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Chuck Close. Daguerreotypes. Foreword by Philip Glass. With conversation between C. Close, T. Greenfield-Sanders and J. Spagnoli.
W. W. Norton & Company, 2002, Hardcover, Book Condition: Very Good Condition, Dust Jacket Condition: Very Good, First Edition. Owner inscription to front free-endpaper. Quantity Available: 1. Shipped Weight: Under 1 kilogram. Category: Animals & Birds; Pictures of this item not already displayed here available upon request. Inventory No: 48994.
New York: Harry N. Abrams, Inc., 2002. First edition. Hardcovers. Seven volumes. A revised and a then newly compiled edition. Text in English, French and German. Includes 619 images. Volume I is "The Farmer" and has 271 pages and in is in fine condition in a fine dust jacket. Volume II is "The Skilled Tradesman" and has 151 pages and is in fine condition in a very near fine dust jacket. Volume III is "The Woman" and has 169 pages in fine condition in a fine dust jacket. Volume IV is "Classes and Professions" and has 279 pages and is in fine condition in a fine dust jacket. Volume V is "The Artists" and has 203 pages and is in fine condition and a fine dust jacket. Volume VI is "The City" and has 297 pages and is in fine condition in a fine dust jacket. Volume VII is "The Last People" and has 54 pages and is in fine condition in a fine dust jacket. The illustrated cardstock slipcase is in close to near fine condition with some minor bumping to the corners and a small split to the bottom near the opening. A lovely set.
Bertelsmann Lexikon in 15 Bänden. Limitierte Künstleredition in Echtleder (Ganzleder), gestaltet von dem Maler und Bildhauer Falko Hamm - mit zwei von Falko Hamm gestalteten, als Buchstützen konzipierten Skulpturen (nummeriertes und signiertes Exemplar).
Bertelsmann Lexikon in 15 Bänden komplett ! Limitierte Künstleredition in Echtleder (Ganzleder - nummeriert und signiert), gestaltet von dem Maler und Bildhauer Falko Hamm. OHNE DIE 2 BUCHSTÜTZEN !
West Chester, PA: Aralia Press, 2002. 32mo. cloth, top edge cut, other edges uncut. unpaginated (20) pages. Limited to 26 lettered copies. Signed by the authors on colophon. Deluxe edition. Introduction by the authors. Frontispiece. Romanée type on Umbria paper. A poetic work.
[Knight Library Press] Pattiann Rogers.
Raceform, 2002. Paperback. Used; Acceptable. Paperback; English language; a fair reading copy. Your book will be securely packed and promptly dispatched from our UK warehouse. All international orders are sent Royal Mail airmail.
London: Folio Society. 2002. F First Edition Thus. H Leather Binding. As New. A complete set of the most beautiful edition of Tolkien ever issued. 5 volume set of the deluxe leather bound Folio Society limited edition. Copy #732 (all matching #'s) of only 1750 numbered copies, bound in dark brown Wassa goatskin over a golden brown raw silk, spines decorated in gilt, top edges gilt. The volumes are housed in three matching full leather slipcase, elaborately decorated in gilt. This set is stunning and 'as new'.
Cologne: Taschen,, 2002. Large folio. Original light pink cloth, titles to spine and front board white, pink floral endpapers. Housed in the original pink clamshell box. With the original cardboard packing box, publisher's promotional leaflet and publisher's subscriber's card. Photographs, some folding out, throughout. An excellent copy. First edition, first impression. Number 829 of 2,500 numbered copies signed by Araki on the limitation page. With an interview by Jérôme Sans, a short biography of Araki and an extensive bibliography. Araki's impressive oeuvre condenses decade of his work into around 1000 photographs.
The Elements. A Poem by Susan Stewart, with Lithographs by Enid Mark.
Wallingford, 2002. 15 x 11. 17 leaves, most presented as double spreads. Grey cloth & matching tray case by Sarah Creighton. Fine. Air, Earth, Fire, and Water provide the theme for the poems, the illustrations, the colors, and the typography, which is shaped to reflect the poem's meaning. "Working with a wide and textured page provided a frame for exploring new versions of the poetic line and spacing of stanzas. The poem unfolds in time as a meditation on time and mortality. Each of the sections is defined by an image introduced as a horizontal band that has its own rhythm, fading and increasing in dimension and intensity as the pages turn." Of 61 copies printed by Daniel Keleher at Wild Carrot Letterpress, this is A/P Binder's Copy.
South Polar Times 1902 -1911.
London: OrskeyBonhamNiner; & Cambridge: Scott Polar Research Institute - Bonham,, 2002 & 2010. Centenary Edition. [together with;] Volume IV. 4 volumes quarto. Original blue cloth, title gilt to spines and front boards, front boards with mounted colour illustrations within gilt panel, blue silk page-markers. Numerous illustrations in colour and black and white. Very good. The first three volumes were originally published 1907-14, this facsimile offered in a numbered edition of 350. The fourth volume was never previously published, this is copy 153 of an edition of 500 in which a facsimile of the text held by the Scott Polar Institute is accompanied by an extensive introduction by Ann Savours which details the production of the South Polar Times; a comprehensive biography of the explorers who contributed to the South Polar Times; and a short section on "the tradition of polar publishing." The South Polar Times was originally produced to relieve the boredom of the cold, dark winter nights and raise the spirits of the men on board. So as well as essays on seals, whales and penguins, there were comic poems, puzzles, stories and cartoons. Scott's comments in the preface to the first published edition, written in 1907, seems to indicate that the journal achieved its goal; "I can see again a row of heads bent over a fresh monthly number to scan the latest efforts of our artists, and I can hear the hearty laughter at the sallies of our humorists and the general chaff when some sly allusion found its way home." A very handsome edition.
[Feb 24, 2002] abgebildete ausgabe,..,mit gebrauchspuren,buchschnitt etwas angeschmutzt..
Medling - möten med möjligheter. En analys av en nygammal reaktion på brott.
Akademitryck, 2002. Inbunden bok. Akademisk Doktorsavhandling Stockholms Universitet inbunden med hårda pärmar. Finns endast i ett (1) exemplar. Unik också då efternamnet är felstavat på försättsbladet inne i boken pga tryckfel. Skyddsomslaget i hårdband dock rätt stavat efternamn. (Övriga upplagor finns både med rätt stavat efternamn och felstavat efternamn. ) På bilden visas titelomslaget /försättsbladet dvs ej huvudomslaget med flestavat efternamn. Nåt för KB? ;-) Fler bilder kan mailas. Presentupplaga från kollegor. Säljs av författaren till boken. Ej dedicerad utan helt ren.
Alphabet arabe, turk et persan, à l'usage de l'imprimerie orientale et française.Alexandria, Imprimerie orientale et française, an VI . Small 4to. Modern brown half calf, gold-tooled spine.
Geiss, Imprimerie en Égypte, p. 146, no. 1; Glass & Roper, The Printing of Arabic Books in the Arab World, in: Middle Eastern Languages and the Print Revolution (2002), p. 177-225, at 182; Querard V, 506; Schnurrer 140 note. The first book ever printed in Egypt, unquestionably the rarest and most important of the early books printed in the Middle East, published in the very year when modern printing was introduced to the Arab world. Only in October 1798 did J. J. Marcel arrive in Cairo with his employees and types to organize the Imprimerie Orientale. "The expedition of Napoleon Bonaparte to Egypt from 1798 until 1801 was a prelude to modernity. It was to change permanently the traditional Arab world [...] The French brought Arabic typography to Egypt, where it was practised under the supervision [...] of Jean Joseph Marcel [...]. Only a few days after the French troops landed [...] they set up the Imprimerie Orientale et Française there. It was an extraordinarily important turning point. For, leaving aside the Hebrew printing presses in Egypt of the 16th to the 18th centuries, until this date announcements and news adressed to Arabs there, as well as in other parts of the Arab-Islamic world, had been spread only in hand-writing or orally, by criers, preachers or storytellers" (Glass/Roper). Slightly spotty in places, but well preserved. No copy in auction records or in libraries within the Arab world.
Paris: Editions Massin, 2002. Hardcover. New/New. This is the complete 18 volume set on French regional furniture. The regions covered are: Alsace; Lower Auvergne; Upper Auvergne; Belgium and French Flanders; Bresse Franche-Comté; Lower Brittany; Upper Brittany; Burgundy; Charentes Poitou; Ile-de-France; Lorraine; Lyon; Picard & Artésien; Provence; Lower Normany; Upper Normandy; Savoy & Dauphiné; and the South-West. Each volume is profusely illustrated in color. Text in French.
ZERUNIAN, Sergio - DE RUOSI, Titti.
Iconografia dei pesci delle acque interne d'Italia - Iconography of Italian inland water fishes. Ministero dell'ambiente e della tutela del territorio, Direzione conservazione natura. Tavole a colori di Titti De Ruosi.
Istituto nazionale per la fauna selvatica "Alessandro Ghigi", [Ozzano dell'Emilia], 2002. 1 volume di 259 p. + XXXIII,  c. di tav., 50 cm, contenitore editoriale in tela con titoli oro. Molto buono. Edizione in 499 copie numerate. L'opera si compone di 33 tavole a colori di Umberto Catalano e impresse su cartoncino, di misure 34x49 cm in apposita cartella custodia assieme al volume di testo bilingue (italiano - inglese). L'eccezionale qualità sia dei disegni che del testo e la scarsissima tiratura la rendono un'opera rara e ricercata.
2002. Ed. Ed. Liber Millennium. 2002 - . . . 1 Vol. . Sin paginar pp. Octavo. Plena Piel. . Facsímil cuyo original se conserva en la Fundación Lázaro Galdiano. Ejemplar nº 348 de una tirada limitada de 995 ejemplares numerados, firmados y sellados ante notario. Incluye libro de estudio, el cual presenta algunas manchas de humedad, el facsímil en cambio está en excelente estado. Se presenta en urna para exposición. .
