Court of Appeals of Georgia.

NATIONWIDE LOGISTICS, INC.

v.

CONDOR TRANSPORT, INC.

Nov. 1, 2004.

BARNES, Judge.

Condor Transport, Inc., (“Condor”) sued Nationwide Logistics, Inc. (“Nationwide”), for breach of contract alleging that Nationwide had failed to pay $46,791.48 in freight charges. Nationwide answered and counterclaimed seeking indemnification for the loss of a trailer of breakfast cereal valued at $57,919.69 that was transported by Condor. Nationwide also filed a third-party complaint against Freight Handlers, Inc., the company Condor contracted with for trailer handling services, but subsequently voluntarily dismissed this complaint against Freight Handlers without prejudice. The parties filed cross-motions for summary judgment, and following a hearing on the motions, the trial court granted summary judgment in favor of Condor, and Nationwide now appeals. We discern no error, and affirm.

A trial court properly grants summary judgment when there is no issue of material fact and the record demonstrates that the moving party is entitled to judgment as a matter of law. See Columbus Clinic v. Liss, 252 Ga.App. 559, 562, 556 S.E.2d 215 (2001). “On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.” Id.

So viewed, the record reflects that Nationwide is a “third-party logistics provider” and freight broker. In its function as a freight broker it hires third-party carriers to transport goods for other companies. Food Lion is one of the companies that used Nationwide to broker the delivery of loads from its vendors to its distribution centers.

Condor is an interstate contract and common carrier, and had contracted with Nationwide since 1999 as a third-party carrier. Condor, per the “Motor Transportation Contract” with Nationwide, provided transportation services for Nationwide on behalf of Nationwide’s consignors, including Food Lion. On March 24, 2000, Condor picked up a load of cereal from a Kellogg facility in Fairburn, Georgia, and transported it to a facility in Florida. Food Lion was the consignor. Upon arrival in Florida, Condor left the trailer of cereal at the designated storage yard that was operated by Freight Handlers, and put the paperwork in a drop-box. The trailer was subsequently stolen, and although it was later recovered, the cereal, valued at $57,919.69, was missing. When Nationwide inquired about the missing cargo, Condor informed it that the cereal had been dropped off at the designated location, and that the bill of lading was left in a drop box at the facility. The bill of lading was not located, and when personnel could not find the cargo, Nationwide determined that the load “had not been delivered or was stolen,” and planned to file a claim against Condor. Although Nationwide’s policy was to “file the claim with the carrier immediately,” it did not file a claim for the missing goods until almost seven months later, on October 19, 2000. In the interim, Nationwide paid Food Lion on its claim for the stolen cereal.

In the months following the theft, Condor continued to transport goods for Nationwide until November 27, 2000, and accrued freight charges of $46,791.48. Nationwide, however, refused to pay Condor the freight charges because of the $57,919.69 claim for the loss of the cereal. Condor filed this action to recover the freight bills, alleging breach of contract, breach of the property brokers’ regulations, and money had and received. Nationwide answered, denying that it owed the charges, and asserting a counterclaim for the value of the stolen or lost cereal.

In granting summary judgment to Condor, the trial court found that the brokerage contract,

imposes two unambiguous conditions precedent on Nationwide’s right to recover indemnity from Condor. First, [Nationwide] must submit a written claim to Condor within ninety (90) days of the loss, damage or delay involving cargo in order to preserve its right to recover indemnity. Second, Nationwide may offset a cargo loss claim against freight charges owed to Condor only if the cargo claim has not been resolved within ninety (90) days of the date Nationwide submits its written claim to Condor and if Nationwide provides written notice to Condor by certified mail of its intent to use the cargo loss claim to offset the freight charges owed to Condor.

Nationwide failed to do either, and the court held that “[u]nder Missouri law, failure of a condition precedent prevents the non-performing party from enforcing the terms of an agreement.” Thus, Nationwide’s claimed for indemnity failed as a matter of law.

The construction of a written contract is generally a matter for the trial court to decide as a matter of law. Peachtree on Peachtree Investors v. Reed Drug Co., 251 Ga. 692, 694(1), 308 S.E.2d 825 (1983). On appeal of such contract construction by the trial court, we conduct a de novo review of the legal issues. Tachdjian v. Phillips, 256 Ga.App. 166, 168, 568 S.E.2d 64 (2002).

