United States District Court, M.D. Florida,

Tampa Division.

TECH DATA CORPORATION, Plaintiff,

v.

MAINFREIGHT, INC., et al., Defendants.

No. 8:14–cv–1809–T–23MAP. | Signed April 7, 2015.

 

 

ORDER

STEVEN D. MERRYDAY, District Judge.

*1 Tech Data sues (Doc. 22) Mainfreight and Central Transport for damages arising from cargo lost during shipment. Against Central Transport, Tech Data alleges “breach of the Carmack Amendment under the Carmack Amendment” (Count III), breach of a bailment (Count IV), and negligence (Count V). Central Transport moves (Doc. 31) to dismiss each count.

 

 

1. Count III

Central Transport argues that the Carmack Amendment vests a cargo owner with a claim only against “receiving carriers” and against “delivering carriers” and that Tech Data has no Carmack Amendment claim against Central Transport, an “intermediate carrier.” However, Count III describes Central Transport as a “delivering carrier” (Doc. 22 ¶ 41), and a motion to dismiss must accept “the allegations in the complaint as true and construe them in the light most favorable to Plaintiffs.” Ray v. Spirit Airlines, Inc ., 767 F.3d 1220, 1223 (11th Cir.2014).

 

Citing the complaint, Central Transport argues that Mainfreight is the delivering carrier. Central Transport infers that, because Mainfreight is a delivering carrier, Central Transport is not a delivering carrier. Even assuming only one defendant can qualify as a delivering carrier, the complaint is allowed to plead contradictory allegations. Under Rule 8(d)(3), Federal Rules of Civil Procedure, “[a] party may state as many separate claims … as it has, regardless of consistency.” Thus, Tech Data is allowed to plead in one count that Mainfreight is the delivering carrier and plead in another count that Central Transport is the delivering carrier.

 

 

2. Counts IV and V

Central Transport argues that the Carmack Amendment preempts Counts IV and V. Central Transport’s argument accords with Smith v. United Parcel Service, 296 F.3d 1244, 1246 (11th Cir.2002), which holds that “the Carmack Amendment preempts state law claims arising from failures in the transportation and delivery of goods.” Thus, under Smith, 296 F.3d at 1248–49, “only claims based on conduct separate and distinct from the delivery, loss of, or damage to goods escape preemption.” Because Counts IV and V are state law claims “arising from” a failure in delivery and transportation and because neither count alleges conduct that is “separate and distinct” form the loss of the cargo,* the Carmack Amendment preempts each state law count.

 

Tech Data responds that Counts IV and V are each an alternative to Count III, the claim under the Carmack Amendment. Tech Data states:

Central cannot have it both ways and it cannot argue that preemption pursuant to the Carmack Amendment applies while at the same time it argues that the Carmack does not apply. It is illogical to claim preemption precludes a cause of action under a statutory scheme that it also claims does not apply as to Central.

(Doc. 39 at 5) Tech Data cites no precedent for support. Further, Tech Data’s argument ignores the distinction between an inapplicable statute and an applicable statute that creates no cause of action. The Carmack Amendment governs this action (even if Central Transport is a connecting carrier), but the Carmack Amendment creates no claim for a cargo owner to allege against a connecting carrier. Instead, under the Carmack Amendment, a cargo owner may sue the receiving or delivering carrier for the fault of a connecting carrier. CNA Insurance Co. v. Hyundai Merchant Marine Co., 747 F.3d 339, 353 (6th Cir.2014) (Batchelder, J.), explains:

*2 Carmack’s original premise is that the initial receiving carrier is liable for damage caused by the other subsequent carriers in the delivery chain. The current version of Carmack makes the final, or “delivering,” carrier liable to the shipper as well. So, the aggrieved shipper need only sue the initial (“receiving”) or final (“delivering”) carrier and need not seek out the carrier actually at fault, nor must the plaintiff-shipper occurred.

(internal quotation marks omitted). “Once liability is established, the defendant carrier may then seek to recover damages from the connecting carrier which had possession of the goods when loss was sustained.” Fine Foliage of Florida, Inc. v. Bowman Transp., Inc., 901 F.2d 1034, 1037 (11th Cir.1990); accord Mercer Transp. Co. v. Greentree Transp. Co., 341 F.3d 1192, 1197 (10th Cir.2003) (Murphy, J.) (“If a carrier is held liable to the shipper under [the Carmack Amendment], it may, in turn, seek to recover from the carrier whose negligence caused the loss.”).

 

 

CONCLUSION

The Carmack Amendment applies in this action, and the allegations in the complaint are assumed true. But the Carmack Amendment vests the receiving or delivering carrier, not the cargo owner, with the right to recover from a negligent connecting carrier. Accordingly, Central Transport’s motion (Doc. 31) to dismiss is GRANTED IN PART . Counts IV and V are DISMISSED WITH PREJUDICE, and Central Transport’s motion (Doc. 31) is otherwise DENIED. No later than APRIL 28, 2015, Central Transport must answer Count III.

 

ORDERED.

 

 

 

Footnotes

 

*

 

Count IV alleges that Central Transport “negligently failed to safeguard” the cargo. (Doc. 22 ¶ 44) Count V alleges that Central Transport negligently employed “untrustworthy” persons that lost the cargo, that Central Transport “act[ed] carelessly and recklessly” in holding the cargo, and that Central Transport “acted negligently” in responding to the loss of the cargo. (Doc. 22 ¶¶ 51–53)

United States Court of Appeals,

Second Circuit.

AMERICAN HOME ASSURANCE COMPANY, as subrogee of Crown Equipment Corporation, Plaintiff–Appellant,

v.

