Republic Carloading & Distrib. Co. v. Missouri Pacific R. Co.

• Decision Date: 03 May 1962
• Docket Number: No. 16698.,16698.
• Citation: 302 F.2d 381
• Parties: REPUBLIC CARLOADING AND DISTRIBUTING CO., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

302 F.2d 381 (1962)

REPUBLIC CARLOADING AND DISTRIBUTING CO., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.

No. 16698.

United States Court of Appeals Eighth Circuit.

May 3, 1962.

George F. Gunn, Jr., of La Tourette & Rebman, St. Louis, Mo., for appellant.

Robert W. Yost, St. Louis, Mo., and M. M. Hennelly and A. D. Churchill, St. Louis, Mo., on the brief, for appellee.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

By this action, removed from a Missouri state court, Republic Carloading and Distributing Co. seeks to recover from Missouri Pacific Railroad Company the value of certain interstate less-than-carload freight lost in St. Louis between October 1955 and October 1958. Jurisdiction is established under 28 U.S.C.A. § 1337.

Republic is a freight forwarder under Part IV of the Interstate Commerce Act and as defined by § 402(a) (5) thereof, 49 U.S.C.A. § 1002(a) (5).¹ The Missouri Pacific is a common carrier by railroad under Part I of the Act and as defined by § 1(3) (a) thereof, 49 U.S.C.A. § 1(3) (a). Republic, pursuant to the responsibility imposed upon it as a freight forwarder by §§ 413 and 20(11) of the Act, 49 U.S.C.A. §§ 1013 and 20 (11), has paid its shippers their claims for the freight lost. It now looks to the railroad, under § 20(12), 49 U.S.C.A. § 20(12), for reimbursement for those payments.

The case was tried to the court upon the pleadings, the railroad's request for admissions, Republic's answers thereto, and stipulated facts. Each side moved for summary judgment pursuant to Rule 56, F.R.Civ.P., 28 U.S.C.A. The railroad's motion was sustained and Republic's motion was overruled. Judgment was entered accordingly. Republic has appealed.

In its business as a freight forwarder Republic owns no transportation equipment. It utilizes instead the services of common carrier rail or truck lines. Its principal function as a forwarder is to consolidate smaller shipments into carload or truckload lots so as to obtain the benefit of carload or truckload rates. These rates are less per unit than less-than-carload rates and do not include a carrier's loading or unloading services.

The freight was lost while it was at a St. Louis freight depot. Portions of this depot had been leased by the Missouri Pacific, as owner, to Republic. The issue, at least as stated in a pre-trial order, is whether the railroad "was a common carrier and therefore responsible for loss or disappearance of shipments" from the depot.

The Lease. The lease is one executed February 24, 1956, but made retroactive to September 1, 1952. It relates to an old freight depot area owned by the railroad at Main and Gratiot Streets, St. Louis. By it the railroad² leased to Republic designated portions of a freight-house building and also granted Republic "the right to use, in common with Lessor or others, such additional space or area on" the platform portion of the freight-house building and on a separate open freight platform on the other side of five loading tracks "as may be necessary for temporary accommodation of freight actually or constructively in possession of Lessee under provisions of Section 8 of this agreement". The two platform areas together were called the "Lessor's Freight Platform."

Paragraph 8 of the lease has particular pertinency. By it the parties agree (1) that freight on the Platform with respect to which the railroad does not receive a road haul by rail "shall at all times be deemed to be in the possession of" Republic; (2) that "loss of or damage to freight being handled from highway truck to highway truck shall, at all times, be the liability of the Lessee"; and (3) that, except with respect to such a truck-to-truck situation and other exceptions not here pertinent, "loss of or damage to freight on Lessor's Freight Platform and Premises shall be the liability of the party having possession of the freight under the provisions of this agreement, at the time of the loss or damage".

The portions of the depot occupied by Republic under the lease were used by it for the receipt, consolidation and forwarding of freight moving, or to be moved, on bills of lading issued by Republic, or, in other words, the depot's use by Republic was confined to the handling of Republic's freight forwarding traffic.

