Volume 18, Edition 11 cases

MITSUI SUMITOMO INSURANCE COMPANY, LTD., Plaintiff, v. DAILY EXPRESS, INC.

United States District Court,
S.D. Ohio, Western Division.
MITSUI SUMITOMO INSURANCE COMPANY, LTD., Plaintiff,
v.
DAILY EXPRESS, INC., Defendant.
Case No. 1:15-cv-316 | 10/28/2015

Stephanie K. Bowman, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER
*1 Plaintiff filed a complaint against the Defendant in the Ohio Court of Common Pleas of Butler County, Ohio. On May 11, 2015, Defendant removed the case to this court on the basis of federal question jurisdiction, and on June 25, 2015, Plaintiff filed an amended complaint. On July 7, 2015, Defendant moved to dismiss Plaintiff’s amended complaint for failure to state a claim. Plaintiff has filed a response in opposition to Defendant’s motion, to which Defendant has filed a reply. The parties have consented to final disposition of this case, including but not limited to disposition of the pending motion, by the undersigned magistrate judge. See 28 U.S.C. § 636(c); Doc. 14.

I. Background
The following background is derived from Plaintiff’s complaint. All allegations are assumed to be true solely for purposes of the pending motion. Plaintiff generally alleges that it was the “insurer, assignee, and subrogee” of a company that was a “re-sleever” of an object called a “VC roll” which property was allegedly damaged by Defendant during transport of the item from Indiana to Ohio.

More particularly, Plaintiff alleges prior to April 28 2013, the VC roll was owned by AK Steel, in Middletown, Ohio, and was shipped to Sumitomo Corporation of America in Japan for re-sleeving. (Doc. 20 at ¶1). Following that re-sleeving, on March 28, 2013, the VC roll was packaged and placed on board a vessel that traveled from Kobe, Japan to Savannah, Georgia. (Id. at ¶4). On April 22, 2013, Plaintiff’s insured contracted with Defendant Daily Express, Inc. in Carlisle, Pennsylvania to pick up the VC roll from the Port of Savannah and transport it to the Herr-Voss Stamco RCI facility in Chesterton, Indiana. On April 28, 2013, the VC roll arrived at the Port of Savannah and on April 30, 2013, the Georgia Port Authority “assembled the Defendant’s trailer with the aforementioned VC roll.” (Id. at ¶¶6-7).

Plaintiff alleges that Defendant acknowledged receipt of the VC roll “in apparent good order.” (Id. at ¶8). Defendant next delivered the VC roll to the RCI facility in Chesterton, Indiana, where the roll was removed from the crate in which it was packed and “landed on a flatbed trailer by Herr-Voss personnel for transport to AK steel in Middletown, Ohio by Defendant.” On May 7, 2013, Defendant delivered the VC roll to AK Steel in Middletown, Ohio. On the same date, AK Steel personnel observed damages to the VC roll and notified Defendant’s employee. On May 17, 2013, EIMC, “a specialized professional consulting firm,” together with representatives from AK steel, Sumitomo Corporation, Herr-Voss, Daily Express, and MRT all surveyed the damage to the VC roll. On July 10, 2013, Superior Forge & Steel provided a quotation for repairs in the amount of $62,000.00. (Id. at ¶¶9-16). Plaintiff alleges that Defendant was negligent in securing the VC roll during transportation. (Id. at ¶19). Plaintiff asserts a claim of “strict liability” under the Carmack Amendment, as well as a second claim for breach of contract, and demands judgment “in the amount of $62,950.40” plus costs. (Id. at ¶¶24-25, 27-28).

II. Analysis
A. Standard of Review
*2 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the claims. The court is required to construe the complaint in the light most favorable to the Plaintiff, and accept all well-pleaded factual allegations in the complaint as true. See Lewis v. ACB Business Services, 135 F.3d 389, 405 (6th Cir. 1998). A court, however, will not accept conclusions of law or unwarranted inferences which are presented as factual allegations. Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1974). A complaint must contain either direct or reasonable inferential allegations that support all material elements necessary to sustain a recovery under some viable legal theory. Lewis v. ACB, 135 F.3d at 406 (internal citations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted); Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007).

B. Defendant’s Motion To Dismiss
1. Preemption of Breach of Contract and Negligence Claims
Defendant seeks dismissal of Plaintiff’s breach of contract and negligence claims, brought under state law, on grounds that the Carmack Amendment preempts such claims. See 49 U.S.C. § 14706. In response, Plaintiff “agrees that federal law preempts causes of action for damage to property transported in interstate commerce,” and acknowledges that “the Carmack Amendment provides an exclusive remedy for a breach in this instance.” (Doc. 28 at 7, 9). However, Plaintiff maintains that it has asserted separate claims for negligence and for breach of contract “as the basis of its cause of action against Defendant for violation of the Carmack Amendment” rather than as independent claims. Id. Plaintiff contends that “to get to this [Carmack Amendment] cause of action…, Plaintiff must assert a specific breach of duty…, such as: negligence, or breach of contract of carriage.” Id. Plaintiff further argues that its “allegations of negligence and breach of contract both fall under the authority of the Carmack Amendment….” (Id. at 10).

The undersigned recommends that Defendant’s motion to dismiss be granted with respect to any independently asserted state law claims. As other courts in this district have concluded when presented with similar facts, “[i]n the Sixth Circuit, the issue of the scope of the preclusive effect of the Carmack Amendment has been conclusively resolved in a manner that is fatal to Plaintiff’s state law claims.” Hemsath v. J. Herschel Kendrick Moving & Storage, 2006 WL 1000189 at *1 (S.D. Ohio, April 14, 2006); Exel, Inc. v. Southern Refrigerated Transport, Inc., 2012 WL 3064106 (S.D. Ohio, July 27, 2012). See also generally American Synthetic Rubber Corp. v. Louisville & Nashville Ry. Co., 422 F.2d 462, 466 (6th Cir. 1970)(“[W]hen damages are sought against a common carrier for failure to properly perform, or for negligent performance of, an interstate contract of carriage, the Carmack Amendment governs.”).

Contrary to the assertions in Plaintiff’s response in opposition to Defendant’s motion, the first amended complaint contains a number of allegations that are reasonably construed as stating independent claims for negligence and breach of contract. (Doc. 20 at ¶19, 27-28). To the extent that Plaintiff’s separate Counts I and II plead any cause of action for negligence or breach of contract outside the scope of the Carmack Amendment, such claims are preempted by federal law.