1. Nationwide first argues that the trial court erred in granting summary judgment because the evidence demonstrates that Condor failed to deliver the cereal and was therefore liable for the loss.

Nationwide brought its counterclaim for indemnification and breach of contract pursuant to the terms of the brokerage contract. The contract held in pertinent part that,

[Condor] agrees to indemnify and hold [Nationwide] harmless from all losses, damages, claims, or liabilities (including attorney’s fees) that arise from the performance of transportation services hereunder by [Condor], unless such losses, etc., arise exclusively as a result of the negligence of [Nationwide].

Condor’s liability for the loss is wholly irrelevant to whether Nationwide would be indemnified. The contract only stipulates that liability could not exclusively lie with Nationwide, and here, it is undisputed that Nationwide had nothing to do with the loss. Condor had a duty to indemnify regardless of its liability, and accordingly, the trial court did not err for failing to make a finding on the issue of Condor’s liability. See generally Edwards Bros., Inc. v. Overdrive Logistics, Inc., 260 Ga.App. 222, 581 S.E.2d 570 (2003).

2. Nationwide also argues that the trial court erred in finding that it had failed to file a timely claim for the lost cereal. We do not agree.

The contract stipulated that,

[i]t is further understood and agreed that all commodities transported under the terms and in accordance with this Agreement shall be transported in accordance with the rates, charges, rules and regulations as set out in the Schedule of Actual Rates and Charges (the “Schedule”) applying to the commodities herein, attached hereto as Exhibit “A” and incorporated herein by reference, and all supplements thereto and reissues thereof.

Under the terms of the Schedule, “[a] claim for loss, damage, or delay to cargo totaling in excess of $100.00 will not be voluntarily paid by [Condor], unless filed in writing, as provided in subparagraph (b) below, with carrier, within 90 days.” (Emphasis supplied.)

The Schedule also provided that, within 30 days of the receipt of a written claim Condor must acknowledge receipt of the claim and request any additional documentation needed for its investigation, and must then within 30 days, either pay the claim, deny payment, or make a firm compromise offer on the claim.

The Schedule further stipulated that

[i]f [Condor] fails to comply with this disposition or reporting requirements, however, Nationwide Logistics, Inc. is entitled to deduct from the amount of an outstanding freight bills payable to [Condor] the full amount of such claim. In the event any claim is outstanding or unresolved for more than 90 days after its filing, Nationwide Logistics, Inc. is authorized to deduct from the amount of any outstanding freight bills payable to [Condor] the full amount of such claim.

Nationwide does not argue that it filed within the 90 day contract period, it instead argues that it did not have standing to file the claim until after Food Lion had filed its claim for the loss against Nationwide.

The contract specifically provided that it was to be construed under Missouri law, and in the absence of contrary public policy, our courts normally will enforce a contractual choice of law provision, as the parties by contract may stipulate that the laws of another jurisdiction will govern the transaction. Carr v. Kupfer, 250 Ga. 106, 107(1), 296 S.E.2d 560 (1982).

Under Missouri law,

[d]etermining the intention of the parties and giving effect to that intention is the prime principle of contract interpretation. The contract is read as a whole to determine the parties’ intent. All terms are given their plain, ordinary, and usual meanings, and terms should be construed to avoid rendering other terms meaningless. Intent is not to be determined merely by looking at isolated provisions not considered in the context of the entire agreement. Where a contract dispute is based on the construction of a contract, rather than a factual dispute as to what was agreed upon, the court must construe the contract. If it is clear and unambiguous as a matter of law, this construction is limited to the “four corners” of the instrument and parol evidence as to its meaning cannot be utilized.

(Citations omitted) Spirtas Co. v. Div. of Design and Construc., 131 S.W.3d 411, 416 (Mo.App.2004).

Moreover,

it is not within the province of the court to alter a contract by construction, or to make a new contract for the parties…. [A] court’s duty is confined to the interpretation of the contract which the parties have made for themselves, without regard to its wisdom or its folly, and a court may not read into a contract words which the contract does not contain.

