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CNA Insurance Company v Hyundai Merchant Marine Co., Ltd.

Case No. 12-6118 (C.A. 6, Mar. 26, 2014)

At its core, this appears to be a simple case: Corning hired Hyundai to transport cargo overseas, Hyundai’s subcontractors accidentally destroyed the cargo during transit, and nobody wants to pay for it. After some significant legal decisions and a jury trial, the district court found Hyundai and the subcontractors liable to CNA for the loss, though it refused CNA’s request for prejudgment interest. Both sides appeal and, as one might expect, this is not nearly as simple as it would seem. Based on the reasoning that follows, we AFFIRM in part, REVERSE in part, and REMAND for reconsideration consistent with this opinion.

I.



The Corning facility in Harrodsburg, Kentucky, makes 4-foot by 4-foot sheets of very thin fusion-drawn flat-glass for use in LCD flat-screen televisions and computer monitors. Corning packs these sheets into custom-made wooden crates, each holding approximately 500 sheets. These crates are sized so that exactly 12 (three across and four deep) fit into a standard 20-foot steel intermodal shipping container leaving only negligible space (less than four inches). This is called “cubing out” the shipping container and eliminates the need for additional packing or securing.

Corning ships its glass, in these containers, to Corning Display Technologies in Tainan, Taiwan (an entirely separate company), which buys all the glass that Corning can produce and also buys more from other vendors. Consequently, Corning ships as many containers per day as it can fill, usually several, and has been doing so for years. Despite the expected fragility of such thin glass and the high volume of shipments, Corning has had virtually no problems with shipping by rail and the damage rate has been extremely low (estimated at one or two sheets for every few crates).
 

 

Judge(s): Alice M. Batchelder
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Conflict of Laws , Contracts , Damages , Torts , Transportation
 
Circuit Court Judge(s)
Alice Batchelder
Deborah Cook
Kathleen O’Malley

 
Trial Court Judge(s)
Charles Simpson III

 
Appellant Lawyer(s) Appellant Law Firm(s)
Paul Keenan Keenan Cohen & Howard PC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Edward Radzik Marshall Dennehey Warner Coleman & Goggin
Henry Alford Middleton Reutlinger
Rebecca Jennings Middleton Reutlinger

 

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“straight” bill of lading for the journey to louisville, as verification that the cargo in the the federal circuit, sitting by designation. would have originated with the ocean carrier in buenos aires, and that carrier would not n thisoutcomeisconsistent with the supreme court’s emphasis on goods by [hyundai] and inserted on the face of this bill unbroken transaction of commerce with a nonadjacent foreign country”); kirby, 543 connecting lines become in effect mere agents [of the initial carrier], of-contract, bailment, or negligence causes of action in the district court, but rather sought to preserve these for all of those reasons, the [c]ourt finds that cogsa, not the substantial carriage of goods by sea, its purpose is to effectuate maritime services in international commerce if called for in the rates spelled out in appendix c.” applicable version of the hague rules applies: to a shipper for anything that occurs to the goods being shipped.” prima u.s. inc. v. panalpina, inc., district court. after the district court dismissed based on the tokyo forum selection waived those causes of action, i.e., that it would have dismissed its case altogether. instead, as cna has carrier, making subsequent carriers mere agents of the initial carrier, any overlapping the court also opined that while kawasaki had expressly excluded the export scenario single bill of lading. this is because a carriage like the one in the present shoes for purposes of defining the scope of that liability. two different containers, and shipped them back to harrodsburg, via the same route by d. railway of mexico, in whose custody it was later damaged. the shipper sued texas prima facie case (i.e., the cargo was tendered in good condition, it arrived in damaged condition, and actual carrier liability throughout the entire route, with the right to _________________ transport to the place designated. if you are obliged to use the services as of reider reasonably appeared to hold that carmack: (1) fully preempted state law which cna could sue the subcontractors directly, thus governing the subcontractors’ liability. we do not themselves, the company [i.e., carrier] actually causing the loss may be iii. on carmack, not an assertion of carmackapplicability. followingthekawasaki opinion carrier. transportation under this part. corning, through its agent, and that corning affirmatively waived that coverage. while case: corning hired hyundai to transport cargo overseas, hyundai’s subcontractors (from buenos aires to boston) would have altered the outcome, suggesting that its [corning] harmless from any and all liability, expense (including with downstream carriers.” id. at 34. the shipper is not without recourse, however, as liable to [corning] if it had made a direct and separate carriage, cna and hyundai “must have anticipated that a land carrier’s services would [cna] if it had made a direct and separate contract with [cna] in the railroads demonstrated that no other containers on that train had been damaged. it (3) at least one amicus brief — the united of god; (2) an act of terrorism or war; (3) an act of the shipper itself; (4) an act of public determine whether the shipping contract (bill of lading) at issue is a maritime contract28 from the shipper to begin the journey in the form of] domestic rail cna cannot maintain any actions in bailment or negligence against the carriers; its 22 we are further persuaded that this is correct upon consideration of the next p. 61 (instructing that “[a]t every stage of the proceeding, the court must disregard all rather than making claims by cargo owners easier to resolve, a court nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 34 as explained in kirby, 543 u.s. at 32, because the journey contained substantial overland the inclusion of this sentence is curious, and both its basis and purpose are unexplained. a railroad like norfolk was an intended beneficiary of the icc bill’s delivered a separate opinion dissenting from section iii.b of the majority’s opinion. (d) himalaya clause — “without prejudice to the foregoing, carriers, such as vessels, truckers, stevedores[,] or warehouses, which are directly involved in transporting holding that the subsequent bill of lading was void. cna paid corning $664,679.88 on the claim and was subrogated to corning’s hyundai. although hyundai is ultimately accountable for that liability, it was also r. 102 at 3 n.2 (quotation marks and citations omitted). thus, cna did not withdraw or waive its breach- by applying carmack in this case as it did. export to el oro, mexico, with a caveat that the purchaser’s agent would meet the lading—does not conflict with hyundai’s ability to act as the agent of corning for carriage]. this disruption would undermine international improperly construes the extent of hyundai’s liability, i respectfully dissent from the receiving cargo from the shipper at the journey’s point of origin. id. at 2443. no such handling, storage, or carriage.”1 mexican r.r. under carmack, as the putative initial (receiving) carrier on the second bill merely a switching service. tmbr did not issue any bill of lading, either in its own court had framed it), holding that carmack does not apply to the inland segment of an and cover[ed] every risk that the property c[ould] be subject to, except a loss by the act railway co., “bnsf,” pursuant to an “international transportation agreement,” which gives rise to the dispute here,” but framed the issue far more broadly as “whether corning packs these sheets into custom-made wooden crates, each holding there are no local interests in the present case, certainly none more pervasive than those in kirby, and dennehey warner coleman & goggin, new york, new york, for 29 subcontractor’s conduct. it is the next conclusion—the one set forth in section iii.b. of finally, the court held that the intermediary can act as the shipper’s agent for the is after a jury trial. _________________ see kawasaki, 130 s. ct. at 2456 n.8 (sotomayor, j., dissenting) (“in kirby, . . . we took nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 44 . . . is u.s. $500 per package, . . . unless the value (and ) to unload the containers from the truck at the right to sue for recovery. on september 27, 2006, cna filed suit in the southern 11 based on the foregoing, we affirm the judgment against defendant hyundai, v. 4. subcontracting — power, 331 u.s. at 734. regardless, the court has since rejected this ocean-carrier-as- approximately 500 sheets. these crates are sized so that exactly 12 (three across and so carmack’s threshold question is whether the carriage begins with an as- batchelder, c.j., delivered the opinion of the court in which cook, j., here, it is undisputed that sti was not the carrier responsible for a kaohsiung port employee had discovered the damage rather than the tacoma carmack cause of action. this contention mischaracterizes the district court proceedings on this issue and if damage is found we will be processing a claim. (breach of contract, bailment, and negligence) and only referred to carmack in the jurisdiction section, not under carmack, carmack does not apply.”). but what of our present facts — when the carrier,” id. at 2443. the analysis, to which we have added some bracketed explanatory premises. the first would be that carmack does not apply to an unbroken transaction nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 9 cna as the merchant- or shipper-side party to the service contract, even though corning is the actual not be met; for damage to the content of containers can occur when the based on this service contract — which anticipated the shipment of multiple 20- be subject to carmack. thus the shipper would have no grounds to invoke carmack, in fact, the carriers’ begin their appellate brief to this court with these two sentences: “this “connecting” carrier, without clear explanation; and (4) would likely not apply to an this journey would take weeks to complete, door-to-door from harrodsburg to tainan. of all relevant evidence. on this point, the agreement between corning and hyundai is subcontractor” — be it dhl, norfolk southern, bnsf, or tmbr — must be resolved flatcar, presumably — because the record contains no evidence to the contrary — with liability offered by norfolk southern. [regal-beloit] obtained separate insurance to protect against any excess of moving and connecting rail cars during transfer or interchange in which the cars come hyundai is liable to cna under the carmack amendment; i would limit hyundai’s the district court rejected the carriers’ argument that cna had not pled nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 28 or regulation” as equally powerless to limit the carrier’s liability. thus, carmack’s applying carmack based on the existence of the receiving carrier (i.e., a rail carrier that insisted that carmack applies to any carrier under the stb’s jurisdiction, essentially any road or rail carrier ii.d., supra, that the service contract is a maritime contract pursuant to kirby, 543 u.s. at 27-29, and u.s. at 29. and lower courts are coming to that same view. thus, the parties must have anticipated that a land carrier’s services thecarriersmovedtotransfervenuetotheeasterndistrictof kentucky, arguing limited the liability of the subcontractors. consequently, the analysis should end here, carmack: and, just as kirby and kawasaki portend, (1) the receiving rail carrier; midwestern united states. but because all relevant aspects are identical, we will treat this as one shipper bnsf, because they are mere connecting carriers under carmack. because the district many containers per day as it can fill, usually several, and has been doing so for years. like both containers returned to origin for inspection at no cost to while the majority points out that hyundai is defined at places in the service occurred the amount required to be paid to the owners of the (2) the delivering rail carrier; or it is noteworthy that the only two parties to the service contract are cna39 attempt to contractually limit that liability: pursuant to federal maritime law, to determine the parties’ agreed-upon liability scheme its cause of action is limited to a claim for breach of the service contract. finally, i during the sea voyage [or, reciprocally, require sea carriers to open the defendants for the full value of the freight. anyof[hyundai]’ssubcontractorsoranysubcontractor’s or establish agency as may be necessary to provide inland transportation or door to door bailment, and negligence. cna cited the carmack amendment, 49 u.s.c. § 11706, in the case must not “so implicate local interests as to beckon interpretation by state law.” id. at 27-29. “common carrier liability” at common law was “of an extraordinary character, 49 u.s.c. § 11706 (certain paragraph breaks added). these provisions also apply to may still not apply to a multimodal through bill with a substantial sea component, for all conflict between federal and state law, id. at 22,19 the record contains two slightly different versions of hyundai’s regular form bill of lading. destination in austria. therefore, sti did not function as a ‘receiving’ - applicability (despite the involvement of carriers that would qualify as “connecting” or nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 10 the carriage; rather the initial carrier is made the agent for the subsequent carriers to bind the record). governing the subject shipment and is responsible for the whole carriage. “while [the carriers] argue preliminarily that cna has failed to explicitly plead claims see kawasaki, 130 s. ct. at 2438-39 (“kirby held that bill of lading provisions permissible mr. todd frare “cna alleges causes of action against [the carriers] sounding in breach of contract, the subcontractors are domestic rail carriers. maj. op. at 48–49. as such, the majority § 1332. therefore, the inapplicability of carmack does not divest this case of federal subject matter nonsubstantive recodification of carmackin 1978 to create such a drastic (3) the amount of actual loss or damages. agentandassumesnoresponsibilitytherefor.” theseprovisions,takentogether,allowed would have to [first] decide where the damage occurred to determine which were through bills for an import of goods from australia to alabama via the port georgia and another for sea transport fromgeorgia to england). the emphasis in porter to [cna].”41 (bill of lading) that the shipper had formed with the initial carrier, even though the symbolized by the initial carrier’s bill of lading to the shipper, is the sole agreement hyundai subcontracted with a motor carrier (dhl) to pick up the containers at put another way, parties to a maritime contract for intermodal through carriage contract with [the shipper]” for that carrier’s portion of the journey. of course, if a road beinganagentunderappropriatecircumstances.”unitedstatesv.hudson,491f.3d590, recall that the court had already established, in adams express, 226 u.s. at 505, that the that cna had not pled carmack and argued, in the alternative, for summary judgment on the common-law 5(b)(2) states that hyundai’s “liability shall be to the extent to which the subcontractor f.3d 577, 588-92 (6th cir. 2009) (discussing harmless error). we affirm the district nonetheless, the reider court’s reasoning implied that the use of a through bill the tune of $10,000.00, and no more. see bnsf rules, re: 79-12 at item 64, page id carriers attempted to prove that the damage was due to corning’s “improper” stowing the 2 containers was due to aggressive humping of the flatcars by the rail the exclusion of state regulation of the same subject matter. the court’s examination. 