2. Carmack Amendment
Defendant removed to this Court on the basis of federal question jurisdiction, specifically citing the Carmack Amendment. In its motion to dismiss, Defendant now argues that Plaintiff’s complaint fails to set forth sufficient allegations to make a claim under the Carmack Amendment, and therefore should be dismissed in its entirety. Plaintiff protests that “Defendant can’t have it both ways,” (Doc. 28 at 6)

*3 Contrary to Plaintiff’s assertion, this Court’s conclusion that the Carmack Amendment preempts any common law claims does not logically preclude a finding that Plaintiff has failed to state a claim under the statute. Nevertheless, the Defendant’s motion will be denied, because it is without legal merit.

a. Strict Liability
Defendant begins its criticism of Plaintiff’s Carmack Amendment claim by arguing that “Plaintiff apparently believes that a Carmack Amendment action renders a carrier…strictly liable….” Defendant proceeds to discuss the common law rule in England that was developed in reaction to “roving bands of highway thieves,” before arguing distinctions from that history under the Carmack Amendment. (Doc. 23 at 10). In response, Plaintiff readily acknowledges modern day exceptions to liability under the Carmack Amendment, while noting case law that continues to state that “Carmack ‘imposes something close to strict liability upon originating and delivering carriers.’ ” Sompo Japan Ins. Co. of Am. v. Union Pac. R. Co., 456 F.3d 54, 59 (2d Cir. 2006)(internal citation omitted, abrogated on other grounds by Kawaski Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S.Ct. 2433 (2010)); see also Amerisure Mut. Ins. Co. v. Carey Transp., Inc., 578 F. Supp.2d 888, 917 (W.D. Mich. 2008). The undersigned finds no basis for dismissal on grounds that Plaintiff has inappropriately pleaded its Carmack Amendment claim as one of “strict liability,” because the allegations in the complaint need not (and should not) be so rigidly construed. (See, e.g., Doc. 20 at ¶24, “The Carmack Amendment applies strict liability to motor carriers for freight claims, without proof of negligence, unless: it was not negligent, and one of the five exceptions is met.”).

b. Elements of Claim/ Delivery In Good Condition
Defendant next contends that Plaintiff has failed to plead an essential element of the claim. To establish a claim under the Carmack Amendment, the parties agree that Plaintiff must show three things: (1) delivery in good condition; (2) arrival in damaged condition; and (3) the amount of damages. See Great West Casualty Co. v. Flandrich, 605 F. Supp.2d 955, 966 (S.D. Ohio 2009)(citing Missouri Pacific R.R. v. Elmore & Stahl, 388 U.S. 134, 138 (1964)). Once a shipper establishes its prima facie case, the burden of proof shifts to the carrier “to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” Missouri Pacific R.R., 377 U.S. at 138. Defendant concedes that Plaintiff has adequately pleaded arrival in a damaged condition and the amount of damages, but asserts that Plaintiff has failed to allege the first element – that the VC roll was delivered to Defendant in good condition.

Plaintiff specifically alleges: “On April 30, 2013, Defendant signed the bill of lading, acknowledging receipt of the …VC roll in apparent good order.” (Doc. 20 at ¶8). However, Defendant argues that Plaintiff’s allegation is insufficient to establish that the VC roll was delivered to Defendant in good condition, because it remains Plaintiff’s “obligation to make the allegation of…delivery to the carrier in good order, as opposed to simply alleging that the property was received by the carrier.” (Doc. 23 at 11). Defendant’s interpretation strains the “Notice Pleading” standards of Rule 8, Fed. R. Civ. P., and is wholly inconsistent with Rule 12(b)(6) standards, which require this Court to construe allegations in favor of the Plaintiff.

*4 Defendant additionally argues that the memorandum of transportation attached as Exhibit 5 to the complaint relates to the shipment of the VC roll from Savannah, Georgia to Chesterton, Indiana – and not the shipment of the property from Indiana to Ohio, during which the damage is alleged to have occurred. However, Plaintiff points out that it did allege that there were no observable damages on the VC roll until such time as it arrived in Middletown, Ohio. (See Doc. 20 at ¶12, “Prior to May 7, 2013, no damages to the VC roll were observed by any parties mentioned herein.”). Plaintiff further asserts that the bill of lading (which corresponds to the relevant portion of the transportation from Indiana to Ohio) also demonstrates that Defendant’s employee received the property in good condition.

Defendant criticizes the referenced bill of lading as “troublesome,” because it does not reflect the date that the property was actually delivered to Defendant. It also was not issued to Plaintiff itself, but instead to Herr-Voss Stamco (“Stamco”), an entity that is not a party to this lawsuit. However, Plaintiff represents that Stamco was Plaintiff’s insured’s independent contractor. Plaintiff argues that under controlling Sixth Circuit case law, the fact that Defendant issued the bill of lading to the contractor does not excuse its liability under the Carmack Amendment, in part because Stamco executed the bill of lading on behalf of Plaintiff’s insured.

Defendant further criticizes Plaintiff’s Exhibit 6 as failing to specifically identify the property other than as “Roll 101” and the weight of the item, “neither of which can be independently reconciled with the complaint allegations.” (Doc. 23 at 12). Although the bill of lading form includes the words: “RECEIVED… in apparent good order,” Defendant attempts to cast doubt on the evidentiary value of the document because there is “only someone’s apparent handwritten indication of a carrier to be used,” and “no independent corroboration that [Defendant] was the carrier actually used,” and “no independent corroboration on that document of a signature to signify receipt…: (Id.). Defendant concludes that it is “not plausibly apparent from the face of Plaintiff’s complaint that the VC roll was delivered to Defendant in good condition in Chesterton, IN, where the complained of transportation originated.” (Doc. 23 at 12).

In response, Plaintiff argues that Defendant was legally bound to issue a bill of lading prior to taking possession of the VC roll. Indeed, even Defendant concedes, as it must, that “there is some authority” for Plaintiff’s position that the bill of lading may establish a shipper’s case for damage” under the Carmack Amendment. See Hoover Motor Express Co., Inc. v. United States, 262 F.2d 832, 833 (6th Cir. 1959).

The undersigned will deny Defendant’s motion to dismiss the complaint on grounds that Plaintiff has inadequately pled delivery of the goods to Defendant in good condition. When presented with a similar issue, a sister court within the Sixth Circuit held: “Although a Bill of Lading may not be sufficient to prove conclusively that the goods were delivered in good condition, the Plaintiff need only allege that the goods were delivered in good condition to withstand a Rule 12(b)(6) Motion.” Vitramax Grp., Inc. v. Roadway Exp., Inc. 2005 WL 1036180, at 2 (W.D. Ky., May 3, 2005) (additional citation omitted, rejecting contention that complaint should be dismissed because plaintiff had not specifically alleged that the goods were in good condition when delivered to the defendant, relying on liberal pleading standards of Rule 8(a), Fed. R.Civ.P. and noting attachment of bill of lading).

Despite this authority close on point, Defendant continues to argue that Plaintiff has alleged only the “good condition” of the VC roll when it was delivered to the Defendant by the Savannah Port Authority, and not when it was later delivered to Defendant in Chesterton, Indiana, citing Travelers Indemn. Co. of Connecticut v. Central Transport, Inc., 2008 WL 4793403 at **5-6 (E.D. Mich. 2008). The cited case is easily distinguishable on both facts and the law. Aside from the unique factual distinctions, Travelers was concerned with determining whether summary judgment was appropriate under Rule 56, not deciding the altogether different issue of whether a claim survives a Rule 12(b)(6) motion. And even then, the court denied the parties’ cross-motions for summary judgment, concluding that the case must proceed to trial on the issue.

