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Blue Gulf Industrial Supply, Co v. P.J.T. Transport

January 19, 2012

BLUE GULF INDUSTRIAL SUPPLY, CO., PLAINTIFF-APPELLANT,
v.
P.J.T. TRANSPORT, INC., DEFENDANT/THIRD PARTY PLAINTIFF-RESPONDENT,
v.
PETER ATUPULAZI, MARY ATUPULAZI, AND MUELLER STREAMLINE CO., THIRD PARTY DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2567-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 12, 2011

Before Judges Sapp-Peterson and Ashrafi.

In this appeal, plaintiff, Blue Gulf Industrial Supply Company, appeals from the trial court order granting defendant, P.J.T. Transport, Inc., summary judgment and dismissing plaintiff's complaint arising out of a commercial shipping transaction. In dismissing the complaint, Judge Hector Velazquez, in an oral opinion, concluded plaintiff's complaint was barred by the statute of limitations. We affirm.

In August 2006, plaintiff contracted with Mueller Streamline Company ("Mueller") to purchase goods which plaintiff intended to be shipped to Nigeria. The goods originated at Mueller's location in Ansonia, Connecticut, from which they were shipped to defendant's facility in South Kearny, New Jersey, where they were stored temporarily. From there, the goods were transported to Port Newark and then to Nigeria.

The shipment arrived at defendant's facility on August 21, 2006 and remained there, along with other goods plaintiff shipped to defendant's facility for storage. On November 2, defendant loaded plaintiff's goods in their entirety for shipment to Port Newark and then to Nigeria. The weight of the shipment at that time was 41,587 pounds. However, when the shipment was weighed at Port Newark, the goods weighed 31,180 pounds, reflecting a 10,407-pound discrepancy. The goods were nonetheless shipped to Nigeria, in accordance with plaintiff's directive. The original shipment included sixteen pallets of goods received from Mueller. The shipment arrived in Nigeria later that month, where it was discovered that a significant amount of copper goods were missing from the shipment. The estimated weight of the missing copper was almost identical to the discrepancy in the shipment weight.

Plaintiff filed a claim for its losses with defendant, which defendant denied on April 6, 2007. On May 28, 2009, two years and forty-four days following the notice of disallowance of the claim, plaintiff filed a complaint seeking to recover damages from defendant for the lost or damaged goods. On January 21, 2010, defendant moved for summary judgment dismissing all counts of plaintiff's complaint as being barred by the Carmack Amendment, 49 U.S.C.A. § 14706, and the applicable limitations period.

The court conducted oral argument on March 5, 2010. During the argument, plaintiff's counsel, for the first time, argued that the Carmack Amendment was inapplicable for two reasons:

(1) the interstate nature of the transaction ended when defendant took possession of the goods in New Jersey; and (2) defendant is neither a shipper nor interstate carrier. The court rejected both arguments:

In this case, the court rejects the argument that P.J.T. was not an interstate shipper nor interstate carrier. Clearly[,] this defendant was involved as part of the interstate leg of the shipment. The shipment was delivered to P.J.T. [and] held in the warehouse with the intent that P.J.T. was to deliver that shipment to Port Newark for ultimate shipment to Nigeria.

I think under the facts of this case, clearly the defendant P.J.T. qualifies as a shipper and interstate carrier under our federal statute and federal case law.

After concluding the transaction was subject to the Carmack Amendment, the court considered the timeliness of plaintiff's complaint and concluded that under the controlling statute, 49 U.S.C.A. ยง 14706(e)(1), the two-year period during which plaintiff could have filed a claim commenced on the date defendant gave plaintiff notice that it was disallowing the claim, which in this case was April 6, 2007, well beyond the two-year period. Concluding there were no genuinely disputed ...


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