Before discussing the merits of the case, it is important in these litigious times to discuss the parties' critical procedural errors. Local General Rules 12(M) and 12(N) of this district require both the movant and the party opposing a Rule 56 motion to file a statement of uncontested facts, listing each fact in a separate numbered paragraph, with a citation to the affidavit or other supporting materials that the party relied upon, as well as a response to the opposing party's statement of facts. The failure to comply with the local rules is not merely a "harmless technicality," but can be a "fatal" mistake. Waldridge, 24 F.3d at 923 (Local Rule 12(M) and 12(N) statements are "roadmaps, and without them the court should not have to proceed further, regardless of how readily it might be able to distill the relevant information from the record on its own").
While the temptation is great to deny all of the summary judgment motions on this basis, the multitude of motions already filed, along with concern over wasted paper and time provides this court with the incentive to ferret out the facts in this case and judge the instant motions on the merits. The parties are admonished to read and learn the local rules, and pay strict attention to the requirements the next time they file a motion in this court.
Recovery Under The Carmack Amendment
Eddie Bauer asserts that each of the defendants is liable for the loss of its goods under the Carmack Amendment because the final destination of the goods were designated as Eddie Bauer stores and the merchandise was stolen from the trailer somewhere en route. Under the Carmack Amendment, for a shipper to recover damages to a shipment from a carrier, the burden is on the shipper to establish a prima facie case. Eddie Bauer, the shipper, must prove: (1) the goods in question had been delivered to the carrier in good condition; (2) the goods had arrived at the final destination in a damaged or diminished condition; and (3) a specific amount of damages. Missouri Pac. R. Co. v. Elmore and Stahl, 377 U.S. 134, 12 L. Ed. 2d 194, 84 S. Ct. 1142 (1964); S.C. Johnson & Son, Inc. v. Louisville & Nashville R.R., 695 F.2d 253, 256 (7th Cir., 1982).
If the shipper can prove its prima facie case, the burden shifts to the carrier to show both that it was free from negligence and that the damage was caused by: (1) an act of God; (2) an act of the public enemy; (3) an act of the shipper, (4) an act of the public authority; or, (5) the inherent nature or vice of the goods.
Missouri Pac. R. Co., 377 U.S. at 137; S.C. Johnson & Son, 695 F.2d at 256. Judgment cannot be rendered against the carrier until the shipper has proved both its prima facie case, and the carrier has failed to meet its burden of proof that it was free from negligence and that the damage was due to one of the excepted causes. Id.
The Carmack Amendment was enacted to "relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods. S.C. Johnson & Son, 695 F.2d at 253. The parties do not dispute that Eddie Bauer has fulfilled the first and third elements of the prima facie test. As to the second element, the two issues the court must address are: (1) whether the shipment was considered one shipment or two shipments under the Carmack Amendment; and (2) whether the goods were "delivered" to Baker Motor. The findings on these two issues will govern which party, if any, is liable for the stolen merchandise.
A carrier's liability for the loss of goods shipped through interstate commerce extinguishes upon delivery. Intech, Inc. v. Consolidated Freightways, Inc., 836 F.2d 672, 674 (1st Cir. 1987); Tokio Marine and Fire Insurance Co., Ltd. v. Amato Motors, Inc., 871 F. Supp. 1010, 1014 (N.D.Ill. 1994). Therefore if the shipment was broken down into two legs, the first leg being the shipment from Eddie Bauer in Ohio to Baker Motor, and the goods were delivered to Baker Motor in good condition, then Central Ohio and Gully are not liable to Eddie Bauer under the Carmack Amendment.
Whether the transportation of the Eddie Bauer merchandise should be characterized as one or two trips is a question of fact. S.C. Johnson & Son, 695 F.2d at 257. An examination of the relevant facts in this case reveals that the shipment is properly divided into two trips. Eddie Bauer had separate contracts and arrangements with Central Ohio
and Baker Motor. Central Ohio had instructions to transport cartons of Eddie Bauer's merchandise from it's facility in Ohio, to Baker Motor's facility in Illinois. Baker Motor was then obligated to separate the load and distribute the goods to Eddie Bauer's retail stores as specified on bills of lading supplied by Eddie Bauer.
The bill of lading issued from Central Ohio to Eddie Bauer listed Baker Motor's facility in Downer's Grove as the "Final Stop." These facts support the finding that the journey from Eddie Bauer to its retail stores consisted of two separate deliveries. See, Id. 695 F.2d at 257; Intech, Inc., 836, F.2d at 674 (the terms of the delivery are defined by the bill of lading). Therefore, under the Carmack Amendment, Central Ohio and Gully are liable to Eddie Bauer for any damage to the goods in transport from Ohio to Baker Motor's facility in Downers Grove, and Baker Motor is liable for damages to the goods that occur from the delivery to its facility to the delivery to the designated Eddie Bauer retail stores.
What Constitutes "Delivery"
The critical issue remaining before the court is whether Watt's actions constituted "delivery" to Baker Motor. Central Ohio and Gully argue that they are not liable to Eddie bauer because its merchandise was stolen after it was delivered to Baker Motor. Baker Motor asserts that Gully's spotting of the merchandise at Baker Motor's facility does not constitute "delivery."
The intention of the parties defines what constitutes the scope of delivery. Amato Motors, Inc, 871 F. Supp. at 1014; Intech, Inc. v. Consolidated Freightways, 836 F.2d 672, 674-75 (1st Cir., 1987). Subject to the intent of the parties, delivery occurs when one party surrenders, and the other party accepts, possession, custody, and control of the goods involved. Id; Illinois Central R.R. v. Moore, 228 F.2d 873, 877 (6th Cir., 1956).
Central Ohio and Gully assert that Gully delivered Eddie Bauer's merchandise to Baker Motor "consistent with the normal business practices" of Central Ohio and Baker Motor, and that Baker Motor took actual possession and control of the trailer when Bertrand secured the trailer with one of Baker Motor's pinlocks.
Baker Motor argues that there was not proper delivery, asserting that Bertrand testified in his deposition that he had given Vicki Vancil ("Vancil"), a shipping clerk with Central Ohio, delivery instructions to bring the truckload to Baker Motor's facility Monday morning at 5:00 a.m., and that the trailer was not to be left unattended at the Baker facility over the weekend. (Emphasis in Baker Motor's brief.) The actual testimony from Bertrand's deposition (at 88-90) reads:
Q. Now, with respect to the shipment in question in this litigation, when did you first have personal knowledge that a shipment was going to be leaving Central Ohio Shippers on about the 20th of March of 1992?