*

The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0396P (6th Cir.)

File Name: 03a0396p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

AMERICAN ROAD SERVICE

COMPANY,

 Plaintiff-Appellant,

v.

CONSOLIDATED RAIL

CORPORATION,

Defendant-Appellee.

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No. 02-1475

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 00-74640—Victoria A. Roberts, District Judge.

Argued: September 9, 2003

Decided and Filed: November 6, 2003 

Before: MOORE and GILMAN, Circuit Judges; MILLS,

District Judge.*

2 Am. Road Serv. Co. v.

Consolidated Rail Corp.

No. 02-1475

_________________

COUNSEL

ARGUED: David A. Byers, Eden Prairie, Minnesota, for

Appellant. Jonathan F. Ball, JANSSEN & KEENAN,

Philadelphia, Pennsylvania, for Appellee. ON BRIEF:

David A. Byers, Eden Prairie, Minnesota, for Appellant. Paul

D. Keenan, JANSSEN & KEENAN, Philadelphia,

Pennsylvania, Dirk H. Beckwith, FOSTER, SWIFT,

COLLINS & SMITH, Farmington Hills, Michigan, for

Appellee. 

_________________

OPINION

_________________

RICHARD MILLS, District Judge. American Road

Services Company (“American”) filed a subrogation action

against Consolidated Rail Corporation (“Conrail”) seeking

compensation for damaged property. 

The district court concluded that American’s complaintwas

untimely and entered summary judgment for Conrail. 

We AFFIRM.

I. FACTS AND PROCEDURAL BACKGROUND

Larry Krueger, a Ford Motor Company (“Ford”) employee,

was stationed on an overseas work assignment in the Czech

Republic. At the conclusion of his stay, his household goods

and personal belongings were packed, crated, and placed in a

container by Interdean, an international moving company, and

shipped to port at Bremerhaven, Germany. Mark VII, an

international transportation company, issued a bill of lading

to Interdean and forwarded the goods overseas via Maersk
No. 02-1475 Am. Road Serv. Co. v.

Consolidated Rail Corp.

3

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Conrail denied the claim because American failed to provide a more

explicit description of its claim.

Sea Lines to port at Newark, New Jersey. Conrail transported

Krueger’s goods by rail to their final destination in Detroit,

Michigan. Two days later, Conrail employees discovered that

the 45-foot container holding Krueger’s goods had been

broken into and set on fire. American, an affiliate of Ford,

paid Krueger $182,587.60 for his loss.

On September 23, 1998, American notified Conrail of its

intent to pursue subrogation and on January 25, 1999 gave

notice of the final amount of the claim. Conrail denied the

claim on June 8, 1999.1 On October 18, 2000, American filed

suit in district court alleging a negligence claim and a claim

pursuant to the Carmack Amendment. 

On March 13, 2002, the district court entered summary

judgment in favor of Conrail because American’s complaint

was untimely.

On appeal, American claims that the district court erred

when it failed to provide American notice and an opportunity

to respond before entering summary judgment sua sponte.

American also claims genuine issues of material fact

precluded summary judgment. Finally, American argues that

the district court erred when it considered testimony of a

witness who was not disclosed in accordance with Rule 26 of

the Federal Rules of Civil Procedure. 

II. ANALYSIS

A. Sua Sponte

American claims that the district court’s order granting

judgment in favor of Conrail was inappropriate because the

time for filing dispositive motions had expired. American

4 Am. Road Serv. Co. v.

Consolidated Rail Corp.

No. 02-1475

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Even if it were possible to characterize the grant of summary

judgment as sua sponte, American suffered no prejudice, as is evident in

Section B of this opinion.

claims that the court entered summary judgment sua sponte

and did not allow American an opportunity to respond. 

“The clearly established rule in this circuit is that a district

court must afford the party against whom sua sponte

summary judgment is to be entered ten days notice and an

adequate opportunity to respond.” Yashon v. Gregory, 737

F.2d 547, 552 (6th Cir. 1984). “Noncompliance with the time

provision of the rule deprives the court of authority to grant

summary judgment, unless the opposing party has waived this

requirement, or there has been no prejudice to the opposing

party by the court’s failure to comply with this provision of

the rule.” Helwig v. Vencor, Inc., 251 F.3d 540, 552 (6th Cir.

2001) (quoting Kistner v. Califano, 579 F.2d 1004, 1006 (6th

Cir. 1978)).

At the final pretrial conference, according to both parties,

the district court requested that the parties brief certain

dispositive issues. At the end of Conrail’s Brief, Conrail

requested “the entry of judgment as a matter of law.”

American responded to the issues raised and asked the court

to deny Conrail’s request for judgment. 

American therefore had notice, was aware of the relevant

issues, had an opportunity to respond and did in fact respond

to Conrail’s request for judgment as a matter of law.

Accordingly, the Court rejects American’s characterization of

the judgment in this case as sua sponte.