858, 872-73 (1986) (federal maritime), and clark-fitzpatrick, inc. v. long island r.r., current view of prejudgment interest. stb jurisdiction and putatively subject to carmack, explaining: nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 29 and in part, the carmack amendment imposes liability for the actual loss or injury to provision does not actually place hyundai in the subcontractor’s shoes, it only holds service contract deems hyundai an independent contractor, and reiterates that “nothing damage to the cargo under circumstances in which a subcontractor, such as a road or rail good afternoon john, pleasure to speak with you today. transportation company from the liability hereby imposed. limit its liability by contract.46 i will advise once cargo is railbilled and scheduled to depart tacoma for id. at 734-35. note that this exclusion of texas mexican r.r. because it was merely a kawasaki, 130 s. ct. at 2444-45, carmack can never apply to a through carriage nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 7 agree that the carmack amendment does not apply to the road or rail leg of an shipment all the way to the border, texas mexican did not receive any further payment contracts: “so long as a bill of lading requires substantial carriage of goods by sea . . . instead, the court applied cogsa in assessing the rail carrier’s liability. the nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 48 the truck drivers transferred the containers to norfolk southern in louisville on pacific); (2) a subcontracting clause, authorizing k-line to subcontract at its discretion; mark ohlson of riverlands marine surveyors and consultants, inc. (louisville, court acknowledged that cogsa would not apply to the rail carrier “by its terms,” as applied to the present circumstances. for example, the contracts at issue in kirby states of america.” hyundai must fulfill the carrier’s obligations to corning, it actually stood in corning’s extent. because i believe the majority misreads form bill of lading § 5(b)(2) and subsection (a) of this section or delivering the property for which thereby forcing corning to file a claim with cna), hyundai did have the use of be under [their] responsibility, including the period of the inland cna had also moved for summary judgment, seeking to strike the carriers’ issue a receipt or bill of lading for the same; makes the [initial] receiving carrier liable the present cases illustrate the operation of these principles. property under cogsa-authorized through bills of lading. that k line orleans to boston. the court held that the absence of a through bill meant that the trip broadly written himalaya clause. accordingly, norfolk’s liability is subcontractors liable to cna for the loss, though it refused cna’s request for (b)(2) “if [corning] establishes that [hyundai] is liable for the to a sudden stop. burgess also opined that the loading and packing of the crates within answered that it had raised three causes of action under carmack: glass be disposed of and the crates returned to their manufacturer for refurbishment. “[n]othing about the title independent contractor invariably precludes someone from of the claims pled by [cna] are preempted.”). cna disagreed in its sur-reply, insisting that “these causes that same day, february 21, 2006. norfolk southern placed both containers on the same two years later, in adams express co. v. croninger, 226 u.s. 491, 505-06 a carrier does not become a receiving carrier simply by price) to the shipper and the shipper declines. see babcock & wilcox co. v. kan. city s. r.r., 557 f.3d value of the goods is [corning]’s net invoice cost, plus bill of lading.” id. and: intent not to bind subcontractors (such as norfolk southern and bnsf) to cna, nor to shipment via a single through bill of lading. 24 crates.11 solely under carmack, apparently on the basis that the damage had undisputedly 1283 (2d cir. 1994) (citing east river s.s. corp. v. transam. delaval inc., 476 u.s. importantly, the shipper had paid pennsylvania r.r. for shipment all the way to the (2) that the cargo was lost or damaged, and nature) of the goods higher than this amount has been 34 [hyundai] in relation to the goods.” question of prejudgment interest. limitation of liability clauses. kirby, 543 u.s. at 32. was discovered. the animosity between the attorneys, if not the parties, became clear construed to be inconsistent with that relationship or status. . . .” bills of lading [as a carmack-defined ‘receiving carrier’]. and one shipment. the issue was mentioned briefly during oral arguments”). underlying, though unstated, premise is that there is a single contract for the shipment and carry the containers by train to the railhead in tacoma, washington. the containers that rail carrier and any other carrier that delivers the property applied carmack under a straight forward breach-of-contract action. see fed. r. civ. (1911), the supreme court considered an early challenge to carmack and clarified that being the first carrier does not necessarily make [initial-carrier] visibly damaged; the front (nose) end of each container was “bulging,” or buckled claim under the carmack amendment.” argued: july 24, 2013 carmack would have applied to the rail carriage in this case, the two “extension” clauses “receiving carrier” means no carmack bill of lading, which means no carmack shipper and hyundai as the carrier. the rail carriers are unnamed “subcontractors” who there is no provision under carmack for contributory negligence or a partial award, and receive articles for transportation from a point in one state to a place in bill is not a maritime contract.” id. at 27 (emphasis added). most pertinent for our beloit, at the journey’s point of origin] in china for overseas transport decision in this case. above, not just “any rail carrier that in the colloquial sense ‘received’ the property from beenacarmack“receivingcarrier”vis-a-vis theocean-carrier-as-shipper,undertheview on march 10, 2006, marc cash sent a follow-up email to john wagner of fails to recognize, however, is that the rail carriers did offer carmack coverage to as was usual, corning prepared its own straight bill of lading for each container. carmack amendment confused as much as, or more than, they clarified. holding mechanistically to fit it to our facts, fail to follow it all the way through, and dock. sometime thereafter, a wut employee observed that the two containers were amendment, . . . the shipment over the texas-mexican [r.r. line] asia: specifically, as relevant here, from harrodsburg to tainan for the shipment of the as a given that the shipper could sue the inland rail carrier, even though the shipper was 8 in selecting or contracting with any other carriers in the chain; and corning made a 13.a, dictates that new york state law and federal law govern. of course, we just established in section clause obligates hyundai to indemnify corning against third-party claims, but “has no shipment in laredo, presumably to arrange for border crossing. id. at 732-33. more the carmack amendment does not apply to the road or rail leg of an intermodal overseas authority; or (5) the inherent vice or nature of the goods. missouri pac. r.r. v. elmore into distinct portions by their contracts, it is not for courts judicially to does carmack apply to the road and rail legs of an overseas export shipped under a applying two different bill of lading regimes to the same through it is undisputed here that the carriers’ duties arose out of the service contract; when the train derailed in oklahoma, regal-beloit sued k-line and union rigid requirements by which bills of lading are valid under the carmack aforementioned glass (and the return shipment of the empty crates).2 even though the district court applied carmack as the overriding law and cna had moved to deny the to cover all times of action are found to be authorized by the carmack amendment and do not constitute ‘state law causes include a rail carrier in the himalaya clause, the term “any” and the necessity of rail the court rejected cna’s first theory, explaining that the indemnification carmack does not permit lawsuits by corning, the shipper, against norfolk southern or claims by any subcontractor against hyundai arising out of these same facts.” finally, introduced in section ii.a, infra. contract terms in its favor.” in re m/v rickmers genoa litig., 622 f. supp. 2d 56, 72 4.a. “[hyundai] shall be deemed an independent contractor with wagner sometime thereafter and, on march 14, 2006, wagner responded to cash via 49 u.s.c. § 10502(e) and § 11706). because hyundai stands in the shoes of the rail carrier here, hyundai sealed container departed in good condition. the truck driver did not issue a bill of journey which contains substantial sea carriage,30 id. at 27. the end result, then, was the denial of carmack applicability in this export is somewhat difficult to reconcile with kawasaki, the court did rely on kawasaki for a was merely mistaken and not duplicitous in his contentions. nevertheless, we encourage him to be more prejudgment interest. clause (premised on its underlying holding that the clause paramount extended the suggested that there are. simply put, “[f]reight forwarders consolidate less than [a] carload [of] freight into and the applications of the pertinent provisions therein. therefore, the decision is not . . . nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 6 determining the extent of [hyundai]’s liability for . . . meld the portions into something they are not. the test is not where the note that an actual or tangible bill of lading is not necessary to impose liability or on behalf of hyundai. on cna’s tort-based causes of action, bailment and negligence. the carriers had argued operated under these two bills and did not issue any bill of its own. when the train court found it important that, because “the shipment in this case could not have moved kawasaki] applies to those contracts which create a single transaction for because cna, as subrogee, is prosecuting this case as if it were corning, we will refer to cna but, more to the point here, “qualifying as an intended beneficiary in no way there can be little doubt that if carmack applied transport from buenos aires to new orleans and another for the rail transport from new jurisdiction receives property in the united states, carmack attaches, regardless of reimbursement for a loss not due to his own negligence. transportation company to which such property may be delivered, or over journey for which [they] undertook responsibility. and the apparent the tacoma railhead and seaport, it appears that this was necessary carriage and not end, and a 40-foot container placed on top of the two 20-foot containers. all containers “[t]o the extent a third-party qualifies as an intended beneficiary, it may enforce carriers replied: 7 immediately. the court “granted” the carriers’ motion and transferred the case, not to (3) a clause paramount, extending cogsa’s terms to cover the entire journey, seaport” as part of an overseas shipment in foreign commerce): burden-shifting framework. see missouri pac. r.r., 377 u.s. at 137-38. [because] the so-called bill of lading [issued by texas mexican r.r.] did otherwise stated: in damages. mystery was how the damage actually occurred — the railroads demonstrated that there form bill of lading § 5(b)(2) states that, “with respect to . . . damage caused omission of any reference to carmack, which is particularly odd given that (1) it is a rail- train (including the 40-foot container presumably set atop these two). alice m. batchelder, chief judge. at its core, this appears to be a simple decision need not address the instance where goods are received at a point in the united appellee/cross-appellant. on brief: paul d. keenan, keenan cohen & some significant legal decisions and a jury trial, the district court found hyundai and the jurisdiction. and we would perhaps be remiss if we overlooked the fact that, because this is a maritime note that, at this point, both cash (hyundai) and wagner (corning) had accepted that present. when corning opened the containers and removed the crates, ohlson found that the solicitor general further suggested that kirby may have waived the carmack issue when it bill of lading at new orleans. that contract of carriage was squarely nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 46 transferred the flatcar to bnsf in chicago on february 26, 2006. bnsf did not record new york, henry s. alford, rebecca grady jennings, middleton reutlinger, shipper sued the rail carrier (bnsf) and the court relied on kawasaki’s “receiving rail in mexican light & power co. v. texas mexican r.r., 331 u.s. 731 (1947), the attempt to recover any judgment from the intermediate carrier that was actually at fault nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 11 hyundai was authorized as corning’s agent to limit the subcontractor’s liability, and did nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 36 or waived these causes of action, cna did so only on the understanding that carmack preempted them and (b) “insofar as . . . damage to . . . the goods was caused shipper at the journey’s point of origin, such that it is required under carmack to issue a carmack bill of cogsa makes the clause paramount particularly important. (c) “[corning] warrants that no claim shall be made against id. at 2447-49 (paragraph break inserted; editorial marks, quotation marks, and citations believe that we would need to remand for a determination of the amount of liability transportation . . . , you must do so under a contract to transport to the place carriers’ representatives) answered that the co-defense posed no conflict of interest and that they were statute. that statute is known as the carmack amendment and it governs district court asked counsel whether separate representation was warranted. each time, counsel (and the hyundai’s performance. hyundai had complete control over the manner and means of performance; the on the way to tainan. unless the parties extended it by contract, and explained that the parties had done just dissenting in part i. receiving carrier otherwise fell within carmack’s coverage. but the court has, since transport, not for domestic rail transport. . . . miles across the pacific ocean, which is undoubtedly “substantial.” this is not in dispute, nor is it open fourth. it affirmatively declares that no contract, receipt, rule, or cash’s adoption and repetition of that assertion in his email to corning. ohlson also from another carrier in the middle of an international shipment under a through bill.”). alleges comprehensive claims under the carmack amendment as opposed to individual handling, storage, or carriage of the goods by taiwan. it is at this point that hyundai would issue a bill of lading specific to the cargo not record or report any damage to either container at that point. norfolk southern majority concludes that hyundai cannot avoid carmack liability on this basis because limitation of liability of $500 per package while the cargo is on the ship (“between the tackles”). cogsa as the merchant- or shipper-side party to the service contract, even though corning is the actual party to suit”; instead, it merely “obligate[ed] corning to indemnify hyundai for any resultant included in the service contract. consequently, we conclude as a matter of law that subsequent rail carriers, despite the absence of contractual privity between the shipper all the way through — including the discussion of kirby and cogsa — the inverse of also allows the ocean carrier to extend this limitation of liability to the overland portions of the journey neither norfolk southern nor bnsf exhibited any agreement to be bound by the acknowledging that he had received the container from corning in good condition. as we know the amount of liability corning set for the subcontractors through its agent, 2007 wl 2571957, *2 n.3 (d.n.j. aug. 31, 2007) (holding the same)). as noted in the foregoing footnote, transportation board had exempted intermodal rail transportation from carmack unless the eastern district as requested, but to the western district of kentucky, specifically carriers might be. this made it very difficult, if not impossible, for the shipper to locate states that a “package” is a “container” packed by corning, which at least implies that there were actually first, [the] plaintiff sued based upon the bill of lading issued by carrier, and the carmack amendment does not apply. the four where you found the external splintering of the wood. i would in which the shipper may establish a prima facie case with a showing of three basic application of the carmack amendment. that is, we must determine whether carmack shall issue a receipt or bill of lading for property it receives for three questions the court answered in kirby: (1) what is a maritime contract; (2) what tainan, taiwan (an entirely separate company), which buys all the glass that corning of the wooden crates were visibly damaged and some of the glass within had broken. under cogsa can be invoked by a domestic rail carrier, despite contrary state law.”). and, if so, enforce that contract under maritime law,29 with a carmack-defined receiving carrier. but kawasaki does not hold that, expressly under the kirby “conceptual approach,” 543 u.s. at 27-29, we must first [f]or carmack’s provisions to apply the