Knight Library Press / University of Oregon, 2002. Flexible covers. Fine in fine box. Margot Voorhies Thompson. Margot Voorhies Thompson. Flexible covers. Number 36 of 100 copies. There were 10 additional lettered copies for participants. Signed by the artist and author. A haunting essay by Pattiann Rogers about the relationship between animals and people. She describes both our love and adoration of animals but also our exploitation and cruelty: "Some of us like to sculpt them and make statues and carvings of them ... Some of us like to go out and catch them and kill them and eat them." Pattiann has won numerous awards for her poetry including a Guggenheim Fellowship and the Lannan Award for Poetry. Bound in flexible boards with black morocco spine and red paste paper covered boards. Features four etchings by Margot Voorhies Thompson printed on Mulberry paper. Includes a CD of the author reading her work. Printed on Heinemule Heine in handset Bembo for the body text. Housed in a red cloth clamshell box. Flexible covers. Fine in fine box. PRI/033011.
Vancouver, British Columbia: Vancouver, BC: Heavenly Monkey, 2002, 1st Edition, First Printing, 2002. -----------limp binding (not quite a hardcover and not quite a softcover) with "slipcase" (black cloth ), about 7w x 8.5h inches, a Fine copy, one of 10 copies -this is # 7, this is part of the Heavenly Monkey Studio Editions which preceded the Heavenly Monkey edition by three years, this is essentially a trial edition, this contains all 6 Minegishi illustrations on proof pages with each chapter illustration proof ( 5 in total ) plus the title page proof all signed and dated '02 by the artist, these 6 illustrations were later collected in the 2003 HM edition of The Innsmouth Look and used in the 2005 editions although the frontispiece here was used as the rear colophon in the 2005 issues ---issued under the publisher’s “Studio Editions” (and preceding the HM editions by 3 years ) imprint in an edition of only ten (10) copies, all of which were sold, essentially, prior to publication. A combination of letterpress and offset production, the text has been set in a ‘generic’ Venetian roman, and each sheet was output directly from a high resolution laser jet printer on 100% Krypton Parchment paper. The letterpress embellishments were printed from hand-set Centaur, Arrighi and Shadow typefaces. The illustrations were engraved on Resingrave and printed directly from the blocks. The interleaved proofs were printed on handmade gampi paper from the studio of Reg Lissel, and each signed by the artist. The binding was designed and executed in collaboration with Simone Mynen, and the cover paper, a mixture of hosho and cotton pulps, was made by Ann Vicente at the Papermaker’s Press ---included with this copy is what looks like a prospectus or advertisement for this book, it is a single sheet folded to make 4 pages with the top leaf reproducing the title page, this is folded right to left so the open side is on the left edge, the other three sides of this folded sheet are blank, tipped onto that open edge is what appears to be another proof for the Minegishi title page illustration, that "proof" is not signed by the artist, I do not know if this separate sheet was issued with the book or sent pre-publication of this 10 copy edition to select potential buyers, this sheet with proof leaf is Fine although there is some slight creasing to the fragile tissue illustration proof page along the right edge, ---obviously a rare HM and HPL item, ---any image directly beside this listing is the actual book and not a generic photo. Signed. First Edition. Hard Cover. Fine (see description)/No Jacket as issued. Illus. by Shinesuke Minegishi.
Bibliotheque de L'Image, 2002-01-01. Paperback. New. 40 volume set. 32 cm. 4to. New, in shrink wrap. Softcover. Good binding and cover. Clean, unmarked pages. Facsimile reprint. Originally published under title: Recueil de planches sur les sciences, les arts liberaux, et les arts mechaniques, avec leur explications. Paris, 1762-1772. Contents: [v.1] Agriculture --[v.2] Anatomie --[v.3] Architecture --[v.4] Art de la ceramique --[v.5] Art de la charpente --[v.6] Art de la soie --[v.7] Art de l'ecriture --[v.8] Art de l'escrime --[v.9] Art de l'habillement --[v.10] Art des mines --[v.11] Art des textiles --[v.12] Art du cheval --[v.13]Art du cuir --[v.14] Art du tourneur. (cont.) [v.15] Art du verre/ Fabrication des glaces --[v.16] Art heraldique --[v.17] Artisanat au 18eme siecile --[v.18] Arts militaires --[v.19] Astronomie --[v.20] Casses/ Peâ€šches --[v.21] Chirurgie --[v.22] Dessin/ Peinture --[v.23] Ebeniste/ Menuisier --[v.24] Fabrication des canons --[v.25] Frogs --[v.26] Gravure/ Sculpture --[v.27] Horlogerie. --(cont.) [v.28] Imprimerie/ Reliure --[v.29] Lutherie --[v.30] Marine --[v.31] Menuisier en voiture sellier/ Carrossier --[v.32] Monnayage/ Travail de l'or --[v.33] Musique --[v.34] Orfevre/ Bijoutier --[v.35] Petits metiers du bois --[v.36] Sciences --[v.37] Serrurier/ Ferronnier --[v.38] Tapissier/ Tapisserie des gobelins --[v.39] Theaâ€štres/ Machines de theatre --[v.40] Travail du fer. This is an oversized or heavy book that requires additional postage for international delivery outside of Canada and the US.
New York: Index Books, 2002. Paperback. SIGNED. First edition, first printing. Very Good+ paperback with a touch of shelf wear, a small scuff to the front, a tiny crease to one tip and a sliver of laminate starting. BOOKS SHIP THE NEXT BUSINESS DAY, WRAPPED IN PADDING, IN A BOX. Unpaginated; color plates throughout; 6 x 8.75 inches. SIGNED BY MCGINLEY in full on the title page under his crossed out name and inscribed on the first blank page and dated in February 22 of the year of publication: "For ___, Be gay all the way in the U.S.A. and have a happy day. Love always, Ryan." An artist's book; the photographer's first published book. The first printing is distinguished by "First edition, 2002" on the colophon page, no "Index Books" on the front, and a height slightly larger than 8.75 inches.
n.p., n.d.. XL. "Jersey Signed "Magic Johnson". Signed on his number "32" on this Los Angeles Lakers XL replica jersey. Fine condition.Earvin "Magic" Johnson was enshrined in the Basketball Hall of Fame in 2002: "Few players in history have exhibited as much enthusiasm for basketball or displayed such an engaging personality both on-and-off the court as Earvin 'Magic' Johnson. It was Johnson's incredible passion, coupled with his amazing skills that dazzled generations of fans and turned basketball into 'Showtime.' At 6-foot-9, Johnson was a point guard in a power forward's body. No player Johnson's size had ever done what he could do with a basketball and his incredible talents resulted in a national championship at Michigan State (1979) and five with the Los Angeles Lakers (1980, 1982, 1985, 1987, 1988)."Throughout the 1980s, he turned the triple double - double figures in three statistical categories - into an art form. The all-time assist (10,141) and steals (1,724) leader in Laker history, Johnson was the NBA's all-time leader in assists when he retired. Johnson redefined the sphere of traditional position play because he could excel at every phase of the game. As a rookie in the 1980 NBA Finals, Johnson played all five positions - scored 42 points - and was named NBA Finals MVP. Following his star-studded scholastic career at Lansing Everett High School and All-America career at MSU, Johnson became an immediate NBA superstar, becoming a 12-time All-Star, a two-time All-Star Game MVP (1990, 1992) and nine-time NBA First-Team selection."PSA/DNA COA"
Guildford, Genesis Publications Limited,, 2002. Forewords by Paul McCartney and Ringo Starr. Quarto. Original black leather backed grey cloth, titles to chromium plate to front cover black, titles to spine silver., all edges silver. Housed in a solander box with speaker illustration inlaid to the cover and titles to chromium plate, titles to spine silver, the inside is fashioned to resemble part of a mixing desk and a record player. Numerous photographs and illustrations. An excellent copy. First edition, first impression. Number 418 of 2000 copies, signed by George Martin. Together with the original promotional folder and two pieces of sheet music by Martin.
Oldham: Incline Press, 2002. 10 poems by Seamus Heaney. No. 27 of 230 copies. Illustration by Catherine Heaney, Seamus Heaney's daughter, lino-cut decorations by Bert Eastman, title page calligraphy by Diana Wilson. Printed in Garamond on variously coloured Zerkall paper, designed, printed and bound by Graham Moss & Kathy Whalen. 8vo., original maroon cloth backed, Ann Muir marbled paper with printed paper labels on spine and upper cover. An extremely good copy with the original prospectus inserted loose. An illustrious literary family, this book is to celebrate the meeting of the Devlins of Ardboe. Polly Devlin drew together this collection of poetry and prose by and about the family, spouses, children and grandchildren. The collection includes 10 poems by Seamus Heaney, who married Marie Devlin, plus a short extract from his translation of Beowulf, as well as work by Polly Devlin, her brother, the musician Barry, and Daisy Garnett.
Zurich: Scalo, 2002. Bill Henson, born in 1955, is one of Australia's leading contemporary photographers. Lux et Nox is the largest and most sumptuous of Henson's publications. First edition, large oblong monograph, original navy cloth, 285 x 430 mm, 176 pages, illustrated with full page photographs throughout, a fine copy in a fine dust-jacket.
West New York: Mark Batty, 2002. 8 x 11. 221 pages (including 150 color plates). Red cloth gilt. A separate portfolio contains six type and printing specimens created especially for this edition by Gudrun Zapf. Both in slipcase. Fine. One of 80 special copies, signed by Zapf. First major retrospective of this German book bookbinder, calligrapher, and designer of the Diotima typeface. A handsome book, designed by Gudrun"s husband Hermann Zapf, reproducing numerous fine bindings, (and photographs of the artist in her bindery) and calligraphed books & broadsides. Introduction by Hans A. Halbey. Bound by Judi Conant.
Totentänze. 6 Bände in Kassette.