*5 Alternatively, Defendant argues that even if its employee acknowledged on the bill of lading that the property was received “in apparent good order,” dismissal is warranted because Plaintiff failed to include a more specific allegation that “the property was not protected from weather and road debris with a tarpaulin, but instead was open to inspection and visible.” Relying on Hoover, supra, Defendant argues that a statement on a bill of lading that property was received “in apparent good order” is relevant only to show the condition to the extent that the subject property is open to inspection and visible. Here, the complaint does not specifically alleged that the VC roll was uncovered, and open and visible for inspection, at the time the Defendant’s employee allegedly signed the bill of lading.

In response, Plaintiff points out the complaint does allege that the VC roll was on the flatbed trailer, which Plaintiff now argues was “open to inspection and visible to Defendant’s employee and/or agent.” (Doc. 28 at 13). Plaintiff argues that the “Defendant subsequently chained the …VC roll to the trailer in close proximity to where the damages were subsequently found. Had the damages already been present, they would have been open to inspection and visible to Defendant’s employee and/or agent.” (Id.).

No authority, including Hoover, which involved judgment after undisputed testimony and “evidence showing that there were defects in construction of the machines and preparation for shipment, see 262 F.2d at 835, supports Defendant’s position that it is entitled to dismissal under Rule 12(b)(6) based upon Plaintiff’s failure to plead such details in its complaint. Because facts are to be construed in favor of the Plaintiff, the undersigned finds the allegations in the complaint to be sufficient to state a claim under the Carmack Amendment.

c. Timeliness of Notice of Claim
For similar reasons, the Court rejects Defendant’s additional argument under Rule 12(b)(6) that any Carmack Amendment claim would be time-barred. The parties agree that under the statute, Plaintiff was required to first file a claim with Defendant. In its complaint, Plaintiff alleges that “Defendant sent Plaintiff a letter of receipt of Notice of Claim letter sent by Plaintiff dated May 24, 2013.” (Doc. 20 at ¶15).

Defendant contends that the allegation is insufficient to show compliance with all relevant regulations. According to Defendant, “[d]ocuments that do not strictly observe… requirements have been rejected by courts as insufficient to constitute a claim.” (Doc. 23 at 15, citing Salzstein v. Bekins Van Lines, Inc., 993 F.2d 1187, 1190 (5th Cir. 1993)). Even if Plaintiff were able to show that it timely filed a written claim form, Defendant asserts that Plaintiff’s complaint should be dismissed because Plaintiff fails to allege that its claim was actually denied by Defendant prior to filing to suit. (Doc. 23 at 15-16).

Plaintiff responds that it did timely file a claim when its insured immediately notified Defendant and Plaintiff of the damaged condition of the property upon its arrival, as evidenced by the Notice of Claim letter sent to Defendant on May 24, 2013. (Doc. 20 at ¶15). In that Notice of Claim letter, Plaintiff asserted that Defendant was liable for the damage and loss to the VC roll for its full value of $770,661.00. Defendant acknowledged receipt of the Notice of Claim letter on May 31, 2013. (Id.). Subsequently, a joint survey was held at which time damages to the property were assessed at the lower figure of $62,950.40. Plaintiff filed its modified claim with Defendant on April 24, 2014, asserting liability in the lower amount Plaintiff argues that its revised claim was also timely filed. Plaintiff further represents that “[s]ubsequently, Defendant denied plaintiff’s claim.” (Doc. 28 at 15).

*6 In its reply memorandum, Defendant simply reiterates its position that Plaintiff should have included far more specific allegations in its complaint, and now must face dismissal for its failure to do so. Defendant also asserts that even if a claim was timely sent, “Plaintiff is not relieved of the burden of establishing that the purported claim comports with the substantive information that a valid claim must contain” as provided under the regulatory scheme of the Carmack Amendment.

Defendant’s argument is unpersuasive. As previously stated, Rule 8 requires only “notice pleading,” meaning “a short and plain statement of the claim showing that the pleader is entitled to relief…” Fed. R. Civ. P. 8(a). Plaintiff is not required under Rule 8 to set forth every possible factual detail to satisfy every possible regulatory component of a Carmack Amendment claim that Defendant may (or may not) choose to later challenge in any future dispositive motion, after appropriate discovery. It is noteworthy that each case cited by Defendant to support the rejection of a claim based upon a failure to “strictly observe” a regulatory requirement was reviewed on summary judgment, not in the context of a motion to dismiss. Moreover, none of the cited cases were decided either by the Sixth Circuit or by any court within the Sixth Circuit. Of course, Defendant remains free to renew its argument, should evidence produced during discovery provide support for a properly supported summary judgment motion on similar grounds.

III. Conclusion and Order
For the stated reasons, IT IS ORDERED that Defendant’s motion to dismiss (Doc. 23) is GRANTED IN PART, as to any negligence or breach of contract claims alleged under common law, because such claims are clearly preempted by the Carmack Amendment. Defendant’s motion is otherwise DENIED, the Court concluding that Plaintiff has adequately pleaded a single claim against the Defendant under the Carmack Amendment.
s/ Stephanie K. Bowman

Stephanie K. Bowman
United States Magistrate Judge
All Citations
Slip Copy, 2015 WL 6506546

EXEL, INC., f/u/b/o Sandoz, Inc., Plaintiff–Appellee/Cross–Appellant, v. SOUTHERN REFRIGERATED TRANSPORT, INC.

United States Court of Appeals,
Sixth Circuit.
EXEL, INC., f/u/b/o Sandoz, Inc., Plaintiff–Appellee/Cross–Appellant,
v.
SOUTHERN REFRIGERATED TRANSPORT, INC., Defendant–Appellant/Cross–Appellee.
Nos. 14–3953, 14–3990, 15–3032. | Argued: Aug. 6, 2015. | Decided and Filed: Nov. 5, 2015.

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:10–cv–00994—James L. Graham, District Judge.
Attorneys and Law Firms
ARGUED:Thomas H. Dupree, Jr, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellant/Cross–Appellee. Marc Rubin, Spector Rubin, P.A., Miami, Florida, for Appellee/Cross–Appellant. ON BRIEF:Thomas H. Dupree, Jr, Gibson, Dunn & Crutcher LLP, Washington, D.C., Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, San Francisco, California, Timothy P. Roth, Joseph W. Pappalardo, Gallagher Sharp, Cleveland, Ohio, for Appellant/Cross–Appellee. Marc Rubin, Spector Rubin, P.A., Miami, Florida, Kendra L. Carpenter, Freytag Carpenter LLC, Columbus, Ohio, for Appellee/Cross–Appellant.
Before: SUHRHEINRICH and MOORE, Circuit Judges; VAN TATENHOVE, District Judge.*

OPINION
SUHRHEINRICH, Circuit Judge.

