877 F.2d 1508 (11th Cir. 1989), 87-5048, Hiram Walker & Sons, Inc. v. Kirk Line

Docket Nº:87-5048, 87-5094, 87-5111 and 88-5180.
Citation:877 F.2d 1508
Party Name:HIRAM WALKER & SONS, INC., Plaintiff-Appellee, v. KIRK LINE, et al., Defendants, Indian River Transport, Inc., Defendant-Appellant. HIRAM WALKER & SONS, INC., Plaintiff-Appellee, v. KIRK LINE, et al., Defendants, Eller & Company, Inc., Defendant-Appellant, Indian River Transport, Inc., Defendant-Appellee. HIRAM WALKER & SONS, INC., Plaintiff-Appell
Case Date:July 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1508

877 F.2d 1508 (11th Cir. 1989)

HIRAM WALKER & SONS, INC., Plaintiff-Appellee,


KIRK LINE, et al., Defendants,

Indian River Transport, Inc., Defendant-Appellant.

HIRAM WALKER & SONS, INC., Plaintiff-Appellee,


KIRK LINE, et al., Defendants,

Eller & Company, Inc., Defendant-Appellant,

Indian River Transport, Inc., Defendant-Appellee.

HIRAM WALKER & SONS, INC., Plaintiff-Appellee,


KIRK LINE, R.B. Kirkconnell & Bro. Ltd., et al., Defendants,

Indian River Transport, Inc., Defendant-Appellant.

HIRAM WALKER & SONS, INC., Plaintiff-Appellee, Cross-Appellant,


KIRK LINE, R.B. Kirkconnell & Bro., Ltd., Jamaica Merchant

Marine Atlantic Line Ltd., Indian River Transport,

Inc., SS MORANT BAY, its engines,

boilers, etc., Defendants,

Eller & Company, Inc., Indian River Transport, Inc.,

Defendants-Appellants, Cross-Appellees.

Nos. 87-5048, 87-5094, 87-5111 and 88-5180.

United States Court of Appeals, Eleventh Circuit

July 21, 1989

Page 1509

Mark A. Leibowitz, Jay M. Levy, Hershoff & Levy, John D. Kehoe, David F. McIntosh, Corfett, Killian, Hardeman, McIntosh & Levi, Miami, Fla., for Indian River Transport, Inc.

John P. D'Ambrosio, Elmsfore, N.Y., for Hiram Walker & Sons, Inc.

Christian D. Keedy, Smathers & Thompson, Kelley, Drye & Warren, Craig Drake Olmstead, Miami, Fla., for Eller & Co., Inc.

Appeals from the United States District Court for the Southern District of Florida.

Page 1510

Before KRAVITCH and HATCHETT, Circuit Judges, and MARKEY [*], Chief Circuit Judge.

KRAVITCH, Circuit Judge:

The plaintiff Hiram Walker & Sons, Inc. 1 (Hiram Walker), filed this action in the Southern District of New York against defendants Indian River Transport, Inc. (Indian River), Eller & Company, Inc. (Eller), R.B. Kirkconnell & Bro., Ltd. (Kirk Line), and Jamaica Merchant Marine Atlantic Line, Ltd. (Jamaica Line), seeking damages for the loss of several thousand gallons of the liqueur Tia Maria. Upon Eller's motion, the case was subsequently transferred to the Southern District of Florida. After all parties moved for summary judgment, the district court dismissed Kirk Line and Jamaica Line from the action, and granted Hiram Walker's motion against Eller and Indian River on the question of liability. Indian River and Eller each filed an interlocutory appeal in this court, but because of a jurisdictional problem those appeals were never decided on the merits. The district court subsequently held a bench trial to determine the amount of damages due Hiram Walker. Following the trial, the district court quantified Hiram Walker's damages, for which it adjudged Eller and Indian River each fifty percent liable. Eller and Indian River appealed; Hiram Walker cross-appealed against those two defendants but did not appeal the district court's dismissal of the actions against Kirk Line and Jamaica Line. We consolidated all appeals from the earlier summary-judgment order and the order following trial; we now reverse and remand.


Hiram Walker purchased five thousand gallons of Tia Maria from Estate Industries in Jamaica on March 15, 1985. On March 26, a twenty-three ton tank containing the liqueur was loaded aboard the M/V Morant Bay in Kingston, apparently in good order. Kirk Line had chartered the Morant Bay from its proprietor, Jamaica Line, for a shipment of cargo including Hiram Walker's liqueur, which was shipped under a Kirk Line-Hiram Walker bill of lading. The tank arrived in Miami three days later. Kirk Line hired Eller, a stevedore, to unload the tank from the Morant Bay and store it at the dock.

