LE Whitlock Truck Service, Inc. v. Regal Drilling Co., 7334.

• Decision Date: 18 June 1964
• Docket Number: No. 7334.,7334.
• Citation: 333 F.2d 488
• Parties: L. E. WHITLOCK TRUCK SERVICE, INC., a Kansas corporation, Appellant, v. REGAL DRILLING COMPANY, a Colorado corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

333 F.2d 488 (1964)

L. E. WHITLOCK TRUCK SERVICE, INC., a Kansas corporation, Appellant, v. REGAL DRILLING COMPANY, a Colorado corporation, Appellee.

No. 7334.

United States Court of Appeals Tenth Circuit.

June 18, 1964.

James J. Delaney, Denver, Colo. (Delaney & Costello, Denver, Colo., were with him on the brief), for appellant.

David C. Knowlton, Denver, Colo. (Downing & Knowlton, and Richard Downing, Jr., Denver, Colo., were with him on the brief), for appellee.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

SETH, Circuit Judge.

This is an action to recover for damages to an oil well drilling rig incurred while it was being transported by the defendant. The matter was tried before the United States District Court for the District of Colorado without a jury, and the court gave judgment for the plaintiff, and for the defendant on its counterclaim for transportation charges.

The plaintiff-appellee is an oil well drilling contractor which operated only with the drilling rig in question. The defendant-appellant is engaged in the transportation of oil field equipment, and holds an irregular route common carrier permit from the Interstate Commerce Commission.

The appellee engaged the appellant to transport its complete Unit 15 rotary-type drilling rig from a location in Cheyenne County, Nebraska, to a new drilling site in Logan County, Colorado, a distance of approximately seventy-five miles. The appellant had previously moved appellee's drilling rig a distance of thirty to forty-five miles. The previous move, as well as the one in question, was accomplished by moving the drilling mast or derrick without disassembling it. This was done by placing one end of the derrick on a truck which moves forward in the normal manner while the other end is placed on the rear of another truck which moves backward. This is referred to in the record as the "two-truck" method. The derrick is a steel tower weighing forty thousand pounds and of approximately one hundred twenty-seven feet in length. The base is fifteen feet in width. It is possible as an alternate method to disassemble the derrick and move it in several sections. On the move in question, the two-truck method was being used along a relatively narrow road, considering the width of the load, when an oncoming car required the leading truck to pull off to allow it to pass. The back-up truck also moved over to the right side, but when it did so, the shoulder of the highway gave way under its wheels. The truck and the load then toppled into the ditch pulling the lead truck with it. This upset caused such damage to the derrick that it was necessary to transport it to a plant in Tulsa, Oklahoma, for repair. The accident occurred on November 10, 1961, and the derrick after being repaired was returned to a new drilling location in Morgan County, Colorado, and was put into service on November 28, 1961. The appellee brought the action to recover the costs of repairing the rig and for loss of earnings while the rig was out of service.

The record shows that at the time the drilling equipment was delivered to the appellant for transportation, it was in serviceable condition, and that the damage caused to the rig by the upset put it out of service for the period indicated. The record shows further that the appellant was experienced in the transportation of oil field equipment and was aware of the nature of appellee's business.

The trial court awarded the appellee damages in the amount of $9,176.80, of which $3,500.00 represented net income from the drilling operations it would have earned during the seventeen-day period; $3,910.00 was unrecoverable fixed costs or charges for the seventeen-day period; $1,159.05 transportation cost of the derrick to Tulsa, Oklahoma, for repair, and $707.75 for its return to the next drilling location following the repair. The court further awarded the defendant judgment on its counterclaim in the sum of $7,039.12 for transportation charges.

The appellant urges on this appeal that the trial court was in error in assuming that it was liable as an insurer, and in finding that appellee should recover when appellant was free from negligence although appellee based its action on negligence.

The trial court based its conclusion on a construction of 49 U.S.C.A. § 20 and on common law principles. The statute referred to is the Carmack Amendment, and its principal function is to permit a shipper in interstate commerce to bring an action against the initial carrier to recover for damages to the shipment whether such damages occurred while the goods were in the hands of the initial carrier or connecting carriers. New York, Philadelphia & Norfolk R.R. Co. v. Peninsula Produce Exchange, 240 U.S. 34, 36 S.Ct. 230, 60 L. Ed. 511. Prior to the amendment, it was necessary for the shipper to bring an action against the carrier in whose hands the property was damaged. In the case at bar, there was of course only one carrier involved, but it is necessary to consider the Carmack Amendment to determine whether it changes or continues in effect the common law applicable to the liability of carriers.

On the shipment here concerned, no bill of lading was issued, but under the facts here present one may be implied.

At common law a common carrier undertook to carry the shipment safely, and it was liable for all loss or injury excepting only that due to acts of God, public...