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SYRACUSE PLASTICS, INC. v. GUY M. TURNER

April 1, 1997

SYRACUSE PLASTICS, INC., Plaintiff,
v.
GUY M. TURNER, INC., Defendant.



The opinion of the court was delivered by: HURD

 Plaintiff brought this negligence action against defendant in New York State Supreme Court. The action was removed to this court by defendant on September 13, 1996. The defendant now moves the court to change venue to the District of South Carolina, or in the alternative, to the Middle District of North Carolina. Plaintiff opposes that motion and cross-moves to strike defendant's affirmative defense. Defendant opposes the cross-motion. The court heard oral arguments on January 9, 1997, in Utica, New York. In response to the court's request for analogous case law at oral argument, the plaintiff submitted a letter supplement dated January 10, 1997.

 FACTS

 The plaintiff purchased five used Battenfeld presses which are plastic injection molding machines, for use in its manufacturing business in Fayetteville, New York The presses were located in Columbia, South Carolina. As the presses are very large, *fn1" specialized handling was required for transport of the presses from South Carolina to plaintiff's facility in New York. In August 1995 plaintiff contracted with defendant for shipment of the presses. Under the contract, defendant was to disconnect the internal wiring to the control panels, load the presses, transport them, then unload them at plaintiff's facility. The contract called for payment of $ 7,965.

 On September 26, 1995, Turner Transfer, a trade name used by defendant, disconnected the wiring and loaded the presses on two tractor-trailers. One of the tractor-trailers, which contained one 120-ton press and the two 260-ton presses, jackknifed on the ramp leading to the highway and overturned. All three presses aboard were totally destroyed. Plaintiff claims a loss of $ 104,000 for the presses and $ 46,500 for lost profits. Defendant had paid $ 50,500 to plaintiff at the time the complaint was filed and has shipped the remains of the presses to plaintiff for salvage.

 DISCUSSION

 I. INTRODUCTION

 The defendant bases its motion to change venue on the Carmack Amendment to the Interstate Commerce Act. It argues that venue is proper in the district where the loss occurred under the Carmack Amendment. Plaintiff counter-argues that defendant is exempt from the Carmack Amendment, and that New York can properly obtain long-arm jurisdiction over the defendant. Plaintiff further argues that defendant's second affirmative defense, also based upon the Carmack Amendment, should be stricken as defendant is exempt from these provisions.

 The court must first determine whether defendant is exempt from the Carmack Amendment. If the Carmack Amendment's provisions apply to defendant, then proper venue is determined by statute and issues of New York long-arm jurisdiction are moot. That determination will also be necessary in determining whether defendant is protected by the limited liability provision of the statute.

 II. EXEMPTION AS A PRIVATE CARRIER

 The Interstate Commerce Act ("the Act") requires, inter alia, that motor carriers providing transportation of goods for hire register with the Interstate Commerce Commission ("ICC"), obtain the necessary ICC permits, and comply with other ICC requirements such as rate regulation and maintaining adequate records. See generally 49 U.S.C. §§ 13101-16106. "The term 'motor carrier' means a person providing motor vehicle transportation for compensation." § 13102(12). Generally, all motor carriers must comply with the Act. Keller Indus., Inc. v. United States, 311 F. Supp. 384, 388 (N.D. Fla. 1970). However, a carrier providing transportation that furthers another primary business is exempt from coverage. Id. ; § 13505. The exemption provides:

 
In general.--Neither the Secretary nor the Board has jurisdiction under this part over the transportation of property by motor vehicle when-
 
(1) the property is transported by a person engaged in a business other than transportation; and
 
(2) the transportation is within the scope of, and furthers a primary business (other than ...

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