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Mattel, Inc., A Corporation v. Bnsf Railway Company

January 3, 2011

MATTEL, INC., A CORPORATION, PLAINTIFF,
v.
BNSF RAILWAY COMPANY, A CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Manuel L. Real United States District Judge

(As to CV-10-681-R only)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Motion for Summary Judgment or Alternatively for Partial Summary Judgment of Defendant BNSF RAILWAY COMPANY ("BNSF") came on for hearing on December 6, 2010. Attorney Leslie G. McMurray appeared as counsel on behalf BNSF. Attorney Stanley Gibson appeared on behalf of Plaintiff Mattel, Inc. ("Mattel"). After fully considering the moving, opposition and reply papers filed by the parties, all evidence and exhibits filed therewith, all filed and stated objections, the Court's own files and records, and having considered the oral argument of counsel for both parties, the Court hereby makes the following findings of fact and conclusions of law:

1. The ocean carrier through its American agent CMA-CGM, S.A. ("CMA"), contracted with various shippers to move the containers at issue in this case from China to Fort Worth, Texas ("the shipments"). [10/15/10 Decl. of C. Martrou ("CM") at ¶2, p. 2:16-25, 3:1-3, Ex A (front pages)]

2. CMA issued through bills of lading for the shipments (hereafter the "CMA TBOL"). [CM, ¶ 1, p.3:6-7.]

3. Each CMA TBOL contains the same pre-printed contract terms. [CM, ¶ 2:4-7.]

4. Mattel was the designated consignee for receipt of the shipments in Fort Worth, Texas. [CM,¶ 4, p. 4:2-3; Mattel Complaint, ¶ 1:23-24.]

5. CMA subcontracted with BNSF for BNSF to move the shipments by rail from Long Beach to Fort Worth under BNSF Confidential Contract MA-66, Contract No. BF 53785 and the BNSF Intermodal Rules & Policies Guide ("IR&PG") (collectively, the "BNSF Contract"). [Decl. of Ronald Hamilton ("RGH") of 8/25/10 at ¶7 p. 7:17-27, p. 8, and Ex D at p. 3, ¶5, and Ex. E, Item 1, p. 6 (marked BN006); CM, at ¶7, p. 7:6-17.]

6. The BNSF train carrying the shipments derailed in Texas on November 22, 2008. [Decl. of John Wiederholdt dated 8/24/10 ("JW") at ¶3, p. 2; Decl. of John Stanford dated 10/15/10 (hereafter, "JS"), at ¶4, p. 3.]

7. Mattel now sues BNSF in its own name seeking $1,266,182.63. [Mattel Complaint at pp. 2:27-28, 3:1 (Prayer.) ECF Dkt. #1.]

8. The CMA TBOL was for "combined transport." [CM at ¶¶ 2-3 (Exhibit A, see face pages of each TBOL).]

9. The CMA TBOL defined the term "Merchant" to include the shipper, cargo owner, and consignee, binding each to its terms. [CM at ¶4:21-22, ¶5:1-3; CM ¶4, p. 3:21-22, 4:1-2 (Ex. C, at ¶1, "DEFINITIONS"); RGH ¶ 4:9-13 and Ex. C at ¶ 1 "DEFINITIONS."]

10. Mattel was the designated consignee on the shipments. [CM at ¶ 2:16-24, ¶3:1-4 (and Exhibit A thereto, first pages of TBOL).]

11. Mattel avers that it was the beneficial owner of the cargo at issue. [Mattel's Complaint ...


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