Service Vending Co. v. Wal-Mart Stores. Inc., 93 S.W.3d 764 (Mo.App.2002)

The language in the contract between Condor and Nationwide is clear. The contract provided that claims must be submitted in writing within 90 days of the loss. There is no contingency providing that the notice provision is effective only upon the filing of a claim by a consignor. The contract with Food Lion contained no such provision, an oversight that Nationwide was in the position to correct, as the drafter of the contract. By signing the contract, Nationwide accepted that it would be bound by the notice provision in order to file a claim. Therefore, we find no merit in the enumeration.

3. Finally, Nationwide argues that the contract provision controlling indemnification is clear and unambiguous and does not provide for any preconditions to Condor’s duty to indemnify. We do not agree.

The contract stipulates that

it is further understood and agreed that all commodities transported under the terms and in accordance with this Agreement shall be transported in accordance with the rates, charges, rules and regulations as set out in the Schedule of the Actual Rates and Charges applying to the commodities herein, attached hereto as Exhibit “A” and incorporated herein by reference, and all supplements thereto and reissues thereof.

And as noted previously, under the terms of the Schedule, “[a] claim for loss, damage, or delay to cargo totaling in excess of $100.00 will not be voluntarily paid by [Condor], unless filed in writing, as provided in subparagraph (b) below, with carrier, within 90 days.” (Emphasis supplied.)

We agree with the trial court’s conclusion that “the failure of the condition precedent by Nationwide prevents it from enforcing the indemnification provision in the contract, and its claim for indemnity therefore fails as a matter of law.”

A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main action. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. In other words, if a contract contains a condition precedent, the condition must occur or be performed before the contract takes effect and is enforceable. If the condition does not occur or is not performed the other party may withdraw, but in order to escape liability the withdrawing party must affirmatively show that the withdrawal from the contract occurred because of the condition’s failure.

CIT Group/Equipment Financing, Inc. v. Integrated Financial Services, Inc., 910 S.W.2d 722, 729 III(B) (Mo.App.1995).

Condor has met this burden, and accordingly, the trial court did not err in its grant of summary judgment.

Judgment affirmed.

BLACKBURN, P.J., and MIKELL, J., concur

Supreme Judicial Court of Maine.

CASTINE ENERGY CONSTRUCTION, INC.

v.

T.T. DUNPHY, INC.

Argued: Sept. 21, 2004.

Decided: Oct. 26, 2004.

RUDMAN, J.

Castine Energy Construction, Inc. appeals from a judgment entered in the Superior Court (Somerset County, Studstrup, J.), upon a jury verdict finding that T.T. Dunphy, Inc. was free from negligence, and that Castine proximately caused the damages that were the subject of its complaint. Castine contends that the court erred by failing to grant its motion for judgment as a matter of law, allowing Dunphy’s expert to testify as to how the relevant safety regulations should be interpreted, and by denying its request to instruct the jury that it had no duty to warn Dunphy of the possible dangers in improperly securing the freight it was hired to transport. We disagree and affirm the judgment.

I. BACKGROUND

Castine is a construction company that specializes in air pollution control systems. At some time prior to July 10, 2000, Castine was hired by a Virginia company (Covanta Fairfax, Inc.) to fabricate and deliver several devices known as “steel baghouse covers.” These covers are steel industrial filters, approximately 11 feet x 11 feet, each weighing 2000 pounds. Castine was to fabricate these covers at its facility in Fairfield, Maine, and then deliver them to Virginia. Castine, in turn, contracted with World Transport Services, Inc., who in turn subcontracted with Dunphy to deliver the covers from Castine’s facility in Maine to Virginia. Castine decided that the best way to transport the covers would be in an “A-frame” configuration. In order to facilitate the loading of the covers onto the trailer, Castine welded iron cross bars onto the covers. These cross bars were “stitch welded” onto the A-frame structures. Castine testified that these cross bars were intended only for the purposes of loading the trailer and were never meant to be used in securing the covers once loaded. On July 7 and 8, 2000, Castine placed the sixteen covers onto the trailer for transport to Virginia. The covers were placed on the flatbed trailer in the A-frame configuration designed by Castine.

On Saturday, July 8, 2000, Dunphy’s driver arrived at Castine’s facility to pick up the trailer. At that time the covers were in good condition. The driver proceeded to secure the covers onto the trailer in preparation for transporting them to Virginia. In order to secure the load the driver used chains, which he attached to the iron cross bars that Castine had left welded to the A-frames. The driver issued a bill of lading to Castine, and then set off for Virginia. While traveling on highway I-290 through Massachusetts, the covers came loose after the driver drove over a bump in the road. All of the covers spilled onto the highway and were irreparably damaged.

