A Smorgasbord of Motor Carrier Defenses

Wesley S. ChusedPreti Flaherty Beliveau & Pachios, LLP

wchused@preti.com (617) 226-3800

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D.P. Apparel Corp. v. Roadway Express, Inc., 736 F. 2d 1 (1st Cir. 1984) Principal Issues:

– Whether plaintiff can rely solely on the language in B/L to establish good origin condition where goods are in sealed containers or packages not open to inspection or visible.

What It’s Good For:– Defending plaintiff’s prima facie case of “good origin condition” based solely

on B/L language. Key Language:

– “The apparent good condition clause in the bill of lading . . . specifically stated that the contents and condition of contents were unknown. More importantly, . . . the rolls of cloth were wrapped and no evidence was offered to show that the wrapping material was clear or that the cloth was visible. In fact, where the contents of the shipment are not visible or open for inspection, additional direct and affirmative proof is necessary to show that the cloth was in good condition when delivered to Roadway.”

Design X Manufacturing, Inc. v. ABF Freight Systems, Inc. 584 F. Supp 2d 464 (D. Conn.2008) Principal Issues:

– Shipper’s burden of proof; damaged condition at destination.– Whether carrier’s liability is limited to $5.00/lb. per Service Quotation.– Preemption of state law claims.

What It’s Good For:– Defending shipper’s prima facie case.– Defending shipper’s claim for special damages (loss of business).

Key Language:– “. . . Design X has failed to provide any evidence to show that the desk

arrived in damaged condition. It is undisputed that no one from Design X was present when the desk arrived….”

– “Design X has no evidence that ABF Freight or [the consignee] damaged the desk in question.”

Design X Manufacturing, Inc. v. ABF Freight Systems, Inc. 584 F. Supp 2d 464 (D. Conn.2008)

– “Apparently, the Service Quotation that specified the $5.00 per pound limitation went through several iterations before being finalized.”

– Plaintiff’s witness testified that he had read ABF’s tariff: “Yeah. You’re quoting a tariff law there for the shipping.”

– “Thus, even if Design X had made out a prima facie case under the Carmack Amendment – and it has not done so – ABF Freight’s liability would nevertheless be limited to the total sum of $1,700.”

Castine Energy Construction, Inc. v. T.T. Dunphy, Inc., 861 A. 2d 671(Maine 2004) Principal Issues:

– Whether carrier has met its burden of proving act or omission of shipper defense and freedom from negligence.

– Equipment secured to trailer by chains attached to crossbars welded by shipper onto equipment; cargo shifted in transit and was destroyed.

– Shipper alleged negligence per se under securing regulations, 49 C.F.R. §§392.9(b)(1) and 393.102(c).

– Defendant’s expert witness testified to motor carrier’s compliance with the loading regulations and jury returned defense verdict.

– “Negligence per se doctrine” ruled inapplicable. What It’s Good For:

– Blueprint for proving exception (act or omission of shipper) to carrier liability and carrier’s freedom from negligence.

Castine Energy Construction, Inc. v. T.T. Dunphy, Inc., 861 A. 2d 671(Maine 2004) Key Language:

– “Even though a carrier generally assumes liability for cargo upon the issuance of a bill of lading, it is not responsible for latent defects in the configuration of the cargo when the shipper causes these defects, and it was otherwise free from negligence….When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier….”

See also United States v. Savage Truck Lines, Inc., 209 F. 2d 442 (4th Cir. 1953) (“The primary duty as to safe loading is upon the carrier. When the shipper assumes the responsibility for loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by . . . the motor carrier”).

Pathway Bellows, Inc. v. Blanchette, 630 F. 2d 900 (2nd

Cir. 1980) Principal Issues:

– Timeliness of shipper’s claim.– Claim mailed day before expiration of nine-month claim filing period, but received

a day after expiration of the claim filing period.– The term “filed,” not defined in B/L, means the time when the document has “been

delivered to and received by the party with whom it is to be filed.” What It’s Good For:

– Obtaining summary judgment where shipper’s claim is not timely received by carrier.

