Siemens Power Trans. v. Norfolk Southern R.
| Citation | 336 F.Supp.2d 1201 |
| Decision Date | 05 August 2004 |
| Docket Number | No. 6:02CV1024 ORL 22KRS.,6:02CV1024 ORL 22KRS. |
| Parties | SIEMENS POWER TRANSMISSION & DISTRIBUTION, INC., Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Thomas Albert Boyd, Jr., Boyd & Sutter, P.A., Jacksonville, FL, Iliaura Hands, Miller & Williamson, LLC, New Orleans, LA, Machale A. Miller, Miller & Williamson, LLC, New Orleans, LA, G.J. Rod Sullivan, Jr., Sullivan & Company, Jacksonville, FL, for Plaintiff.
Jeffrey D. Cohen, Janssen Keenan & Ciardi P.C., Paul D. Keenan, Janssen Keenan & Ciardi P.C., Philadelphia, PA, Douglas John LaPointe, Cameron, Hodges, Coleman, LaPointe & Wright, P.A., Orlando, FL, for Defendant.
This cause comes before the Court for consideration of the Defendant's, Norfolk Southern Railway Company (hereinafter, "Norfolk Southern"), Motion for Summary Judgment (Doc. No. 36), filed June 22, 2004, to which the Plaintiff, Siemens Power Transmission & Distribution, Inc. (hereinafter, "Siemens Power"), responded (Doc. No. 51) on July 21, 2004. Having reviewed the motion and memoranda, this Court GRANTS the Defendant's, Norfolk Southern, Motion for Summary Judgment (Doc. No. 36).
The Plaintiff, Siemens Power, is a North Carolina company engaged in the business of, inter alia, supplying power transmission and distribution equipment. The Defendant, Norfolk Southern, is a Virginia company engaged in the business of, inter alia, carrying cargo by rail.1 This action is for monetary relief under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11706.2
In the Spring of 1999, the Florida Power & Light Company (hereinafter, "Florida Power"), and Siemens Power finalized an agreement for power equipment.3 More specifically, Siemens Power agreed to sell and Florida Power agreed to purchase one electrical transformer manufactured by Siemens Power's parent company, Siemens AG, out of Numberg, Germany.4 Under the terms of the agreement, Siemens Power was responsible for arranging the transportation of the electrical transformer from the port of Norfolk, Virginia to Florida Power's facility located in Brevard County, Florida.5
In order to comply with the terms of its agreement, Siemens Power contacted its transportation agent, Mr. Edward Henry (hereinafter, ") of Tranco, Inc. (hereinafter, "Tranco").6 Mr. Henry, in turn, wrote to Dennis Vaughn (hereinafter, "Mr.Vaughn"), a Norfolk Southern account manager,7 requesting a quote for the carriage of a transformer.8 In response, Mr. Vaughn quoted Siemens Power $7.74 per hundred weight.9
Acting on this quote, Tranco issued Norfolk Southern a Straight Bill of Lading.10 Among other things, the Straight Bill of Lading incorporated by reference the terms of the Uniform Straight Bill of Lading.11 The Uniform Straight Bill of Lading provides, in relevant part:
As a condition precedent to recovery, claims must be filed in writing with the ... carrier ... within nine months after delivery of the property ... Where claims are not filed ... in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.12
Upon receiving the Straight Bill of Lading, Norfolk Southern generated a Waybill.13 Shortly thereafter, it began preparing for the transport.
On January 15, 2000, the electric transformer arrived from Germany to Norfolk, Virginia.14 There, it was discharged from an ocean vessel onto a railcar.15 At all relevant times, the transformer was equipped with an electronic impact recorder.16 That device recorded shocks the transformer experienced in its journey from Germany to Florida Power's facility in Brevard County, Florida.17
On January 20, 2000, Norfolk Southern started moving the transformer from Norfolk, Virginia, to Jacksonville, Florida.18 In Jacksonville, the transformer was interchanged to the Florida East Coast Railroad.19 Ultimately, the Florida East Coast Railroad delivered the transformer to Florida Power on January 28, 2000.20
Once the transformer arrived at Florida Power, an inspection was performed. In the course of that inspection, the computerized shock recorder was analyzed.21 The shock recorder revealed that shocks in excess of the thresholds Siemens Power set for the safe carriage of the transformer occurred — at least in part22 — within the time frame that Norfolk Southern had custody and control over the transformer.23 Further investigation revealed that the transformer was not operating properly, and that it was in need of repairs.24
On March 1, 2000, Mr. Henry sent Norfolk Southern a letter expressing an intent to file a claim against Norfolk Southern for damage to the electrical transformer.25 In relevant part, the letter read:
Please accept this letter as our intent to file a claim for damage to an electrical transformer moving from the Port of Norfolk, VA to Titusville, FL on ... 1/21/00.