Castine filed a two-count complaint against Dunphy, sounding in strict liability, under a federal transportation liability statute, and in negligence. Prior to trial, Castine moved for a summary judgment, arguing that Dunphy was negligent per se for violating certain federal safety regulations while transporting the covers. The court (Marden, J.) denied Castine’s motion concluding that a genuine issue of material fact existed as to whether Dunphy was negligent. A jury trial was held before the Superior Court.

At the close of evidence, Castine renewed its insistence that the case involved no genuine issue of material fact, and moved for judgment as a matter of law. Castine asserted that it was undisputed that Dunphy had violated a safety statute and was therefore negligent per se. The court denied this motion and held that even if Dunphy did violate a safety statute, such a violation is merely “one of many factors [the jury] can consider in determining whether there was negligence.”

The jury was asked to answer two factual questions: whether Dunphy was free from negligence and whether Castine proximately caused the damages. The jury returned a verdict specifically finding that Dunphy was free from negligence and also that Castine proximately caused the damages to the covers. The court entered a judgment in favor of Dunphy. Castine made a motion for a new trial, arguing that the trial court had erred in allowing Dunphy’s expert witness to testify to the effect of certain transportation regulations, and for denying its request that the court instruct the jury that it had no duty to warn Dunphy of the danger in securing the cargo using the cross bars. The court denied this motion. This appeal followed.

II. DISCUSSION

A. Judgment as a Matter of Law

Federal law governing the liability of shippers and carriers controls this case. Pursuant to 49 U.S.C.A. § 14706 (1997 & Supp.2004), known as the Carmack Amendment, once a carrier accepts property it receives for transportation, it issues a bill of lading and is thereafter responsible for damages to the property. [FN1] 49 U.S.C.A. § 14706(a) (1997). The Supreme Court has explained the effect of the statute:

FN1. Under the Carmack amendment:

A common carrier … subject to the jurisdiction of the Interstate Commerce Commission … shall issue a receipt or a bill of lading for property it receives for transportation …. That carrier … [is] liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for actual loss or injury to the property caused by (1) the receiving carrier, (2) the delivering carrier, or (3) another carrier over whose lines or route the property is transported into the United States ….

49 U.S.C.A. § § 10730, 11707 (repealed 1995), now contained at 49 U.S.C.A. § 14706(a)(1) (2004).

It is settled that this statute has two undisputed effects crucial to the issue in this case: First, the statute codifies the common-law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by “(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.”

Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137 (1964). Under the statute a shipper must first establish a prima facie case. “To make a prima facie case under the Carmack Amendment, a plaintiff must show 1) delivery to the carrier in good condition; 2) arrival in damaged condition; and 3) the amount of damages caused by the loss.” Camar Corp. v. Preston Trucking Co., Inc., 221 F.3d 271, 274 (1st Cir.2000) (citing Mo. Pac. R.R. Co., 377 U.S. at 137-38); see also D.P. Apparel Corp. v. Roadway Express, Inc., 736 F.2d 1, 2 (1st Cir.1984).

Once the shipper establishes a prima facie case the burden shifts to the carrier to show, first, that it was free from negligence, and second, that the damages were caused by one of the stated exceptions. [FN2] Mo. Pac. R.R. Co., 377 U.S. at 138. In this case the parties agree that Castine established a prima facie case. The key issue, therefore, became whether Dunphy was free from negligence. If Dunphy was not free from negligence, then Castine was entitled to recover its damages as a matter of law pursuant to the Carmack Amendment.

FN2. As stated above, the exceptions include: “(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.” Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137 (1964).

We review “the trial court’s denial of a motion for a judgment as a matter of law by examining the evidence in the light most favorable to the nonmoving party to determine whether any reasonable view of the evidence, including all justifiable inferences to be drawn therefrom, could sustain the verdict.” St. Francis De Sales Fed. Credit Union v. Sun Ins. Co. of N.Y., 2002 ME 127, ¶ 25, 818 A.2d 995, 1003. “The burden is on the moving party to show that the adverse verdict is clearly and manifestly wrong.” Schiavi v. Goodwin, 542 A.2d 367, 368 (Me.1988); quoting Bowie v. Landry, 108 A.2d 314, 315 (1954).