journey must begin with carmack amendment fully preempted state law concerning the liability of interstate rail and road carriers. moreover, because the rail carrier would receive no additional consideration for the the carmack issue but, rather, had argued only the issues decided by the district court on summary finding that the service contract’s limitations of liability did not apply to any of the of lading, and extra freight has been paid as during the handling, storage, or carriage of the goods by [hyundai]’s subcontractor, hyundai unloaded the 24 crates from the damaged containers, loaded them into transport. [they] would not enjoy the efficiencies of the default rule if domestic overland part of an international, overseas shipment under a through bill of shipper and only the initial (receiving) carrier. on appeal here, the carriers argue that cna “withdrew” or “waived” its breach-of-contract, favoring cogsa and maritime contracts. waived any contention that their individual interests are inconsistent or that their defenses diverge in any damages were quantified), so the burden shifted to the carriers to demonstrate one of the five excepted discussion of the carmack amendment [in that case] does not control our goods . . . ha[d] made alternate contractual arrangements with the owner’s agent.” id. negligible space (less than four inches). this is called “cubing out” the shipping reasonable attorney’s fees), cause of action, suit, claim or “humping” during the rail transport, but this was almost certainly based not on any of lading for any cargo at any point during this shipment. correspondingly, corning of lading attempts to deem hyundai as corning’s agent). provides the default legal regime governing the inland leg of a multimodal shipment district court. the carriers contention that cna did so is unfounded and untrue. respect to [corning] and nothing herein contained shall be which the court permitted the shipper to sue two subsequent rail carriers. this is nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 53 albeit as merely a passing reference.22 we were to assume that hyundai did not act as corning’s agent when limiting the carrier, damaged the goods.45 would be void; (3) either allowed or disallowed a shipper’s lawsuit against a right or on behalf of hyundai. court considered a shipment of cargo under two overlapping bills of lading, as in or rail carrier] would have been liable to [the shipper] if it had made a direct and separate unknown) to pick up the containers at the kaohsiung seaport and carry them by truck to on march 5, 2006, hyundai unloaded the containers from the flatcar onto the of solar panels, from massachusetts to france via a new york port, under a single 32 subsequent carrier under a through contract (here a subcontractor’s subcontractor), does not include a rail carrier providing only a switching service the cargo in the containers. contract cause of action, we note that cna actually sought to argue its breach-of-contract theory at trial. 2348277 at *24. see also wm. baldwin, comment, land versus sea; carmack v. cogsa: why the 2 shipping.9 never declared a value for this cargo prior to shipment. carmack liability for container carriage, so long as the carrier offers carmack coverage (even at a higher the honorable kathleen m. o’malley, circuit judge for the united states court of appeals for rather, the intermediary acts as the shipper’s “agent for a single, limited purpose: when “with respect to the provisions of the carmack amendment applicable to rail carriers, panalpina decision, and that federal law requires us to uphold the r.r. v. knight, 122 u.s. 79, 88 (1887). the carrier’s alternative was to limit its liability and exclude carmack entirely, with a properly written clause paramount and himalaya r. 85 at 23; see also r. 85 at 25 (“if the carmack amendment is applicable to the instant matter, then all 6 as explained in the foregoing section, this was in error; become a [carmack] receiving carrier simply by accepting goods for further transport containers at the port to check if damage had been done during the rail bnsf maintain detailed records, via computer, of the handling of the trains and railcars, disregarded carmack and enforced the service contract on its terms.37 good afternoon john, please note the we will make immediate reimburse corning for the cost of the damaged glass at the time of the accident (and as enacted in 1906, the carmack amendment partially codified the common law including the overland portions; (4) a choice of law clause, designating japanese law; contents are damaged by rough handling, seepage, or theft, at some note that the missouri, k & t court allowed the shipper to sue and recover from their theory, union pacific was a mere delivering carrier, which did not the liability limitation [they] chose did not apply equally to all legs of the not as independent contracting parties, but as one system; and the nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 13 clause, a clause paramount, and cogsa coverage). when the train derailed, the - although the supreme court has not addressed the present (emphasis added). if the defendant-carrier meets this burden, it wins. if not, then the shipper contract itself. [subject to the jurisdiction of the stb] that receives the property [directly states, acting on the court’s invitation — expressly brought the potential carmack authority, then refused full carmack liability from the subcontractors, and, accordingly, selection, terms, payment, and right to terminate subcontractors; its equipment and materials; and the if a [rail] carrier like union pacific . . . w[ere] . . . a receiving carrier it is undisputed that this service contract governs the claims in this case. please note that i have spoken to, and added to this distribution, nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 37 id. at 2444-45 (quotation marks and citations omitted; paragraph break and emphasis unknown point. indeed, [such an] approach would seem to require rail york seems to have done a turnabout on this, from applying carmack originally to now storage, or carriage.” or rail carrier made a separate contract with the shipper for carriage, it would be subject carmack claims, found that cna had done so, and held that the case would proceed r. 102 at 3 (memorandum opinion, march 16, 2009). the district court also included a footnote in this ii. destinations in a single transaction. the court sees no reason to read that cna cannot maintain actions in bailment or negligence against the carriers, and that it is a maritime contract [but] . . . [i]f a bill’s sea components are insubstantial, then the issue a receipt or bill of lading does not affect the liability of a rail carrier.”), or atlantic whether the carmack amendment applies to land transport under international, multimodal through bills the preliminary and overriding question inthis appeal concerns the meaning and ‘package limitation’ operates as a default rule. but cogsa also gives railhead in tacoma and carry the containers by train to the washington united terminal before: batchelder, chief judge; cook and o’malley, circuit judges.* contracts, to a large extent, as they see fit.”). because carriage company, held that neither bill limited norfolk southern’s liability to kirby: the hamburg sud bill location under a through bill that covers the transport into an inland maritime commerce to structure their contracts, to a large extent, as they hdmu2262167 neither truck driver issued corning a bill of lading; in fact, no carrier ever issued a bill subcontractor despite the absence of contractual privity. correspondingly, we must 38 we are arranging a survey and 467 (1949); see also id. at n.2. that did not happen here. more specifically: “freight forwarders generally carrier.” and the court announced that it “need not address the instance where goods under the kawasaki “receiving-carrier approach,” 130 s. ct. at 2442-45, we or report any damage to either container at that point. bnsf transferred the flatcar to causes of action as encompassed within the carmack claim. even if it could be said that cna withdrew nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 47 applying carmack’s provisions to international import [or motor carriers, see 49 u.s.c. § 14706(a)(1) (virtually identical for motor carriers), and third. [the initial carrier] is also made liable for any loss, damage, or § 11706(a). cargo damage. contained only “insubstantial” sea carriage, the through bill would be some other type bill. in american home assurance co. v. panalpina, inc., no. 07-cv-10947, 2011 wl for export, the same reasoning [the court used in rejecting carmack in primarily liable. shipper, and possibly even the initial carrier, had no knowledge of who these subsequent 1 overseas import shipped under a through bill of lading because there is no “receiving reverse and vacate the judgments against defendants norfolk southern and if not, then disregard carmack and enforce the contract on its terms. see also id. at 2449 have been left with cna’s breach of contract claim and the carriers’ defenses thereto. here, the subsequent carriers are not acting as agents for the initial carrier to complete requirement that the initial carrier issue the shipper a bill of lading is not a requirement carmack did not require k line to issue bills of lading because k line federal jurisdiction. but in its complaint, cna also properly asserted diversity jurisdiction. 28 u.s.c. apply to hyundai in these circumstances. consequently, the court denied the carriers’ through carriage under a single contract, applying carmack to the road and rail rejects “a rule . . . that depends solely on geography.” id. as written, even if the kirby any terms the whole or any part of the handling, storage[,] or carriage of the goods and would not have needed to issue a bill of lading to continue the carriage to boston. hyundai ever offered a carmack coverage option to corning. there were actually four shippers, with four bills of lading, to four different locations in the counsel specifically decide the carmack argument, but instead granted the motion based on its of the service contract, that cna’s claim for breach of contract by hyundai for hyundai vessel “hyundai duke” for overseas shipment to taiwan. id. at 205. the court portrayed this as an agency construct: “the liability of the [initial] case is about a shipment of freight that was damaged at some point in transit. it has not been established k line) issues . . . under cogsa, and a second one that the first [initial] receiving carrier is, as principal, liable not only for its own of an international shipment under a through bill. after all, union only two such “packages” damaged here. thus, under a strict reading, hyundai would have been liable incorporates bnsf’s rules and also offers the option to select carmack liability at a shipment had left alabama bound for australia via the port at savannah, one would [the rail carrier] to issue a . . . bill of lading for the carriage from new orleans to loss.” when they are discharged from the ship. for that period, cogsa’s a straight forward breach-of-contract action in which we analyze the service contract, controls. direction from this point forward to ensure smooth handling of any carry corning’s cargo from certain locations in the united states to certain locations in can produce and also buys more from other vendors. consequently, corning ships as would appear insubstantial in relation to the 3,300-mile overland portion, thereby signifying a railroad hyundai merchant marine co., ltd.; decided to allow parties engaged in international maritime commerce to structure their be necessary for the contract’s performance,” thereby making norfolk southern and while we must bill of lading § 5(b)(2) placed hyundai in the “shoes” of the rail carriers. section that no humping or rough handling had occurred during the carriage of these two carmack: breach of contract, bailment, and negligence. in ruling on the summary was the court’s holding that congress had occupied the entire field regulating interstate packing. cna rebutted this contention and the jury found for cna, awarding $498,509.91 in damages. by a rail carrier, despite prohibitions or limitations in another federal of the goods — either an actual contract, such as in a bill of lading, or a constructive (2) “where the goods have been packaged into a thereupon, the burden shifts to the defendant-carrier to show both that it was not terminated at the border of the united states. the obligation as receiving for the sixth circuit one term in particular bears mention and some clarification. the choice of law provision, § (frankfurter, j., dissenting), and it distinguished missouri pacific r.r. v. porter, 273 at 2455. congress has decided to allow parties engaged in international with corning’s overall choices—waiving liability in return for lower shipping charges and choosing, continued: “it is acknowledged that [cna]’s claims for breach of contract, negligence, and offers carmack coverage to the shipper and the shipper declines.” id. at 51 n.46 (citation (c)(1) a rail carrier may not limit or be exempt from liability imposed of carmack to determine hyundai’s liability and we can affirm this portion of the follow-up (broader) proposition: either the district court or here. more importantly, the differences in the versions do not change the (1913), the court explained that congress had, with the carmack amendment, fully 18 extending the bills’ limitations of liability to the subcontractors. norfolk southern a maritime contract.”), perhaps a railroad contract if rail carriage were the predominant this case contains no duty (nor breach of any duty) that was not anticipated by and (1) “neither [hyundai] nor the vessel shall be liable for domestic portion of an overseas export under a through bill of lading, even if the initial throughout the proceedings, the carriers have had joint representation. more than once, the southern r.r. v. kirby, 2003 wl 22977857 at *9 n.11. _________________ to be sure, this was a complicated case with a lengthy procedural history and we will assume that counsel “when the goods are in the custody of [hyundai].” 15.c. incorporates hyundai’s regular form bill of lading provisions, contains certain pertinent provisions as well: the court then pivoted on the “receiving rail carrier” term, explaining that this 4(b) of the form bill of lading provides hyundai with the authority to “subcontract on (a) a rail carrier providing transportation or service subject to the royal & sun alliance insurance v. service transfer, inc., no. 12-cv-97, 2012 wl meanwhile, the carriers moved for judgment as a matter of law, arguing (1) that (b) the rail carrier issuing the receipt or bill of lading under southern invoked the limitations of liability in the bills of lading. the eleventh circuit concurred, and o’malley, j., concurred in part. o’malley, j. (pp. 51–54), application of th[is] limitation of liability. . . .” id. at *6 (quotation marks and citations omitted). this was not appealed. finally, in despite the absence of express contractual privity between the shipper and that carrier. concerns. the contact person for hmma claims is as follows: of course, merely labeling hyundai an “independent contractor” does not necessarily make it the shipment’s [overseas] point of origin[, which is not subject to the the court began by deconstructing the text of the carmack statute, saying: owners can contract for transportation across oceans and to inland brief, noted the potential applicability of the carmack amendment and advised that “[i]t is unsettled binding of sun to its downstream agent riss’s refusal of the carmack 31 bailment are encompassed and preempted by the carmack amendment, and as such, from limiting its liability by contract, voiding the overlapping hamburg sud bill of respect of such handling, storage, or carriage. actual location of the loss or damage) could dictate the determination of the governing [cna] has no state law claims against [the carriers], but rather one comprehensive see fit. it has not imposed carmack’s regime, textually and historically is a sufficient himalaya clause; and (3) can an intermediary really limit the of lading void. it can neither enlarge the liability of the connecting subsequent connecting carrier is a reversal from missouri, k & t, 244 u.s. at 387, in court’s discussion is confined to imports, but it is difficult if not impossible to exempt it from the liability thus imposed”). “noses” (closed ends) touching in the middle so that their doors are exposed at either of commerce with an overseas foreign country. the other is that a shipper may sue a icc issued a bill of lading directly to kirby; hamburg sud issued a second bill to icc, nonadjacent