I. INTRODUCTION
*1 Plaintiff–Appellee/Cross–Appellant Exel, Inc. (“Exel”), a shipping broker, sued Defendant–Appellant/Cross–Appellee Southern Refrigerated Transport, Inc. (“SRT”), an interstate motor carrier, after SRT lost a shipment of pharmaceutical products it had agreed to transport for Exel on behalf of Exel’s client, Sandoz, Inc. (“Sandoz”). The district court awarded Exel the replacement value of the lost goods pursuant to the transportation contract between Exel and SRT, rejecting SRT’s argument that its liability was limited under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, and the bills of lading.

SRT appeals. Exel has filed a conditional cross-appeal. We reverse and remand for further proceedings.

II. BACKGROUND
SRT is a motor carrier that provides transportation of cargo in interstate commerce. Exel, a freight broker, arranges for the transportation of its customer’s commodities. In December, 2007, Exel and SRT executed a Master Transportation Services Agreement (MTSA). The MTSA is a standard agreement that Exel executes with any carrier it hires to transport its clients’ goods.1 It establishes non-exclusivity, delineates various delivery terms, sets forth the billing arrangements and insurance requirements, and prescribes other terms that govern the parties’ ongoing relationship. It does not contain shipment-specific terms.

Section 4 of the MTSA states that Exel will issue freight receipts for each shipment. Further, “[i]f a bill of lading is issued as a freight receipt, any terms, conditions or provisions” in the bill of lading “shall be subject to and subordinate to the terms of” the MTSA, and “in the event of a conflict,” the MTSA “shall govern.” The MTSA also provides that SRT “shall be liable” to Exel for any “loss” to commodities shipped pursuant to the agreement, and that the “measurement of the loss … shall be the Shipper’s replacement value applicable to the kind and quantity of Commodities so lost….”

Sandoz, who is not a party to this litigation, is one of Exel’s customers.2 In November, 2008, Exel arranged for SRT to transport a shipment of Sandoz’s pharmaceuticals from Exel’s warehouse in Mechanicsburg, Pennsylvania, to Memphis, Tennessee. Before the shipment, Exel prepared five documents, designated as bills of lading, on Sandoz’s behalf. Exel personnel loaded the pharmaceuticals onto SRT’s container. Exel personnel signed the bills of lading and gave them to the SRT driver, who also signed them.

The bills of lading include the number of units to be transported, the weight of each shipment, and special instructions for delivery. In the section labeled “KIND OF PACKAGES, DESCRIPTION OF ARTICLES SPECIAL MARKS EXCEPTIONS” the freight is designated as “Drugs or Medicines Non Hazardous.” The freight is labeled “Item 60000 Class 85, RVNX $2.40.” Neither of the latter terms is defined in the bills of lading.

The bills of lading contain the following “certification” language:
*2 Carrier, SFRI … RECEIVED, subject to the classifications and Tariff, in effect on the date of issue of this bill of lading … The Proper[sic] described below, in apparent good order, … which said carrier … agrees to carry … that every service to be performed here-under shall be subject to all terms and conditions of the Uniform Domestic Straight Bill of Lading … in the applicable motor carrier classification or tariff if this is a motor carrier shipment. Shipper hereby certifies that he is familiar with all the said terms and conditions of the said bill of lading set forth in the classification or tariff which governs the transportation of this shipment and the terms and conditions are hereby agreed to by shipper and accepted by himself and his assigns.
(Emphases added). The bills of lading also have a “declared value” box:
NOTE–Where the rate is dependant [sic] on value, shippers are required to state specifically in writing the agree[sic] or declared value of property. The agreed or declared value on the property is hereby specifically stated by the shipper not to be not exceeding ___ per ___.
No value is declared on the bills of lading.

“RVNX” is not defined in the bills of lading. According to SRT, RVNX is an abbreviation for “Released Value Not to Exceed”—it is a per pound limit of liability for any claim against the carrier related to the loss or damage of the cargo, calculated by multiplying the per-pound limit of liability by the weight in pounds of the cargo.

On November 7, 2008, the SRT truck carrying the Sandoz shipment was stolen and the goods were never recovered. On November 14, 2008, Sandoz made a claim for the lost goods with Exel.

The November lost shipment was not the first cargo loss involving Sandoz, Exel, and SRT. Three months prior, on August 24, 2008, a SRT truck carrying Sandoz’s cargo was stolen near Memphis, Tennessee, and the goods were never recovered. Exel submitted a written notice of claim to SRT pursuant to the MTSA, seeking full value recovery of the August shipment based on replacement cost for the shipment, which SRT paid (although the amount at issue was much less). Also after the August 24 theft, SRT allegedly agreed to assign Sandoz–Exel shipments to SRT’s Constant Security Program (CSP), which requires that a truck never be left unattended. Exel admits that neither Exel nor Sandoz paid SRT for any special handling under the CSP, but maintains that “SRT apparently chose to absorb the cost of the CSP in order to keep” Exel’s business.

Thus, on December 9, 2008, Exel submitted on behalf of Sandoz a claim to SRT pursuant to the MTSA demanding the full replacement value of the November shipment, $8,583,631.10. This time SRT denied the claim, stating that its recovery was limited to $56,766.36, based on the terms in the bills of lading, namely the “RVNX $2.40”, times the weight of the cargo. In a letter dated January 29, 2009, Martin Gargiule, Director of Finance in Business Planning and Analysis Group for Sandoz, reiterated its position that “Sandoz holds Exel fully liable for the Claim, and demands payment for the claim in the amount of $8,585,631.10,” and that “Sandoz therefore rejects Exel’s position that it is not liable for the loss, or that Sandoz must look to the carrier for recovery.”

*3 On October 18, 2010, Sandoz assigned its rights and interests in the second lost cargo to Exel. On November 5, 2010, Exel, “for the use and benefit of” Sandoz, filed a complaint against SRT, alleging (1) breach of contract (Count I); (2) breach of bailment (Count II); (3) breach of the ICC Termination Act (previously the Carmack Amendment) (Count III); and (4) a request for a declaratory judgment to determine “whether the terms of the Agreement or the terms of the bills of lading govern the claim for damages in this matter” (Count IV). Exel sought $8,583,671.12 in damages.

SRT filed its answer and motion for judgment on the pleadings as to Counts I, II, and IV of the complaint. In the motion SRT argued that the Carmack Amendment, 49 U.S.C. § 14706, et seq., governed the relationship between the parties and preempted Counts I, II, and IV. The district court ruled on SRT’s motion for judgment on the pleadings on December 15, 2011, holding that the Carmack Amendment preempted Counts I and II. It therefore granted judgment to SRT on those counts. The district court found it unnecessary to address the declaratory judgment question in Count IV, reasoning that a declaration would not settle the initial question of whether SRT was, in the first place, liable under the Carmack Amendment for the loss of the shipment. Count III remained pending.