Newtown: Bird & Bull Press, 2002. Edition limited to 150 copies, this the bookbinder Greg Campbell's copy, Campbell-Logan Bindery, and out-of-series; folio, pp. 99, ; numerous tip-ins and sample pages; original quarter brown Niger over green cloth, green morocco label on spine; accompanied by a separate portfolio containing two score of other samples of text and illustration, ephemera, etc. emanating from the Bird & Bull Press (including a number of multiple-page gatherings, and an entire separate folder containing material from the Bird & Bull Dard Hunter book); together in a green cloth clamshell box, brown morocco label on spine; fine. The separate portfolio here is unique: all the material is in a manila file folder on which Henry Morris has scrawled a long letter to Greg Campbell: "Greg - This is a sample set of material that will go in a cloth-covered folder...I think the overall size will be the same (or close) to the bound book. If so, no problem..,.This outside wrapper won't be included. It's is only to keep the set intact...There was a lot of great stuff left over from the Dard Hunter book - much of it saleable..." There are also three or four other notes from Morris to Greg Campbell laid in, mostly regarding specifications, sewing, and labeling.
Long Beach, CA: Safari Press. Fine. 2002. First Edition. Hardcover. Limited SIGNED Edition. This is copy number 440 of 1250 printed copies. With color photographs and black & white animal drawings. Fine in fine closed slipcase. Signed by author on Limitation page. Signed by former owner on title page. Ships same or next business day. ; 8vo 8" - 9" tall; 357 pages; Signed by Author .

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Is the Economic Loss Rule Genie Finally Back in the Bottle?
Business litigators have been dealing with the economic loss rule since 1987, when Florida’s Supreme Court, in Florida Power & Light Co. v. Westinghouse Elec. Corp. first barred tort claims for economic losses arising when a product malfunctioned and damaged only itself. The fun began in that same year, when the court, in AFM Corp. v. Southern Bell Telephone & Telegraph Co., expanded the rule to bar negligence claims arising from contractual relationships.
AFM led the court down what it ultimately realized was an ill-advised road, leading to an “unprincipled extension” of the rule. However, rather than stopping the car or making a legal u-turn, the court entered a series of half-hearted rulings, including Moransais v. Heathman and HTP, Ltd. v. Lineas Aereas Costarricences, S.A. [PDF], which scaled back the rule to exempt, for example, claims independent of the contract – like fraud in the inducement and negligent misrepresentation, statutory claims, and “established” torts – like malpractice, but never went quite far enough.
In 2004, in Indemnity Ins. Co. of North America v. American Aviation, Inc., the court seemed ready to prune the economic loss rule back to its original “products liability” roots, but stopped short – continuing to recognize the application of the rule in the contractual context, but seemingly lamenting its decision to do so.
Then, on March 7, 2013, came the court’s ruling in Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., which, at least in the majority opinion, left no question that the economic loss rule has been scaled back to its Westinghouse roots. An obstinate court refused even to consider the question it had been asked to rule on – regarding whether the professional negligence exception to the rule applied to an insurance broker – deciding, instead, to formally recede from any application of the rule in the contractual context.
Well, yes – with one caveat.
Justice Pariente, in her concurring opinion, like a screenwriter leaving open the possibility that the rule’s skeletal hand may yet re-emerge from the swamp in the sequel, opined, despite the court’s determination that the economic loss rule would no longer apply in the contractual context, that the same result could nonetheless be reached, based on the common law of contracts.
So, in the end, it appears that we all remain free to advance the contractual privity argument – – – just so long as we don’t call it the economic loss rule.

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RAYMOND K. JONES, Plaintiff, v. BEELMAN TRUCK COMPANY, Defendant.
COUNSEL: [*1] For Raymond K. Jones, Plaintiff: Joseph L. Bauer, Jr., LEAD ATTORNEY, BAUER AND BAEBLER, St. Louis, MO.
For Beelman Truck Company, Defendant: James L. Stockberger, LEAD ATTORNEY, Christopher D. Baucom, ARMSTRONG TEASDALE, LLP, St. Louis, MO.
JUDGES: CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
This diversity matter is before the Court on defendant Beelman Truck Company’s (“Beelman”) motion to exclude certain testimony of plaintiff’s expert witness William Hampton pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Plaintiff Raymond K. Jones opposes the motion and it is fully briefed. Neither party has requested an evidentiary hearing, and the parties have submitted an evidentiary record including exhibits and deposition testimony. The Court finds that it can make a proper Daubert analysis without the need for an evidentiary hearing or oral argument. For the following reasons, Beelman’s motion will be granted in part and denied in part.
In the early morning hours of January 17, 2008, while walking along the highway leading toward his home, plaintiff was struck by a Beelman tractor-trailer operated by Steven Reinhardt. The accident occurred on Missouri Route 221, near its intersection [*2] with U.S. Highway 67 in Farmington, Missouri. Plaintiff alleges he suffers serious and permanent injuries to his head, body, back, arms, legs, face, spine, organs, and feet. He brings this suit against Beelman in two counts: negligence (Count I) and negligent failure to train (Count II).
The admission of expert testimony in federal court is governed by Federal Rule of Evidence 702. In Daubert, the United States Supreme Court interpreted Rule 702 to require district courts to be certain that expert evidence based on scientific, technical or other specialized knowledge is “not only relevant, but reliable.” Daubert, 509 U.S. at 589. The district court must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93.
The Eighth Circuit Court of Appeals has stated that proposed expert testimony must meet three criteria to be admissible under Rule 702. “First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). “Second, the proposed witness must be qualified [*3] to assist the finder of fact.” Id. (citation omitted). “Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.” Id. To meet the third requirement, the testimony must be “based on sufficient facts or data” and be “the product of reliable principles and methods;” and the expert must have “reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702(b)-(d).
The Eighth Circuit has explained that “Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony,” Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir. 1999), and “favors admissibility if the testimony will assist the trier of fact.” Clark ex rel. Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998). Doubt regarding “whether an expert’s testimony will be useful should generally be resolved in favor of admissibility.” Id. (citation and internal quotation omitted).
(1) Steven Reinhardt was inattentive as he approached Raymond Jones.
(2) Steven Reinhardt had a sight distance of 350 to 500 feet ahead.
(3) Steven Reinhardt had a distance to perceive and brake his vehicle [*4] to a stop prior to reaching Raymond Jones if he was attentive, while traveling at 35, 40, and 45 mph.
(4) Steven Reinhardt had a distance to perceive and swerve at 35, 40, 45 mph to avoid Raymond Jones.
(5) There was sufficient ambient lighting and headlamp lighting to illuminate Jones in or near the roadway.
(6) The dirt on Reinhardt’s windshield and headlamps further diminished his ability to see properly.
(7) Due to the absence of Steven Reinhardt’s drivers’ daily logs leading up to the date of the crash, I could not investigate the hours worked and movements of Steven Reinhardt. These records should have been retained by the Beelman Trucking Company.
(8) Steven Reinhardt did not place his vehicle in an emergency braking mode.
(9) If Steven Reinhardt would have been attentive, he could have avoided this crash.
Beelman moves for the exclusion of Mr. Hampton’s conclusion numbers 1, 2, 3, 4, 5, 6, and 9, arguing that Mr. Hampton is either unqualified to give the opinions or the opinions are unsupported and unreliable. Beelman states that Mr. Hampton is not qualified to render opinions regarding human factors evidence and, even if he was qualified, his opinions and methodology are unreliable [*5] and violate Daubert. The Court will address each argument.
Beelman argues that Mr. Hampton is not a human factors expert, and is therefore not qualified to testify as to conclusion numbers 1, 2, 3, 4, and 9 regarding driver perception and response. Beelman states that because Mr. Hampton testified in another case that he is not a human factors expert, he does not have specialized knowledge regarding human factors and these opinions should be excluded.
Rule 702 requires the area of the witness’s competence to match the subject matter of the witness’s testimony. “[F]or an expert witness to be qualified based on experience, that experience must bear a close relationship to the expert’s opinion.” Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). Mr. Hampton’s professional experience as an accident reconstructionist bears a close relationship to the opinions provided in his report. See Lift Truck Lease & Serv., Inc. v. Nissan Forklift Corp., 2013 U.S. Dist. LEXIS 87391, 2013 WL 3154012, *7 (E.D. Mo. June 21, 2013) (finding the experience of the proffered expert did not bear a close enough relationship to his opinion to provide a sufficient basis for the opinion); compare to In re Levaquin Products Liab. Litig., 2010 U.S. Dist. LEXIS 145989, 2010 WL 8399948, *7 (D. Minn. Nov. 12, 2010) (expert was qualified to provide opinion on medication labeling because of her long experience in the pharmaceutical industry, which included drafting product labels).
Since 1991, [*6] Mr. Hampton has been the President of W.E. Hampton & Associates, Inc. and has provided consulting and expert testimony on motor vehicle accident reconstruction, motor carrier safety and performance, and motor carrier compliance with federal and state regulations. He has been certified as a Motor Vehicle Accident Reconstructionist through the Missouri State Highway Patrol and the Institute of Police Technology and Management. He has testified as an expert witness in civil and criminal cases in various state and federal courts and as a police officer and a private investigator. His background includes thirteen years of service for the Missouri State Highway Patrol as a patrol officer investigating motor vehicle accidents and providing accident reconstruction. He also worked several years at Champion Distribution Services, a nationwide motor carrier, as the Director of Safety & Maintenance.
Mr. Hampton’s conclusions 2, 3, and 4 fall well within his area of expertise: accident reconstruction and investigation. A driver’s perception distance, reaction distance, braking distance, and total stopping distance are discussed on page 2-14 of the Missouri Commercial Driver License Manual. See Pl.’s [*7] Opp’n, Ex. 3 at 2-14. Mr. Hampton used equations published by the Institute of Police Technology and Management in its Equations for the Traffic Accident Reconstructionist Manual to calculate Mr. Reinhardt’s time to stop and swerving distance to avoid an object. See Pl.’s Opp’n, Ex. 4 at 15, 18, 20, 28. These calculations were based, in part, on Mr. Reinhardt’s testimony regarding his speed at the time of the accident and the strength of his headlight beams. The Court cannot find that testimony as to a driver’s sight distance, perception distance, and swerve distance necessarily requires expertise in human factors as opposed to motor vehicle accident reconstruction. In fact, it seems the question of perception is always at issue in an accident reconstruction case where allegations include that the driver should have braked or swerved to avoid the collision. These conclusions all fall within the scope of Mr. Hampton’s expertise in accident reconstruction.