foreign country. . . . the defendants . . . rightly say that the suspect that any or all of the crates have damage from the shock, not just see section ii.a, infra, which presents carmack’s burden-shifting framework. note that carmack, by its own terms, applies to road and rail and would not apply to the condition, nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 18 the district court refused, holding that this was an “either/or” proposition in which cna was barred from it is perhaps noteworthy that the court’s express designation of union pacific as the carmack- hyundai. to summarize the six legs of the journey: [cogsa] default rule to the entire period in which the machinery would aggregation of supreme court case law, particularly kirby and kawasaki, as well as our law over conflicting interests (or laws). id. at 28-29. reciprocally, if the journey [hyundai].” the district court held that because the cargo was in the custody of a rail the crates to fully assess the damage. held that carmack encompassed the claims: prove where the damage actually occurred.33 we necessarily remand this case for reconsideration of the question of arrangements to return these 2 containers to harrodsburg, ky for further from overseas under a through bill, then one set of liability and venue in a carmack claim, the supreme court has set out a burden-shifting framework, bnsf, and remand this case to the district court so that it may reconsider the by the initiating carrier, the carmack amendment makes such second bill originating overseas, no matter how “insubstantial” the sea portion of the carriage might at savannah, georgia. the shipper (kirby) hired an intermediary (icc) to arrange the - circumstances, where goods are received at a point in the united states comprised two separate journeys, each covered by its own separate bill of lading, the beneath. see panalpina, 2011 wl 666388 at *4. overland portions of the carriage) and the himalaya clauses (contractually extending nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 32 omitted). because it finds that “hyundai stands in the shoes of the rail carrier here,” the that this theory comports with kirby’s grand view, in general, of maritime contracts. lading, which was specifically incorporated therein, except for provisions that conflicted with the service property is transported in the united states or to form an actual contract, though that is certainly acceptable and typically anticipated; another carrier.” id. nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 45 waybill and paid [the coordinating carrier] a single ‘all-in’ through rate reider, 339 u.s. at 116 n.1. prevails based on its establishing the — very low threshold — prima facie case. recall of lading, such as the bills in this case.” brief of amicus curiae united states, norfolk southern r.r. v. evidence but on burgess’s speculation during the initial on-site survey in tacoma and freight forwarders.16 it is a requirement that the initial carrier issue the shipper a receipt for the cargo as the amount of its expenses reasonably incurred in defending a nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 3 nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 27 lading.” because this opinion concerned an import, predated kirby and kawasaki, and origin]. of these containers (identified as hmdu2347259 and hmdu2262167) were damaged consequently, the most reasonable explanation for the court’s omission is that it the court [in missouri pacific r.r. v. porter] briefly alluded to the intermediary bound the shipper. id. at 35. not consider whether hyundai itself offered corning any carmack coverage option; it second, . . . congress has not imposed carmack’s regime onto the district court did not base this decision on carmack. 43 by limiting that of the carriers, that is precisely the arrangement corning chose. notably, this is consistent 28 contract and not a maritime contract. because numerous cases (from adams express to kirby) have held points does not turn on whether the shipment was an import or an export. the carrier and the shipper, typically embodied in a bill of lading. r.r.) stopped in laredo, it issued another bill of lading, for the trip from laredo to el id. at 32. this was a direct reversal of the eleventh circuit’s rule. a tort cause of action based on a defendant’s breach of duties that arose solely out of wut seaport and load them onto a ship for sea carriage to the seaport in kaohsiung, this single, intermodal journey would undermine the benefits thatcongresssoughtunder the court explained that because the clause paramount, as it is written in the service in so doing, the district court further concluded as a matter of contract interpretation that the 35 - proposition that “a rail carrier may avoid carmack liability for container carriage if it had been no “humping,” as had been speculated, nor was that even a plausible cause originatingoverseascouldnot satisfykawasaki’s requirement forareceivingrailcarrier. injury to such property caused by any common carrier, railroad, or x received [from the shipper, and the journey begins] at an overseas limitation of liability on the basis that carmack prohibits such limitations, see 49 u.s.c. § 11706(c)(1), carriers’ liability, we could not, as the majority does, assume that corning would not the carmack amendment barred the rail carriers from any attempted limitation of majority’s conclusion that hyundai is liable to cna to the full extent of the liability efficiency in international maritime trade. (a) “subject to subpart (b) below, for the purpose of prejudgment interest. both sides appeal and, as one might expect, this is not nearly as 10-cv-5643, 2012 wl 2861433 (s.d.n.y. july 9, 2012), the court considered an export regardless of carmack. we agree and affirm that portion of the district court’s decision. under carmack, this would in effect outlaw through shipments under a for these reasons, i believe that hyundai is contractually liable to cna to the including movement on the line and at the terminal, coupling and decoupling, and any for the loss or damage. 49 u.s.c. § 11706(b). journey which does begin with a carmack-defined receiving road carrier, but which also the corning facility in harrodsburg, kentucky, makes 4-foot by 4-foot sheets how the freight was damaged, where the freight was damaged, or exactly when it was damaged.” and this single payment to only hyundai. the service contract contained other pertinent b. therefore maritime law governs here. but we relegate this discrepancy to a footnote because “new york the service contract incorporates hyundai’s form bill of lading. shipment would undermine cogsa and international, container-based cna did not withdraw or waive its breach-of-contract, bailment, or negligence causes of action in the can extend certain contractual protections, such as the limitation on damages, to . . . monitors.1 states for export.”). the opinion does state that “for carmack’s provisions to apply the impose[d],” almost every carrier chose to do. see id. as a result, there was no uniform 2,500 miles. having said that, we do not read kirby as holding, nor do we hold here, that distances (alone carmack does not apply”). this was a novel approach in that no court had previously rail carrier” is the initial carrier to receive the cargo from the shipper “at the journey’s so. see, e.g., langfitt v. fed. marine terminals, inc., 647 f.3d 1116, 1121 (11th cir. 2011) (discussing contractor who could not bind the carriers to a direct contract with corning—pursuant hold them directly liable to cna for damage to the cargo. as just mentioned, the bnsf “intended beneficiaries.” among the subcontractors in circumstances where the parties could assess the damage at this point in its opinion, the court had answered the question before it (as the nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 49 the majority opinion—with which i cannot agree. [corning] in respect of such handling, storage, or carriage.” (emphases added). this (b) “[hyundai] shall be entitled to subcontract on any terms over any conflicting interests or 40 hyundai subcontracted with a rail carrier (norfolk southern railway co., not be liable for any loss of profit or any consequential decision. see schlaud, 717 f.3d at 459 n.6 (we may affirm on any basis supported by we analyze the breach of contract claims against each differently.40 jurisdiction of the united states surface transportation board (stb), is central to this appeal and is and asserting that “[m]uch of what the court said in kirby applies to the present case[],” “was not raised in the lower courts or in [its] brief in opposition.” id. kirby replied that it had not waived substantial part [of the contract] depended [on] carriage of the goods to application of that statute (i.e., federal common law). across an ocean [by ship] and then to inland destinations in the united (wut) seaport. because tmbr operates over two hundred miles of rail in and around say that kawasaki requires the result that carmack does apply when carriage does begin are liable to the person entitled to recover under the receipt or bill carrier nor contract that of the initiating carrier. 504. and the court would ultimately determine the liability pursuant to carmack’s language, follows: 34 (emphasis in original). that is, hyundai was not cna’s agent for purposes of would be necessary for the contract’s performance. it is clear to us that i have shared the photos of the damaged crates with our plant in 0.635 mm thick, or 0.025 inches thick, which is thinner than typical posterboard (which is 1/32 inch, or by declaring the full value, despite having the option of receiving a greater scope of meanwhile,becauseithadappliedcarmackandpreemptedtheindividualcauses * extent to which such subcontractor would have been nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 54 export] shipping transport would alsounderminethepurposeofcogsa, contract, bailment[,] and negligence; rather, the carmack amendment completely carmack cause of action.36 extended it to cover union pacific), the ninth circuit reversed, holding that “the judgment after an examination of the record without regard to errors or defects which hyundai is a party to the service contract and is in privity with cna.43 court nonetheless offered this bit of reasoning, which is as applicable here to exports as significant way. the carriers received the defense they wanted. line issued a through bill of lading to regal-beloit; union pacific did not issue any bill commerce — and thus it is a maritime contract. the bill of lading — such liability shall be to the extent to which such subcontractor would have been liable freight costs. thus, it seems likely corning would have taken the same approach in a to the contrary, each contracted with hyundai independently, under its own standard [itself]. the through bills provided the liability and venue rules for the decisions, the carriers relied on an intervening supreme court decision to raise these in expeditors implements kirby’s and kawasaki kisen’s objectives of carmack applicability and instead govern by its own terms. id. there can be little doubt applicability to the court’s attention;21 civil action brought by that person. the terms of bills of lading issued by domestic rail carriers. 49 u.s.c. appears likely that the containers were damaged after being removed from the flatcar, 36 cna with only the common law causes of action, that cna would have nonetheless still withdrawn or - term not only categorizes a particular carrier under carmack (for purposes of identifying definition of “substantial” open to future consideration. in its most recent case, kawasaki kisen kaisha ltd. v. regal-beloit corp., making the service contract a contract and, therefore, inasmuch as the service contract controlled the case, the only between the crates and the end wall. cna easily rebutted this contention. the real nonetheless conclude that the district court’sdecision was in error, we will also consider, the court opined (perhaps in dicta) that the carmack amendment would not apply to the 13.a “choice of law — this agreement shall be, insofar as relevant, carriage does begin with a carmack-defined receiving carrier? it is tempting simply to howard p.c., jenkintown, pennsylvania, for appellants/cross-appellees. edward in their motion for summary judgment, filed july 1, 2008, the carriers stated near the end of their case[] provide[s] an apt illustration. the sophisticated cargo owner[] to be sure, kirby, 543 u.s. at 33-34, holds that an intermediary (such as independent contractor, whereas the hyundai regular form bill promotingefficientmaritimecontractingmoreeffectivelythantheearlier and is providing transportation or service subject to the subcontractors. harrodsburg, ky. the amount of force the product was subjected to in in the united states: is both subject to stb jurisdiction and receiving cargo from the shipper at the journey’s carmack makes the final, or “delivering,” carrier liable to the shipper as well. so, the argued: paul d. keenan, keenan cohen & howard p.c., jenkintown, despite the expected fragility of such thin glass and the high volume of shipments, 5. hyundai sea carriage (ship) – wut to kaohsiung, taiwan, seaport; citation omitted). 134, 142 n.6 (3d cir. 2009) (relying on 49 u.s.c. § 10502(e) and § 11706). here, both rail carriers offered allows hyundai to subcontract at its complete discretion. in section 4(c), “[corning] 33 journey described in the through bill as a single journey and decide whether that journey from suing the rail carriers; and (3) that the carriers were entitled to enforcement of the contract control. (the only relevant conflict here is that this in its analysis, however, we consider first the clause paramount, form bill of lading § 2(b), which price, which hyundai did not select6 what are essentially maritime contracts. cna had withdrawn or waived the three common-law causes of action but instead reiterated their belief purposes here, this test draws no distinction between imports and exports, and actually and those carriers: jurisdiction of the [surface transportation] board under this part in the bills of lading — the clause paramount (contractually extending cogsa to the general agreement with the post-kawasaki federal and state court decisions, we hold that viewing, and will be able to provide further evidence of the cause. since causes of action because carmack preempted them. r. 88 at 12. in ruling on the motion, the district court determinewhether thecarriagebeginswithacarmack-defined“receivingcarrier”31 the opening paragraph (jurisdiction section) of its complaint. a single through bill of lading. this is consistent with the court’s prior dicta and contract based on carmack’s governing regulation — and that contract is between the liability provision (form bill of lading § 21(b)(2), as incorporated into the service contract) specifically contract, or rule in violation of this section is void. leatherwood, 250 u.s. 478, 481 (1919). recall that a carmack-defined “receiving carrier” is a road or rail carrier that is both subject transit of goods, [in which] a domestic rail carrier not in privity with the owner of the nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 38 bills of lading, thereby invalidating any coincident state laws.17 amendment does not specifically provide for the recovery of pre-judgment interest . . even though carmack fully preempts them as your own agents, and not as agents of the shipper.’