Opinion
CIVIL ACTION NO: 01-1843.
June 3, 2002.
HEARING ON MOTIONS
Before the undersigned are two motions filed by the plaintiff, Somerset Marine, Inc. ("Somerset"), to compel responses to interrogatories and requests for production of documents from the defendants, M/V Vasiliy Burkhanov, Far-Eastern Shipping Co. ("Fesco") and Memco Barge Line, Inc. ("Memco"). Somerset's original complaint named these parties as defendants. Rec. doc. 1. The M/V Vasiliy Burkhanov was dismissed without prejudice on November 14, 2001. Rec. doc. 6. An amended complaint was filed on February 26, 2002 that named the original defendants and added Coastal Cargo Company, Inc. ("Coastal Cargo") as a defendant. Rec. doc. 10. The record does not show service of the amended complaint on the MN Vasiliy Burkhanov, so it is not before the Court. The pretrial conference is set for September 19, 2002, and the trial is set for September 30, 2002. Rec. doc. 8.
Somerset alleges that a cargo of steel was delivered to Fesco in Chile in good condition. On July 4, 2000, the cargo arrived in New Orleans on the MN Vasiliy Burkhanov and was loaded into Memco barges by Coastal Cargo. Memco allegedly acknowledged receipt for the cargo and noted that it was contaminated and damaged by exposure to water during the ocean voyage. Memco delivered the cargo but Somerset alleges that it was further damaged while in Memco's custody. Somerset alleges that Fesco, Memco and Coastal Cargo are responsible for the damage to the cargo. Somerset alleges it was the insurer on the cargo and is subrogated to the rights of the cargo owner for the damages of $115,000 plus attorneys' fees, surveyors' fees, disposal costs and other expenses. Rec. doc. 10.
FESCO'S DISCOVERY RESPONSES
Somerset contends that Fesco's response to interrogatories and requests for production of documents were inadequate. Fesco responds that it is a foreign corporation located in Russia. It contends it has encountered difficulties in retrieving documents and some of them need to be translated into English at the Russian Chamber of Commerce before they can be produced. Fesco reports that since the motion to compel was filed, it supplemented its response and will provide the vessel logs with a translation by May 31, 2002. There are other issues that remain with respect to certain discovery requests.
Interrogatory no. 2. requests information on the last inspection of the vessel and its cargo carrying equipment; for example the hatch covers. Fesco made no objection and responded that it was attempting to locate any reports relative to the specified areas. In opposition to the motion to compel, Fesco urges that this request is irrelevant, harassing and overly burdensome. Fesco's objection was not raised until it filed its opposition memorandum and is untimely. Fesco must answer the interrogatory.
Interrogatories nos. 6 and 10 seek the facts, and the identity of witnesses that will testify as to the facts in support of Fesco's defenses. Fesco objects that such discovery is premature. Fesco's objection is overruled. It shall a provide a summary of the facts in support of its defenses and the identity of the witnesses who will testify as to those facts.
Interrogatories nos. 8 and 9 seek the identity of the stevedores who conducted operations during the loading of the cargo on the vessel. Somerset contends that only Fesco can obtain this information. Fesco responds it has provided Somerset with documents showing all the information available to it and Somerset should go to the charterer of the vessel for any additional information. Fesco is not required to supplement its response to these interrogatories.
Interrogatory no. 13 seeks the identification of the steps taken to prevent physical and/or rust damage to the cargo. Fesco states it took all customary precautions and it will produce the log books upon completion of the translations. Fesco shall supplement its response by describing the steps it took to prevent damage to the cargo.
Interrogatory no. 14 requests the identity of the owners of all other cargo on the vessel. Fesco objects to the interrogatory as too broad and adds that such information is not available. Fesco shows it has produced documentation showing the parties identified in the bills of lading as shipper and consignee for the other cargos carried in the same holds as the cargo for Somerset's insured. No further response is required.
Document request nos. 4 and 5 seek copies of all logs for the period of the voyage plus two months before and after the subject voyage. Fesco objects to producing the logs for the time before and after the voyage. Somerset contends such information may show there was an ongoing problem with the vessel. Fresco shall produce the logs for the week prior to the voyage and the week after.