A.P MOLLERMAERSK A/S, and/or Maersk Lines Doing Business as Maersksealand, Defendant–Appellee,

A.P. MOLLERMAERSK A/S, AND/OR MAERSK LINES, Third–Party–Plaintiff–Cross–Defendant,

BNSF RAILWAY COMPANY, Third–Party–Defendant–Counter–Defendant,

PANALPINA, INC., Defendant–Cross–Claimant–Counter–Claimaint.

No. 14–1212. | March 25, 2015.

Appeal from the United States District Court for the Southern District of New York (Gardephe, J.).

Attorneys and Law Firms

Edward C. Radzik (John K. McElligott, Christopher J. DiCicco, on the brief), Marshall Dennehey Warner Coleman & Goggin, New York, N.Y. for Plaintiff–Appellant.

Christopher J. Merrick (Paul D. Keenan, on the brief), Keenan Cohen & Merrick, P.C., Jenkintown, PA, for Defendant–Appellee.

Present RICHARD C. WESLEY, DEBRA ANN LIVINGSTON and SUSAN L. CARNEY, Circuit Judges.

 

 

SUMMARY ORDER

*1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment is AFFIRMED.

 

This case arises from a 2006 train derailment near Newberry Springs, California. Plaintiff–Appellant American Home Assurance Company (“American Home”) seeks to recover damages that the derailment caused to certain cargo for which it provided insurance and which was being shipped from Ohio and Indiana to Australia. Defendant A.P. MollerMaersk A/S (“Maersk”), an ocean carrier, agreed to transport the goods pursuant to a single shipping contract that covered the entire journey (a “through bill of lading”). Maersk subcontracted with BNSF Railway Company (“BNSF”) to transport the cargo by rail from Illinois to California, where it was to be loaded upon Maersk’s vessels for ocean carriage to Australia. On December 22, 2006, BNSF’s train carrying the cargo derailed prior to reaching the port in California, damaging the cargo.

 

We otherwise assume the parties’ familiarity with the underlying facts and review only briefly the case’s complicated procedural history. On February 16, 2011, Judge Jones, in a Memorandum and Order, held that the “Carmack [Amendment] provides the default legal regime governing the inland leg of a multimodal shipment originating within the United States and traveling on a through bill of lading,” and thus is applicable to the dispute in this case. Am. Home Assurance Co. v. Panalpina, Inc., No. 07 CV 10947(BSJ), 2011 WL 666388, at *4 (S.D.N.Y. Feb. 16, 2011). In a March 2013 decision revisiting another Judge Jones decision, Chief Judge Preska1 declined to revisit the February 2011 decision holding that the Carmack Amendment applies to American Home’s claims against BNSF, and extended it in holding that “the Carmack Amendment governs the entire scope of Plaintiff’s claims.” Am. Home Assurance Co. v. A.P. Moller–Maersk, No. 07 Civ. 10947(BSJ)(GWG), 2013 WL 8558970, at *2 (S.D.N.Y. Mar. 12, 2013). After various other proceedings in the district court, on March 31, 2014, Judge Gardephe granted Maersk’s motion for summary judgment and dismissed the case, finding that Chief Judge Preska’s March 2013 order established the law of the case that Carmack was the governing legal liability regime. Judge Gardephe concluded that ocean carriers like Maersk are not subject to statutory Carmack liability and rejected American Home’s argument that Maersk contracted into Carmack liability in Maersk’s bill of lading. American Home timely appealed on April 17, 2014.

 

On appeal, American Home argues a different view of Maersk’s bill of lading: that “Maersk assumed the entire responsibility for the transportation of the cargo, and thus placed itself in the position that BNSF would have been had BNSF contracted directly with [American Home].” Appellant Br. 17. Thus, American Home seeks to impose the liability scheme that governs BNSF’s conduct on Maersk as a matter of contract. This argument—which would require us to revisit the district court’s decision that the Carmack Amendment governs—is unavailing.

 

*2 American Home affirmatively argued before the district court that the Carmack Amendment governs this case and in her February 2011 decision, Judge Jones agreed. Any argument that the Carmack Amendment does not govern this dispute has been waived. Waiver is the “intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993). Given that waiver means that the “relinquish[ment]” was “knowing[ ] and intelligent[ ],” Wood v. Milyard, 132 S.Ct. 1826, 1832 n. 4 (2012), the effect of waiver is that there was no error, and hence even plain-error analysis is unavailable, see Puckett v. United States, 556 U.S. 129, 138 (2009). In affirmatively arguing that the Carmack Amendment governs this case and not pressing its current contract-based argument, American Home waived the right to press that contract position before this Court. We agree with Judge Gardephe that “[h]aving prevailed on its argument that the Carmack Amendment governs this case, American Home must live with the consequences.” Am. Home Assurance Co. v. Panalpina, Inc., 13 F.Supp.3d 277, 288 (S.D.N.Y.2014).

 

Because we find that the district court properly interpreted the Carmack Amendment when it determined that Maersk is neither a rail carrier nor a freight forwarder and that Maersk did not agree to liability under the Carmack Amendment, we affirm the district court’s grant of summary judgment to Maersk.

 

Finally, we reject American Home’s attempts to avoid the district court’s decision by raising a pure contract claim on appeal because the application of the Carmack Amendment to this case preempts any such claim. See Project Hope v. M/V IBN SINA, 250 F.3d 67, 73 n. 6 (2d Cir.2001) (Carmack Amendment “preempt [s] the shipper’s state and common law claims against a carrier for loss or damage to goods during shipment”). We have considered all of American Home’s remaining arguments and find them to be without merit.

 

For the reasons stated above, the judgment of the district court is AFFIRMED.

 

 

 

Footnotes

 

1

 

This case was temporarily transferred to Chief Judge Preska when Judge Jones retired in January 2013. The case was then transferred to Judge Gardephe in May 2013.