The computerized impact recorder showed longitudinal impacts on 1/21/00 at ... approximately 4:00 P.M. The load was in a train moving from Crewe, VA to Linwood, NC.
Upon an inspection damage was noted and Siemens technical engineers are evaluating the damage.
At this time[,] we cannot state a cost for repairs but will send you a report when available. Siemens estimated repairs at $25,000.00.26
The next day, Mr. Henry faxed a follow-up letter:
Reference ours 3/1/2000 regarding possible claim for damage to one electrical transformer moving [from] Norfolk, VA to Titusville, FL. Siemens will have an inspection team at the site on Tuesday to test for the "short" they found in the preliminary inspection. Would you want an [Norfolk Southern] representative on hand to observe this activity?
Best Regards,
Norfolk Southern did not respond, and no representative of that company appeared at the inspection.28
Approximately one month later, on April 5, 2000, Mr. Henry sent yet another letter to Norfolk Southern referencing the damaged transformer.29 The letter indicated that the total cost of repairs would range between $700,000-$800,000.30 It further stated that the transformer would be returned to Germany.31 Finally, it recommended that Norfolk Southern send a representative to Florida Power to inspect the unit:
Reference ours 3/1/2000 and 3/2/2000 regarding damage to a transformer moving from Norfolk, VA to Titusville, FL.
Siemens inspected the unit and did find damage and they plan to return the unit to Germany for repairs.
At this time Siemens is estimating the total cost of $700,000-$800,000 and that is the amount of our claim. This covers transportation back to Germany, repairs, and return to [Florida Power] at Cape Canaveral, FL.
Mr. Costa, Siemens insurance company's representative, will be inspecting the unit at Cape Canaveral on Monday, April 10, 2000. We feel the [Norfolk Southern] should have their representative at this inspection to protect your interests.
If you schedule someone to be at the [Florida Power] facility on the 10th please advise and we will give you directions and contacts.32
In reply to this letter, Norfolk Southern sent its surveyor, Dr. Scheer, to Florida Power.33 At that location, a joint inspection took place.34
Following the joint inspection, Mr. Henry notified Norfolk Southern of Siemens Power's intention to return the transformer back to Germany for repairs.35 His correspondence with Norfolk Southern cautioned: "Unless we hear differently from the [Norfolk Southern] Railroad, within 72 hours we will initiate the return of the unit to Germany."36 Mr. Henry did not hear differently. As a result, the transformer was returned to Germany.
Upon the arrival of the transformer in Germany, Mr. Henry sent one last facsimile to Norfolk Southern.37 The facsimile notified Norfolk Southern that the transformer would be open for inspection on June 14, 2000.38 It also extended an invitation to Norfolk Southern to attend the inspection.39 No representative of Norfolk Southern attended the German inspection.
In the final result, the transformer was repaired by Siemens AG in Germany and returned to Florida Power's facility in Brevard County, Florida. A cost summary, conducted on behalf of Florida Power, pins down the total cost of the repair, including transportation expenses to and from Germany, at $752,958.00.40
Against that backdrop, Siemens Power, as the owner of the electrical transformer,41 initiated this action against Norfolk Southern.42 The Complaint seeks, inter alia, $791,13643 in monetary damages. According to Siemens Power, its losses are attributable to "the negligence of Norfolk Southern, in failing to properly carry, handle, and care" for the transformer during its transportation.44
Turning to the issue at hand, Norfolk Southern now moves this Court for summary judgment on the ground that Siemens Power failed to file a sufficient claim within the nine month period provided for in the Uniform Straight Bill of Lading.45 More specifically, Norfolk Southern asserts:
Siemens [Power] failed to ... file[ ] a claim seeking a specified or determinable amount of money within nine months of delivery or at any time before filing suit. Siemens therefore failed to satisfy a condition precedent for recovery, and a cause of action never accrued. Accordingly, [Norfolk Southern] cannot be liable for [Siemens Power's] demand as a matter of well settled law.46
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d...
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