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B. Genuine Issue of Material Fact

The district court found that the Mark VII bill of lading was

a through bill of lading and that the Carmack Amendment’s
No. 02-1475 Am. Road Serv. Co. v.

Consolidated Rail Corp.

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two-year period of limitation for filing a civil action therefore

did not apply. The court then examined the Mark VII bill of

lading to determine whether the time to commence a suit was

limited by contract. Section XVIII of the Mark VII bill of

lading states, “Carrier shall be discharged from all liability for

loss of damage to goods unless suit is brought within 9

months after delivery of the goods.” Based on that language,

the district court found American’s complaint, filed almost

two years after the fire in the rail yard, was untimely.

American argues on appeal that the Carmack Amendment

applies to this case and that a genuine issue of material fact

precluded summary judgment. We review a district court’s

grant of summary judgment de novo. Cherrington v. Skeeter,

344 F.3d 631, 636 (6th Cir. 2003).

The Carmack Amendment was enacted in 1906 as an

amendment to the Interstate Commerce Act of 1887 and

addresses the liability of common carriers for goods lost or

damaged during a shipment over which the Interstate

Commerce Commission (“ICC”) has jurisdiction. Capitol

Converting Equipment, Inc. v. LEP Transport, Inc., 965 F.2d

391, 394 (7th Cir. 1992). The Amendment requires, among

other things, that a carrier transporting property issue a bill of

lading to the shipper, and makes the carrier liable to the one

entitled to recover under the bill of lading for loss of or injury

to the property.

“A bill of lading issued in a foreign country to govern a

shipment throughout its transportation from abroad to its final

destination in the United States, is termed a ‘through’ bill of

lading.” Capitol, 965 F.2d at 394. The ICC’s jurisdiction

does not extend to a shipment under a through bill of lading

unless a domestic segment of the shipment is covered by a

separate domestic bill of lading. See 49 U.S.C. § 10501; Swift

Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701

(11th Cir. 1986); Capitol, 965 F.2d at 394; Shao v. Link

Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir. 1993).

6 Am. Road Serv. Co. v.

Consolidated Rail Corp.

No. 02-1475

Determining whether a shipment is governed by a through

bill of lading is a question of fact. Capitol, 965 F.2d at 394.

In Capitol, LEP Transport was hired by Capitol to arrange for

the transportation of machinery from Italy to Chicago. The

machinery never arrived and Capitol sued LEP under the

Carmack Amendment. The district court held that the

shipment was governed by a through bill of lading, making

the Carmack Amendment inapplicable, because the bill of

lading was issued in Italy, showed Chicago as the place of

delivery, was prepaid and was not followed by a separate,

domestic bill of lading. Id. 

Here, the district court concluded that the shipment was

covered by a through bill of lading because (1) the final

destination was included in the bill of lading issued by Mark

VII to Interdean; (2) the freight was prepaid for the entire

shipment to Detroit; and (3) no separate bill of lading was

issued for the trip from Newark to Detroit. 

American disputes the accuracy of the district court’s

findings. Specifically, American claims there is evidence

Conrail issued a domestic bill of lading. That evidence is

found in Conrail’s claim notes, which state that “this

document does not constitute a claim within the meaning of

section 2(b) of bill of lading contract.” American states that

a “section 2(b)” is not listed in the bills of lading issued by

Maersk or Mark VII and argues “[w]hether there is a third

Conrail bill of lading that also governs the transaction is a

question of fact that precludes summary judgment.” 

To support a claim under the Carmack Amendment,

American must present some proof that a domestic bill of

lading was issued. Speculation, unsupported by facts in the

record, is insufficient to create a genuine issue of material fact

and falls short of what is required to survive summary

judgment. SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986) (holding that “[t]he mere existence of a scintilla

of evidence in support of the plaintiff’s position will be
No. 02-1475 Am. Road Serv. Co. v.

Consolidated Rail Corp.

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American raises another issue on appeal: whether the district court

abused its discretion when it considered the deposition testimony of

Maersk’s claims manager, Massoud Messkoub. American argues that the

testimony was inadmissible because Conrail failed to disclose Messkoub’s

identity until nine months after the witness disclosure deadline. The

district court relied on Messkoub’s testimony to conclude that American’s

complaint was untimely even if the Carmack Amendment applied.

Because the Court has concluded the Carmack Amendment is

inapplicable, a ruling on whether Messkoub’s testimony was admissible

is unnecessary.

insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff”).

Without evidence to the contrary, the Court agrees with the

district court’s finding that the Mark VII bill of lading was a

through bill of lading. Such a finding renders the Carmack

Amendment inapplicable to the shipment at issue.3 

As a result, the Mark VII bill of lading’s nine-month period

of limitation controls and American’s negligence claim, filed

almost two years after the goods were destroyed by fire, was

too late.

AFFIRMED.