. . . the did not bind kirby, and the icc bill did not reach norfolk southern. but the supreme 25 court had already considered and rejected these arguments in its summary judgment liability of hyundai [] under the carmack amendment in this case. the mexican border; i.e., through laredo, but not actually out of the country (so not it here. cna did move for pre-judgment interest under new york law (9%) or, inside. when they opened two (2) of the apparently undamaged crates for inspection, kentucky), conducted a survey on march 31 and april 6, 2006, and prepared a written [1] showing that the third party exhibited acceptance to be so bound and [2] through an provisions in bills of lading affecting liability of railroads for loss of by an ocean carrier can apply to the domestic part of the import’s journey upon consultation with hmma/claims,[8] carrier-liability case concerning the defendant rail carrier’s attempt to limit its liability southern’s rules, including an option to select carmack-based liability5 of lading. the k-line bill of lading contained five pertinent provisions: (1) a himalaya the contract for ocean transportation terminated at new orleans. mare lease litigation, 727 f.3d 473, 494-97 (6th cir. 2013), which amplifies our parties to a service contract in which corning agreed to ship and hyundai agreed to subcontractors (here, norfolk southern and bnsf), but not “in the classic sense.” of very thin fusion-drawn flat-glass for use in lcd flat-screen televisions and computer intermodal overseas export shipped under a single through bill of lading. i also agree on march 7, 2006, marc cash, the “assistant manager for outbound trouble next, the court held that himalaya clauses that are written broadly (i.e., carrier originated when respondent [railroad] issued its original through service contract, re:78-6, page id #496 at ¶ 2(a) (emphasis added). then, section a single bill of lading, the nuisance or dilemma that a disputed question of fact (i.e., the bill(s) of lading issued by any subsequent carriers are void. missouri, k & t r.r. v. case would require two bills of lading: one that the overseas carrier (here, at the destination. relevant to the analysis herein. we conclude as a matter of law that cna cannot maintain a breach of contract despite the included reference to “essentially maritime contracts” and the court disagreed and — interpreting the bills (contracts) under federal maritime law — v. state law concerning rail carrier liability,20 destination of the property is in the united states or elsewhere, for the period the carrier kirby’s “conceptual approach” to maritime-contract-applicability analysis, see kirby, $498,509.91 (which is exactly 75% of the $664,679.88 claim, to the penny). notably, 6. unknown motor carriage (truck) – kaohsiung to tainan. shipments across inland segments to overseas destinations. portion of the journey. but under the analysis from the forgoing passage from under a scheme in which venue, choice of law, liability, etc., depend on the particular that liability by contract. in atlantic coast line r.r. v. riverside mills, 219 u.s. 186 contract would be well advised to open the sealed containers at transfer to protect their it is notable that the carmack amendment does not ‘govern’ claims of breach of 14 likely not. in reider, 339 u.s. at 118, the single through bill? although the supreme court left this question unanswered, it contained “broadly written” clauses paramount and himalaya clauses (as specifically elements: carriage to complete the journey established the rail carrier’s inclusion: , we think that the southern district of new york’s more recent decision the shipper, and accordingly upheld the shipper’s lawsuit against them. but that was a carmack case — unless they conflict, in which case the terms of the service allowable limit per package . . . , which [under] cogsa accidentally destroyed the cargo during transit, and nobody wants to pay for it. after bearing on hyundai’s liability to corning for the loss of the cargo.” the court did not overseas through contract, i.e., “an unbroken transaction of commerce with a 5. responsibility for loss or damage — an independent contractor and an agent, depending upon the activity in question. the whole or any part of the handling, storage[,] or concordia viking, 494 f.2d 287, 291 (2d cir. 1974) (“while the carrier and the shipper rendered in this case on the carmack amendment claim only [and] [t]he carmack in reider v. thompson, 339 u.s. 113 (1950), the court considered an overseas there are no “freight forwarders” in this case, although both parties have, at times, improperly purposes, even though it is generally consistent with kirby and kawasaki. 2009 was prior to kawasaki, and its post-kawasaki decision in september 2012 was hyundai’s liability for damage to the cargo by a subcontractor. considering these terms district of new york, naming three defendants: hyundai, norfolk southern, and bnsf to shipments for which there is a receiving carrier required to issue a carmack bill of declared in writing by [corning] before receipt of the rule: when the journey does begin with a carmack-defined receiving carrier, carmack corning’s (or cna’s) money during that time. having said that, the award of unless a domestic segment of the shipment is covered by a separate domestic bill of “damage caused during the handling, storage, or carriage of the goods by [hyundai]’s which they had arrived. meanwhile, corning filed an insurance claim with its insurer, 3. bnsf rail carriage (train) – chicago to tacoma; mexican [national] railroad. the hyundai regular form bill of lading3 therefore this second step is easily satisfied here. with a contested question of fact concerning the location of the damage (land or sea) as shipper argument expressly. see kawasaki, 130 s. ct. at 2445 (“a carrier does not including the rail carriers’ transportation agreements on which their relationships are based, there is no such depth solely because the carriers’ counsel misrepresented it to us in his brief and at oral argument. cna contends that the district court erred by denying its motion for prejudgment nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 43 errors and defects that do not affect any party’s substantial rights”); 28 u.s.c. § 2111 this motor carrier issued any bill of lading, either in its own right or on behalf of as the binding norfolk southern or bnsf.42 have to issue its own carmack bill of lading. this was a necessary either container at that point. these containers were intended to be loaded onto the it also bears mention that, pre-carmack, there were hundreds of rail carriers clause.” id. at 2440. on certiorari, the court said “[t]he forum selection provision . . . nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 23 42 missouri, k & t, and again found the second bill void. the first bill (from the initial by adopting a form of common-carrier liability, and restricted the carrier’s right to limit so pursuant to this provision, hyundai is liable “to the extent to which [a road defendants-appellants/cross-appellees. to australia via a california port, under a single through bill (containing a himalaya consider, for example, an import from havana, cuba, destined for tacoma, washington, via for the foregoing reasons, i respectfully dissent from the majority’s finding that court’s denial of these tort causes of action — effectively dismissing them — was . . . damage in an amount exceeding the minimum point of origin is critical to deciding whether the shipment includes a receiving rail whether carmack even applies to a shipment. the court held that carmack applies only sti the ‘receiving’ carrier for the purposes of carmack coverage. that cna could not maintain causes of action in tort because their duties arose solely by higher price, which hyundai did not select) to take possession of the flatcar in chicago amendment does not apply to an unbroken transaction of commerce with a nonadjacent dissenting) (asserting that “[t]he conclusion of the porter case” was “that the carmack appropriately. 223 f.3d 126, 129 (2d cir. 2000); see also norfolk s. r.r. v. kirby, 543 u.s. 14, 18 (2004) (“a freight property, as evidenced by a receipt, judgment, or transcript, and what are essentially maritime contracts. where a bill of lading requires the case would proceed under carmack. there is simply no basis to conclude, as the carriers would have highly relevant. of particular note, corning did not request full liability under cogsa 15 the case proceeded to a jury trial under a single carmack cause of action.14 hyundai subcontracted with another rail carrier (burlington northern santa fe worded in those contracts) that excluded carmack, extended cogsa throughout the thorough and cautious in the future. from kentucky to austria via a virginia port, under a single through bill, and rejected in kirby, the rail carrier’s status as an intended beneficiary (along with the “broadly carmack’s requirements; a “delivering rail carrier” is the last carrier to deliver the cargo; action against the rail carrier defendants, norfolk southern and bnsf, in this case. the transportation industry clearly has moved into a new era — the age of $500-per-package cogsa limitation of liability, arguing for a limit of $12,000 for the four deep) fit into a standard 20-foot steel intermodal shipping container leaving only overseas exports that begin with a rail carrier (i.e., a carmack receiving rail carrier), the [under] the carmack amendment, the court is satisfied that cna’s complaint clearly performingthe line-haul transportationnearestthedestinationbut evidence supports the jury’s award of damages against all three hyundai liable to cna to the extent of liability imposed by the carmack amendment. jurisdiction of the united states stb,] for overseas multimodal import the rail carriers, norfolk southern and bnsf, are hyundai’s “subcontractors”; _________________ cause of action is limited to breach of the service contract. therefore, the district originated in a foreign country, since the foreign portion of the journey insurance through cna to cover this difference in liability coverage, opting to pay lower concession.[25] foot-standard shipping containers, every weekday, from the corning facility in an ocean carrier (kawasaki kisen, a.k.a. k-line) to perform the through carriage, and provisions of this bill of lading, including article 21; . . . a through bill of lading. transportation agreement. moreover, the service contract, § 4.a, expressly disclaims to this case as a general principle; this case is properly decided on the service contract within the provisions of the statute. nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 2 [c]ourt. the service contract states that “[p]arties agree to allow [hyundai] to contract from the time when the goods are loaded on [to the ship] to the time on-site survey in tacoma. apparently a wholly-owned subsidiary of hyundai) take possession of the flatcar at the carrier, pennsylvania r.r.) covered carriage from pennsylvania to laredo, texas, for made by their principal, the initial carrier. the question is whether congress has entered upon the regulation of we held that carmack “does not extend to a shipment under a through bill of lading cna insurance company, a/s/o corning, the shipper selects it and pays extra for it, which corning did not do; and (3) that expect the court to have employed the same test and reached the same result. for our purposes, the most critical aspect of the opinion is the court’s complete the port of miami. under the “conceptual approach” in kirby, 543 u.s. at 27, the 230-mile sea portion contractual obligations cannot be imposed on an intended beneficiary.” id. (internal the rail carrier over whose line or route the loss or injury thesignificantanddominatingfeaturesofth[e][carmack][a]mendment contained “substantial” sea carriage, thereby making the through bill a “maritime transportation . . . or handling before loading or after discharge acts only as [corning’s] and preempted these separate causes of action and the case would proceed as a single point of origin” and the only carrier that must issue a bill of lading pursuant to [its]throughtransportationneeds,rather than contracting for rail services - carmack. the cargo owners conceded at oral argument that, even under id. at 120 (frankfurter, j., dissenting) (“the carmack amendment does not apply to an at a higher are received at a point in the united states for export.” id. at 2444. the court, however, (overseas) part would not. the court explained: beloit] thus made the decision to select k line as a single company for the majority finds that, if the rail carriers had separately and directly contracted with carriage of the goods and any duties undertaken by carmack’s reach and thus does not require [k line] to issue carmack nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 30 considered to be the number of packages . . . for the . . . of transportation accept[s] the cargoat the shipment’s point of origin” and that “carmack 130 s. ct. 2433 (june 21, 2010). the district court denied the motions, explaining: damage occurring to inland cargo while that cargo is in hyundai’s custody, it does not missouri, k & t, 244 u.s. at 387. this is an expansion of carmack beyond its terms: it is suggested in the record that hyundai did not subcontract this part of the trip, and that either finally, ohlson declared the shipment a total loss and recommended that the 41 it is to imports. reversed, holding that both bills limited norfolk southern’s liability to kirby. id. at 36. please advise arrangements and eta so we can plan for the inspection. in this case, the containers never made it on to the ship, so the court was not presented should look to what the subcontractor offered to corning through its agent. it appears, the service contract provided for full remuneration for the loss of the cargo; and (2) that which law applied. as a practical matter, this requirement often could on any terms. and hyundai, acting as corning’s agent as outlined in section 5(a), carmack coverage to hyundai (at a higher price) and hyundai declined — but neither rail carrier nor rejecting it outright. “delivering” rail carriers). id.; see also id. at 2449 (concluding that “[b]ecause the . . . nonadjacent foreign country.” unfortunately, the court’s ensuing cases concerning the the option of extending its rule by contract. as cogsa permits, [icc subcontracting clause prohibited cna any doubt would come from kawasaki, particularly if we invert kawasaki’s subcontractor, except carriers where otherwise id. at 504 (quotation marks omitted); see also norfolk & w. r.r. v. dixie tobacco co., hdmu2347259 . . . kirby. it is whether the terms of a through bill of lading issued abroad moreover, that the purpose of this provisionwas to assist hyundai in segmenting liability as a final comment on the carriers’ contention that cna withdrew or waived its breach-of- [u]nless the connecting carrier has received a consideration for the bill id. at 2442. moreover, the court did not pick up or begin where kirby left off, with the interpretation that the service contract’s limitations of liability did not apply to the present circumstances, otherwise by the laws of the state of new york and of the united hyundai liable to the extent the subcontractor would have been liable to corning under distinct domestic contract of carriage to ‘supplement’ [i.e., overlap]. . . the liability imposed under this subsection is for the actual loss added).26 provisions: in section ii.b, supra, we acknowledged that the supreme court in missouri, k & t, 244 u.s. the “methods for actually binding an intended beneficiary to a bill of lading are limitation-of-liability defenses on two theories: (1) that the indemnification clause in of an overseas export have come down on both sides of the question; some initially there was no report of any damage to any other container on any other car from this purpose is to effectuate maritime commerce — and thus it is a maritime contract.” kirby, 543 u.s. at 27 pursuant to sixth circuit i.o.p. 32.1(b) that federal law (specifically carmack) preempts state law, while kirby would preclude federal maritime 2012), the georgia court of appeals considered an export of ink from kentucky to cogsa is the carriage of goods by sea act, 46 u.s.c. § 30701. the key feature of cogsa, all but four (4) of the 24 crates exhibited visible damage to the crate itself or the glass hyundai to establish agency for purposes of entering into agreements with other carriers coverage of the carmack amendment. but the sole issue in [that] case is, had the shipper and ocean carrier entered a single through contract, from buenos jurisdiction]. k line[, an ocean carrier,] obtained the cargo [from regal- included reasoning that has since been rejected, it is of limited value for our present by the general statute concerning bills of lading and the federal courts’ interpretation and to [corning] if it had made a direct and separate contract with [corning] in respect of opinions on carmack’s applicability to the rail leg of an overseas export under a through satisfied with the joint representation. consequently, we proceed from the premise that the carriers have party to the contract. harrodsburg,kentucky,tocorningdisplaytechnologiesintainan,taiwan—hyundai contract in the absence of an express waiver by corning, and that hyundai also may not preempts such causes of action.” that the [initial] receiving carrier is liable for damage caused by the other [subsequent] we are also unpersuaded by the court’s additional rationale that “this is not a undereither federal maritime law or new york law,38 6028991 (s.d.n.y. dec. 4, 2012), the court considered the export of human plasma, during the part of the custody or carriage to which the bill of lading. it follows that carmack does not apply if the property is liability to $10,000. shipping by requiring these journeys to have multiple bills of lading. nonetheless provided guidance for future decisions, from which the prevailing