Contrary to Castine’s position, violation of a safety statute or regulation is merely evidence of negligence, not negligence per se. Town of Stonington v. Galilean Gospel Temple, 1999 ME 2, ¶ 10, 722 A.2d 1269, 1272; French v. Willman, 599 A.2d 1151, 1152 (Me.1991). Though this case involves a federal law, state law governs most issues related to the admissibility and effect of evidence. See M.R. Evid. 101 (“These rules govern proceedings in the courts of this state.”); see also Elliott v. S.D. Warren Co., 134 F.3d 1, 5 (1st Cir.1998) (holding, in the context of a diversity case, that “the evidentiary effect accorded the violation of a safety rule is a matter of state law”).

Moreover, even if federal case law does govern the evidentiary effect of a violation of a safety statute, it is unlikely that the negligence per se doctrine would apply. In Pradico v. Portland Terminal Co., 783 F.2d 255 (1st Cir.1985), the case relied upon by Castine, the First Circuit applied the negligence per se doctrine to a set of facts arising under the Federal Employers’ Liability Act (FELA), 45 U.S.C.A. § § 51–60 (1982). The First Circuit has subsequently retreated from this position:

At the time this court decided Pradico, we had very little guidance from our sister circuits. In the past twelve years, however, at least four other courts of appeals have considered when, if ever, a violation of an OSHA regulation might constitute negligence per se. Three of these four courts have held squarely that, because the OSH Act does not create a private right of action, a violation of an OSHA regulation never can be equated with negligence per se. The Sixth Circuit, like the Fifth, leaves open the possibility that a violation of an OSHA regulation may, in some cases governed by federal law, constitute negligence per se, but it is rare in either circuit for a court actually to uphold a finding of negligence per se on this basis. Silhouetted against this backdrop, the Pradico holding is of questionable validity … [f]or present purposes, it suffices to note that Pradico involved an FELA claim and the case’s holding is properly limited to causes of action brought under that statute.

Elliott, 134 F.3d at 4 (internal citations omitted). [FN3] Therefore the continuing vitality of the negligence per se doctrine articulated in Pradico is questionable even under FELA. As clarified by the First Circuit, the holding in Pradico cannot be extended beyond its immediate statutory context. Because the alleged violations of the regulations were merely evidence of negligence, Castine must demonstrate that the contrary verdict was manifestly wrong. Viewing the evidence in the light most favorable to Dunphy, it cannot be said that there was not a genuine issue of material fact with respect to whether Dunphy was negligent. Therefore, the trial court did not err by denying Castine’s motion for judgment as a matter of law.

FN3. Castine notes that the First Circuit’s holding makes a distinction between cases brought under the federal law and those brought under Maine law. While the First Circuit does make a distinction, it ultimately holds that the negligence per se doctrine of Pradico is strictly limited to cases brought under FELA, and it strongly implies that the doctrine will not be expanded. Elliott v. S.D. Warren Co., 134 F.3d 1, 4 (1st Cir.1998).

B. Expert Testimony

In order to show that it was free from negligence, Dunphy called a retired Maine State Trooper to testify with respect to safety issues. Castine asserts that the court erred by allowing Dunphy’s expert to testify as to whether Dunphy’s federal regulations were complied with. [FN4] Castine further contends that Dunphy’s witness was not qualified as an expert.

FN4. Castine argues that the trooper testified at trial to matters that he had not previously indicated he would address, and therefore, it was unfairly surprised at trial. Generally, a continuance is the appropriate remedy when a party seeks to admit “surprise” evidence at trial. Because Castine did not seek a continuance, however, it may not now claim unfair surprise. See Pettitt v. Lizotte, 454 A.2d 329, 332-33 (Me.1982) (holding that there was no abuse of discretion in allowing a defendant’s surprise fact witness to testify because the plaintiff did not request a continuance).

Experts may generally testify if they possess “specialized knowledge” that will assist the trier of fact in determining a fact in issue. M.R. Evid. 702. Moreover, an expert opinion “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” M.R. Evid. 704. Therefore, an expert witness may state his opinion on an ultimate factual issue in a case so long as his testimony satisfies all the requirements for the admission of expert testimony. “Thus, under Rule 704, whether to allow into evidence an opinion on an ultimate issue rests within the sound discretion of the presiding Justice.” Minott v. F.W. Cunningham & Sons, 413 A.2d 1325, 1330 (Me.1980).