The cases defendant relies on are distinguishable, as they concern experts who were testifying outside their field of experience. For example, in Anderson v. Raymond Corporation, 340 F.3d 520 (8th Cir. 2003), the Eighth Circuit upheld a district court’s order striking an expert’s testimony regarding [*8] a defective lift truck. The expert admitted he was not an expert in the design or engineering of lift trucks; had never designed or consulted on a design of a lift truck; and had never designed a component part or a warning for a lift truck. Id. at 523. The proffered expert had neither operated nor seen a lift truck before the case. Id. Here, Mr. Hampton has extensive experience in accident reconstruction, which includes driver response time.
While Mr. Hampton’s conclusion numbers 2, 3, and 4 fall within his area of expertise, his conclusion numbers 1 and 9 are problematic. Conclusion number 1 states: “Steven Reinhardt was inattentive as he approached Raymond Jones,” and conclusion number 9 states: “If Steven Reinhardt would have been attentive, he could have avoided this crash.” These conclusions squarely address the ultimate issue of whether Mr. Reinhardt was negligent in driving his vehicle. “While such expert testimony is permissible, see Fed. R. Evid. 704(a), courts must guard against invading the province of the jury on a question which the jury was entirely capable of answering without the benefit of expert opinion.” American Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 725 (8th Cir. 2015) (internal quotations omitted). Mr. Hampton has no first-hand knowledge that Mr. Reinhardt [*9] was inattentive as he approached plaintiff. He was not present at the time of the accident, and he certainly was not monitoring Mr. Reinhardt’s actions prior to the accident. Mr. Hampton is drawing conclusions on the ultimate issue of fact. The Court will exclude Mr. Hampton’s conclusion numbers 1 and 9 because they invade the province of the jury on questions that the jury is entirely capable of answering as the trier of fact.
In addition to objecting that Mr. Hampton’s testimony is outside his area of expertise, Beelman argues Mr. Hampton’s opinions and conclusions are unreliable. Beelman first objects to the reliability of Mr. Hampton’s testimony regarding the distinction between illumination distance and discernment distance. Beelman argues that because Mr. Hampton appears at times to conflate the two concepts, his testimony is unreliable.
In his deposition, Mr. Hampton defined “discernible distance” and “detection distance” as “the actual distance that [the driver] would have been able to perceive, react, and slow his vehicle to a stop.” (Hampton Dep. at 81-82). Later in the deposition, Mr. Hampton [*10] testified that if the truck’s headlights illuminate to 500 feet, the discernment distance is also 500 feet. (Id. at 82-83). Mr. Hampton testified that a driver should be able to identify an object as discernible within the headlight illumination distance. (Id. at 82). Beelman uses this testimony as evidence that Mr. Hampton’s testimony as a whole is unreliable. (Def.’s Mem. at 8). Beelman argues, and presumably its expert will argue, that an object is not necessarily discernable at all points in a vehicle’s illumination distance.
At one point in his deposition, Mr. Hampton appears to conflate illumination distance and discernment distance, however the Court does not find that this makes his testimony unreliable. For example, Mr. Hampton agrees that a pedestrian wearing white clothing would be discernable in a roadway sooner than a pedestrian wearing dark clothing, illumination being constant. (Hampton Dep. at 83-84). He also included in his calculation of stopping distance a driver’s perception response time (a/k/a reaction time).
Q. Once Mr. Jones was discernible, how long would it take to perceive that he is a pedestrian?
A. Well, it should take about 1.6 seconds.
Q. So it looks like from the calculations, [*11] you have 1.5 reaction time due to ambient lighting and high beam.
Q. Is that taking into account the 1.6 seconds you said for perception response?
A. Well, I think on those I used 1.5 [seconds] because that’s what the Commercial Driver’s Manual utilized.
Q. Where does the Commercial Driver’s Manual utilize a 1.5 second reaction time?
A. Well, it utilizes one-and-three-quarters second, I’m sorry.
Q. Okay. Where did you get 1.5?
A. That’s what I’d had used in the past. So. And that’s through the Missouri Divers Manual, I’d used that also, so. But they are referencing 1.34. So a little bit — about a quarter of a second longer.
Q. So the truck would travel farther based on the 1.34, correct?
A. It would, yes. So at 35 [mph] it’s going to travel about 12 feet further.
Q. And you used the term “reaction time.” Is that used to mean the same thing as perception response time?
(Hampton Dep. at 84, 88-89).
Based on this testimony, Mr. Hampton’s calculations of stopping distance take into account a driver’s perception/reaction time of 1.5 or 1.6 seconds. Factors affecting perception/reaction time include detection, identification, decision, and response. (Def.’s Opp’n, Ex. 6; Ex. 5 (discussing [*12] perception/reaction time)). Although the deposition testimony is unclear whether discernment of an object is included in a driver’s perception/reaction time, it is clear that Mr. Hampton took into account a driver’s perception/reaction time in calculating stopping distance. (Hampton Dep. at 84, 88-89).
Beelman states that Mr. Hampton’s calculations are flawed because he is basing his calculations on a faulty determination of when plaintiff could first be discerned. (Def.’s Reply at 5). Mr. Hampton assumes plaintiff could be discerned between 350 and 500 feet from the Beelman vehicle, that is, when he was illuminated. Beelman disagrees. The Court finds it likely miscommunication between Beelman’s counsel and Mr. Hampton may have contributed to Mr. Hampton’s lack of distinction between discernment and illumination distance at deposition. In any event, Beelman may explore discernment distance versus illumination distance through its own expert testimony and through thorough cross-examination of Mr. Hampton. As stated above, Rule 702 “favors admissibility if the testimony will assist the trier of fact.” Clark 150 F.3d at 915. Beelman’s motion to exclude Mr. Hampton’s conclusions as unreliable based on his apparent [*13] confusion regarding discernment and illumination distance should therefore be denied.
Next, Beelman argues the Court should bar Mr. Hampton’s testimony regarding the sight distance of a commercial motor vehicle using its high beams because it is not reliable and amounts to unsupported speculation. Beelman states that Mr. Hampton “has no scientific basis for stating that the Beelman driver could have seen plaintiff at either 350 feet or 500 feet.” (Def.’s Mem. at 2). Additionally, Beelman argues because Mr. Hampton did not examine an exemplar of the truck or measure the ambient lighting at the scene, the factual basis of his testimony regarding illumination distance (i.e., the Missouri Commercial Vehicle Manual) is suspect. Beelman states that had Mr. Hampton conducted any testing to determine the lighting levels at the scene or by the truck, he would have discovered that the lighting levels at the scene do not support his contention that plaintiff was visible at 350 or 500 feet. (Reply at 3).
“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, [*14] and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005) (quoting Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995)); Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 356 F.3d 850, 858 (8th Cir. 2004) (“Generally, the factual basis of an expert’s opinion goes to credibility of the testimony, not admissibility.”). The Eighth Circuit Court of Appeals has instructed that “[a]n expert’s opinion must be excluded only if it is so fundamentally unsupported that it can offer no assistance to the jury.” Id. (quoted cases omitted).
Mr. Hampton lifted the illumination distance of headlights directly from the Missouri Commercial Motor Vehicle Manual, § 2.11.4, which states that with low beams a driver can see ahead about 250 feet; with high beams, about 350-500 feet. See Pl.’s Opp’n, Ex. 3. Beelman objects that this testimony is unreliable because Mr. Hampton never measured the headlights of the truck at issue or an exemplar truck. While Beelman’s argument is well-taken, it goes to the factual basis and credibility of Mr. Hampton’s testimony, which is to be examined in cross-examination. The Court finds that Mr. Hampton’s testimony is sufficiently reliable to assist the jury’s determination of a disputed issue. The Court will not exclude this testimony under Daubert.
Q. When you visited the accident site, did you measure the light level there?
Q. Did you measure the light level at the point of impact?
Q. Did they [lamps] provide lighting to the area where this accident occurred?
A. I can’t describe it to you.
Q. Did you measure it?
A. No. It was up to the area of the accident.
Q. Okay. How much up to the area of the accident?
A. I wasn’t able to measure a scientific reading at that point.
Q. What prevented you from doing that?
Q. How much light was provided on the roadway by the McDonalds lights?
A. All I can tell you is there was light provided on the roadway.
Q. You can’t tell us how much?
Q. You could have measured it, correct?
Q. Have you measured light before?
Q. And did you make the determination not to measure light in this case?
A. I did. . . .
Q. And you can’t tell us how well lit it was, correct?
The Court will not allow Mr. Hampton to testify regarding ambient lighting at the scene. His conclusion in his report that “there was sufficient ambient lighting and headlamp lighting to illuminate Jones in or near the roadway” does not include any measure of distance or description of the ambient lighting. Unlike his testimony regarding the headlamps, which was based on the driver’s testimony that he was using his high beams and the Missouri Commercial Vehicle Manual’s statement that high beams illuminate the roadway up to 350 to 500 feet, Mr. Hampton’s opinion regarding ambient lighting is so fundamentally unsupported that the Court finds it can offer no assistance to the jury, and will exclude it.
Finally, Beelman moves to exclude Mr. Hampton’s conclusion number 6, which states: “The dirt on Reinhardt’s windshield and headlamps further diminished his ability to see properly.” It is undisputed that Mr. Hampton never inspected the Beelman vehicle after the crash. His testimony regarding dirt on the windshield and headlamps is based only on the photographs he examined, which were exhibits to plaintiff’s deposition.
Q. Do you know what distance the headlamps of Mr. Reinhardt’s truck illuminated?
A. They should be on high beam at least 350 to 500 [feet]. There might have been some reduction due to the film [road dirt and dust] on his headlamp.
Q. How thick was the film on his headlamps?
A. I did not take a measurement. It was just illustrated in the photograph.
Mr. Hampton’s proffered expert testimony regarding the dirt on the windshield and headlamps does not qualify as scientifically valid. His opinion is premised exclusively upon his impression of the photographs of the vehicle taken after the accident. He did not inspect the vehicle or measure any dirt or dust. Nor did he calculate any reduced strength of the headlamps [*18] or reduced visibility caused by the dirt and dust. His resulting conclusion is nothing more than speculation and conjecture and does not contribute to a legally sufficient evidentiary basis. See Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir. 2000). The jury is as capable as Mr. Hampton of viewing a photograph and noting the presence of dirt on the windshield and headlamps. Mr. Hampton’s conclusion number 6 will be excluded.