trend is reverse the district court’s decision and vacate the ensuing judgments against these two a. theunitedstatessolicitorgeneral,acceptingthecourt’sinvitationtosubmitanamicuscuriae passage: prejudgment interest is a matter of discretion, see werner enters. v. westwind maritime liability in return for payment of a higher fee. instead, corning purchased additional opined that corning’s method of stowing and packing had been suitable for the argument that cna “ha[d] not asserted a cause of action under the carmack amendment.” r. 78 at p. 25. and the undisputed facts regarding the transport — evidence that a of god or by an unavoidable accident, [or] by the public enemy.” st. louis, i. m. & s. email: could affect the analysis that follows, we find that it does not affect the outcome of this decision so we will 30 good afternoon, please note that the below 2 units arrived via the rail [w]ith respect to . . . damage caused during the handling, storage, or 4. tmbr rail carriage (train) – tacoma to wut seaport; c.radzik,marshalldenneheywarnercoleman&goggin,newyork, adopts attains the most consistency between carmack and cogsa.” id. at 2447. the id. at 387-88. thus, in missouri, k & t, the court upheld the shipper’s suit against two subsequent rail carriers under the terms of the initial shipper’s bill of lading (contract) decided and filed: march 26, 2014 texas-mexican [r.r.] was not liable for damage that occurred on the oklahoma via the port at long beach, california.23 condition, it arrived in damaged condition, and actual damages were quantified), so the subcontractors are not directly liable to cna. united states court of appeals carriers. the surveyor found no issue with your loading and stowage of the possession of one or both rail [carriers].” [kawasaki] case is inapplicable herein. the court further finds that the the of action, the district court did not address the carriers’ motions for summary judgment it would significantly alter the analysis and outcome (e.g., prohibiting norfolk southern point in one state to a point in another. of lading in addition to that which flowed under the bill of lading issued opinion _______________________ nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 19 carriage, and even extended the contracts’ provisions to the subcontractor’s more importantly, kirby, 543 u.s. at 31, held that “contracts for carriage of the receipt or bill of lading was issued is entitled to recover from (i.e., ocean carriage containing a rail leg) can contract for cogsa coverage throughout, nos. 12-6118/6201 by the applicable valid terms of the original bill of lading. nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 17 read this provision that way. moreover, because, in § 4(c), “[cna] warrant[ed] that no claim shall be judgment motions, the district court held that because carmack applied, it encompassed for loss caused by any common carrier in transitu; and provides that no contract shall attempts to limit their liability. instead, the ‘receiving’ carrier is the ‘principal’ party to the contract was not a . . . rail carrier [hence, not subject to the united states stb’s nonetheless. kirby involved two overlapping bills of lading (i.e., contracts), both of fund ins. co., 348 u.s. 310, 313 (1955) (“since the [contract] here sued on is a maritime contract the 26 rationale for denying prejudgment interest is insupportable. the service contract since kawasaki, the southern district of new york has issued conflicting us do, that if the district court had deemed carmack inapplicable at the summary judgment stage and left the carrier actually responsible for loss or damage to the cargo during transit. “carmack divides the realm of rail carriers into three parts: (1) receiving rail carriers; court also restated and clarified: technically an export). when the subsequent (“connecting”) carrier (texas mexican error was ultimately harmless. that is, whether it would be prudent to affirm some rules would apply when cargo is damaged at sea (cogsa) and another applied to the present decision. we also direct the court’s attention to in re classicstar and, made, [corning] shall indemnify [hyundai]. . . .” the humping incident has likely damaged the glass. there is reason to the entire course of the shipment. [the shipper] signed the single corning ships its glass, in these containers, to corning display technologies in carmack did not apply by its own terms. instead, the district court should have each sheet is actually 1300 mm x 1340 mm, or approximately 4'3" x 4'5". and each sheet is the instant cases present a question neither raised nor addressed in nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 12 law . . . also requires application of federal maritime law to maritime cases.” sundance cruises corp. v. by its terms, cogsa governs bills of lading for the carriage of goods a receiving rail carrier, which would have to issue a carmack-compliant subcontractor’s liability to the shipper without the shipper’s knowledge or consent. the containers, by corning in harrodsburg, appeared to have been satisfactory. the not evidence any new and independent undertaking, when judged by the legally moved only under the original bill of lading[;] the pennsylvania that carmack does not apply to this situation. carriers to open containers at the port to check if damage has been done and a “connecting carrier” is any and every carrier in between. id. at 2443. the court carmack did not apply to hyundai because it is not a rail carrier; (2) that the surface the courts that have considered whether carmack applies to the inland segment bailment, and negligence causes of action in the district court, and chose instead to proceed solely on its limit its pass-through liability. id. the majority reaches this conclusion based on the see footnotes 12, 13, and 14, supra, for the background and particulars of this decision. see extends cogsa inland (beyond the tackles) “when the goods are in the custody of 9.a. “indemnification — [hyundai] shall indemnify and hold nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 16 location in the united states. in such a case, there is no . . . rail carrier see missouri pacific r.r. v. porter, 273 u.s. at 345; adams express, 226 u.s. at 505. . . . 16 connecting [carrier] may still be sued [by the shipper] for damages based on this provision, the majority finds 244 u.s. at 388, and mexican light & power, 331 u.s. at 734). while this proposition cna proved its carmack prima facie case (i.e., the cargo was tendered in good hyundai, an ocean carrier, would unload the containers from the railcars at the while it may seem odd that corning would give hyundai the authority to limit its own liability shooting” for hyundai, sent an email to corning, to inform corning of the situation: exclusively with hyundai as the sole carrier for a through shipment; corning had no role the jury found for cna, holding the carriers jointly and severally liable for recommended for full-text publication reduced to the final results, the congress has said that a receiving hyundai contracted craig burgess of cullen maritime services, inc. (seattle, agreed that the number of such containers . . . shall be containers. cash replied to wagner that same day: carrier originated. thus it is not significant that the shipment in this case rickmers, 622 f. supp. 2d at 72 (emphasis in original) (citing stein hall & co. v. s.s. custody of a subcontractor: [t]he court finds that [kawasaki] kisen . . . does not preclude the negligence, but for that of any agency it may use, although, as between the carmack, 49 u.s.c. § 11706, liability scheme, particular to road and rail carriers under the and (4) carmack came up again at oral argument, jurisdiction of the [surface transportation] board under this part they are not parties to the service contract and, therefore, not in privity with cna. but, common law causes of action.” from its decision, it had nonetheless “also answered the broader question” and rejected bailment, and negligence, as encompassed by the carmack amendment. . . . generally, from a place in the united states to a place in an do not affect the substantial rights of the parties.”); see also rosencrantz v. lafler, 568 to the jurisdiction of the united states surface transportation board and receiving the cargo from the distinguish an export situation when viewed in light of these policy arguments. consider coordinated or performed each of the six (6) legs of this journey, as an intermodal corning or corning display technologies contracted with this motor carrier directly. either way, it is not 24 int’l, 554 f.3d 1319, 1328 (11th cir. 2009), and additional factors may affect the remain sealed. norfolk southern did not issue any bill of lading, either in its own right confirmed by its verdict, that the damage occurred while the cargo was in the custody corning display technologies in tainan, taiwan.7 applying carmack infebruary 2011, panalpina, 2011 wl666388, to rejecting it in december 2012,royal regulation shall exempt such [initial] common carrier, railroad, or chicago. it is noteworthy that standard flatcar loading for such containers provides for the board’s jurisdiction in the chain of transportation, no matter whether the ultimate results were that in the opinion of the surveyor the bulging of the nose of admiralty clause of the constitution brings it within federal jurisdiction.”). cna moved for summary judgment on july 1, 2008, the same day the carriers had filed their judgment and raised to the circuit court on interlocutory appeal. brief of respondent kirby, norfolk authorized to limit its terms. record does not contain a written report by burgess or cullen maritime. based on “the carmack amendment claim only,” and this aspect of the district court’s boston.” applying that reasoning the other way, under a through bill the shipment perhaps add language that is not actually there. this presents a beguiling conclusion to outcomes. see missouri pacific r.r. v. porter, 273 u.s. at 345; reider, 339 u.s. at 117; chemical sued norfolk southern under carmack. the georgia court relied on kirby to contractor and an agent”). thus, the fact that hyundai acted as an independent assessed carmack’s applicability quite this way.24 be or how overwhelming the rail portion of the carriage might be,27 while the receiving carrier is . . . responsible for the whole carriage, each at hand. this was an “ocean” bill. the sea carriage portion of this journey, from tacoma to kaohsiung, is approximately 6,225 out), norfolk southern and bnsf disproved this assumption by producing logs to show “hyundai did not offer [corning] any carmack coverage option.” id. what the majority nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 4 liability of a rail carrier. a. lading, and applying its burden-shifting framework to resolve kirby’s merits analysis). of the way, to have adopted such other carrier as its agent, and to incur 2447-49. them to a contract with the shipper. . .” as explained in the foregoing sections, the district court erred by applying carmack nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 14 that it would have been an appropriate venue originally and would be more convenient carmack amendment . . . does not apply to such a shipment. operating their own rail lines as part of a massive, interconnected, nationwide system. “conceptually, so long as a bill of lading requires substantial carriage of goods by sea, its also section ii.a, supra, for carmack’s burden-shifting framework. at trial, cna proved its carmack this bill of lading as if such provisions were expressly laws. here, the service contract governs the carriage from harrodsburg to tainan, a export shipped under a single through bill of lading.34 this is noteworthy because the surface transportation board has permitted rail carriers to avoid 1906 and currently codified at 49 u.s.c. § 11706, states in pertinent part: both revealed damaged glass. ohlson attributed the damage to the likelihood of nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 41 [hyundai]’s subcontractor, such liability shall be to the so a shipment from harrodsburg, kentucky, to tacoma, washington, might pass law and kawasaki would preclude carmack, it appears that some type of federal common law would that its obligation began in new orleans.18 nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 15 the court awarded post-judgment interest, but denied pre-judgment interest. washington), to perform an on-site survey of the damage. burgess confirmed that both defendants, norfolk southern and bnsf. once a first domestic rail carrier subject to the [surface transportation] board’s shipper, corning/cna. but because hyundai did not offer any carmack coverage option, hyundai cannot as an aside, we find it irritating and somewhat troubling that we had to explore this non-issue in limited to the carriage of goods received for domestic rail transport, onto as of 2006, corning and hyundai merchant marine had for several years been lading to corning, in its own right or on behalf of hyundai. law for carrier liability, but instead, every case was dependent on the contract between nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 22 given that hyundai personnel had loaded the crates into new containers in tacoma for return viable claim was for breach of that contract. domestic rail carrier (here, union pacific) issues . . . under carmack. 1 portion of the judgment in the context of a proper analysis. carriers. 2. norfolk southern rail carriage (train) – louisville to chicago; an agency relationship that would allow hyundai to act as an agent on behalf of cna, portions32 here [i.e., regal-beloit] agreed to maritime bills of lading that applied to ohlson noted that robert craig, a marine surveyor representing hyundai, was also whose line or lines such property may pass. for only $1,000 on this shipment. emphasized that the term “receiving rail carrier” is a statutory term of art, as defined so kirby appears to contain two of our recurring, underlying, but often unstated negligent and that the damage was instead due to one of five excepted causes: (1) an act oversea portion. the holding is almost as clear as the holding, albeit not as easily stated as a bright-line (3) another rail carrier over whose line or route the id. this case was not appealed. based on these cases, the southern district of new [i.e., initial] carrier, in spite of any stipulation to the contrary, shall be harrodsburg, in the eastern district of kentucky. cna opposed the transfer and moved, container and eliminates the need for additional packing or securing. if carmack applied to an inland segment of a shipment [to or] further, the court declared that “the interpretation of carmack the court now made against any of [hyundai]’s subcontractors,” we must conclude that § 5(b)(2) governs hyundai’s and need not seek out the carrier actually at fault, nor must the plaintiff-shipper basis to hold that hyundai was acting as an agent for the rail carriers in this case. multimodalism, door-to-door transport based on efficient use of all 1 kirby, 2003 wl 22762727 at *11. #769; ns rules, re: 78-14 at item 8.6.2, page id #591. i note, moreover, that, even if tmbr in tacoma on march 4, 2006. tmbr did not record or report any damage to first. it affirmatively requires the initial carrier to issue a receipt or bill to its express authorization to do so in both the service contract and the form bill of carloads for shipment.” chicago, milwaukee, st. paul & pac. r.r. v. acme fast freight, 336 u.s. 465, a delivering rail carrier is deemed to be the rail carrier (hereinafter “the carriers”). cna claimed breach of the service contract, liability for because the shipper’s contract (actual or constructive), as embodied in or b. overland) contract individually. in this light, the court was not considering “an the amendment placed full liability on the initial “receiving” carrier and prohibited any id. at 2439. the court chose not to explain why this question was left unaddressed in of contract, see id. at 27 (“if a bill’s sea components are insubstantial, then the bill is not purpose of cogsa, to facilitate efficient contracting in contracts for purposes of limiting the scope of the carriers’ liability. hyundai can and did properly 0.03125 inches, thick). handling, storage[,] or carriage of the goods, every such substance of the agreement as pertinent here. container . . . by or on behalf of [corning], it is expressly through bill, and granted summary judgment to a connecting carrier based on in this regard, i specifically disagree with the majority’s conclusion that form or injury to the property caused by - - note, for example, how the southern district of new york did a complete reversal, from cargo.”). liability for the subcontractors’ conduct. pled carmack claims, so the absence of contractual privity prevented cna from suing the service contract specifies either federal or new york law in its choice of law provision. 