The trial court did not err in finding that the trooper qualifies as an expert witness. “We defer to the trial court on the determination of whether the expert’s qualifications are sufficient to allow the expert to testify.” State v. Cookson, 2003 ME 136, ¶ 22, 837 A.2d 101, 108. The expert is a retired Maine State Police lieutenant who spent thirty years on the force, twenty-five of them in the commercial vehicle enforcement unit that enforces transportation safety regulations. Because he had extensive experience with enforcing safety regulations, the trooper’s knowledge was useful with respect to safety standards and issues.

The trooper’s testimony touched upon an issue that, while not strictly the “ultimate issue,” [FN5] was clearly of vital importance to the parties. This alone, however, is an insufficient ground for an objection. The trooper did not merely give an opinion as to a “principle of law” as suggested by Castine. The trooper gave his opinion, based on the trial exhibits and testimony, as to what steps would have been required to properly secure the covers before transporting them. This testimony addressed mixed questions of fact and law. While courts may not permit an expert to give an “opinion that amounts to no more than choosing up sides,” it is permissible for an expert to testify regarding factual issues that also concern legal standards. Field & Murray, Maine Evidence § 704.1 at 377-78 (2000 ed.); see also Pierce v. Cent. Me. Power Co., 622 A.2d 80, 83 (Me.1993) (allowing an expert to testify as to the forseeability of an accident even though foreseeability was a legal concept used in the jury instructions). In this case, due to the discretion possessed by the court in allowing expert testimony, and because the testimony itself was not dispositive of the ultimate issue of negligence, the court did not err in allowing the trooper’s testimony.

FN5. Because violation of a safety regulation is evidence of negligence, and not negligence per se, the question of whether Dunphy violated a regulation, while significant, cannot be characterized as the ultimate issue at trial.

C. Jury Instructions

Castine notes that responsibility for securing the cargo resided with the carrier pursuant to the Carmack Amendment [FN6] and argues that the court abused its discretion by failing to instruct the jury that it had no duty to warn Dunphy that the cross bars it welded to the A-frame structure were not intended for use in securing the freight during transport. Over Castine’s objection, the court failed to give the requested instruction. We review jury instructions “in their entirety to determine whether they fairly and correctly apprised the jury in all necessary respects of the governing law.” Lee v. Scotia Prince Cruises Ltd., 2003 ME 78, ¶ 15, 828 A.2d 210, 214. We have explained:

FN6. Castine cites to regulations effective at the time of the accident, which state that the carrier must assure itself that hardware used in the tiedown assembly is as strong as the tiedown itself. 49 C.F.R. § § 392.9(b)(1), 393.102(c) (effective until 2002).

On appellate review, a party can demonstrate entitlement to a requested instruction only where the instruction was requested and not given by the court and it: (1) states the law correctly; (2) is generated by the evidence in the case; (3) is not misleading or confusing; and (4) is not otherwise sufficiently covered in the court’s instructions. In addition, the refusal to give the requested instruction must have been prejudicial to the requesting party.

Clewley v. Whitney, 2002 ME 61, ¶ 8, 794 A.2d 87, 90 (citation omitted).

Contrary to Castine’s assertion, the court did not exceed the bounds of its discretion by failing to give the requested instruction. 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 caused these defects, and it was otherwise free from negligence:

The primary duty as to the safe loading of property is therefore upon the carrier. 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; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.

United States v. Savage Truck Line, Inc., 209 F.2d 442, 445 (4th Cir.1953), see also Franklin Stainless Corp. v. Marlo Transp. Co., 748 F.2d 865 (4th Cir.1984). Had the court instructed the jury that Castine had no duty to warn Dunphy about the danger of using the cross bars to secure the cargo, it may have implied that Dunphy had a duty to discover latent defects, hence confusing the jury. Further, if the defect was indeed latent, an issue of fact, then Castine may have had an obligation to warn Dunphy. Because the requested instruction is misleading, and does not accurately convey the legal standard, the court did not exceed the bounds of its discretion in refusing to give it.

Judgment affirmed.