In support of its argument, plaintiff submits the affidavit of its Vice President, James Falcone. Mr. Falcone asserts that moving heavy equipment such as the Battenfeld presses at issue here requires the services of a "rigger,'" due to the need for specialized skills and equipment including cranes and jacks, rather than a "common carrier." Further, the weight of the loads requires a rigger for its specialized equipment and handling. Mr. Falcone represents to the court that the defendant was hired as a rigger, and not as a common carrier. Mr. Falcone points to defendant's letterhead, which identifies the company as a "moving engineer" offering heavy hauling, export packing, rigging, mechanical erection, and crane service. This, Mr. Falcone asserts, shows that defendant is not a "common carrier."
It is apparent that plaintiff is relying upon the common definition of "common" to support its argument that defendant is not subject to the Act. Common is defined as "Belonging or shared equally by more than one. Of frequent occurrence. Without special or distinguishing characteristics. " Black's Law Dictionary 188 (Abridged 6th ed. 1991) (emphasis added). In contrast, as used in relation to interstate commerce and the Act, the term "common carrier" refers to carriers who hold themselves out to the public as transporters of persons or property of anyone who chooses to employ that carrier.
See id. at 146. Moreover, although defendant may in fact provide services other than transportation to other customers, what is at issue here is the contract between plaintiff and defendant, and what services were provided to plaintiff by the defendant under that contract.
It is clear that in this case defendant Guy M. Turner, Inc. is a common carrier which holds itself out to the public as a transporter of property. That much of this transportation may be specialized, requiring heavy handling and cranes for loading and unloading, does not change the fact that it is transportation for hire. Defendant asserts that approximately 25 percent of its business comprising gross annual revenues in excess of $ 9 million, is transportation. This may give the impression that defendant's primary business, the other 75 percent, is a business other than transportation. However, under the act, it is the transaction at issue in relation to the business which must be considered, rather than simply the overall percentage of the carrier's business which the transaction comprises. See, e.g., ICC v. V.S.C. Wholesale-Warehouse Co., 312 F. Supp. 542, 544-47 (D. Idaho 1969)(where carrier transported goods from producer to carrier's warehouse, transportation which amounted to less than $ 200 per year was not within the scope of and in furtherance of its primary business of warehousing such goods). Transportation is clearly a business of the defendant. Moreover, the rigging operations constitute a part of the transportation business. See PNH Corp. v. Hullquist Corp., 843 F.2d 586, 590 (1st Cir. 1988)(transportation included "'services related to that movement including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling and interchange of passengers and property'" (quoting 49 U.S.C. § 10102(26)(B)) (emphasis omitted)).
Finally, defendant in no way falls within the definition of a private motor carrier, which § 13505 exempts from coverage under the Act. A private motor carrier is one which transports property when the vehicle travels interstate, the carrier is the owner, lessee or bailee of the property, and "the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise." § 13102(13); 13501. Probably the simplest example of a private carrier is a furniture store, which transports sold furniture to the homes of the purchasers. Clearly in that situation the primary business of the store is to sell furniture, and transporting it once it is sold is merely incidental to, and in furtherance of, the primary business. Thus, the furniture store is a private carrier exempt from the requirements of the Act.
However, many carriers have attempted to avoid compliance with the Act by schemes such as buy-and-sell arrangements.
A typical buy-and-sell arrangement is one under which the carrier "buys" property at a shipping point, transports it to a delivery point and there "sells it to the real purchaser, the "profit" to the carrier amounting to the price of the transportation between the two points. Similar evasions through the use of spurious buy-and-sell agreements were found in cases where property was transported in trucks regularly used by non-carrier businesses to make pickups and deliveries.
Red Ball Motor Freight, Inc., 377 U.S. at 313-14 (citations omitted). It is the avoidance of regulation by these "pseudo-carriers" which the primary business test, codified as § 13505, attempts to control. Id.; see also Keller Indus., Inc., 311 F. Supp. at 388 (where plaintiffs jointly leased truck, hired driver, and prorated transportation expenses, and the goods of one were transported outbound and goods of the other transported inbound, transportation was not private carriage); Clearfield Cheese Co. v. United States, 308 F. Supp. 1072, 1077-78 (W.D. Mo. 1969)(where plaintiff delivered its cheese products outbound and backhauled sugar with the sole purpose of profiting from the transportation of sugar, sugar backhaul not exempt as private carriage; only transportation of sugar used in manufacture of cheese products was private carriage); Shelby Biscuit Co. v. United States, 297 F. Supp. 1276, 1278-79 (S.D. Tex. 1969)(distributor of cookies which delivers load of sugar to cookie supplier when it picks up cookies not exempt from the Act).
There is no question in this case that the presses being transported belonged to plaintiff. Defendant was a bailee in that it had possession of the presses and was under a contract to deliver them. However, the primary purpose of the contract, for defendant, was to profit from the transportation of the presses from South Carolina to New York. That the transportation required specialized loading techniques and equipment does not change the character of the transportation from for-hire to private. See PNH Corp., 843 F.2d 586 at 590.
Accordingly, the court finds that the defendant provided for hire transportation to plaintiff and therefore is not exempt from regulation under the Act.
The Act provides that a shipper may bring a civil action to recover damages against a carrier responsible for the loss "in the judicial district in which such loss or damage is alleged to have occurred." § 14706(d)(2). There is no dispute in this case that the loss occurred in Columbia, South Carolina. Venue is proper, therefore, in the District of South Carolina. Accordingly, this court will transfer this action to that District. Due to this disposition, it is unnecessary to address plaintiff's argument regarding New York long arm jurisdiction.
IV. AFFIRMATIVE DEFENSE-CARMACK AMENDMENT APPLIES
Plaintiff cross-moves to strike defendant's second affirmative defense. Plaintiff makes no argument specific to its cross-motion, but merely relies upon its prior arguments regarding the exemption under § 13505. In light of the court's previous finding that defendant is not exempt from the Interstate Commerce Act, plaintiff's cross-motion is denied.
Accordingly, it is hereby
1. Defendant's motion to change venue is GRANTED; and
2. Plaintiff's cross-motion is DENIED.
The Clerk of the Court is directed to transfer this action to the United States District Court for the District of South Carolina.
IT IS SO ORDERED.
David N. Hurd
United States Magistrate Judge
Dated: April 1, 1997
Utica, New York.