Hiram Walker contracted with Indian River to transport the liqueur overland to New Jersey; Hiram Walker and Indian River agreed that Indian River was to pump the liqueur from the tank into its freight trailer. On April 1, Jones, an employee of Indian River, arrived at the port to effect the pumping transfer. An Eller employee removed the tank from storage and aligned it with the trailer. Jones attempted to connect the tank and the trailer, but realized that a fitting needed to connect the hoses was missing. Even though another fitting on the back of the tank might have been used to pump the liqueur into the trailer, Jones decided that pumping the liqueur would be impossible; therefore, he asked Marshall, an Eller employee, to help him accomplish a "gravity feed"--essentially, Jones wanted to pour the liqueur from the tank to the trailer. To effect a gravity feed, the tank had to be elevated higher than the trailer. Marshall directed another Eller employee, Wright, to assist Jones. Wright lifted the tank on a large forklift; Wright, however, was not licensed to operate forklifts of this capacity.

Wright and Marshall neglected to put straw mats or other dunnage between the

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metal forks and the metal container. Fifteen minutes into the operation, the tank apparently began to slide off the forks because of the lack of dunnage. Deciding that the tank was not properly balanced, Marshall instructed Wright to find another forklift. Wright did not lower the tank, but left the forklift holding the tank suspended eight feet off the ground for ten minutes; leaving a load suspended was a violation of standard company procedure. As Wright returned, the tank fell off the forklift. The tank ruptured, and eighty-five percent of the Tia Maria in the tank spilled out. The liqueur remaining in the tank was contaminated during the clean-up, in which several fire-engine companies covered the area with anti-explosive foam.


The claim against Indian River was pleaded as a federal question; and against Eller, in diversity. The district court analyzed the cases against Eller and Indian River under maritime tort law; because the accident in question did not occur at a maritime situs, however, admiralty jurisdiction would not support the claims against these two defendants. Harville v. Johns-Manville Products Corp., 731 F.2d 775, 782 (11th Cir.1984); Boudloche v. Conoco Oil Corp., 615 F.2d 687, 688 (5th Cir.1980). 2 On appeal, Indian River argues that the district court lacked subject-matter jurisdiction over the claim asserted against it. We of course may consider the question of Article III subject-matter jurisdiction for the first time on appeal; additionally, an explanation of the basis of federal jurisdiction over each defendant will point out the source of law applicable to each claim.

A. Federal subject-matter jurisdiction

Hiram Walker urges that its claim against Indian River arises under the Carmack Amendment, 49 U.S.C. Sec. 11707, which provides in relevant part:

A common carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission ... shall issue a receipt or bill of lading for property it receives for transportation under this subtitle. 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 the actual loss or injury to the property caused by (1) the receiving carrier.... Failure to issue a receipt or bill of lading does not affect the liability of a carrier....

49 U.S.C.A. Sec. 11707(a)(1) (1988). In its complaint, Hiram Walker alleged that Indian River "totally breached, failed and violated its duties as an interstate common carrier in receiving, tending, caring for and delivering the [shipment of Tia Maria] in good condition, but on the contrary, so seriously [damaged] the same while in its possession that it was rendered a total loss." Section 1337 of Title 28 imposes an amount-in-controversy requirement over suits brought under the Carmack Amendment; that requirement is satisfied by the allegations in the complaint. The complaint sufficiently pleaded a federal claim against Indian River. 3

Because the Carmack Amendment would not support the claim against Eller, Hiram Walker alleged that this claim was properly within the court's diversity jurisdiction. 28 U.S.C. Sec. 1332. In the complaint, Hiram Walker conspicuously failed to allege that it and Indian River were of diverse citizenship. Diversity jurisdiction ordinarily is not available "when any plaintiff is a citizen of the same State as any defendant." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978). An exception to the general rule exists, however, when the plaintiff joins a non-diverse defendant sued

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under federal law with a diverse defendant sued in diversity. Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 381, 79 S.Ct. 468, 485, 3 L.Ed.2d 368 (1959) ("Since the Jones Act provides an independent basis of federal jurisdiction over the non-diverse respondent, ... the rule of Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435, does not require dismissal of the claims against the diverse respondents."); Kauth v. Hartford Ins. Co., 852 F.2d 951, 958-59 (7th Cir.1988); Baker v. J.C. Penney Co., 496 F.Supp. 922 (N.D.Ga.1980). In Baker, Judge Vining observed that an anomaly would be created by "not allowing a plaintiff to do in one federal suit what he would be entitled to do in two separate federal suits." 496 F.Supp. at 924.

Alternatively, the claim against Eller...

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