Key Language:– “. . . [B]ecause this letter was received after the 9 month claim period had expired,

it cannot qualify as a timely filed claim.– “Although it may appear Draconian to require the Pathway Bellows lose a $40,000

recovery because its claim letter was received one day late, Pathway Bellows has identified no special circumstances that would entitle it to be relieved of the admittedly severe consequences of its own procrastination.”

Nedlloyd Lines, B.V. Corp. v. Harris Transport Co., Inc., 922 F. 2d 905 (1st Cir. 1991) Principal Issues:

– Sufficiency of shipper’s claim under 49 C.F.R. § 370 (formerly §1005).

– Claim letter stated, “We must hold you responsible for failure to obtain proper permits and the resulting penalties and storage.”

– No specified or determinable amount of damages set forth in claim letter.

What It’s Good For:– Defending insufficient or untimely claim.

Key Language:– “The [claim] regulations themselves specify that a claim ‘shall not be

voluntarily paid by a carrier’ unless filed in accordance with the regulations.

Nedlloyd Lines, B.V. Corp. v. Harris Transport Co., Inc., 922 F. 2d 905 (1st Cir. 1991)

– “Permitting an inadequate claim to toll the statute of limitations for the filing of suit would frustrate the regulatory purpose of encouraging voluntary settlements by allowing a shipper to bring an action against the carrier without first providing the carrier the opportunity to pay voluntarily a properly notified claim.

– “We hold, therefore, that the ICC regulations apply to contested as well as voluntarily paid claims.”

McLaughlin Transportation Systems, Inc. v. Rubinstein, 390 F. Supp. 2d 50 (D. Mass 2005) Principal Issues:

– Whether shipper’s claim to carrier for “$100,000,” filed within 9 month claim filing period, qualified as a “specified or determinable amount of money” in conformity with carrier’s B/L, tariff and FMCSA claim regulations.

What It’s Good For:– Obtaining summary judgment where shipper’s claim documents do not include

information sufficiently setting forth a demand for a “specified or determinable” sum of money.

– Defending shipper’s claim that she was excused from claim-filing requirements. Key Language:

– “Rubinstein must demonstrate that she took ‘all appropriate steps under the circumstances to obtain an actual or determinable value of a potential claim’ within the nine month claim filing deadline.

– “. . . [B]based on the evidence presented, it does not follow that Rubinstein took ‘all appropriate steps’ under the circumstances.

– “Ultimately, Rubinstein fails to present sufficient evidence for a reasonable factfinder to conclude that ‘it was impossible for the shipper, through reasonable diligence, to ascertain the required information.’"

Hollingsworth & Vose v. A-P-A transportation Corp., 158 F. 3d 617 (1st cir.1998)

Principal Issues:– Enforcement of released rate limitation in absence of shipper's declaration of

value on bill of lading.– Modern view of "fair opportunity" to choose value for shipment.

What It’s Good For:• Enforcement of release rate limitation in motor carrier tariff.• Overcoming so-called "four-point" test.

Key Language:• "This 'fair opportunity' language, which was in some measure surplus, has taken on a life of its own, and later circuit cases have treated the rubric almost as if it were an independent requirement of the Carmack Amendment.

Hollingsworth & Vose v. A-P-A transportation Corp., 158 F. 3d 617 (1st cir.1998)

– “Accordingly, we think it better candidly to disavow the reasoning of Anton. Even without Anton, the question remains whether...there was a 'fair opportunity' for Hollingsworth to choose a higher liability limit.

– “It is enough that the tariff made both coverages available, the bill of lading afforded the shipper a reasonable opportunity to choose between them..., and the shipper was a substantial commercial enterprise capable of understanding the agreements it signed. In our view, that is normally enough to give this shipper a 'fair opportunity' to opt for more coverage in exchange for a higher rate.”

Siren, Inc. v. Estes Express Lines, 249 F. 3d 1268 (11th

Cir. 2001) Principal Issues:

– Enforceability of motor carrier tariff limitation of liability where shipper specified on bill of lading cargo would move at “Class 85.”

– Defendant’s tariffs prescribed that Class 85 freight moves at a limitation of $11.87 a pound.