For the foregoing reasons, Beelman’s motion to exclude certain testimony of plaintiff’s liability expert, William Hampton pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), should be granted in part and denied in part.
DENIED in all other respects.
G&P Trucking Co., Inc., Plaintiff, v. Zurich American Insurance Company, as subrogee of SKF USA, Inc.; SKF USA, Inc., Defendants.
COUNSEL: [*1] For G&P Trucking Company Inc, Plaintiff, Counter Defendant: Casper Fredric Marcinak, III, Robert Daniel Moseley, Jr, LEAD ATTORNEYS, Smith Moore Leatherwood, Greenville, SC.
For Zurich American Insurance Company, as subrogee of SKF USA Inc, other SKF USA Inc, SKF USA Inc, Defendants: Eric Richard Tonnsen, Eller Tonnsen Bach, Greenville, SC.
For SKF USA Inc, Zurich American Insurance Company, as subrogee of SKF USA Inc, Counter Claimants: Eric Richard Tonnsen, Eller Tonnsen Bach, Greenville, SC.
JUDGES: Margaret B. Seymour, Senior United States District Judge.
This declaratory judgment action arises out of an accident that occurred near Atlanta, Georgia, in which a truck owned by Plaintiff G&P Trucking, Inc. (“G&P”) crashed, allegedly damaging goods owned by Defendant SKF USA, Inc. (“SKF”). Defendant Zurich American Insurance Company (“Zurich”) is insurer and subrogee of SKF. Before the court are motions for summary judgment by both G&P and SKF. ECF Nos. 20 (G&P) & 26 (SKF).
The parties disagree as to which law governs the shipment at issue in this case. G&P’s position is that the shipment is governed by the terms of a bill of lading issued by the ocean carrier, [*2] Pantainer (H.K.) Limited (“Pantainer”), doing business as Pantainer Express Line, in Spain where the goods originated at a factory owned by SKF Espanola S.A. (“SKF Espanola”). G&P contends that the bill of lading may extend the provisions of the Carriage of Goods by Sea Act (“COGSA”), Note following 46 U.S.C. § 30701, to the domestic inland portions of the journey. G&P characterizes the document issued by Pantainer as a through bill of lading. SKF, on the other hand, contends that the movement was in fact two shipments, and that the domestic inland portion from Savannah, Georgia, to Crossville, Tennessee, was a second transaction, governed by a delivery order issued in the United States by Panalpina, Inc. (“Panalpina”) and by the provisions of the Carmack Amendment, 49 U.S.C. § 14706.
The court must determine whether the Bill of Lading issued by Pantainer is a through bill of lading. If it is, then its associated terms and conditions and COGSA apply. If it is not, then the Carmack Amendment applies. For the reasons explained more fully below, the court concludes that a genuine issue of material fact exists as to whether the bill of lading is a through bill of lading. Accordingly, the court will hold a hearing during which the parties can present evidence [*3] and after which the court can make a factual determination as to the nature of the bill of lading and thereafter rule on the parties’ motions for summary judgment.
o The “place of receipt” is given as Fontellas, Spain, an inland town in the Spanish province of Navarra, approximately four hours by road from Barcelona, Spain.
o The “place of loading” is given as Barcelona, Spain, a city on Spain’s Mediterranean coast.
o The “port of discharge” is given as Savannah, Georgia.
o The “place of delivery” is left blank.
Id. The Bill of Lading also indicates “for delivery apply to” Panalpina [*4] in Charleston, South Carolina. The Bill states that it is “payable at destination.” Finally, the bottom right of the Bill of Lading contains the designation “Panalpina Transp Mundiales S.A.” Id.
4.1 Carrier may sub-contract directly or indirectly on any terms the Carriage or any of its obligations hereunder.
4.2 Merchant warrants that no claim or demand shall be made against any person whomsoever by whom the Carriage is performed or undertaken (including Carrier’s servants, agents and Sub-Contractors) other than Carrier which imposes or attempts to impose on any such person or any vessel owned or operated or controlled by any such person, any liability whatsoever in connection with the Goods or the Carriage or this Waybill, whether or not arising out of negligence on the part of such person . . . . Every such person shall have the benefit of all Rights and Defenses herein provided for the benefit of or otherwise available to Carrier as if the same were expressly made also for such person’s benefit.
1 The parties have submitted two slightly differing versions of the Terms and Conditions. That submitted by G&P is dated [*6] 2011. ECF No. 20-5 at 12. That submitted by SKF is dated 2015. ECF No. 26-8. Because the 2015 version could not have governed a Bill of Lading issued in 2013, the court uses the 2011 version in this order.
2 A Himalaya Clause is a provision in a bill of lading that extends the carrier’s defenses and the limitations of COGSA to third parties. Black’s Law Dictionary (10th ed. 2014), Himalaya clause.
The Terms and Conditions provides separate schemes for determining Carrier’s liability based on whether the transport is port-to-port transport or combined transport. In the case of combined transport, “Carrier shall be responsible for loss or damage occurring during the Carriage from the Place of Receipt or the Port of Loading (whichever is applicable) to the Port of Discharge or the Place of Delivery (whichever is applicable) . . . .” Id. at 4, ¶ 7.1. The Terms and Conditions limited Carrier’s liability to that provided by COGSA, i.e., $500.00 per package. Id. at 5, ¶ 8.1; see also Note following 46 U.S.C. § 30701. Finally, the Terms and Conditions defines “package” as the shipping container, if the goods are received by the carrier in such a container. Id. at 6, ¶ 8.5.
Once the goods arrived in Savannah, Georgia, Panalpina–a separately incorporated [*7] entity, but one related to Pantainer, see ECF No. 33-2 at 7-10 (Deposition of Laura Brennan)–contracted on April 25, 2013, with G&P, using a Delivery Order. ECF No. 20-6 at 2 & ECF No. 26-3. The Delivery Order states that the goods are to be picked up from Savannah and are for delivery to SKF in Crossville, Tennessee. Id. The description of the goods in the Delivery Order matches that in the Bill of Lading. Id. Barcelona, Spain, is listed as the “port of origin.” Id. The Order indicates that the shipment was prepaid. Id. The Delivery Order also states at bottom right: “Liability including negligence is limited to the sum of $50.00 per shipment, unless a greater valuation shall be paid for or agreed to be paid in writing prior to shipping.” Id.
On April 28, 2013, while en route from Savannah, Georgia, to Crossville, Tennessee, the G&P truck carrying the shipping container of bearings and ball bearings was in an accident near Atlanta, Georgia. ECF No. 12 at 2 (G&P’s answer to SKF’s counterclaim admitting that an accident occurred). Nonetheless, delivery of the goods was made in Crossville, Tennessee, on or before May 2, 2013. ECF No. 20-4 at 59 (Delivery Order showing delivery confirmation [*8] signature dated “5/2/13”). On May 20, 2013, SKF filed a claim with Zurich for the damaged goods. ECF No. 33-1. The claim documents state that conveyance of the goods was by “vessel,” from Spain, carried by Panalpina, and under a bill of lading number matching that of the Bill of Lading issued by Pantainer. Id. The type of damages SKF claimed was breakage and damaged packaging. Id. SKF sought $101,770.24 from Zurich under its policy. Id.
On February 24, 2014, G&P filed this declaratory judgment action against SKF and Zurich seeking a determination of its liability and a determination as to any limitation of liability available to it. ECF No. 1 (Complaint). On January 14, 2014, G&P moved the court for summary judgment in its favor and asked the court to find that it had no liability under the Bill of Lading, or alternatively that its liability was limited to $50.00 by the terms of the Delivery Order or $500.00 by COGSA. ECF No. 20. On March 2, 2015, SKF and Zurich also moved for summary judgment on the issue of liability, asking the court to hold that G&P had not presented evidence of a viable limitation of liability. ECF No. 26.3 G&P filed a consolidated response in opposition to SKF’s [*9] motion and reply on April 2, 2015. The court held a hearing on the summary judgment motions on April 14, 2015. On May 6, 2015, the court entered an order requesting supplemental briefing from the parties on the issue of the condition of the goods when they were delivered to G&P in Savannah. ECF No. 43. The parties completed this briefing by May 18, 2015. ECF Nos. 45 & 46.
3 SKF’s motion for summary judgment also served as a response in opposition to G&P’s motion for summary judgment. ECF No. 27.
The court must first determine which law–COGSA or the Carmack Amendment–governs the shipping transaction at issue in this case. G&P’s position is that COGSA governs. SKF contends that the Carmack Amendment governs.
4 The Fourth Circuit does not appear to have considered COGSA since the 2010 Supreme Court decision in Kawasaki.
COGSA governs the terms of bills of lading issued by ocean carriers engaged in foreign trade. Kawasaki, 561 U.S. at 96. It requires each carrier to issue to the cargo owner a bill that contains certain terms. Id. By its terms, COGSA only applies to shipments from United States ports to ports of foreign countries and vice versa. Id. The statute, however, allows parties “the option of extending [certain COGSA terms] by contract” to cover “the entire period in which [the goods] would be under [a carrier’s] responsibility, including [a] period of . . . inland transport.” Id. (quoting Kirby, 543 U.S. at 29). “While COGSA does not provide any limitation of liability in favor of third parties, the parties, by the bill of lading, may extend to third parties the limitation of liability granted the carrier [by COGSA]. . . . Such limitations of liability in the bill of lading in favor of third parties, however, are to be ‘strictly construed.'” Caterpillar Overseas, S.A. v. Marine Transp. Inc., 900 F.2d 714, 725 (4th Cir. 1990) (citations omitted). A carrier’s liability under COGSA is limited to $500.00 “per package.” Note following 46 U.S.C. § 30701.
(C) another carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading and, except in the case of a freight forwarder, applies to property reconsigned or diverted under a tariff under section 13702.