The parties filed cross-motions for summary judgment as to Count III. After oral arguments on the motions, the court, sua sponte reversed its decision as to Count IV. The court remarked that it had “viewed this case as one in which Exel stands in the shoes of the shipper Sandoz with rights no greater than those which could be asserted by Sandoz,” but that at the May 23, 2012 hearing, Exel had also asserted separate and additional rights under the MTSA. The district court “examined the MTSA” and found “that it does contain language which may create obligations independent of the shipper-carrier relationship” outside the purview of the Carmack Amendment. The court referenced the provision giving the MTSA trump power over conflicting bills of lading, as well as the provisions making the carrier liable to the Customer for loss, measured by the replacement value. The district court “also re-examined the complaint” and held that “in its claim for declaratory judgment Exel did articulate a claim of individual rights under the MTSA,” finding that “[t]hese factual allegations would be sufficient to support a claim for breach of contract.” The district court then amended its earlier order and concluded: “[Exel] has alleged a claim for breach of contract based on the provisions of the MTSA, which may not be preempted by the Carmack Amendment.” The court ordered the parties to file supplemental briefs.

Following supplemental briefing, the court held on July 27, 2012, that the Carmack Amendment did not preempt Exel’s breach of contract claim under Count IV, observing that the Carmack Amendment does not expressly preempt state law claims between a broker and a carrier. The district court also rejected SRT’s argument that, absent preemption of Exel’s contract claim, it could be subject to double recovery. The court found that was “not a possible outcome of this case,” because Sandoz had assigned its claim for the lost cargo to Exel. Thus, SRT “need not be concerned by a separate action by Sandoz, and Exel seeks recovery here either under the bill of lading or the master agreement, not both.” The district court therefore vacated its order of December 15, 2011 with respect to Count IV and denied SRT’s motion for judgment on the pleadings as to that count. The court denied the parties’ motions for summary judgment without prejudice.

*4 After additional discovery, the parties submitted new motions for summary judgment. On August 26, 2014, the district court held that the MTSA was an enforceable contract, which Exel had standing to enforce. It also held SRT was responsible for the replacement value of the lost goods under the plain language of the MTSA, in the amount of $5,890,338.82, based on the submissions of Gargiule.3 The district court therefore granted Exel’s motion for summary judgment as to Count IV for that amount. The court dismissed Count III, apparently as duplicative, because it noted in a footnote that “the Carmack Amendment claim for the use and benefit of Sandoz is an alternative claim to Exel’s individual breach of contract claim.”

This appeal and cross-appeal follow.

III. Analysis4
[1] We review a district court’s grant of summary judgment de novo. Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th Cir.2013). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

A. Exel’s Breach of Contract Claim
The district court concluded that Exel stated a breach of contract claim on its own behalf in Count IV.5 As noted, the district court originally perceived Exel as asserting only claims assigned to it by Sandoz, but later revised its decision to hold that Exel stated a claim for breach of the MTSA on its own behalf in Count IV. The court further concluded that the plain language of the MTSA established that SRT was liable to Exel for the loss of the pharmaceuticals. The court relied on the section entitled “Liabilities and Claims for Commodities,” which states in relevant part that “Carrier shall be liable to Customer for loss … to the Commodities tendered to Carrier for transportation hereunder while the Commodities are in its … custody … [and that] [t]he measurement of the loss … shall be the Shipper’s replacement value….” The district court ruled that Exel had standing to pursue its breach of contract claim, because Exel “incurred significant liability as a direct consequence of” the loss of the pharmaceuticals, based on Sandoz’s January 29, 2009 letter to Exel. In that letter Garguile reiterated Sandoz’s position that “Sandoz holds Exel fully liable for the Claim, and demands payment for the claim in the amount of $8,585,631.10,” and that “Sandoz therefore rejects Exel’s position that it is not liable for the loss, or that Sandoz must look to the carrier for recovery.”

[2] SRT claims that the district court was wrong because (1) the complaint does not assert a breach of contract action on behalf of Exel; (2) even if it did, Exel lacks standing because it suffered no injury; and (3) any such claim is preempted by the Carmack Amendment. SRT asks us to vacate the judgment and remand with instructions that the Carmack Amendment provides the exclusive cause of action, and that SRT’s liability may not exceed the liability limitation set forth in the applicable bills of lading. We agree that Exel lacks standing to enforce the MTSA because it suffered no injury and that the Carmack Amendment provides the exclusive cause of action in this case. We therefore reverse the district court on this basis.

*5 SRT argues that the January 29 letter is insufficient to establish Exel’s standing because (1) this is not an indemnification action; (2) Exel has acknowledged that it has not paid any money to Sandoz as a result of the lost goods; (3) Exel refuses to concede that it will be contractually liable to Sandoz; and (4) the district court itself acknowledged that “it is unclear from the record whether Exel is contractually liable to Sandoz for the lost pharmaceuticals,” because the parties have not submitted any contract between Exel and Sandoz indicating that Exel is liable to Sandoz.

Exel maintains that the MTSA is a “contract to pay” rather than an indemnity contract, citing Dana Corporation v. Celotex Asbestos Settlement Trust. Applying Ohio law, Dana Corp. stated that, unlike a contract to indemnify, where damage must be shown before the indemnitee is entitled to recover, “ ‘if there is an agreement to stand for a debt or to pay a sum certain, then it is no defense that the indemnitee has suffered no loss.’ “ Dana Corp. v. Celotex Asbestos Settlement Trust, 251 F.3d 1107, 1116 (6th Cir.2001) (quoting In re Highland Grp., 136 B.R. 475, 478 (Bankr.N.D.Ohio 1992)).

Although the district court did not use the term “contract to pay,” it held that the plain language of the MTSA “reflect[ed] the parties’ allocation of risk among themselves. In this instance, the parties agreed that SRT would be liable to Exel for any loss of cargo.” This reasoning is flawed, however, because Exel is seeking to recover from SRT alleged losses arising directly from the lost cargo-losses Exel never suffered. Furthermore, absent a contractual agreement between Exel and Sandoz requiring Exel to reimburse Sandoz for the lost goods, SRT’s liability under the MTSA to pay Exel for any “loss … to the Commodities” was not triggered. See Dana Corp. v. Fireman’s Fund Ins. Co., 169 F.Supp.2d 732, 736–37 (N.D.Ohio 1999) (noting that contracts to pay provide a right of action “as soon as the debt matures and is unpaid” and that indemnification contracts provide a right of action only after the indemnitee has suffered a loss) (quoting Henderson–Achert Lithographic Co. v. John Shilling Co., 64 Ohio St. 236, 60 N.E. 295 (Ohio 1901)), aff’d sub nom. Dana Corp. v. Celotex Asbestos Settlement Trust, 251 F.3d 1107, 1114–16 (6th Cir.2001).

[3] And even if this were an indemnification action, Exel is not seeking to recover from SRT any money that Exel has paid to Sandoz. It is axiomatic that to establish standing a plaintiff must have suffered an injury in fact—an invasion of a legally-protected interest, i.e. “an invasion of a legally-protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and footnote omitted). Absent any showing that Exel itself suffered a loss (directly or in an indemnification contract with Sandoz), Exel lacks standing to pursue a claim in its own right for loss of the pharmaceutical products. See Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652, 2662, 186 L.Ed.2d 768 (2013) (quoting Lujan, 504 U.S. at 560 n. 1) (“To have standing, a litigant must seek relief for an injury that affects [the plaintiff] in a ‘personal and individual way.’ ”). Based on the record before the court, Exel has no obligation to pay Sandoz any damages for the lost cargo. Therefore, Exel does not have standing to sue for breach of contract damages under the MTSA.