– Shipper-prepared B/L. What It’s Good For:

– Enforcing carrier’s tariff limitation incorporated by reference in B/L. Key Language:

– “This court does not deem it proper or necessary to protect shipper’s from themselves.

– “. . . [T]his Court previously expressed a reluctance to protect a shipper from itself when it drafted a bill of lading.

Siren, Inc. v. Estes Express Lines, 249 F. 3d 1268 (11th

Cir. 2001)– “In this case, Siren drafted the bill of lading, Siren choose to use the term

‘Class 85’, Siren did not rebut Estes assertion at trial that ‘Class 85’ included a limiting aspect, Siren knew ‘Class 85’ determined the freight rate charged, and Siren knew it received a 62% discount from Estes’ full freight rate.

– “ . . . [W]e hold that when a shipper drafts a bill of lading, incorporating language which is universally understood throughout the motor carrier industry to limit the liability of the carrier, said shipper would be bound by the terms of the contract, irrespective of whether the shipper had actual knowledge of the limiting aspect of those terms.”

See also Underwriters at Lloyd’s v. Horizon Air Freight, 771 F. Supp. 2d 135 (D. Mass. 2010) (Shipper prepared B/L which specified NMFC item number for cargo, which, called for application of a high limit of liability. Court ruled NMFC inapplicable because motor carrier did not participate in it; plaintiff’s recovery limited to $100 based upon parties’ course of dealings and carrier’s freight bills which specified a $100/shipment limitation.).

Schweitzer Aircraft Corp. v. Landstar Ranger, Inc., 114 F. Supp. 2d 199 (W.D.N.Y. 2000) Principal Issues:

– Whether limitation in motor carrier tariff is enforceable where B/L incorporated its “lawfully filed tariff in effect” after Congress abolished the tariff-filing requirement.

What It’s Good For:– Maintaining limitation of liability defense in motor carrier B/Ls and tariffs even

though tariff is not “filed.” Key Language:

– “Nevertheless, the fact that tariffs are no longer required to be filed is not fatal to Landstar’s summary judgment motion.

– “It will suffice to maintain a tariff under the current regulatory scheme and to make a copy available if requested.

– “There is no evidence in the record to suggest that Schweitzer ever requested the rate or tariff information and there was no affirmative obligation on Landstar to produce it prior to shipment.

Schweitzer Aircraft Corp. v. Landstar Ranger, Inc., 114 F. Supp. 2d 199 (W.D.N.Y. 2000)

– “. . . ‘[W]hen a sophisticated shipper, using his own bill of lading form, leaves blank the space provided for declaring the released value of the goods, we will presume that he did so deliberately with full knowledge of the consequences under the applicable tariff.’

– “This is not a case of an unsophisticated shipper. Schweitzer was not shipping lug nuts. It was entrusting Landstar with a helicopter worth approximately $900,000. Indeed, when pressed at oral argument as to whether Schweitzer really expected Landstar to not only transport the helicopter from New York to New Mexico but fully bear the risk of loss for a few thousand dollars in shipping fees, Schweitzer admitted that it had also procured a half million dollar private insurance policy to protect against damage to the helicopter. . . Schweitzer assumed this risk of loss by rejecting the fair opportunity afforded to it to declare its own release rate in exchange for a higher shipping rate.” (Emphasis added)

Read-Rite Corp. v. Burlington Air Express Limited, 186 F. 3d 1190 (9th Cir.1999) Principal Issues:

– Enforceability of limitation of liability in air waybills.– Application of federal common law to air waybills.– Sufficiency of notice of carrier’s limited liability.

What It’s Good For:– Good analysis of ADA preemption of cargo claims against air carriers and

application of federal common law.– Enforcing limitations in air waybills under federal common law.– Proving shipper’s knowledge of and agreement to air carrier’s limitation of

liability. Key Language:

– “Under the federal common law of our circuit, the function served by notice of limited liability is accomplished if the shipper in fact purchases separate insurance whether or not such notice is actually given. The decision to insure separately ‘in and of itself demonstrates…a conscious decision not to opt out of the liability limitation.’