Failure to issue a receipt or bill of lading does not affect the liability of a carrier. A delivering carrier is deemed to be the carrier performing [*12] the line-haul transportation nearest the destination but does not include a carrier providing only a switching service at the destination.
5 Under the Bill of Lading, the “Carrier” is Pantainer as explained in the Terms and Conditions. Under the Carmack Amendment, however, G&P is the carrier and Panalpina (as intermediary for SKF) is the shipper.
The Carmack Amendment’s purpose is to relieve cargo owners “of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.” Reider v. Thompson, 339 U.S. 113, 119, 70 S. Ct. 499, 94 L. Ed. 698 (1950). “To help achieve this goal, Carmack constrains carriers’ ability to limit liability by contract.” Kawasaki Kisen, 561 U.S. at 98;6 see also 49 U.S.C. § 14706(c). Whether the motor carrier in fact issued a Carmack bill of lading is not dispositive of the question of whether the Carmack Amendment applies. Id. at 102-103. The Carmack Amendment will apply to “transport of property for which Carmack requires a receiving carrier to issue a bill of lading, regardless of whether that carrier erroneously fails to issue such a bill.” Id. at 103. By holding that the issuance of a separate bill of lading by the domestic carrier is not determinative of whether the Carmack Amendment applies, the Supreme Court overruled the holding of the Fourth Circuit in Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir. 1993), that the Carmack Amendment could only apply where the domestic carrier issued [*13] a separate bill of lading.
6 Kawasaki addressed the Carmack Amendment’s provisions governing rail carriers. The provision governing motor carriers is substantially the same. Compare 49 U.S.C. § 11706 (rail carriers) with 49 U.S.C. § 14706(a) (motor carriers). The court concludes that the analytical framework of Kawasaki applies to this case, notwithstanding the fact that this case involves a motor, rather than a rail, carrier.
Kawasaki Kisen, 561 U.S. at 103 (quotations, alterations, and citations as in the original). Where the bill of lading issued at the overseas location does not [*14] cover transport to an inland location in the United States, there exists a receiving domestic carrier required to issue a Carmack-compliant bill of lading.
The court undertakes analysis of the Bill of Lading in this case as an exercise of the Constitution’s grant of admiralty jurisdiction to the federal courts. U.S. Const. Art. III, § 2, cl. 1 (federal judicial power extends to “all Cases of admiralty and maritime jurisdiction”); see also Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23, 125 S. Ct. 385, 160 L. Ed. 2d 283 (2004). A bill of lading is a contract between the shipper and the carrier. Wemhoener Pressen v. Ceres Marine Terminals, Inc., 5 F.3d 734, 738 (4th Cir. 1993). If a particular bill of lading is a “maritime contract” federal law will govern its construction. Kirby, 543 U.S. at 23-24. The court concludes that the Bill of Lading issued by Pantainer in this case is a maritime contract because its “primary objective” is to “accomplish the transportation of goods by sea” from Spain to the United States. Id. at 24. Like the bill of lading at issue in Kirby, the Bill of Lading in this case “requires substantial carriage of goods by sea, [and] its purpose is to effectuate maritime commerce–and thus it is a maritime contract. Its character as a maritime contract is not defeated simply because it also provides for some [*15] land carriage [in Spain and, potentially, in the United States].” Id. at 27. Additionally, neither G&P nor SKF has argued that any specific local interest exists sufficient “to beckon interpretation [of the Bill of Lading] by state law.” Id. Federal admiralty law thus governs the interpretation and construction of the Bill of Lading. See id. at 28-29.
Determining whether a shipment is governed by a through bill of lading is a question of fact. Am. Rd. Serv. Co. v. Consol. Rail Corp., 348 F.3d 565, 568 (6th Cir. 2003); see also Capitol Converting Equip., Inc. v. LEP Transp., Inc., 965 F.2d 391, 394 (7th Cir. 1992). In an admiralty proceeding, it is the duty of the court to settle factual disputes. New Jersey Steam Navigation Co. v. Merchant’s Bank of Boston, 47 U.S. 344, 423, 12 L. Ed. 465 (1847) (“[I]t is our duty to settle facts in an admiralty proceeding, when they are material to the merits”). Whether a particular bill of lading is a through bill is to be determined with reference to various factors, including: “(1) whether the bill of lading indicates the final destination for the goods; (2) whether the freight for the entire shipment was prepaid; and (3) whether a separate, domestic bill of lading ever issued.” Custom Rubber Corp. v. ATS Specialized, Inc., 633 F. Supp. 2d 495, 504 (N.D. Ohio 2009). The court may also consider other general aspects of the conduct of the shipper and the carriers. Marine Office of Am. Corp. v. NYK Lines, 638 F. Supp. 393, 399 (N.D. Ill. 1985) (collecting cases).
In this case, the Bill of Lading leaves the “Place [*16] of Delivery” blank, and does not, therefore, indicate on its face the final destination of the goods. See ECF No. 26-5. G&P urges the court to construe the listing of SKF’s Tennessee address in the consignee box as being an indication of the final destination of the goods. A consignee is the “person named in a bill to whom or to whose order the bill promises delivery.” Black’s Law Dictionary (10th ed. 2010), consignee. There is ambiguity as to whether the address of the consignee is the final destination of the goods and was so understood by the parties, or, alternatively, whether the final destination of the goods was unclear and was to be provided by the consignee at some future date after the issuance of the Bill of Lading.
Further, the Terms and Conditions expressly contemplates the possibility that the Bill of Lading may serve either as a through bill or a normal bill of lading. The document provides that: “Carrier shall be responsible for loss or damage occurring during the Carriage from the Place of Receipt or the Port of Loading (whichever is applicable) to the Port of Discharge or the Place of Delivery (whichever is applicable) . . . .” Id. at 4, ¶ 7.1. The term “whichever” is exclusive–meaning [*17] “any one of two or more.” Webster’s New World Dictionary, 3rd ed. (1988) at 1521 (entry for “whichever”) (emphasis added). Thus, the Bill of Lading may provide for “combined transport,” but it is unclear whether this combined transport is only from Fontellas, Spain, the place of receipt, to Savannah, Georgia, the port of discharge, or whether it is, in fact, door-to-door transport from Fontellas, Spain, to Crossville, Tennessee.
The court similarly concludes that the record points in no clear direction as to the second factor. The court cannot determine with any certainty whether the freight for the entire shipment was prepaid. The Bill of Lading indicates that it is payable at “destination,” and was not, therefore, prepaid. The Delivery Order issued to G&P, on the other hand, indicates that it was “prepaid.” Further, Simpson, SKF’s warehouse manager, responded to a question about whether the movement from Savannah to Crossville was domestic or international by saying: “It still would have been international normally because it’s bonded freight.” ECF No. 20-4 at 35:16-21. The Delivery Order confirms that the freight was bonded. [*18] The court concludes that a genuine issue of material fact exits as to what, exactly, the payment term was for the transportation of the goods under the Pantainer Bill of Lading.
Finally, the court determines that the third relevant factor, the issuance of a separate domestic bill of lading by the domestic carrier, is no longer of much analytic value after Kawasaki in a case such as this. While the issuance of a separate bill of lading strongly implies that the case is within the Carmack Amendment, and therefore, that the original bill of lading is not a through bill, the Supreme Court held in Kawasaki that the absence of such a separate, domestic document does not ipso facto render the Carmack Amendment inapplicable, and, by default, render the original bill a through bill. Kawasaki Kisen, 561 U.S. at 103 (distinguishing several appellate cases where those courts placed primacy on the issuance or non-issuance of a separate domestic bill of lading). Thus, there exists the possibility that G&P may have erroneously failed to issue a separate bill of lading. That possibility substantially limits the value of this third factor in evaluating whether the Bill of Lading is a through bill.
Considering the [*19] foregoing factors, the record at present in insufficient to allow the court to determine with any confidence whether the bill of lading is a through bill. The court will schedule a hearing during which the parties can present further evidence on the issue.
The court cannot reach the other issues briefed by the parties in their motions for summary judgment until the court determines whether COGSA or the Carmack Amendment governs the shipping transaction–a determination flowing from the court’s decision about the nature of the Bill of Lading. The other issues presented by the motions for summary judgment are held in abeyance. An evidentiary hearing will be scheduled during which the parties may present evidence to the court on the issue of whether the Bill of Lading is a through bill.


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Action - Improper Remedy - Effect. Jurisdiction over an action is not affected by the seeking of an improper remedy by a party.
 Equity - Jurisdiction - Relief - Nature. Upon acquiring jurisdiction over an issue, a court of equity is not bound by the remedy sought by the parties involved but is empowered to grant such relief as is warranted by the facts.
 Eminent Domain - Prior Taking - Remedy - Compensation or Ejectment. The sole remedy available to a party from whom a governmental agency has taken property which has then been put to a permanent public use is to seek compensation through an action for inverse condemnation.
 Eminent Domain - Inverse Condemnation - Measure of Damages - In General. The measure of damages for property taken by inverse condemnation is generally the fair market value of the property at the time of trial.
 Eminent Domain - Inverse Condemnation - Costs - Improper Remedy. Under RCW 8.25.075, a plaintiff who is awarded compensation for a prior governmental taking of his property is entitled to his costs including reasonable attorney fees regardless of the nature of the relief originally sought.
NATURE OF ACTION: A property owner sought to enjoin the use of a strip of property as a public road and to recover rents for the period a city had used it as a road.
Superior Court: The Superior Court for King County, No. 827400, William C. Goodloe, J., on March 28, 1978, entered a judgment in favor of the property owner.
Court of Appeals: Holding that the remedy sought was proper, the court AFFIRMED the judgment at 23 Wn. App. 672.
Supreme Court: Holding that the only remedy available to the property owner was inverse condemnation and that the court was empowered to grant relief on such grounds regardless of the relief sought, the court REVERSES the decision of the Court of Appeals and REMANDS for entry of a judgment reflecting damages and costs.
COUNSEL: DUNCAN A. BONJORNI and JOHN B. BEREITER, for petitioner.
HOWARD P. PRUZAN (of MIRACLE, PRUZAN & NELSON), for respondent.