The shipments. The less-than-carload shipments in question had all moved, or were to be moved, interstate on through bills of lading issued by Republic. They either (1) had been transported to St. Louis and the depot by common carrier truck, or (2) had been transported to St. Louis by common carrier railroad, other than the Missouri Pacific, in which case the Missouri Pacific received tariff-specified switching charges for its services in switching the cars containing the shipments from its St. Louis connection to the depot, or (3) had originated in St. Louis and had been transported to the depot by local truckers hired by Republic or its shippers. The shipments had been consolidated, or were to be consolidated, with other less-than-carload shipments moving on bills of lading issued by Republic and had been transported, or were to be transported, as parts of carloads or truckloads on additional bills of lading issued to Republic by the common carrier rail or truck lines. The carriers' bills of lading for all carloads or truckloads into St. Louis showed Republic as both consignor and consignee and St. Louis as the destination. If an incoming shipment was to continue beyond St. Louis it would be included in a new carload or truckload for which a new bill of lading was issued by the outbound carrier naming Republic as the shipper and consignee.

Unloading and Loading. Shipments originating in St. Louis were unloaded at the depot by the local truck driver. All other shipments arriving at the depot were unloaded by Missouri Pacific employees from the car or truck. For this unloading service the railroad received rates set forth in a freight tariff it had filed and published as prescribed by § 6 of the Interstate Commerce Act, 49 U.S. C.A. § 6. This tariff related specifically to charges at this St. Louis depot for services in unloading or loading "on request of shipper". Upon unloading each shipment was moved by the railroad employees to the particular loading point on the Platform determined by the final destination specified on the bill of lading issued by Republic and Republic issued a receipt to the inbound carrier acknowledging delivery of the shipment. Some shipments were to be loaded by the railroad employees into cars for subsequent movement by rail. Others were to be loaded by those employees into common carrier trucks for further movement. For these loading services the railroad also received the rate set forth in the freight tariff. Shipments for delivery to St. Louis destinations were placed by the railroad employees on the Platform for loading by the local trucker into local trucks.

In summary, therefore, except for the unloading from local trucks of shipments originating in St. Louis and except for the loading into local trucks of shipments for St. Louis delivery, the railroad employees did the unloading and loading.

It was between the time the shipments in question were unloaded and placed on the Platform and the time they were to be finally loaded into a car or truck that the losses took place. Each shipment, thus, at the time of the loss had not been delivered to the consignee named in Republic's bill of lading and was still on the Platform. The car or truck into which it was to be loaded had not yet been completely loaded and Republic had not yet issued complete instructions to the outbound carrier.

The Missouri Pacific was not a line haul carrier of any shipment in controversy, did not receive a line haul or any division of the line haul charge from the line haul carrier, did not receive from Republic any instructions under which it was to receive a line haul, and did not issue any bill of lading or other document acknowledging receipt of the shipment as a common carrier.

Neither the Missouri Pacific nor Republic has any evidence as to the cause of the losses.

Republic contends that at the time of loss each shipment had not yet reached its final destination point; that it was still in transit in interstate commerce; that the unloading and loading services rendered by the Missouri Pacific at the depot were performed by it as a common carrier in an overall interstate transaction; that the loss took place while the railroad was acting in this capacity; that the freight, therefore, never came into Republic's possession; and that any provisions of the lease which might be taken to relieve the Missouri Pacific of responsibility were not effective because, the lease cannot abrogate the railroad's common carrier liability.

The Missouri Pacific contends that at the time of each loss transportation of the inbound car or truck had been completed or transportation of the outbound car or truck had not yet begun; that there was an interval between the transportation in and the transportation out; that the lease was effective and applicable to that interval; that by the lease the possession of the shipment, and hence liability therefor, was in Republic and not in the railroad; that the unloading service provided by the railroad had been rendered and had ceased; and that the presence of a bill of lading issued by Republic to its shipper and the fact Republic had not yet completed the transportation required by its bill of lading were matters between Republic and its shipper and have no bearing on the obligations of the railroad to Republic.

We observe, initially, and repeat for emphasis, that with respect to each shipment there were two bills of lading outstanding. One was issued, as to the less-than-carload item or items, by Republic to its customer-shipper. The other was issued, as to the consolidated carload or truckload, by the common carrier railroad or...