Read-Rite Corp. v. Burlington Air Express Limited, 186 F. 3d 1190 (9th Cir.1999)

– “The separate purchase of insurance simply cannot be reconciled with a contention that the shipper has been disadvantaged by a lost opportunity to pay the carrier more money in return for greater coverage.

– “…[W]hy would [the shipper] increase its costs by insuring the same cargo twice?

– “Because Read-Rite did, in fact, separately purchase insurance covering damaged to the [shipment], it is clear that the limitation of liability provision in the Burlington waybill is valid and enforceable against Read-Rite.”

Rational Software Corp. v. Sterling Corp., 393 F. 3d 276 (1st Cir. 2005) Principal Issues:

– Intrastate shipment; Uniform Commercial Code, § 7-309(2).– Enforceability of 60¢/lb. limitation of liability on B/L where parties had

a prior course of dealings. What It’s Good For:

– Enforcing of B/L limitation based on prior course of dealings. Key Language:

– “A prior course of dealing between the parties is ‘admissible to show the practice of the parties of limiting liability’ in a transaction for the shipment of goods.

– “The evidence in this case supports the district court’s conclusion that the parties, through their prior course of dealing, understood and agreed that Sterling’s liability would be limited to sixty cents per pound unless Rational declared a higher value.”

EFS National Bank v. Averitt Express, Inc., 164 F. Supp. 2d 994 (W.D. Tenn. 2001) Principal Issues:

– Whether, post-ICCTA, shipper is bound by limitation of liability in long form bill of lading.

– Whether, post-ICCTA, carrier’s limitation rule provided shipper the required “opportunity to choose between levels of liability” under Carmack, given changes in the law and the abolition of the former tariff filing requirement.

What It’s Good For:– Sustaining motor carrier’s limitation of liability under bill of lading and

published tariff and overcoming plaintiff’s “I didn’t have a fair opportunity to choose” argument.

– Convincing the court that the so-called “four-point test” for determining limitation of carrier’s liability is obsolete.

EFS National Bank v. Averitt Express, Inc., 164 F. Supp. 2d 994 (W.D. Tenn. 2001) Key Language:

– “However, the current version of the Carmack Amendment provides that ‘if the motor carrier is not required to file a tariff with the Board, it shall provide…on the request of the shipper, a written or electronic copy of the rate classification rules and practice (sic)…..’ 49 U.S.C. § 14706(c)(1)(B).”

– “The legislative history of the revised Carmack Amendment reveals that the intent of Congress in amending the statute was to ‘return to the pre-TIRRA situation where shippers were responsible for determining the conditions imposed on the transportation of a shipment….’ Citing H.R. Conf. Rep. No. 104-422.

– “Given the recent changes in the law, the four factors used by the Sixth Circuit in earlier cases interpreting the pre-1996 Carmack Amendment may no longer be completely relevant. The requirement that the carrier must maintain approved tariff rates with the ICC cannot possibly apply because the ICC Termination Act of 1995 eliminated the ICC itself.

EFS National Bank v. Averitt Express, Inc., 164 F. Supp. 2d 994 (W.D. Tenn. 2001)

– “These two requirements (that the carrier must give the shipper a fair opportunity to choose between two or more levels of liability and must maintain the shipper’s written agreement as to his choice of liability) to some extent, are contrary to the congressional intent behind the new law. The legislative history indicates the Congress intended to make it the shipper’s responsibility to ask for a copy of the relevant rate classification rules from the carrier.” [citation]

American Railway Express Company v. Lindenberg; 260 U.S. 584; 43 S. Ct. 206; 67 L. Ed. 414 (1923)Principal Issues:

–Whether shipper is bound by limitation (50¢/lb.) specified in railroad’s B/L in absence of shipper’s signature.–Court ruled shipper is bound by limit despite no signature.

What It’s Good For:–Overcoming plaintiff’s “I’m not bound by B/L because I didn’t sign it” argument.

Key Language:–“Neither the statue nor the order of the Commission requires the signature of the shipper…. –“It is sufficient if the shipper accepts the carrier’s bill of lading without himself signing it. It becomes binding upon him by his acceptance, he being presumed to know and accept the conditions of the written bill of lading.” Id., citing In The Matter of Bills of Lading, 52 I.C.C. 671, 681.