*6 Given our resolution of this issue on standing grounds, we need not address SRT’s claims that the complaint did not state a breach of contract claim on Exel’s behalf or that such a claim is preempted by the Carmack Amendment.

B. Exel’s Carmack Amendment Claim
[4] Although Exel maintains that the contract between Exel and SRT is a brokerage agreement outside the scope of Carmack preemption, it asserts that even if it did apply, the statute expressly permits parties to enter into contracts other than bills of lading setting forth their rights and responsibilities. Thus, Exel contends that it has a right to bring a Carmack claim against SRT pursuant to the MTSA.6 This raises the question of whether Exel, a non-shipper broker, can sue under the Carmack Amendment on its own behalf. (Exel preserved this issue in its conditional cross-appeal).

[5] [6] The Carmack Amendment, enacted in 1906 as an amendment to the Interstate Commerce Act, 24 Stat. 379, created a national scheme of carrier liability for loss or damages to goods transported in interstate commerce. See Adams Express Co. v. Croninger, 226 U.S. 491, 503–06, 33 S.Ct. 148, 57 L.Ed. 314 (1913). The Amendment restricts carriers’ ability to limit their liability for cargo damage. It makes a motor carrier fully liable for damage to its cargo unless the shipper has agreed to some limitation in writing. 49 U.S.C. § 11706(a), (c), § 14101(b). Making carriers strictly liable relieves shippers of the burden of determining which carrier caused the loss as well as the burden of proving negligence. Certain Underwriters at Interest at Lloyds of London v. UPS, 762 F.3d 332, 335 (3d Cir.2014). Carriers in turn acquire reasonable certainty in predicting potential liability because shippers’ state and common law claims against a carrier for loss to or damage were preempted. Id.

Section 14706(a)(1) makes the carrier liable to the person entitled to recover under the receipt or bill of lading. 49 U.S.C. § 14706(a)(1). Nothing in the Carmack Amendment suggests that Congress also intended to protect the broker-carrier relationship by granting brokers7 a direct right to sue under the statute. See Edwards Bros., Inc. v. Overdrive Logistics, Inc., 260 Ga.App. 222, 581 S.E.2d 570, 572 (Ga.Ct.App.2003) (stating that “the Carmack Amendment was enacted to protect the rights of shippers suing under a receipt or bill of lading, not brokers”); cf. Transit Homes of Am., Div. of Morgan Drive Away, Inc. v. Homes of Legend, Inc., 173 F.Supp.2d 1185, 1187–88 (N.D.Ala.2001) (holding that Carmack Amendment, by its terms, makes carriers liable to shippers but does not create corresponding remedy for a carrier to sue a shipper for freight charges due under a contract). Indeed, under the plain terms of the statute, only a “shipper and carrier” can enter into an agreement waiving rights under the statute. See § 49 U.S.C. § 14101(b)(1) (“If the shipper and carrier, in writing, expressly waive any or all rights and remedies under this part for the transportation covered by the contract, the transportation provided under the contract shall not be subject to the waived rights and remedies and may not be subsequently challenged on the ground that it violates the waived rights and remedies.”).

*7 In short, the Carmack Amendment does not provide Exel, as a non-shipper broker, with a direct cause of action. Thus, Exel cannot sue under the Carmack Amendment for breach of the MTSA. And, as noted, Exel would lack standing to assert such a claim anyway, because it has not suffered a loss under the MTSA.

C. The Assigned Claim
But Exel is also the assignee of Sandoz’s claims against SRT under the bills of lading. See Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 672 F.3d 434, 439 (6th Cir.2012) (stating that assignee stands in the shoes of the assignor and assumes the same rights, title, and interest possessed by the assignor).8 As assignee of those rights, Exel has standing to bring a Carmack claim. See, e.g., R.E.I. Transp., Inc. v. C.H. Robinson Worldwide, Inc., No. 05–57–GPM, 2007 WL 854005, at *5–6 (S.D.Ill. Mar.16, 2007) (broker, after it paid shipper’s claim and received an assignment, was entitled to recover against carrier under the Carmack Amendment for the value of the lost goods); see also OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1098–99 (9th Cir.2011) (property insurer, as subrogee of owner of property, had standing to sue carrier under the Carmack Amendment). Exel has preserved this issue in its conditional cross-appeal.

The plain language of the Carmack Amendment makes the carrier strictly liable “for the actual loss or injury to the property” caused by the carrier unless the carrier limits its liability “to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.” 49 U.S.C. § 14706(a), (c)(1)(A). To limit its liability to an amount less than the actual value of the lost or damaged goods, the current version of the Carmack Amendment further requires the carrier, “on request of the shipper,” to provide “a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based.” 49 U.S.C. § 14706(c)(1)(B).

[7] Thus, the “default posture” of the Carmack Amendment is full liability on the carrier. ABB Inc. v. CSX Transp., Inc., 721 F.3d 135, 142 (4th Cir.2013). The limited liability of subsection (c)(1)(A) “is a very narrow exception to the general rule.” Toledo Ticket Co. v. Roadway Express, Inc., 133 F.3d 439, 442 (6th Cir.1998) (relying on earlier provision of the statute).9

[8] SRT argues that the bills of lading are the only “contracts” between Sandoz and SRT, and establish that SRT’s liability was limited to “RVNX $2.40,” or $56,766.36, under the Carmack Amendment.10 SRT further maintains that, because Sandoz was not a party to the MTSA, this contract does not govern SRT’s liability to Sandoz. And even if the MTSA applies, the bills of lading and MTSA should be read together such that the “replacement value” in ¶ 9(b) of the MTSA is capped by the bills of lading. Exel, in turn, argues that even if the Carmack Amendment applies, the MTSA still governs because the MTSA is a “written agreement” limiting liability under § 14706(c)(1)(A). Furthermore, Exel claims that Sandoz was a third-party beneficiary of the MTSA and that the agreement may therefore be enforced on Sandoz’s behalf. Id. at 34.

*8 Both positions have problems. Exel’s argument glosses over the fact that the only written agreement in the record signed by Sandoz (or more precisely, Sandoz’s representative, Exel) is in the bills of lading. As discussed above, the MTSA is not a “written agreement” limiting liability under § 14706(c)(1)(A), because it was not executed by the shipper, Sandoz, and the carrier, SRT. See § 14706(c)(1)(A). The MTSA is also not a “value established by written or electronic declaration of the shipper,” the other way a carrier can limit liability under § 14706(c)(1)(A). Id. Absent a written agreement with Sandoz binding Sandoz to the terms in the MTSA, Exel and SRT could not limit liability for the lost shipment through the MTSA.

