PER CURIAM.
In this appeal, plaintiff, Blue Gulf Industrial Supply Company, appeals from the trial court order granting defendant, P.J.T. Transport, Inc., summary judgment and dismissing plaintiff's complaint arising out of a commercial shipping transaction. In dismissing the complaint, Judge Hector Velazquez, in an oral opinion, concluded plaintiff's complaint was barred by the statute of limitations. We affirm.
In August 2006, plaintiff contracted with Mueller Streamline Company ("Mueller") to purchase goods which plaintiff intended to be shipped to Nigeria. The goods originated at Mueller's location in Ansonia, Connecticut, from which they were shipped to defendant's facility in South Kearny, New Jersey, where they were stored temporarily. From there, the goods were transported to Port Newark and then to Nigeria.
The shipment arrived at defendant's facility on August 21, 2006 and remained there, along with other goods plaintiff shipped to defendant's facility for storage. On November 2, defendant loaded plaintiff's goods in their entirety for shipment to Port Newark and then to Nigeria. The weight of the shipment at that time was 41,587 pounds. However, when the shipment was weighed at Port Newark, the goods weighed 31,180 pounds, reflecting a 10,407-pound discrepancy. The goods were nonetheless shipped to Nigeria, in accordance with plaintiff's directive. The original shipment included sixteen pallets of goods received from Mueller. The shipment arrived in Nigeria later that month, where it was discovered that a significant amount of copper goods were missing from the shipment. The estimated weight of the missing copper was almost identical to the discrepancy in the shipment weight.
Plaintiff filed a claim for its losses with defendant, which defendant denied on April 6, 2007. On May 28, 2009, two years and forty-four days following the notice of disallowance of the claim, plaintiff filed a complaint seeking to recover damages from defendant for the lost or damaged goods. On January 21, 2010, defendant moved for summary judgment dismissing all counts of plaintiff's complaint as being barred by the Carmack Amendment, 49
The court conducted oral argument on March 5, 2010. During the argument, plaintiff's counsel, for the first time, argued that the Carmack Amendment was inapplicable for two reasons: (1) the interstate nature of the transaction ended when defendant took possession of the goods in New Jersey; and (2) defendant is neither a shipper nor interstate carrier. The court rejected both arguments:
After concluding the transaction was subject to the Carmack Amendment, the court considered the timeliness of plaintiff's complaint and concluded that under the controlling statute, 49
On appeal, plaintiff raises the following points for our consideration:
We affirm the judgment substantially for the reasons expressed by Judge Velazquez in his oral opinion of March 5, 2010. We add the following brief remarks.
"The Carmack Amendment to the Interstate Commerce Act, 49
We agree with Judge Velazquez that the underlying shipment is subject to the Carmack Amendment. We find no merit to plaintiff's claim that defendant is not a motor carrier. There is no dispute that after storing plaintiff's goods at its storage facility in Kearny, defendant transported the goods to Port Newark for shipment to its final destination. We note, as defendant sets forth in its brief, that plaintiff, in its supplemental submission to the motion judge, after raising this issue for the first time during oral argument and being given an opportunity to submit a supplemental brief later that same day, acknowledged defendant transported the goods. Plaintiff argued, however, the shipment was "intrastate" transportation. We therefore reject any attempt by plaintiff, on appeal, to suggest that defendant was not a carrier subject to the Carmack Amendment but simply a storage facility. Likewise, the fact that a portion of the shipment may have been intrastate does not remove the Carmack Amendment's applicability to this transportation.
Affirmed.