543 u.s. at 27. under kirby’s “conceptual approach,” one would consider the entire the court did not instruct the jury that it could issue a partial award, so this appears to 27 behalf of hyundai. contract, federal jurisdiction exists pursuant to federal maritime law. see wilburn boat co. v. fireman’s the liable carrier and the carrier responsible for the bill of lading), but also determines in its complaint, cna asserted three causes of action, purportedly arising under this was a reasonable contention, given that cna’s complaint contained three express causes of action carrier” analysis, holding that “carmack applies when the first rail carrier in the chain to reasonable dispute. for comparison purposes, the overland portions of this journey total approximately carmack amendment should not apply to inland portions of multimodal shipments, 82 tul. l. rev. 731, reverse in part, and remand for reconsideration consistent with this opinion. 743 (2007) (finding it peculiar that the kirby court ignored the carmack aspect of the case “even though journey included no receiving rail carrier that had to issue bills of lading under carmack, the dissent contested the majority’s point-of-origin requirement for “receiving” carriers and id. at 117 (citations omitted). because there were two independent contracts, the court states [by rail, via subcontractor union pacific]. k line shipped this u.s. at 345 (which had stated that carmack would not apply to the “inland route to a [the intermediary] contracts with subsequent carriers for limitation on liability.” id. at most of the findings in the thorough and thoughtful majority opinion. specifically, i nothing in the record suggests that of lading therefor, when it receives property for transportation from a 23 corning dealt were not removed from the flatcar; the entire flatcar was transferred into bnsf’s louisville, kentucky, for appellee/cross-appellant. id. at 345; see also reider v. thompson, 339 u.s. 113, 120 (1950) (frankfurter, j., for the western district of kentucky at louisville. so it is likely dicta. neither negotiated nor signed the service contract. due to their differing circumstances, there was no through bill of lading from buenos aires to boston. . . . it is questionable whether kirby could have waived carmack if it were, in fact, the controlling by contract with the shipper, which, due to the “extraordinary liability which the law not discuss it further. 4 cogsa’s terms to cover the overland portions of the carriage, and a himalaya clause, creates contractual obligations on the part of the intended beneficiary.” in re m/v in regard [to a claim] against a subcontractor regarding carriage; icc hired an ocean carrier (hamburg sud) to performthe through carriage; and 44 the court next [the receiving carrier] and thus, is bound by its terms. the bill of lading certainly, a rail carrier may avoid carmack liability for container carriage if it offers carmack judgment . . .” which at least one court appears to have leapt, while overlooking the logical chasm further, form bill of lading § 5(a) states that “[hyundai], in making arrangements for whose duty it is to forward the goods under the terms of the contract this was not appealed. in hartford fire insurance co. v. expeditors international, no. make arrangements for the movement of cargo at the request of clients and are vitally different from aires to boston, with the rail carrier at new orleans a mere subcontractor to the ocean on february 21, 2006, corning shipped several standard 20-foot containers, as herein contained shall be construed to be inconsistent with that relationship or status.” based on the foregoing, we conclude as a matter of law and pursuant to the terms determination. 595 (6th cir. 2007) (citing restatement (second) of agency § 2(3) (“an independent subcontractor’s subcontractor.” and section 5(b)(2) specifically provides for 228 u.s. 593, 594-95 (1913) (explaining that carmack “requires any common carrier would certainly continue through new orleans under the ocean bill, so the rail carrier through a half-dozen or more carriers, each of whom would operate under the contract 45 on the initial carrier under carmack’s plain terms, 49 u.s.c. § 11706(a) (“failure to ten years later, in missouri pacific r.r. v. porter, 273 u.s. 341 (1927), the having terminated, nothing of it remained for the new, separate, and id. at 2445. so, although expressly declining to decide whether carmack applies to while the district court erred by applying carmack to this case as a general would cut the through bill into separate components (land and sea), concludes that these rail carriers would have been unable to limit their liability by & sun, 2012 wl 6028991. cna’s sole colorable cause of action is for breach of the service contract. had (2) delivering rail carriers; and (3) connecting rail carriers.” id. at 2442. a “receiving this theory was one of justice sotomayor’s contentions in her dissent in kawasaki, 130 s. ct. personnel from our national claims dept. for further coordination and bargained-for terms of the through bill of lading before us, including its subcontractor shall have the benefit of all provisions in at 387, treated the initial carrier as an agent for the subsequent carriers to bind them to the contract with as it pertains here, is that it allows the ocean carrier to limit its liability and even sets out a default bill of lading. the initial carrier in that instance receives the property at extent, and only to the extent, acting on behalf of corning, it held the carriers liable: to clause, extending limitations of liability to k-line’s subcontractors (e.g., union have waived carmack liability if it had contracted directly with the rail carriers. i louisville. while this appears to have been a mistake, the parties proceeded in the for the purpose of fixing the liability, the several carriers must be treated, one lingering question would be whether carmack applied separately to the rail noses touching in the middle and a 40-foot container set on top. norfolk southern did cargo may not have been properly secured. nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 40 time addressed the carmack issue. this case involved an import from china to i do not believe that hyundai’s contractual liability to corning (and, hence to court’s judgment against hyundai, in favor of cna, on the jury award of $498,509.91 or relative) are determinative of whether the sea portion of the journey is “substantial”; kirby leaves the contract as an independent contractor, nothing precluded hyundai from acting as both covering “any” servant or contractor) must also be read broadly, to include any 13 component of the journey; that is, whether the rail carrier in new orleans would have almost always would apply when the damage occurs on land (carmack). transload to take place tomorrow, wednesday march 8th approximately limit the subcontractor’s liability on behalf of corning.2 12 determine the circumstances by which the loss or damage actually occurred. second of which (the overland, rail portion) fell under carmack, even though the first aplaintiffcannotmaintain nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 21 limited by the terms of that clause. c. the inapplicable (to the point of omission), and replaced it with cogsa. adjacent foreign country when transported under id. at 206-07. the court rejected statutory and constitutional challenges. the court’s and] hamburg sud in [their] bill[s] of lading chose to extend the third-party beneficiaries, they cannot contract to bind an unconsenting third party.”)). such circumstances. as such, the hypothetical analysis called for under § 5(b)(2) should carrier defendants. and, i agree that hyundai is liable, by contract, for the the carriers moved for summary judgment on three bases: (1) that cna had not service contract’s limitation-of-liability provisions did not apply in the present circumstances. that is, court considered an overseas export of goods shipped under a single through bill of cna) “must be resolved under carmack” as the majority holds. instead, because contractor . . . may or may not be an agent.”)); eyerman v. mary kay cosmetics, inc., associated allusion to kirby, this carmack-focused analysis is clearly different from lading), and the parties agreed to, a separate scheme to govern hyundai’s liability for his own agents [i.e., the subsequent connecting or delivering carriers].” id. at 206. see oral argument transcript, norfolk southern r.r. v. kirby, no. 02-1028, 2004 wl instead, to buy insurance from cna to cover any damages to the goods transported. nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 50 contract with [corning] in respect of such handling, under subsection (a) of this section except as provided in this 967 f.2d 213, 219 (6th cir. 1992) (noting that “a person may be both an independent multimodal transport. as kirby explained, the international cogsa to the rail carrier subcontractor) — trumped carmack, rendered it wholly agency relationship with one of the contracting parties. absent such a showing, or otherwise. in fact, kawasaki expressly declined to so hold. id. at 2444 (“today’s brazil via a port in savannah, georgia, under a through bill issued by the ocean carrier therefore, the district court erred pursuant to an “intermodal transportation agreement,” which incorporates norfolk - for any loss, damage, or injury to such property caused by it. this brings our attention back to the predominant question in the present case. burlington northern santa fe railway nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 8 these essentially maritime contracts does not put k line within mere “connecting” carrier under the single through contract. form bill of lading § 5(b)(2). that is, hyundai proposed (in its regular form bill of corning has had virtually no problems with shipping by rail and the damage rate has in norfolk southern r.r. v. kirby, 543 u.s. 14 (2004), the court did not discuss carmackamendment...trumpedthe[cogsa-basedcontract,andits]forum- selection transportation to [the] destination. . . . defined “delivering” carrier did not alter the analysis, which is based entirely on the carmack receiving warrants that no claim shall be made against any of [hyundai]’s subcontractors or any be to the extent to which such subcontractor would have been liable to opportunity to profit. corning hired hyundai to perform the predetermined carriage and paid the rate that [r.r.] was never displaced as the initial carrier[;] and . . . therefore the without kirby’s knowledge. each bill contained a clause paramount, extending for the second bill of lading. at the border, the shipment was transferred to the national the carriers appealed. cna cross-appealed, contesting the court’s denial of liability.13 subcontractor rail carriers, it does not apply to them; and because it applies only to contract” and invoking the predominant interest in the uniform application of maritime governed by the terms of the shipping act of 1984, and in norfolk southern railway v. sun chemical, 735 s.e.2d 19 (ga. ct. app. kirby noted the popularity of through bills of lading, in which cargo then, expressly limited this as a holding and has treated this issue as an open question, goods by sea must be construed like any other contracts: by their terms and consistent nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 39 of lading. the court rejected carmack liability for texas mexican, explaining: for the parties and any witnesses, given that the carriage began at the corning facility in norfolk southern railway company; by its terms, it applies only to damage occurring to cargo in hyundai’s custody.44 rough handling. bnsf did not issue any bill of lading, either in its own right or on second. such initial carrier is made liable to the lawful holder thereof 10 preeminence of maritime contracts. under carmack. because the district court proceeded on the theory, which the jury later shipment, this assertion was based either on corning’s standard practices or the statement from the initial containers and four (4) of the crates within were visibly damaged and speculated that the id. at *4 (footnote and certain quotation marks omitted) (citing missouri k & t v. ward, alternatively, federal law, but the district court denied that motion. property received by them for transportation over an interstate inland law. but assuming, arguendo, that kirby could and did waive carmack, even though it applied, it is there are two additional reasons why carmack does not apply in the inland segment through the himalaya clause and authorized k line the court emphasized its “conceptual approach” to identifying maritime it had done every weekday for years, but unlike those thousands of other shipments, two as a cause of action. r. 38 (complaint). in its response memorandum, dated august 1, 2008, cna damage was due to aggressive “humping” during the rail carriage. humping is a means that in the bills of lading: in the alternative, for a transfer to the western district of washington, where the damage with the intent of the parties.” here, the service contract evinces the parties’ clear the district court denied carmack applicability and dismissed the tort claims, it would assertinginsteadthat“[hyundai]shallbedeemedanindependent contractor withrespect service contract expressly deems hyundai as corning’s implicates all of the kirby-based concerns articulated in kawasaki. because this is a (s.d.n.y. 2009) (citing restatement 2nd of contracts § 304) (footnote omitted). thus, nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 25 southern district of new york, concluding: report dated april 19, 2006 (riverlands report), for cna. in the riverlands report, . . . damage to . . . the goods, and subject to the or even mention the carmack amendment, but its analysis affects our carmack analysis pennsylvania, for appellants/cross-appellees. edward c. radzik, marshall lading (albeit separated into two sub-parts: one for rail transport from arkansas to and voided a subsequent, overlapping bill of lading. see also texas & pac. r.r. v. - route to a seaport for delivery to a foreign vessel for ocean carriage to a louisville railhead, load them onto a flatcar, and carry the containers by train to here, the service contract governs the carriage from harrodsburg to tainan, a as for union pacific, it was also not a receiving rail carrier under unless specified, any reference to the service contract includes reference to the form bill of shipment originated, but where the obligation of the carrier as receiving nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 33 by the record). and (5) a forum selection clause, designating the tokyo district court. . if the various parties dealing with this shipment separated the carriage so by and on behalf of corning, i believe hyundai’s liability is limited to that same hamburg sud hired a rail carrier (norfolk southern) to complete the overland portion. - this part of the discussion, which includes bracketed language relative to exports: corning, those contracts would have been subject to the carmack amendment because where the property originated. carmack then applies to any other rail carrier subject to f.3d 138, 145 (2d cir. 2010). we are using the version used by the district court, as the parties expressed no objection to that choice in unlikely that the court would omit the controlling law without explanation. it is more likely that the court carrier, then the “obligation of the carrier as receiving carrier” vis-a-vis the shipper while the fact that the contract includes return carriage of the crates fromtainan to harrodsburg to facilitate efficient contracting in contracts for carriage by sea. th[is] coast line’s constructive-contract premise, 219 u.s. at 206 (“if you receive articles for could have either been compensated for or avoided carmack liability by offering carmack coverage to the apparently, cash sent photos of the damage (both containers and crates) to the shipper may sue the intermediary for any loss that exceeds the limit to which the this is principle, that error was ultimately harmless because the court would have properly hyundai) necessarily acts as an agent for the shipper (here, cna) in relation to the have been improper. but cna did not protest the verdict to the district court or appeal 5 does not apply to the overseas shipment of goods — import or export — shipped under nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 42 carriers in the delivery chain,” kawasaki, 130 s. ct. at 2446. the current version of plaintiff-appellee/cross-appellant, agree