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What happens when a defendant tries to use another shippingexpertwitnessparties’ expert deposition as new supporting evidence?  In a recent case, the judge explains the importance of timeliness to file a motion and the criteria for “newly discovered” evidence.

A shipping’s insurance company brought a breach of contract lawsuit against an international shipping company and two motor carriers for damages to two international shipments, pursuant to the Interstate Commerce Act.  This action arose from two international cargo shipments between Italy and Southern California. In both instances, after arriving at port unharmed, the cargo was damaged en route to its final inland destination.  The insurer, shipping company, and motor carriers moved for summary judgment on the issue of liability.

One of the motor carrier defendants argued in a renewed motion that its liability for damages to cargo during the first shipment was limited to $500 per package pursuant to the Carriage of Goods by Sea Act. This argument hinged on its interpretation of a Bill 1703, issued by UPS Europe SA, as the contract of carriage for the first shipment of cargo from Italy to Southern California. According to the defendant, Bill 1703 was a “through” bill of lading, which specifically covers both oceanic and inland legs of a journey in a single document.

The motor carrier presented the deposition testimony of another parties’ shipping industry expert witness as purportedly new evidence in support of this interpretation. The motor carrier claimed that the expert witness testified during deposition that Bill 1703 was a “through” bill of lading. The terms and conditions also include a Himalaya Clause extending the benefit of this liability limitation to “downstream parties expected to take part in the contract’s execution,” including subcontractors and participating land carriers. As such a party, the motor carrier argued that it enjoyed the benefit of the $500 limitation on its liability for damages to the cargo during the first shipment.

The defendant motor carrier moved for relief on grounds identical to those raised in its original motion—however, the defendant added the other parties’ expert deposition testimony as supporting evidence. This being the case, the judge construed the renewed motion as a request for reconsideration on the basis of newly presented evidence.  In any event, the judge noted that the motion was not timely filed.

The judge did not see expert witness’s deposition testimony as new evidence. Evidence, the judge explained, is not “newly discovered” if at the time of summary judgment it “could have been discovered with reasonable diligence.” The judge believed that motor carrier could have obtained the expert’s testimony before moving for partial summary judgment if it had exercised reasonable diligence in doing so, or had merely waited until after the completion of expert discovery to file its motion.

Even if the judge did consider the expert testimony as new evidence, defendant’s motion was without merit. The expert’s deposition testimony did not establish beyond dispute that Bill 1703 was a “through” bill of lading intended to cover both the oceanic and inland legs of the first shipment of cargo. The judge wrote that the proffered testimony actually suggested the opposite—and decidedly didn’t entitle the defendant to a revised ruling in its favor. Accordingly, the defendant motion was denied.