MAJORITY OPINION: This action was brought in 1977 by the respondent, who holds record title to a strip of land 20 by 1,000 feet in area located within the city of Auburn. He sought to enjoin the City's use of this property as a public roadway and to recover its rental value from the time the City had paved it in 1971. The City answered that title to the property was in the public, by reason of prescriptive user and adverse possession.
The suit was tried to the court, which, after hearing the evidence, announced its judgment in favor of the respondent. Before the findings, conclusions and judgment were signed, the petitioner moved for reconsideration, contending for the first time that the City could not be ordered to vacate the property and that the respondent's only available remedy was an action for inverse condemnation. The court was furnished a brief in which the cases of KINCAID v. SEATTLE, 74 Wash. 617, 134 P. 504 (1913), DOMRESE v. ROSLYN, 89 Wash. 106, 154 P. 140 (1916), and HABERMANN v. ELLENSBURG GAS & WATER CO., 100 Wash. 229, 170 P. 571 (1918), were cited.
The motion for reconsideration was denied. The court entered judgment for the respondent for an amount which it found to be the rental value of the land during the period not barred by the statute of limitation. It further ordered the petitioner to vacate and discontinue use of the premises forthwith.
 The proceedings in the lower court were not recorded, and the case came before the Court of Appeals, Division One, upon the findings of fact, no agreed statement having been settled upon. The petitioner contended that the lower court lacked jurisdiction to enter any judgment because the wrong remedy had been sought by the respondent. That court affirmed the judgment, citing statements found in 6A J. Sackman, NICHOLS' THE LAW OF EMINENT DOMAIN 28.3 (3d rev. ed. 1978), which report the remedies which have been afforded in various courts for arbitrary taking of private property. The case is before this court for review of that decision. BRAZIL v. AUBURN, 23 Wn. App. 672, 598 P.2d 1 (1979).
The Court of Appeals correctly limited its review to the question whether the findings of fact support the conclusions of law and judgment. It was also correct in rejecting the petitioner's theory that the lower court lacked jurisdiction to enter a judgment in the case. If the judgment was unwarranted, the flaw was not that the court lacked jurisdiction but that it erred in decreeing the remedy.
The findings show that the respondent purchased the property in question at a tax sale in 1969, that it is located in an outskirt of the city of Auburn; and that prior to 1970, when it was paved as part of a roadway, it was used permissively as a means of access to residences and a lake in the area. The petitioner has been using the premises as a roadway at all times since paving it in 1971. The reasonable market value of the property was found to be $15,000.
" The taking of land for a public highway is taking it for a public use; and the necessity of so taking land, decided by public administrative authorities having jurisdiction such as is possessed by county commissioners in this state, is binding on the courts in the absence of some showing of actual fraud on the part of such authorities.
This rule of conclusiveness has since been narrowed to permit an attack based upon a showing of constructive as well as actual fraud. SEE TACOMA v. WELCKER, 65 Wn.2d 677, 399 P.2d 330 (1965); KING COUNTY v. THEILMAN, 59 Wn.2d 586, 369 P.2d 503 (1962); and IN RE BELLEVUE, SUPRA. COMPARE: SELDE v. LINCOLN COUNTY, 25 Wash. 198, 65 P. 192 (1901), and STATE EX REL. SCHROEDER v. SUPERIOR COURT, 29 Wash. 1, 69 P. 366 (1902), holding that a judicial determination as to the public utility of a county road which has been authorized by the Board of County Commissioners is not a prerequisite to the appropriation of land therefor under the power of eminent domain.
There is no suggestion here that there was any fraud, actual or constructive, involved in the petitioner's decision to pave the street in question.
The property here in question has been put to a public use since 1971, and there is no dispute that the City has intended that use to be permanent. The question then is, What remedy is available to the dispossessed owner?
This court has held that in the interest of public policy, the State or a municipal corporation, or a corporation exercising the privileges of sovereignty, will not be ousted if it has wrongfully taken possession of the land and is, in fact, devoting it to a public use. The owner will be left to his remedy at law to recover damages. HABERMANN v. ELLENSBURG GAS & WATER CO., SUPRA; THORBERG v. HOQUIAM, 77 Wash. 679, 138 P. 304 (1914); KINCAID v. SEATTLE, SUPRA; STATE EX REL. PEEL v. CLAUSEN, 94 Wash. 166, 162 P. 1 (1917); DOMRESE v. ROSLYN, SUPRA, and cases cited therein; and IRWIN v. J.K. LUMBER CO., 102 Wash. 99, 172 P. 911 (1918).
"The constitution does not give the right to take; that is inherent in the state. Its only office is to define the limitations to be put upon its exercise; that is, that no property shall ever be taken without compensation.
Having the right to take, a municipality, whatever its procedure or even lack of procedure, is not a wrongdoer.
The remedy of the one whose property is taken is immaterial so long as it leads to compensation as provided in the constitution. The city is bound to make compensation under a compact no less formal than the constitution itself, and it cannot defeat this constitutional right by a charter provision or an ordinance, nor can the legislature take it away by any arbitrary requirement, although we may admit that it could, as in all other cases, fix a time within which an action must be brought to recover damages that have not been first ascertained and paid. The city must be held to adopt the guarantee of the constitution and make it its promise, for we know of no law that will impute to the city, when exercising the sovereign power of the state, a wilful intention to disregard the right of a citizen.
So it will be seen that, where the petitioner is about to take possession without condemnation, injunction is a proper remedy; where there has been a taking and the public function is being exercised, the only remedy is to take compensation. Whether we call the taking a tort, or say that the claimant can waive the tort and sue on an implied contract, it makes no difference; the law is the same.
KINCAID v. SEATTLE, SUPRA at 621, 626, quoted with approval in WILSHIRE v. SEATTLE, 154 Wash. 1, 4-5, 280 P. 65 (1929).
The principle was recognized in WANDERMERE CORP. v. STATE, 79 Wn.2d 688, 697, 488 P.2d 1088 (1971). That action was brought by an owner of land adjacent to a proposed state highway drainage ditch, who alleged that the presence of the ditch would adversely affect the value of his land. We said there that the preliminary work which had been done before his action was begun would not have defeated his right to an injunction, prohibiting the State from further construction until such time as his damages had been ascertained and paid. However, because the trial court had granted and then dissolved a preliminary injunction, after which the construction of the ditch had been completed, we declared that we would not, by mandate, compel the destruction of the ditch. We cited the rule that, upon the denial of a temporary restraining order, the defending party may assume that it has the right to proceed with the construction sought to be enjoined, as well as the principle that a governmental body having the power of eminent domain does not act "illegally" in the strict sense if it takes private property for a public use before compensation is made. We noted also that the owner's damages could be fully adjudicated upon a remand.
"a party who acquiesces in the construction and operation of a public utility is estopped to maintain ejectment or a suit for injunction, but will be left to his action for damages.
". . . is about to take possession without condemnation, injunction is a proper remedy; where there has been a taking and the public function is being exercised, the only remedy is to take compensation.
KINCAID makes it clear that just as the owner has the right to be compensated, the State or other body having the power of eminent domain has a right to compensate and keep the property. It was in that case that the theory of "inverse condemnation" was established, this court holding that the governmental body's action is not a tort and is not protected by nonclaim statutes or ordinances.
" Inverse condemnation has been defined as "the popular description of an action brought against a governmental entity having the power of eminent domain to recover the value of property which has been appropriated in fact, but with no formal exercise of the power."
HIGHLINE SCHOOL DIST. 401 v. PORT OF SEATTLE, 87 Wn.2d 6, 8 n.1, 548 P.2d 1085 (1976); MARTIN v. PORT OF SEATTLE, 64 Wn.2d 309, 391 P.2d 540 (1964), CERT. DENIED, 379 U.S. 939, 13 L. Ed. 2d 610, 85 S. Ct. 701 (1965).
«1» The legislature has taken cognizance of the fact that a City sometimes takes possession of private property, inadvertently or otherwise, without first making compensation, and has expressly authorized the bringing of a subsequent action to determine just compensation. RCW 8.12.540. The compensation is to be determined in the same manner as it would have been had the action been instituted before the taking. This court's holdings with respect to inverse condemnation are in harmony with that action.
ACCORD, THORBERG v. HOQUIAM, 77 Wash. 679, 138 P. 304 (1914).
" When taking private property for a public use, the state acts in its sovereign capacity. GASAWAY v. SEATTLE, 52 Wash. 444, 100 Pac. 991, 21 L. R. A. (N. S.) 68 [(1909)].
It goes not as a trespasser, inspired by selfish or unlawful motive, but as one taking without malice or intent to do wrong, and presumptively for the public good. Under the statute, it cannot put on the cloak of a tort feasor if it would. It cannot plead a wilful wrong to defeat a just claim. The action for damages for land taken without compensation is usually spoken of and is in its nature one of trespass, but it is not strictly so. If the state or its agent, in the prosecution of a public work, takes no more than is necessary and prosecutes its work without negligence it is neither a trespasser nor a tort feasor [citing KINCAID v. SEATTLE, SUPRA].
Nevertheless, some resort to tort theories has, in the past, been found appropriate in resolving procedural questions with respect to the landowner's right of compensation. For example, in AYLMORE v. SEATTLE, 100 Wash. 515, 171 P. 659 (1918), where the plaintiff's land had been appropriated for a public street, without compensation having been made, it was held that the plaintiff's action for compensation was governed by the 10-year statute of limitation. In order to make that statute applicable, this court was forced to conclude that his action was in the nature of ejectment, since the 10-year statute applies only to "[a]ctions for the recovery of real property, or for the recovery of the possession thereof". RCW 4.16.020. It was recognized, however, that the judgment entered should have the effect only of compelling payment of compensation rather than forcing ejection of the defendant from the property. And it appears that whenever this court has seen fit to approve a remedy of ejectment, or injunction, where the power of eminent domain was present, enforcement of the judgment has been delayed to permit the defendant to avoid it by bringing an action to condemn the land, and/or paying just compensation. SEE ELLENSBURG ICE & COLD STORAGE CO. v. ELLENSBURG, 118 Wash. 647, 204 P. 776 (1922) (taking not complete); ENGSTROM v. EDENDALE LAND CO., 77 Wash. 658, 138 P. 302 (1917); OWEN v. ST. P., M. & M. RY., 12 Wash. 313, 41 P. 44 (1895).