For the same reason, the fact that Sandoz may be a third-party beneficiary of the MTSA (and we do not suggest that this is true) is irrelevant. The Carmack Amendment preempts state common law, and, as just noted, prevents the carrier from limiting its liability without the express written consent of the shipper. Thus, an agreement between a carrier and broker that does not establish the shipper’s assent cannot set the carrier’s liability, even if the shipper is a third-party beneficiary of the agreement under state law. To allow otherwise would allow a carrier and broker to circumvent the written requirement of the Carmack Amendment based on state third-party beneficiary law. In short, the plain language of the statute governs, and because it prohibits a carrier from limiting liability without the written consent of the shipper, the MTSA in this case does not establish SRT’s liability for the lost shipment.

Thus, the issue is whether SRT’s liability is effectively limited in the bills of lading. Contrary to SRT’s assertion, the term “RVNX $2.40” is not conclusive. According to Jerry McEntire Jr, Operations Specialist at SRT (formerly a Customer Service Relations Manager at the time of the lost shipment), “ITEM 60000 CLASS 85” refers to the category of freight defined by the National Motor Freight Traffic Association. McEntire further explained that “RVNX” is an abbreviation of “Released Value Not to Exceed,” and “is used to designate a per pound limit of liability of any claim against the carrier in the event that the cargo is lost or damaged in transit.” Exel, however, submitted the affidavit of John Hecker, Exel’s Transportation Manager, who stated that RVNX “is a freight classification which has been programmed into Exel’s computer…. There is no declaration of the value of the property on the freight receipt since the freight rate is not dependent upon value.” In other words, Exel asserts that the bills of lading are merely freight receipts and not evidence of a written agreement to limit liability between Sandoz and SRT. No other evidence suggests what the parties intended “RVNX $2.40” to mean.

[9] Furthermore, this court and other courts have held that, in order to limit its liability under the Carmack Amendment, a carrier must: (1) maintain approved tariff rates with the ICC; (2) provide the shipper with a fair opportunity to choose between two or more levels of liability; (3) obtain the shipper’s written agreement as to its choice of liability; and (4) issue a receipt or bill of lading prior to moving the shipment. Trepel v. Roadway Express, Inc., 194 F.3d 708, 715 (6th Cir.1999); Toledo Ticket Co., 133 F.3d at 442;11 see also Emerson Elec. Supply Co. v. Estes Express Lines Corp., 451 F.3d 179, 186 (3d Cir.2006) (citing cases); Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 841 n. 3 (11 Cir.2003); Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 611–12 (9th Cir.1992). The burden is on the carrier to prove that it complies with these requirements. OneBeacon, 634 F.3d at 1099.

*9 Subsequent to our decision in Toledo Ticket, Congress eliminated the requirement that non-household goods carriers file tariffs with the Interstate Commerce Commission in the Trucking Industry Regulatory Reform Act of 1994 (“TIRRA”), Pub.L. No. 103–311, § 206, 108 Stat. 1673, 1684–85 (codified as amended as 49 U .S.C. §§ 10702, 10762(a)(1) (1994). Also, the ICC Termination Act of 1995 (“ICCTA”), Pub.L. No. 104–88, 109 Stat. 803 replaced § 11707 and § 10730 with § 14706, and added the subsection that requires carriers to “provide to the shipper, on request of the shipper, a written or electronic copy of the rate, classification, rules, and practices, upon which any rate applicable to its shipment or agreed to between the shipper and carrier is based.” 49 U.S.C. § 13710(a)(1); see also id. § 14706(c)(1)(B) (emphasis added). The legislative history of the ICCTA states that § 14706(c)(1) “is intended to return to the pre-TIRRA situation where shippers were responsible for determining the conditions imposed on the transportation of a shipment.” H.R.Rep. No. 104–422, at 223 (1995) (Conf.Rep.), reprinted in 1995 U.S.C.C.A.N. 850, 908; see OneBeacon, 634 F.3d at 1099; Emerson, 451 F.3d at 185; Sassy Doll, 331 F.3d at 84; Emerson Elec. Supply Co. v. Estes Exp. Lines Corp., 324 F.Supp.2d 713, 721–23 (W.D.Pa.2004) (same, and providing a detailed history of the origins of the Carmack Amendment), aff’d, 451 F.3d 179 (3d Cir.2006).

[10] Although the first requirement arguably is no longer viable after the 1995 amendments, see OneBeacon, 634 F.3d at 1099–1100,12 as the Eleventh Circuit has observed, “[t]hose legislative changes are not inconsistent with the reasonable opportunity requirement, which has been part of Carmack Amendment jurisprudence for at least the past fifty years.” Sassy Doll, 331 F.3d at 841. We agree with the Eleventh and Fourth Circuits that the “reasonable opportunity” requirement survives the 1995 revisions to the Carmack Amendment and therefore does not undermine Toledo Ticket’s core holding that the carrier must give a shipper a fair opportunity to choose between levels of liability. See Emerson, 451 F.3d at 187–88 (holding that the 1995 amendments do not reflect an intent to alter the two or more levels of liability requirement); Sassy Doll, 331 F.3d at 841–42 (the 1995 amendments did not alter the requirement that carrier provide a shipper with a reasonable opportunity to choose between two or more levels of liability). Thus, under Toledo Ticket “a carrier must provide the shipper with both reasonable notice of any options that would limit the liability of the carrier and the opportunity to obtain the information about those options that will enable the shipper to make a deliberate and well-informed choice.” Toledo Ticket, 133 F.3d at 442.

[11] SRT has not met its burden on summary judgment of establishing that it provided Sandoz (or Sandoz’s agent) with the opportunity to choose between two or more levels of liability as required by Toledo Ticket. SRT does not explain what “classification or tariff … govern[ed]” the November 7 shipment,13 or indicate whether it made this information available to Sandoz, upon the shipper’s request. And while the bills of lading allow the shipper to declare a value, they do not offer an option to choose a higher level of coverage or state that the carrier’s liability might be limited. See ABB, 721 F.3d at 144 (holding that bill of lading did not establish limitation of liability, despite certification language and declared value box, where the bill of lading did not specifically reference a separate price list, did not include a price for shipment or indicate level of liability assumed by carrier and the shipper was unfamiliar with the price list); Emerson, 451 F.3d at 188 (holding that carrier failed to limit its liability where tariff did not provide an option to declare a higher value with a corresponding level of liability); Sassy Doll, 331 F.3d at 842–43 (although carrier-prepared bill of lading had a declared value box, it did not contain a space for requesting excess liability coverage and therefore did not give the shipper a reasonable opportunity to choose between two or more levels of liability); cf. OneBeacon, 634 F.3d at 1100 (holding that carrier met its burden by providing evidence that it had established standard rates, which incorporated the limitation of liability at issue in the bill of lading, as well as a separate excess valuation charge for full liability; bill of lading and conditions of contract carriage also clearly stated that the carrier’s liability was limited to $50 or $0.50 per pound absent a higher declared value). Thus, SRT has not met its initial burden of demonstrating an absence of a genuine issue of material fact to justify the grant of summary judgment in its favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