Calvin Kelin Ltd. V. Trylon Trucking Corp., 892 F. 2d 191 (2nd Cir. 1989) Principal Issues:

– Enforceability of defendant carrier’s $50/ shipment limit shown on its invoices where carrier was “grossly” negligent (driver stole the shipment).

– Was limitation so low as to be void.– Whether the shipper had the opportunity to negotiate a higher limit by

declaring a value for the shipment. What It’s Good For:

– Defending shipper’s claim that carrier’s limitation is void due to its “gross negligence.”

Key Language:– “Since carriers are strictly liable for loss of shipments in their custody and

are insurors of these goods, the degree of carrier negligence is ‘immaterial’.

Calvin Kelin Ltd. V. Trylon Trucking Corp., 892 F. 2d 191 (2nd Cir. 1989)

– “This is not a case in which the shipper was dealing with the common carrier for the first time or contracting under new or changed terms.

– “This [$50 limitation] amount is immaterial because Calvin Klein had the opportunity to negotiate the amount of coverage by declaring the value of the shipment.

– “That the dispute actually involved who would bear the cost of insurance is illustrated by the fact that this case has been litigated not by the principal parties but by their insurers.”

Kemper Insurance Companies v. Federal Express Corp., 252 F. 3d 509 (1st Cir. 2001) Principal Issues:

– Whether carrier’s airbill and Service Guide limit of $100 per shipment was invalid where it knew of rampant employee theft, constituting willful and wanton misconduct, and failed to prevent future thefts.

– Whether the conversion exception to the released valued doctrine should apply.

– Whether defendant’s rate structure gave shipper “a fair opportunity to pay a higher rate in order to obtain greater protection.”

What It’s Good For:– Upholding limitations in air carrier (federal common law) and motor carrier

(Carmack Amendment) tariffs.– Defending subrogating insurance plaintiff’s “I didn’t have a fair opportunity

to opt for higher coverage” tactic to avoid limitation of liability.– Defeating so-called “conversion” exception to carrier’s limitation of liability.

Kemper Insurance Companies v. Federal Express Corp., 252 F. 3d 509 (1st Cir. 2001) Key Language:

– “Moreover, the fact that third-party insurance was available, and was purchased by the shipper, counsels against invalidating the limitation on liability. ‘[A shipper] cannot contend that it was not given a 'fair opportunity' to opt for higher coverage [when that shipper] did opt for higher coverage when it insured [its package] through an independent entity.

– “This is especially true when the plaintiff is not the shipper itself, but the subrogated third-party insurer of the package. In such a case, ‘it is always in the best interest of a shipper's insurance company to argue that the shipper was denied a fair opportunity to opt for higher liability. . . . 'As best we can tell, [the insurer] is now bringing this lawsuit in an attempt to shift . . . the burden of loss it was paid to insure.’

– “. . . [I]n fact, it is the very existence of such a limitation that allows Kemper to market third-party package insurance.

Kemper Insurance Companies v. Federal Express Corp., 252 F. 3d 509 (1st Cir. 2001)

– “However, both our decision in Hill and our review of other cases indicate that the conversion exception requires at least a stronger allegation of affirmative misdeeds than the willful blindness alleged by Kemper.”

See also: Glickfeld v. Howard Van Lines, 213 F. 2d 723 (9th

Cir. 1954) (Conversion exception applies only where carrier converts property to “its own use or gain”).

Rocky Ford Moving Van, Inc. v. United States of America, 501 F. 2d 1369 (8th Cir. 1974) Principal Issues:

– Whether the “material deviation” doctrine (applicable in admiralty) can be invoked to defeat motor carrier’s limitation of liability under the Carmack Amendment.

– Motor carrier had moved goods to nearby warehouse during which they suffered water damage.

What It’s Good For:– Proving there’s no “material deviation” doctrine applicable to cargo

claims under the Carmack Amendment. Key Language:

– “…[T]hat admiralty law doctrine has no application in the context of regulated interstate commerce, which is governed by the overriding federal policy of uniformity.

