Carmack Amendment because it cannot prove "good origin condition" of the equipment;

2) even if Camar can make a prima facie case, its damages are limited to the release rate of ten cents per pound ($60) based upon Preston's published tariff; and

3) even if Camar is entitled to recover for its actual loss, that loss should be valued at the purchase price for the equipment, namely $215, because any other evaluation of the loss is speculative.

1. The Prima Facie Case Under the Carmack Amendment

In order to establish a prima facie case under the Carmack Amendment, the plaintiff must show...