*10 On the other hand, the bills of lading at issue were drafted by the shipper, Sandoz (actually the shipper’s representative, Exel), a “sophisticated business entit[y]” in the shipping business. Sandoz not only “certif[ied]” that it was “familiar with” and “agreed to” all the said terms and conditions of the said bill of lading set forth in the classification or tariff which governs the transportation of this shipment,” but inserted the terms “Item 60000 Class 85, RVNX $2.40,” and did not declare a value in the declared value box. Although not dispositive in the Carmack Amendment context, see ABB, 721 F.3d at 142 (“The text of the Carmack Amendment imposes full liability on carriers, without regard to which party prepared the bill of lading.”); see also id. at 145 (stating that “we are bound by the express language of the Carmack Amendment, which puts the burden on the carrier to demonstrate that the parties had a written agreement to limit the carrier’s liability, irrespective whether the shipper drafted the bill of lading”),14 the fact that the shipper drafted the bills of lading is relevant in ascertaining whether the shipper was offered, and agreed to, a limitation of liability by the carrier. See, e.g., Siren, Inc. v. Estes Express Lines, 249 F.3d 1268, 1271–73 (11th Cir.2001) (holding that shipper who prepared bill of lading could not avoid limitation of liability it had included in the contract where shipper used term understood in trucking industry as limiting liability to a certain amount per pound of cargo despite its claim that it did not have actual knowledge that the class designation was a limitation of liability because shipper was aware that it received a significant discount from the carrier’s full liability rate for the shipment); Hughes, 970 F.2d at 612 (holding that a shipper who drafted a bill of lading and negotiated its terms was subject to liability limitation). In sum, whether SRT’s liability is limited by the bills of lading is a question of fact, for resolution in the first instance by the district court.

[12] For these reasons, we reinstate Count III, but only as to Exel’s claim as assignee of Sandoz, and remand for further proceedings.15

IV. CONCLUSION
For the foregoing reasons, we vacate the district court’s judgment and remand for further proceedings consistent with this opinion.

All Citations
— F.3d —-, 2015 WL 6743551

Footnotes
*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky, sitting by designation.
1
The MTSA designates SRT as the “Carrier” and Exel as the “Customer.” It generally defines “Shipper” as “the underlying shipper(s) (Customer’s principal(s)) of the Commodities.”
2
The contract between Sandoz and Exel is not in the record.
3
Exel represented that the actual value of the shipment was $8,583.631.10.
4
The district court had federal question jurisdiction pursuant to 28 U.S.C. § 1331 because the suit arises under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. The district court also had diversity jurisdiction pursuant to 28 U.S.C. § 1332 because Exel and SRT are citizens of different states and the amount in controversy exceeds $75,000.
5
In the complaint Exel also states it is filed “f/u/b/o” Sandoz. Nonetheless, parties are generally not allowed to claim relief based on the legal rights or interests of third parties, and Exel has not asserted that Sandoz is incapable of asserting rights on its own behalf. See Kochins v. Linden–Alimak, Inc., 799 F.2d 1128, 1137 (6th Cir.1986).
6
Count III alleges that “SRT owed to Exel a statutory duty to deliver the Shipment in the same good order merchandise,” and that “[a]s a result of this breach, Exel was damaged in the amount of $8,583,671.12, the value of the Shipment.”
7
The Interstate Transportation Act defines “broker” as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2).
8
The Assignment provides that “[f]or valuable consideration,” Sandoz “assigns to Exel, Inc …. any and all actions, causes of action, claims, and demands of every kind and nature whatsoever, in law or in equity, which [Sandoz] may have … against Southern Refrigerated Transport, Inc., … based in whole or in part upon the loss/shortage to cargo identified in Sandoz Inc. invoices … transported by CARRIER under bills of lading … dated November 7, 2008….” The document does not state, and the record does not otherwise reflect, what that “valuable consideration” was. However, under New York law, “[a]n assignment shall not be denied the effect of irrevocably transferring the assignor’s rights because of the absence of consideration, if such assignment is in writing and signed by the assignor, or by his agent .” N.Y. Gen. Oblig. Law § 5–1107 (McKinney 2015); see also Sherwood v. Brock, 65 A.D.3d 738, 884 N.Y.S.2d 793, 795 (N.Y.App.Div.2009).
9
The Carmack Amendment was initially enacted in 1906 and codified at 49 U.S.C. § 11707. Under the ICC Termination Act of 1995, which became effective January 1, 1996, the Carmack Amendment was revised, recodified, and replaced by 49 U.S.C. § 14706.
10
A bill of lading “records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage.” Norfolk S. Ry. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 18–19, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004).
11
Although the opinions in both cases were issued after the 1995 amendments took effect, both cases are based on events that occurred prior to the 1995 amendments. EFS Nat’l Bank v. Averitt Express, Inc., 164 F.Supp.2d 994, 1001 (W.D.Tenn.2001).
12
The Ninth and Eleventh Circuits have stopped short of holding that the 1995 amendments eliminated the first requirement. The Fourth Circuit remarked that:
We agree with the Eleventh Circuit that “the most that can be said about the latest version of the statute is that a carrier is now required to provide a shipper with the carrier’s tariff if the shipper requests it, instead of the shipper [sic] filing its tariff with the now-defunct ICC.” Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 841 (11th Cir.2003). Accordingly, we hold that the Hughes test remains the same with one exception: Instead of maintaining a tariff in compliance with the ICC, a motor carrier must now, at the shipper’s request, provide the shipper with “a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based.”
OneBeacon, 634 F.3d at 1100.
13
The Fourth Circuit has explained that “[t]he term ‘tariff,’ even when still used by shippers and carriers out of habit,’ is now merely a contractual term with ‘no effect apart from [its] status as a contract.’ “ ABB, 721 F.3d at 138 (quoting Tempel Steel Corp. v. Landstar Inway, Inc., 211 F.3d 1029, 1030 (7th Cir.2000)).
14
ABB involved a rail carrier, which is subject to the 49 U.S.C. § 11706. The provision for motor carriers, 49 U.S.C. § 14706, is virtually identical.
15
Exel also argues that, even if the bills of lading trump the terms of the MTSA, the limitation of liability in the former would be invalid due to SRT’s breach of the CSP, which the driver violated by leaving the vehicle unattended immediately prior to the loss. Exel argues that the “material deviation” doctrine precludes limitation defenses where motor carriers have agreed, separate and apart from the standard contract of carriage, to provide coverage for the cargo. The “material deviation” doctrine provides that where the shipper has paid an additional charge for special shipment provisions to reduce the risk of damage and the carrier fails to perform those very measures, resulting in damage to the cargo, the shipper is not bound by the contract and the limited liability provision may be rescinded. See Praxair, Inc. v. Mayflower Transit Inc., 919 F.Supp. 650, 656 (S.D.N.Y.1996). The district court did not address this issue and the record is not sufficiently developed at this point for us to consider it. We note only that Exel did not sue SRT for breach of a separate CSP agreement and Exel admits that neither Exel nor Sandoz paid for any special handling under the CSP.