United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
Norfolk Southern Railway Company (“Norfolk”)
brings this action against New York Terminals, LLC, and NY
Terminals II, LLC (collectively “NYT”), alleging
failure to pay demurrage charges as set forth in
Norfolk's tariff pursuant to 49 U.S.C. § 10746. NYT,
in turn, brings a third-party action against N.J. Asphalt
Terminals, LLC d/b/a CL Asphalt (“NJAT”),
alleging that NJAT is responsible for payment of the
demurrage charges pursuant to their transloading and services
agreement. This matter comes before the Court on
Norfolk's motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56. There was no oral argument.
Fed.R.Civ.P. 78(b). For the reasons set forth below,
Norfolk's motion for summary judgement is
is an interstate rail carrier incorporated under Virginia
law, with its principal place of business in Norfolk,
Virginia. Compl. ¶ 1 (“Norfolk Compl.”), ECF
No. 1. NYT is a New Jersey corporation that provides liquid
bulk storage and other services to its customers.
See Defs.' Answer & Third-Party Compl. 4,
¶ 2 (“NYT Compl.”), ECF No. 9. NJAT is a
corporation with a place of business in Wharton, New Jersey,
which receives transloading services from NYT at its facility
in Elizabeth, New Jersey. Answer to Third-Party Compl.
¶¶ 2-3 (“NJAT Answer”), ECF No. 19. The
instant case concerns shipments of liquid asphalt product,
which Norfolk transported by rail to NYT's facility
between November 2013 and May 2014.
December 9, 2014, Norfolk filed a complaint against NYT,
alleging that NYT accrued $294, 360.00 worth of demurrage
charges by failing to return Norfolk's railcars within
the allotted “free time” in accordance with
Norfolk's governing tariff. Norfolk Compl. at ¶ 10.
NYT answered by denying liability, asserting several
affirmative defenses and filing a third-party complaint
claiming that NJAT is liable for the charges “under the
obligations of being a tenant” at NYT's Elizabeth
facility. See NYT Compl. at 3-4. NJAT answered by
asserting several defenses against NYT, including breach of
the transloading and services agreement (the “NJAT
Agreement”), gross negligence and indemnification.
See NJAT Answer at 2-3.
April 9, 2015, Norfolk filed a separate complaint against
NJAT's “sister” company, C.L. Consulting and
Management Corporation (“CLCM”), for unpaid
demurrage charges between October 2013 and May 2014, totaling
$284, 960.00. See Decl. of B. Rose in Supp. of Mot.
to Consolidate ¶ 11, ECF No. 52-1. In turn, CLCM filed a
third-party complaint against NYT, claiming that the charges
arose from NYT's misconduct and that it breached the
terms of the NJAT Agreement. Id. at ¶ 12. On
December 19, 2016, this Court denied NJAT's motion to
consolidate these cases for multiple reasons, which it will
not reiterate here. See Op., ECF No. 58.
Norfolk's Motion for Summary Judgment
now moves for summary judgment against NYT, arguing that NYT
is responsible for the demurrage charges because the bills of
lading list NYT as the consignee for the shipments received
during the relevant period. See Norfolk's Mem.
of Law in Supp. of Its Mot. for Summ. J. 6-7
(“Norfolk's Mot.”), ECF No. 71-1. It also
argues that the railcars at issue transported hazardous
material, which resulted in additional charges. Id.
at 7-9. Finally, Norfolk argues that NYT's force
majeure defense fails because it waived the defense by
failing to comply with the force majeure clause in
Norfolk's tariff and because the inclement weather was
not the sole cause of the demurrage. Id. at 9-15.
opposes summary judgment, filing a “Preliminary
Statement, ” which inexplicably and inexcusably cites
no statutory, common or case law of any kind. See
Statement of Material Facts in Opp'n (“NYT's
Opp'n”), ECF No. 72. NYT does not contest that it
received railcars from Norfolk during the relevant period.
Instead, it argues that it is not liable for the demurrage
charges on the following grounds: (1) NYT is not the true
consignee of the product it received, see Id. at
3-4; (2) between December 2013 and March 2014, winter weather
caused delays in the unloading of the railcars, which
resulted in a large portion of the demurrage charges at
issue, see Id. at 5; (3) the product in question
required NYT to reheat it before unloading, causing further
delays, see Id. at 5-6; (4) the product was not
hazardous in fact and, therefore, did not warrant the
additional $100.00 per day hazardous material charge, see
Id. at 6; and (5) NJAT is responsible for the demurrage
charges under the terms of the NJAT Agreement, see
Id. at 6-7.
NYT filed objections to Norfolk's statement of material
facts, there are several critical facts that NYT does not
contest. First, NYT does not dispute that it receives
electronic notification from Norfolk when railcars have been
“constructively placed” in its service
yard-i.e., when railcars are ready for unloading.
Compare Norfolk's Statement of Facts in Supp. of
Its Mot. for Summ. J. (“Norfolk's Statement”)
¶¶ 5-6, ECF No. 71-2, with NYT's
Objections to the Statement of Facts (“NYT's
Objs.”) ¶¶ 5-6, ECF No. 72-1. Second, NYT
does not dispute that it contractually agreed to be listed as
a consignee on the bills of lading of the shipments at issue,
despite being unaware of potential legal issues.
Compare Norfolk's Statement at ¶ 10,
with NYT's Objs. at ¶ 10. Third, NYT does
not contest the authenticity of the exhibits produced by
Norfolk which show bills of lading for the shipments at issue
that name NYT as the consignee. Compare
Norfolk's Statement at ¶ 11, with NYT's
Objs. at ¶ 11. Fourth, NYT does not contest that the
shipper of the railcars at issue certified the product
therein as hazardous. NYT only contests whether the product
should have been considered hazardous after the
product cooled during transport to NYT. Compare
Norfolk's Statement at ¶ 18, with NYT's
Objs. at ¶ 18.
with respect to its force majeure defense, NYT
concedes that winter weather had no bearing on the accrued
demurrage charges prior to December 2013 and after February
2014. See NYT's Objs. at ¶ 22. NYT admits
that winter weather did not completely shut down its
operations during the time it claims force majeure. See
Id. at ¶ 23. NYT further admits that bad weather
was only one of the causes that created operational
difficulties during the relevant period and that it continued
operating on behalf of other customers during that time.
See Id. at ¶¶ 30-31. Finally, without
providing any supporting evidence to the Court, NYT claims
that it advised Norfolk of its operational difficulties in
January 2014; however, NYT does not assert that it followed
the protocol set forth in Norfolk's tariff for requesting
relief from demurrage charges on account of weather related
events. Compare Norfolk's Statement at
¶¶ 24-28, with NYT's Objs. at
NYT nor NJAT moved for summary judgment concerning the
third-party complaint. Consequently, the Court will only
address the matter before it-i.e., NYT's
liability to Norfolk for the demurrage charges.