560 F.2d 277 (7th Cir. 1977), 76-2055, John Morrell & Co. v. Burlington Northern, Inc.

Docket Nº:76-2055.
Citation:560 F.2d 277
Party Name:JOHN MORRELL AND COMPANY, Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., Defendant-Appellant.
Case Date:August 04, 1977
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 277

560 F.2d 277 (7th Cir. 1977)

JOHN MORRELL AND COMPANY, Plaintiff-Appellee,

v.

BURLINGTON NORTHERN, INC., Defendant-Appellant.

No. 76-2055.

United States Court of Appeals, Seventh Circuit

August 4, 1977

Heard April 18, 1977.

Page 278

Barry N. Gutterman, Chicago, Ill., for defendant-appellant.

Marvin H. Ruttenberg, Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, SWYGERT and CUMMINGS, Circuit Judges.

PER CURIAM.

The question involved on this appeal is whether under the Carmack Amendment to the Interstate Commerce Act which provides that a shipper shall recover "the full actual loss, damage, or injury to (its) property caused by" a railroad (49 U.S.C. § 20(11)), it was permissible to apply the

Page 279

contract price method of ascertaining damages instead of the market value method. 1 Liability having been conceded, the district court held that on the particular facts the contract price method rather than the market value rule championed by defendant interstate carrier should be used to measure damages suffered by plaintiff shipper-owner.

The stipulation of facts shows that plaintiff was a St. Paul, Minnesota, meat packer. Shortly prior to February 9, 1974, plaintiff sold 1,000 boxes of chucks to Purity Supreme, a retail chain store grocery operation in North Billerica, Massachusetts, for $84,817.40. 2 The chucks were to be delivered to Purity Supreme no later than February 15, 1974, and title, in accordance with the normal custom in the meat trade, was to pass to Purity Supreme upon delivery of the chucks in good condition.

Plaintiff delivered the chucks in proper condition to defendant railroad as the originating carrier on February 9, 1974, for delivery to Purity Supreme as consignee under a Uniform Straight Bill of Lading calling for delivery of the shipment to the consignee "AS SOON AS POSSIBLE NO LATER THAN 2/15/74." This date was well within the usual and customary length of time for rail shipments between St. Paul and North Billerica. The shipment was unreasonably delayed in transit by defendant and other connecting carriers and did not arrive at consignee's siding until 5:20 p. m., on Friday, February 22, 1974. The consignee then orally protested to the delivering carrier about the failure of the shipment to arrive by February 15 and about any consequent deterioration in its condition.

On February 25, 3 the consignee advised plaintiff that it would reject the shipment unless given a discount of 20cents per pound from the purchase price to reflect the drop in market value between February 9 and February 25, as disclosed in the National Provisioner Quotations. The consignee also...

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