that cna’s breach of contract action is available only against hyundai, not the rail journey must begin with a receiving rail carrier,” id., but even that is actually a limitation consider the specific clauses as written in the service contract and apply them second bill of lading beyond that already paid by the ocean carrier under the through bill, appropriate, . . . if any such claims should nevertheless be import of goods shipped under two non-overlapping bills of lading; one for the sea _______________________ nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 52 actually applies here. the cargo. unlike a carrier, a freight forwarder does not issue a bill of lading, and is therefore not liable derailed, kirby sued norfolk southern for breach of contract and negligence. norfolk nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 5 lading. kawasaki, 130 s. ct. at 2443. appeal from the united states district court at 25. finally, the court discussed in some detail the aforementioned cases from the for the subcontractor’s benefit.” service company v. consolidated rail corporation, 348 f.3d 565, 568 (6th cir. 2003), 19 carmack applicability “in a case involving a through bill of lading for land and sea provision at issue, which provides for hyundai’s liability when the goods are in the as per our telecon, the transload and survey took place 3/9, and the cogsa bill of lading to the rail portion of the journey and the himalaya clause originating within the united states and traveling on a through bill of lading.” id. at *4. employee. even under the present facts, the carriers dwelled on cna’s inability to 9 governing the duration of the carriage and is between the shipper and only the initial foreseeable event that the cargo was damaged during carriage. indeed, in the only sixth circuit case of significance on this issue, american road specificity or privity.” id. at 31. that is, despite the parties’ failure to specifically put the first (oversea) contract aside and considered only the second (entirely domestic, case. loss. . . . france via sea. accepting goods for further transport from another carrier in the middle the reasons set out in kirby, such as the practical benefits of through shipments under 1. dhl motor carriage (truck) – harrodsburg to louisville; each truck driver signed the corning straight bill upon accepting the container, thus given that the containers had likely been positioned on the flatcar nose-to-nose. also, that this named defendant-carrier (either the receiving or delivering carrier, or both) may western district of kentucky, and any objection or error has long since been waived. case in which one party has had the use of the other party’s money.” by failing to to carmack. see, e.g., reider, 339 u.s. at 117. under carmack, it would be unable to motion (see forgoing footnote), and argued that carmack governed “by force of law.” r. 79 at 16. the point of origin), but more recently rejecting it based on the arguments and rationale r. 84 at 11 (emphasis added). in their sur-reply, dated august 15, 2008, the carriers did not contend that the rail carriers; (2) that the service contract’s10 made clear throughout, cna would have pursued these three common-law causes of action underdiversity carriage by sea, would be defeated. forwarding company arranges for, coordinates, and facilitates cargo transport, but does not itself transport 1:00 pm. i will be speaking with the surveyor directly after the initial carriage of the goods by [hyundai]’s subcontractor, such liability shall but the case was neither presented nor defended that way. are these: of lading. custody (a “steel wheel” interchange). it is noteworthy that both norfolk southern and if this passage were a legal holding, then carmack plainly would not apply to the (“because the journey included no receiving rail carrier that had to issue bills of lading it is unclear why the carriers’ attorney sought $500 per crate ($12,000) when the limitation of the factors commonly employed to distinguish an agent from an independent contractor). corning hired in the district court, cna had asserted, and the court had relied upon, carmack as the basis for sea change in practice in this area. three (3) containers per flatcar: two (2) 20-foot containers placed on the flatcar with their proceeded to subcontract the rail portions of the shipment. hyundai, fully within its nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 31 the receiving carrier’s bill of lading), such that any subsequent and overlapping contract 21 in other words, it is the carrier which holds unity of responsibility for the written himalaya clause” in that case) allowed that rail carrier to invoke that contracts’ (subcontracting the rail carrier, norfolk southern). when the train derailed, sun a predicate to its foremost legal decision, but this would have been a significant issue if in this service contract as being indicative of the intent of the parties, we find that these carmack applicability even though the initial carrier (a truck, not a train) was subject to of action.’” r. 87 at 12 (relying on travelers prop. cas. co. v. a.d. transp. express, inc., no. 04-5830, - peculiar because the court cited to, quoted from, and relied on missouri, k & t in pacific was not the ‘initial carrier’ for the carriage [from the point of 516 n.e.2d 190 (n.y. 1987) (new york)); see also fireman’s fund ins. co. v. orient [then] with respect to . . . damage caused during the would have been liable to [corning] if it had made a direct and separate contract with been extremely low (estimated at one or two sheets for every few crates). to handle the shipment of goods from kentucky through to its final (“beyond the tackles”) with a properly written clause paramount in the bill of lading. this feature of “hmma/claims” refers to the hyundai merchant marine of america, inc. claims department. again, because cna, as subrogee, is prosecuting this case as if it were corning, we refer to liability, with its attendant higher cost, by declining full carmack liability. plaintiff’s cause of action against such defendant lies in breach of contract. corning would have contracted for with the subcontractors based upon a consideration district court was correct in this interpretation. thus, though far from definitive, a composite of the court’s carmack case law “maritime contract.” see id. as a maritime contract, it would effectively preempt any coverage to the shipper and the shipper declines. see babcock & wilcox, 557 f.3d at 141 n.6 (relying on freight and insurance premium, if paid. [hyundai] shall pacific in california state court, and the case was removed immediately to federal subsection. a limitation of liability . . . in a receipt, bill of lading, individual interests. consequently, applying carmack to the road and rail portions of k-line hired a rail carrier (union pacific r.r.) to complete the overland portion. k- carmack amendment, applies to the question of liability before the and an outlier in the carmack line of cases at that — while this is a straight breach of contract without 46 kathleen m. o’malley, circuit judge, dissenting in part. i agree with clause. this premise begets three questions, which — not coincidentally — are the district court erred by denying their motion for summary judgment on this ground. we arguing breach of contract by proceeding under carmack. carmack applies to the inland segment of an overseas import shipment under a through truck would carry a single container, and corning would provide the driver with a in substance[,] congress has said to such [initial] carriers: ‘if you an inch beyond new orleans under the ocean bill[,] the carmack amendment required we also recognize, however, that the district court’s initial decision in march the carmack amendment to the interstate commerce act, originally enacted in 21. limitation of liability for loss or damage – 39 containers at transfer, and the power of congressional intent in drafting cogsa. id. at foreseeable subcontractors as intended beneficiaries, thus rejecting a rule of “linguistic explained that the subcontracting clause did not make the rail carriers “immune from 17 to the shipper, i.e., at the very core of carmack; (2) the court framed its first issue as a receiving carrier which results in such a case is that of a principal for the negligence of to subcontract for that inland segment on any terms whatsoever. [regal- nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 51 ward, 244 u.s. 383, 387 (1917). that is: cna. when the cargo arrived back in harrodsburg, cna scheduled its own survey of id. at 2451 (sotomayor, j., dissenting; joined by stevens and ginsburg, jj.). property caused by rail carriers. it is undisputed that the cargo was damaged while in inc., the shipper (regal-beloit) hired this intent to bind only hyundai is also evident in the form bill of lading. section 4(b) transportation, and thus no carrier that must issue a carmack-compliant this instance. & stahl, 377 u.s. 134, 137-38 (1964). no. 3:07-cv-00141—charles r. simpson iii, district judge. kawasaki’s receiving-carrier analysis. the court added some reasons for rejecting 49 u.s.c. § 11706(c)(1); adams express, 226 u.s. at location of the loss or damage, the carriers proceeding with this on-going service hyundai to conduct the entire carriage, paid hyundai a flat rate, and had no control over any aspect of required. . . .” jurisdiction, as alleged in its complaint. see also fn.13 and fn. 14, infra. 3 shipper for the entire carriage. interest. in its denial, the district court’s stated rationale was that “[t]he verdict was that second bill would have been void under the carmack analysis in mexican light & specified in the carmack amendment. kirby, despite expressly acknowledging the similarity of the fact patterns, id. at 2438, to the goods against a particular subcontractor; the majority reads far too much into it. 2 service contract (or the hyundai regular form bill of lading incorporated therein). clearly states that cogsa applies to [the receiving carrier] and its 20 (“on the hearing of any appeal or writ of certiorari in any case, the court shall give nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 26 another, beyond your own terminal, you must do so under a contract to . . . harrodsburg, ky. simple as it would seem. based on the reasoning that follows, we affirm in part, failure to issue a receipt or bill of lading does not affect the deemed, when it receives property in one state, to be transported to a the contract. single, limited purpose of binding the shipper “to the liability limitations it negotiates is traveling within the united states. file name: 14a0053p.06 receiving property for transportation from a point in one state to a point in another to corning. without the benefit of the developing decisions from other courts.35 overseas container line ltd., 763 n.y.s.2d 427, 432 (n.y. civ. ct. 2003). the not a party to the rail carrier’s bill of lading with an intermediary.”). am. bureau of shipping, 7 f.3d 1077, 1081 (2d cir. 1993). omitted) (language relative to “exports” added in brackets). clearly, the validity of these burden shifted to the carriers’ to demonstrate one of the five excepted causes.15 again — an overseas import of goods shipped under a through bill of lading — but this hyundai charged for completion of that carriage. this was not an agency relationship. of independent carriers in the continuance of the transit, you must use corning’s facility in harrodsburg and drive them to the railhead in louisville. a single was whether federal regulation of bills of lading had covered the field to 666388 (s.d.n.y. feb. 6, 2011), the court considered an export of forklifts, from illinois cogsa and carmack to outlaw this efficient mode of international determined, sub silentio, that carmack did not apply. avoid carmack liability on this basis. moreover, the district court determined as a matter of contract is ultimately unsupportable and untrue. hyundai subcontracted with a motor carrier (not named in the record, and terms effectively “outlawing” the use of the through bill. see kawasaki, 130 s. ct. at 2445. issues anew, namely kawasaki kisen kaisha ltd. v. regal-beloit corp., 561 u.s. --, aggrieved shipper need only sue the initial (“receiving”) or final (“delivering”) carrier their contract. int’l ore & fertilizer corp. v. sgs control servs., inc., 38 f.3d 1279, based on the peculiar facts and circumstances of this case, whether some portion of that marc: the application of federal maritime law actually requires a “two-step analysis.” kirby, 543 u.s. at 23. in the first step, the contract must be a “maritime contract.” id. at 23-27. in the second, 717 f.3d 451, 459 n.6 (6th cir. 2013) (noting that we may affirm on any basis supported the commodity is shown as ‘flat glass’, it is possible there may be some foreign country”). ultimately, the court held that the situation presented was governed corning to report on the information obtained from burgess: id. at 29 (citations and certain quotation marks omitted). that is, to the extent that chose to use rail transport to complete one segment of the journey under any duties undertaken by [hyundai] in relation to the goods.” (emphasis added). into wut and the container were bulging, which is an indicator that the and packing, inasmuch as it had left three inches of space (in the 20-foot container) contract, does not expressly extend cogsa’s $500-per-package limit of liability to the as a result, based on the foregoing analysis, considered in light of the at oral argument, the carriers’ counsel speculated that this provision was merely a means by unbroken transaction of commerce with a nonadjacent foreign country,” id. at 120 lading: container-based transport. the court will not read congress’ nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 24 iv. law concerning liability or venue, the inefficiencies of encouraging carriers to open the oro. but because pennsylvania r.r. had paid texas mexican r.r. to deliver the designated.”), and that adams express, 226 u.s. at 504, treats “contract, receipt, rule, hyundai had a third rail carrier (tacoma municipal beltline railway, “tmbr,” of either norfolk southern or bnsf, the court was ultimately correct in its application cogsa and the parties sought in the service contract. see id. at 2449 (“congress has prejudgment interest in light of the pertinent provisions of the service contract as either against the ocean carrier as the “receiving” carrier or against the rail carrier, a outward. when the containers were opened for inspection, it was discovered that some damage to the goods, [corning] agrees that the sound 2(b). clause paramount — extending cogsa4 see royal & sun alliance ins. v. ocean world lines, inc., 612 lading — meaning, a road or rail carrier that is both subject to stb jurisdiction and though it might not be obvious from the text, “carmack’s original premise is thus, in light of the foregoing, the rule of kawasaki appears to be that carmack govern this situation. causes. the carriers attempted to prove that the damage was due to corning’s “improper” stowing and direct and separate contract with the subcontractors vis-à-vis its option for carmack preempted state law concerning the liability of interstate rail and road carriers. the (1) that the initial (“receiving”) carrier received the cargo in good construe the bill of lading as a maritime contract, thereby precluding carmack. id. at 27. point in another, involving the use of a connecting carrier for some part nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 20 37 acknowledgment of the constructive contract making that carrier solely liable to the occurred while the cargo was in the possession of a rail carrier.12 > as to an interstate rail carrier’s liability; (2) mandated a single contract for carriage (i.e., carrier subcontractor when damaged, the clause paramount did not apply, inasmuch as, - 561 u.s. --, 130 s. ct. 2433, 2438-39 (2010), the court considered this same scenario available modes of transportation by air, water, and land. found that carmack did not apply. defined “receiving rail carrier”; i.e., as the court put it, “ascertaining the shipment’s a rail carrier’s humping of the flatcars caused the damage. but later (much later, it turns outcome could have been consistent with porter, or at least not inconsistent with it. that nos. 12-6118/6201 cna ins. co. v. hyundai merchant marine co., et al. page 35 carmack considerations. given the arm’s length transactions between the rail carriers and hyundai, occurring on its line; and the liability of such participating carrier is fixed ultimately correct and we can affirm this part of the judgment. see schlaud v. snyder,


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