– “Nor do we find merit, under the facts in this case, in the government’s attempted distinction between willful breaches of carriage contracts and those which are merely negligent.

Rocky Ford Moving Van, Inc. v. United States of America, 501 F. 2d 1369 (8th Cir. 1974)

– “This is not a case where the carrier has purposely converted the entrusted property for his own use or gain . . . but rather one in which the carrier placed the goods in storage simply because ‘it was raining that morning like the devil and the [truck] was sitting by the front of the warehouse.’

– “Under the Carmack Amendment, where the shipper has been given [an option of purchasing additional valuation] and has elected to release his goods at the standard value in exchange for a lower rate, his recovery in the event of loss would be limited by the release value chosen.”

House Conference Report on H.R. 2539, ICC Termination Act of 1995, 141 Cong. Rec. H.14993 (1995) (1995) Principal Issues:

– Whether shippers, post-TIRRA and –ICCTA, are bound by tariff limitations where carriers are no longer required to file tariffs (no filed rate doctrine).

What it’s Good for:– Overcoming shipper’s “I didn’t know about the limitation of liability

and had no fair opportunity to choose between two different levels of liability” argument.

– Fixing responsibility upon shippers the duty to determine motor carrier tariff limitations.

Key Language:– “The intention of this conference agreement is to replicate, as closely

as possible, the practical situation which occurred prior to

House Conference Report on H.R. 2539, ICC Termination Act of 1995, 141 Cong. Rec. H.14993 (1995)the enactment of the Trucking Industry Regulatory Reform Act of 1994 (TIRRA), which repealed the requirement that tariffs be filed with the ICC for individually determined rates. Prior to the enactment of TIRRA, carriers had the ability to limit liability as a part of the terms contained in the tariff. By signing a bill of lading which incorporated by reference the tariff, the shipper was deemed to have agreed to the tariff and its conditions and terms. However, the carrier was under no obligation to specifically notify the shipper of the conditions or terms of the tariff. It was the responsibility of the shipper to take an affirmative step to determine what was contained in the tariff-usually through the retaining of a tariff watching service. An unintended and unconsidered consequence of TIRRA was that, when the tariff filing requirement was repealed, carriers lost this particular avenue as a way of limiting liability. This provision is intended to return to the pre-TIRRA situation where shippers were responsible for determining the conditions imposed on the transportation of a shipment.” (Emphasis added)

Treiber & Straub, Inc. v. United Parcel Service, Inc., 474 F. 3d 379 (7th Cir. 2007) Principal Issues:

– Enforceability under federal common law of carrier’s tariff limiting its liability to $100 if goods shipped exceed a value of $50,000.

– Shipper declared a value of $50,000 on a shipment of jewelry worth $105,000.

– Plaintiff booked the shipment by logging into UPS’ website and agreeing to UPS’ Terms and Conditions.

– Whether UPS gave shipper “clear and conspicuous” notice that it would not be liable for shipments of “unusual value” (worth more than $50,000).

What It’s Good For:– Enforcing carrier’s website-based Terms and Conditions.– Overcoming shipper’s claimed “lack of notice or actual knowledge”

of carrier’s liability limitations.

Treiber & Straub, Inc. v. United Parcel Service, Inc., 474 F. 3d 379 (7th Cir. 2007) Key Language:

– “The fact that Straub had to agree not once, but twice to abide by the terms and conditions set forth in order to ship the package, is enough to ensure that Treiber had clear and reasonable notice of the rules.

– UPS does not have the burden of proving that Treiber had actual knowledge of the pertinent restrictions….‘[f]ailure of the plaintiff to read the matter plainly placed before it cannot overcome the presumption that the plaintiff assented to the terms of the carrier.’ This is basic contract law: one cannot accept the contract and then renege base on one’s owns failure to read it.

– “UPS’ refusal to accept liability for packages [exceeding $50,000 in value] its customers ship deceptively in violation of rules set out in the Terms and Conditions of Service and the Tariff does not violate the ‘released valued doctrine.’

