United States District Court,
S.D. New York.
NIPPONKOA INSURANCE COMPANY LIMITED, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY and the Kansas City Southern Railway Company, Defendants.
No. 07 Civ. 10498(DC).
Nov. 9, 2009.
MEMORANDUM DECISION
CHIN, District Judge.
This case arises out of a train derailment near Dallas, Texas on April 18, 2006. Plaintiff NipponKoa Insurance Company Limited (“NipponKoa”) insured certain shipments of cargo on the derailed train. Defendants Norfolk Southern Railway Company and the Kansas City Southern Railway Company (collectively, “defendants”) operated the train that derailed and the track on which it operated.
I have already issued three opinions related to this same train derailment. See Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 540 F.Supp.2d 486 (S.D.N.Y.2008) (“ Sompo I” ); Sompo Japan Ins. Co. of Am. v. Yang Ming Marine Transp. Corp., 578 F.Supp.2d 584 (S.D.N.Y.2008), abrogated in part by Rextroth Hydraudyne B.V. v. Ocean World Lines, Inc., 547 F.3d 351, 361-63 (2d Cir.2008) (“Sompo II” ); Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., Nos. 07 Civ. 2735(DC), 07 Civ. 10498 (DC), 2009 WL 2905458 (S.D.N.Y. Sept. 10, 2009) (“Sompo III” ).
In two of my prior opinions, I ruled that the freight shipments at issue in this train derailment are governed by the “ Carmack Amendment” (49 U.S.C. § 11706). Sompo I, 540 F.Supp.2d at 496-501; Sompo III, 2009 WL 2905458 at *6. Sompo III was a joint decision addressing motions filed in the related case, Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., No. 07 Civ. 2735(DC), as well as a summary judgment motion filed by defendants in the instant case. Now before me are defendants’ renewed motion for summary judgment and plaintiff’s first motion for summary judgment.
In their motion, defendants argue that a recent decision of the Third Circuit, Babcock & Wilcox Co. v. Kansas City S. Ry. Co., 557 F.3d 134 (3d Cir.2009), changes the outcome in this case, and that the Court should now hold that the Carmack Amendment does not apply. Plaintiff, on the other hand, argues that given the parties’ stipulations and all of the Court’s previous rulings in this case, judgment must enter in its favor.
Before issuing Sompo I, the Court received and reviewed extensive briefing on the applicability of the Carmack Amendment to this train derailment. The Court received and reviewed further briefing on the issue in a motion for reconsideration. Following the final outcome in Sompo I, defendants then conceded that the Carmack Amendment applies. (Def. 1st Mot. for Summ. Judg., Dkt. 17). Relying on the concession, NipponKoa discontinued its common law claims, which the Carmack Amendment preempts. The application of the Carmack Amendment is now the “law of the case.” The Third Circuit decision in Babcock does not bind this Court and it does not change this Court’s analysis. The Carmack Amendment applies.
Under the Carmack Amendment, a plaintiff must show “(1) delivery [of cargo] to the carrier in good condition; (2) arrival in damaged condition; and (3) the amount of damages caused by the loss.” Project Hope v. M/V IBN SINA, 250 F.3d 67, 73 (2d Cir.2001). In Sompo III, the Court ruled that “a reasonable jury could only find that NipponKoa delivered the goods to defendant in a good condition.” 2009 WL 2905458 at *6. The parties have stipulated to the second two elements of the test. (Stipulation, 10/7/09). Finally, defendants have admitted that none of the Carmack Amendment’s affirmative defenses are available to them-that is, defendants have admitted that the train’s derailment was not caused by an “act of god, public enemy, inherent vice, fault of shipper or public authority.” (RFA ¶ 11). Having established that the Carmack Amendment applies, and having met its burden under the Carmack Amendment, plaintiff is entitled to judgment.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is hereby DENIED. Plaintiff’s motion for summary judgment is hereby GRANTED. Plaintiff shall submit a proposed judgment within five days on notice.
SO ORDERED.