In cases where the remedy of injunction has been denied, this court, like courts in other jurisdictions, has based its judgment upon varying factors, such as acquiescence; the fact that the work has been completed to the public good; the fact that the taking or damaging will not cause any peculiar or special injury to the plaintiff, or will not cause substantial damage to the plaintiff; the fact that the granting of an injunction will cause great injury to the defendants and a serious inconvenience to the public, without a corresponding advantage to the complainant; or the fact that condemnation proceedings are pending or contemplated. SEE Annot., INJUNCTION AGAINST EXERCISE OF POWER OF EMINENT DOMAIN, 133 A.L.R. 11, 118-28 (1941).
The Court of Appeals was of the opinion that injunction will be denied only where there are elements of estoppel or waiver present. While there are often elements of acquiescence or estoppel present where the plaintiff has not protested the building of the public improvement until after its completion, our cases have emphasized that this is not the controlling factor. As we pointed out in KINCAID v. SEATTLE, SUPRA, once the taking is complete and the property is being used for public purposes, injunction is not an appropriate remedy. Since the public body has the right to take private property for such use, and since to require it to abandon an improvement or activity which serves the public's needs would result in a much greater hardship and inconvenience to the public than that which would be suffered by the plaintiff if he is forced to sell his land at its fair market value, just compensation is his sole remedy.
" Washington case law supports the concept of a diversity of potential grounds for recovery for a property owner subjected to an arbitrary taking.
BRAZIL v. AUBURN, 23 Wn. App. 672, 675, 598 P.2d 1 (1979).
ANDERSON v. PORT OF SEATTLE, 49 Wn.2d 528, 304 P.2d 705 (1956) and ENGSTROM v. EDENDALE LAND CO., SUPRA, are cited. ANDERSON was a suit by a number of property owners whose properties were adversely affected by an airport operation nearby. It was shown that frequent flights of airplanes at low altitudes over the plaintiffs' lands had diminished their rental and market value. This court declared that a damaging of property by a body having the power of eminent domain may be either permanent or temporary. When the injury is permanent, we said, the measure of compensation is the difference between the value of the land before the injury and immediately after; but when the injury is not permanent, the measure of compensation is the reasonable expense of restoring the land and the loss of income pending such restoration within a reasonable time. There, it was proved that the injury was permanent, and thus the reduction in market value was the appropriate measure of damages. The plaintiffs had sold their properties to the Port of Seattle while the action was pending, receiving the fair cash value with no allowance for depreciation. They urged that they were also entitled to recover temporary damages, based upon the diminished rental value. We rejected that theory, holding that the plaintiffs had been fully compensated when they received the fair market value of their land.
"[T]he action of trespass is an appropriate remedy where an entry has been made before the right to enter has been perfected in the manner provided by law.
BRAZIL v. AUBURN, SUPRA at 675. In the next sentence of that opinion, however, we made it clear that the compensation to be awarded is governed by the nature of the taking or damaging and not by the plaintiff's theory of recovery.
Thus, the ANDERSON case does not stand for the proposition that, where there has been a permanent taking of property by a body having the power of eminent domain, the owner may elect to treat the taking as temporary and sue for lost rents and injunctive relief.
The other Washington case cited by the Court of Appeals, ENGSTROM v. EDENDALE LAND CO., SUPRA, was an action in the nature of ejectment, brought by an owner of land in eastern Washington against his neighbor, who had constructed an irrigation flume across the former's property. It appears that for at least 20 years, such a ditch had been maintained by the defendant's predecessors, and he had arrived at an oral agreement with the plaintiff to relocate the flume. However, it was not constructed according to the plaintiff's wishes, and the ejectment action followed. The lower court found that the plaintiff had suffered damages of $50 and that his rights to the property covered by the flume and to the waters of the creek from which it was supplied were superior to those of the defendant. It found that the defendant had agreed to construct the new flume 1 foot below the surface of the soil, and decreed that unless the flume was lowered to that depth within 30 days, the defendant should be ejected.
«2» The defendant no doubt regarded this as something of a pyrrhic victory. Had it prevailed on its theory of adverse possession, it would not have had to purchase an easement.
Neither of these decisions offers support for the proposition that where there has been an appropriation of land for a public use which is permanent in nature, the landowner has an unqualified right to recover possession and lost rental value. Implicit in each is a recognition of the principle that judicial remedies should not be fashioned to frustrate the interests of the public which are served by the exercise of the right of eminent domain. In the ENGSTROM case, ejectment and temporary damages were authorized only in the event the defendant elected not to condemn an easement as provided by statute.
The remedial device utilized in ELLENSBURG ICE & COLD STORAGE CO. v. ELLENSBURG, SUPRA, ENGSTROM v. EDENDALE LAND CO., SUPRA, and OWEN v. ST. P., M. & M. RY., SUPRA, which uses the threat of ejectment to force the defendant to either condemn the land or abandon the public use, is particularly appropriate where the taking is not complete. It also has some usefulness where the taking is complete but the market value of the land has not been established. In such a case it may be reasonable to require the defendant to bring its condemnation action, in order to retain possession.
In a case such as this, however, where the public use is established and conceded and the market value has been ascertained, the only appropriate remedy is a judgment for the market value of the land taken.
[2-4] It is true that neither the petitioner nor the respondent asked the court to award the respondent the market value of the property. The latter insisted in the courts below and still insists that he is entitled to an injunction and rental value for the period the land has been in the possession of the City, to the extent that such remedy is not barred by the statute of limitation. The petitioner, on the other hand, insists that because the respondent sought the wrong remedy, the court had no jurisdiction to grant him any relief. We have shown that the respondent is not entitled to the remedies which he seeks. But this does not mean that the lower court could not and should not have awarded him the damages to which he was entitled. Those damages were proven in the action, and the court made a finding as to the amount of such damages. The rule is that once a court of equity has properly acquired jurisdiction over a controversy, such a court can and will grant whatever relief the facts warrant. ZASTROW v. W.G. PLATTS, INC., 57 Wn.2d 347, 357 P.2d 162 (1960). Upon the established facts, there is only one remedy available to the respondent, and that is the remedy which should be decreed in this action.
The trial court erred in denying the petitioner's motion for reconsideration, which correctly presented the law for its consideration, and the Court of Appeals was in error in sustaining the lower court's judgment. The property here having been put to a public use, and the taking having been complete, the sole remedy available to the respondent was compensation for the taking. The measure of damages is the fair market value of the property at the date of trial, unless fairness to the owner requires the value to be set as of some other date. LANGE v. STATE, 86 Wn.2d 585, 547 P.2d 282 (1976). The market value of the property has been established by an unchallenged finding of fact in this action.
 RCW 8.25.075 provides that a superior court rendering a judgment for the plaintiff awarding compensation for the taking of real property for public use without just compensation having been first made to the owner, shall award or allow to such plaintiff costs including reasonable attorney fees. Since this statute is mandatory in its terms (SEE SNOHOMISH v. JOSLIN, 9 Wn. App. 495, 513 P.2d 293 (1973)), and since this action must be treated as one of inverse condemnation, the respondent is entitled to his attorney fees in the Superior Court proceeding. The cause will be remanded to that court for the purpose of determining the reasonable amount of such fees.
The decision of the Court of Appeals, BRAZIL v. AUBURN, 23 Wn. App. 672, 598 P.2d 1 (1979), and the judgment of the Superior Court for King County are reversed. The Superior Court should enter judgment for the plaintiff for the market value of the land, and with costs and reasonable attorney fees.

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Samuel Gorson, Philadelphia, Pa., for plaintiffs.
Wolf, Block, Schorr Solis-Cohen, by Howard Gittis, Philadelphia, Pa., for defendant.
"* * * In considering whether or not the plaintiff is entitled to punitive damages you may consider the nature of the defendant's acts, the extent of the interference with the plaintiff, and the plaintiff may recover punitive damages even though he sustained no actual damages. But you will have to determine that, and punitive damages, somewhat like damages that you may have previously been called upon to assess for pain and suffering, for which no one can give you a dollar figure — punitive damages are something like that; no one can give you a dollar figure, but you should bear in mind that they are not compensatory but are assessed by you as punishment and as a deterrent, if you find there was reckless indifference — as a deterrent against such reckless indifference in the future. * * *"
I am convinced that this was error. The law applicable to the recovery of punitive damages is that of Pennsylvania: Adams v. Griffith, 51 F. Supp. 549 (W.D.Mo. 1943); Thompson v. Mutual Benefit Health Accident Association of Omaha, Nebraska, 83 F. Supp. 656 (N.D.Iowa 1949); Kelite Products v. Binzel, 224 F.2d 131 (C.A.5, 1955); Reynolds v. Pegler, 223 F.2d 429 (C.A.2, 1955).
Two things are clear: (1) punitive damages may not be recovered in Pennsylvania absent a showing of actual damages: Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959); (2) punitive damages, if recovered, must bear a reasonable relationship to the amount of actual damages: Givens v. W.J. Gilmore Drug Co., 337 Pa. 278, 285, 10 A.2d 12 (1940).
Plaintiffs argue that it was harmless error to instruct the jury that punitive damages may be recovered even though plaintiff sustained no actual damages because, in fact, there was here a finding based on adequate proof that plaintiff did sustain actual damages. This argument disregards the second requirement of Pennsylvania law that punitive damages must bear a reasonable relationship to the actual damages. It is no answer to say that the court may consider the punitive damages reasonable. The defendant had a right to have this jury determine under proper instruction what reasonable punitive damages would be. Without an instruction as to the proper relationship between actual and punitive damages, the jury could well have considered that there need be no such relationship. Under a proper instruction the jury may well have found punitive damages in a substantially lower amount as representing its appraisal of a reasonable relationship between the two. This was denied the defendant and accordingly a new trial must be granted.
The conclusion that we have reached makes it unnecessary to pass upon the defendant's second contention that the jury was prejudiced by the mention of insurance.