– “The shipping contract between a common carrier of packages by air and the shipper, while enforceable in state court, cannot be rewritten by state law. Since that is what Treiber seeks to do, we must find that the state law breach of contract theory in this case is preempted.”

See also King Jewelry, Inc. v. Federal Express Corp., 316 F. 3d 961 (9th Cir. 2003) (Court similarly upheld FedEx tariff limiting its liability for items of extraordinary value to $500.).

Werner Enterprises, Inc. v. Westwind Maritime International, Inc., 554 F. 3d 1319 (11th Cir. 2009) Principal Issues:

– Enforceability of downstream motor carrier’s limitation of liability in its agreement with intermediary-broker.

– Broker-carrier agreement provided a $200,000 limitation per truckload of carrier’s liability for stolen shipment of cell phones.

What It’s Good For:– Enforcing limitation of liability by downstream motor carrier per its

contract with broker/intermediary.– Adaptation of Kirby to enforce downstream motor carrier’s limitations

in contracts with intermediaries. Key Language:

– “First, Kirby’s teaching is not limited to maritime law.

Werner Enterprises, Inc. v. Westwind Maritime International, Inc., 554 F. 3d 1319 (11th Cir. 2009)

– “Thus, the benefits of allowing carriers to rely on limitations of liability negotiated by intermediaries are equally as great here as under maritime law.

– “Carriers do not need to investigate upstream contracts. They are entitled to assume that the party entrusted with goods may negotiate a limitation of liability. To hold otherwise would defeat the principle of efficiency that motivated the Kirby holding. Moreover, this again produces an equitable result. The cargo owner retains the option to sue the intermediary who failed to protect itself by negotiating a liability limitation.”

– See also, Norfolk Southern Railway Company v. Kirby, 125 S. Ct. 385 (2004).

Camar Corporation v. Preston Trucking Company, Inc., 221 F. 3d 271 (1st Cir. 2000) Principal Issue:

– Whether plaintiff, who paid $215 for used surplus Navy equipment, could recover $353,370 in claimed lost profits based on its history of past sales of similar equipment.

– Lost profits claim deemed too speculative for award of damages greater than the $215 purchase price.

What It’s Good For:– Defending lost profits and special damages claims.

Key Language:– “Although mathematical precision is not required in calculating lost profits, a

damages award must have a ‘rational basis in the evidence.’ [citations] We cannot conclude, given the absence of more precise evidence as to the condition of the used goods and the current market demand and pricing for them, that a jury could rationally determine the dollar amount of Camar’s lost profits in excess of $215.”

See also Ameriswiss Technology, LLC v. Midway Line of Illinois, Inc., 2012 U.S. Dist. LEXIS 163401 (D.N.H. 2012).

Ameriswiss Technology, LLC v. Midway Line of Illinois, Inc., 2012 U.S. Dist. LEXIS 13888 (D.N.H. 2012) Principal Issues:

– Whether negligence and breach of contract claims against broker are preempted by the Carmack Amendment, 49 U.S.C. § 14706, or the FAAAA, 49 U.S.C. §14501(c).

– Whether “all-inclusive” freight quotation was sufficient to establish broker's contractual liability.

– Whether broker breached agreement to procure insurance.

What It’s Good For:– Preemption of negligence claims against broker by both 49 U.S.C. §§

14706 and 14501(c).– Defense of breach of contract claims against brokers.

Key Language– “…[T]he claims...are all impliedly preempted by the Carmack Amendment,

notwithstanding Robinson's role as a broker.

Ameriswiss Technology, LLC v. Midway Line of Illinois, Inc., 2012 U.S. Dist. LEXIS 13888 (D.N.H. 2012)

•"However, even if those claims are not subject to implied preemption under the Carmack Amendment, they are expressly preempted by [49 U.S.C. §14501(c)].•“. . . [T]here is no good basis for arguing that Congress did not intend that result . . . .•“…“[T]he two words ‘all-inclusive’ do not establish a promise by Robinson to provide insurance coverage for Ameriswiss' cargo in any amount, much less whatever amount Ameriswiss might deem to be ‘appropriate.’”