Document request no. 9 seeks all weather reports received by Fesco and the vessel for the voyage. Fesco's opposition shows it supplemented the response with all responsive information in its possession. No further response is required.
Document request no. 12 seeks a crew list for the voyage and the identity of those presently employed by Fesco. Fesco responds that it produced a crew list in Russian and it is attempting to determine the last known address of the former master and deck officer. Fesco shall provide the last known address of the master and deck officers.
Document requests 21 and 22 seek all documents and file materials without limitation pertaining to the voyage. Fesco objected to the breadth of this discovery. Somerset acknowledges that the discovery is broadly worded but contends it is necessary to protect itself from a response that a particular document was not requested. Fesco's objection is well taken and no further response is required.
Document request 23 seeks all bills of lading, mate's receipts and survey condition and evaluation reports pertaining to any cargo on the vessel during the subject voyage. Fesco's opposition shows it supplemented its response with the information sought by Somerset. No further response is required.
Document request no. 24 seeks Sea Protests. Somerset contends the copy it received is not completely legible. Fesco responds that it does not possess the original and the most legible copies in English and Spanish have been produced. No further response is required.
MEMCO'S DISCOVERY RESPONSES
Somerset alleges that Memco was a common carrier while Memco responds that it was a private carrier. Somerset argues that the discovery is needed to prove that Memco is a common carrier. Memco shows it will file a motion for summary judgment based on J. Aron Co. v. Cargill Marine Terminal, 998 F. Supp. 700 (E.D.La. 1998) (Mentz, J.). In that decision the plaintiff contended that American Commercial Barge Lines ("ACBL") was liable for damages to the cargo under the Hatter Act, 46 U.S.C. § 192. ACBL's liability turned on whether it was private or common carrier. The Court said:
A common carrier is one that holds itself out to the public as ready to carry for anyone who requests its services, while a private carrier reserves the right to accept or reject employment as cater. Where the carrier dedicates the full capacity of the vessel for the carriage of one shipper's cargo, it is presumed in the absence of other evidence, that the ship is a private cater.
Id. at 704. ACBL submitted an uncontroverted affidavit declaring that:
[T]he tonnage reflected on each of the four bills of lading on the barges reflect the entire cargo on each barge, that no other tonnage or cargo belonging to any other shipper was contained in the barges, that the cargo in the four barges was transported in accordance with private contracts of affreightment referenced on the reverse side of each bill of lading, and that ACBL is a private carrier and reserves the right to accept or reject employment as a carrier and does not hold itself out to the public as ready to carry cargo for anyone who requests its services.
Id. at 704. The Court found that ACBL acted as a private carrier. Memco states it will provide a similar affidavit and include a discussion of how its rates are calculated.
In their efforts to resolve the discovery controversy, the parties refined the issues that separate them on the common cater/private cater discovery to six requests.
Request no. 1. Subject to a protective order the customer list of Memco which will identify the number of entities served and allow Somerset to discuss with these entities the nature of the "holding out" by Memco.
Memco responds that this request is burdensome and not relevant to the claim or defense of any party pursuant to Fed.R.Civ.P. 26(b)(1). It argues that the test for common carriage requires that the cater not only hold itself out as ready to engage in transportation of goods for hire as a public employment but also that the cater does in fact undertake to carry for all persons indifferently. Exhibit A to Rec. doc. 16. In support, Memco cites Home Insurance Company v. Riddell, 252 F.2d 1 (5th Cir. 1958), where the decisive fact in the determination that the carrier was not a common cater was that it conditioned its willingness to carry upon the negotiation of a satisfactory price and that it paid no tariffs.Id. at *3.
[A] person has the right to engage in the business of a private carrier. He asserts that right when, seeking all potential business as avidly as any other businessman desirous of a profit, it is yet his practice to treat each individual shipment on a separate basis and accept or reject it as wished and on terms and at rates satisfactory to him at the time.
Id. at *4. Somerset argues that its need for this information was established in United States v. Stephen Brothers Line, 384 F.2d 118 (5th Cir. 1967). The carrier's operation of the vessel was found to be that of a common cater in foreign commerce.
Inward and outward Customs manifests reflected hundreds of shipments of a wide variety of cargo running the gamut from automobiles, buses, groceries, gas ranges, freezers to veils and hat linings. Shipments of this kind had come from active solicitation by the Carrier among established freight forwarders whose compensation frequently came from the fees paid by the Carrier. And all the while, during a 28 month period the M/V Zaida with a regularity almost matching the Staten Island Ferry made 28 round trips from Miami to the Dominican Republic.Id. at 124. Somerset must show that Memco does in fact undertake to carry for all persons indifferently. Pursuant to Stephen Brothers Line, Somerset's request for the customer list is pertinent to this issue.
Request no. 2. A statement as to the types of cargos for which services have been provided in the 24 months preceding the subject voyage.
Memco describes request no. 2 as burdensome and not relevant to the claim or defense of any party pursuant to Fed.R.Civ.P. 26(b)(1). It argues that the types of cargos have nothing to do with the common/private cater issue. Memco is correct.
Request no. 3. A list of destinations to and/or from which services were provided by Memco over the 24 months preceding the subject carriage with an estimation of the number of times per month that each destination was served.
Memco describes request no. 3 as burdensome and not relevant to the claim or defense of any party pursuant to Fed.R.Civ.P. 26(b)(1). Memco shows that neither regularity nor predetermination are essential elements of a common cater pursuant to Stephen Brothers Line. 384 F.2d n 15 at p. 123. Although the court referred to the regularity of the trips of the vessel, the decision is clear that regularity and predetermination are not essential elements of common carriage. This request is not relevant.
Request no. 4. A copy of any standardized "contracts of carriage" or "bills of lading" which were issued in the transactions cited above, if the actual bills of lading or contracts of carriage cannot be readily obtained and are not substantially different from the standard contracts and bills.
Memco reports that it has no standardized contracts of carriage or bills of lading. It does report there is a standardized form of each document that is tailored to each particular contractual relationship and that it will provide Somerset with the form of each document. That response is sufficient.
Request no. 5. A statement regarding the method by which Memco establishes rates.
Memco reports it will respond to request no. 5.
Request no. 6. A copy of all advertisements of Memco's services.
Memco describes request no. 6 as burdensome and not relevant to the claim or defense of any party pursuant to Fed.R.Civ.P. 26(b)(1). Citing Home Insurance Co. v. Riddell, Memco in effect argues that merely because it may avidly seek business through advertisements it retains its status as a private carry as long as it does not undertake to carry for all people indifferently. 252 F.2d at *4. Stephen Brothers Line shows that a cater need not solicit cargo to be a common cater but it must be shown that the cater became known generally throughout the trade as planning to transport merchandise and did transport merchandise of others to the extent of its capacity. 348 F.2d 118, n. 14 at p. 123. In Stephen Brothers Line the evidence to support this finding came from the testimony of six freight forwarders who were solicited by the cater and paid fees by it. The advertisements are discoverable because they pertinent to the issue of whether Memco was generally known throughout the trade as planning to transport merchandise.
Memco will be required to respond to Requests nos. 1 and 4 through 6. It will not be required to respond to Request nos. 2 and 3.
Somerset served two interrogatories, numbers 6 and 10, that seek all facts in support of Memco's defenses and the witnesses who will testify in support of these facts. Memco argues that these interrogatories are contention interrogatories and are premature. Memco's objections are overruled. It shall a provide a summary of the facts in support of its defenses and the identity of the witnesses who will testify as to those facts.
IT IS ORDERED as follows:
1. Somerset's motion to compel discovery from Fesco (Rec. doc. 15) is GRANTED in PART and DENIED in PART in accord with the terms of this minute entry.
2. Fesco shall supplement its discovery responses as provided herein within twenty-one (21) calendar days of the entry of this order.
3. Somerset's motion to compel discovery from Memco (Rec. doc. 14) is GRANTED in PART and DENIED in PART in accord with the terms of this minute entry.
4. Memco shall supplement its discovery responses as provided herein within ten (10) working days of the entry of this order.