Minneapolis, St. P. & SSMR Co. v. Metal-Matic, Inc.

• Decision Date: 23 October 1963
• Docket Number: 17039.,No. 17038,17038
• Citation: 323 F.2d 903
• Parties: MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILROAD COMPANY, Appellant, v. METAL-MATIC, INC., Appellee. METAL-MATIC, INC., Appellant, v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

323 F.2d 903 (1963)

MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILROAD COMPANY, Appellant, v. METAL-MATIC, INC., Appellee.

METAL-MATIC, INC., Appellant, v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILROAD COMPANY, Appellee.

Nos. 17038, 17039.

United States Court of Appeals Eighth Circuit.

October 23, 1963.

Benedict Deinard, Minneapolis, Minn., for the Minneapolis, St. Paul & Sault Ste. Marie Railroad Co. Edward M. Glennon, Minneapolis, Minn., was with him on the brief.

Robert J. King, Minneapolis, Minn., for Metal-Matic, Inc. Clarence O. Holten and James S. Eriksson, Minneapolis, Minn., were with him on the brief.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

Number 17038 is an appeal from a judgment for damages to goods transported in interstate commerce under a "straight bill of lading," containing a "shipper's load and count" clause. 49 U.S.C.A. § 101. Plaintiff, the consignee of the shipment, based its cause of action against defendant under the Carmack Amendment, 49 U.S.C.A. § 20(11). Jurisdiction on appeal is premised in 28 U.S.C.A. § 1337. We shall refer to the parties as they appeared in the trial court.

The Carmack Amendment, supra, is a codification of the common-law requirement holding interstate common carriers liable for goods damaged or lost in transport without proof of negligence. Under that Act, the initial carrier is made liable for damage to property carried in interstate commerce under through bill of lading whether in its possession or that of a connecting carrier. The delivering carrier is made equally liable. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167 (1911); Cincinnati, New Orleans & Tex. Pac. Ry. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022 (1916). The action here is against the delivering carrier.¹ A justiciable issue of fact is established in an action such as this when plaintiff shows that its goods were delivered in good condition to the initial carrier and they arrived in damaged condition. Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516 (1912). Then the carrier sued has the burden to establish that the damage was solely occasioned by an Act of God, the public enemy, the inherent vice or nature of the commodity, or an act of the shipper. (Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913); Boston & Maine Rd. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868 (1914)). If true, the carrier is relieved of liability. Secretary of Agriculture v. United States, 350 U.S. 162, 76 S.Ct. 244, 100 L.Ed. 173 (1956).

The material facts in the case at bar, for the most part established by deposition testimony, are not substantially in dispute. Plaintiff, a Minnesota corporation, purchased some heavy machinery from Houdaille Industries, Inc., of Buffalo, New York. Included in the purchase was an Etna Tube Mill which was comprised of twenty-five sections. The purchase price for the machine included a specified amount for preparing it for shipping and loading into railroad cars. Pursuant to that agreement, the shipper, Houdaille, prepared the property for shipment and loaded it into boxcars at its siding in Buffalo, New York. Two boxcars were needed for shipment purposes. The Etna Tube Mill, comprised of its various sections, was loaded into the first car. The balance of the property was loaded in the remaining car. The loading process was completed on or about August 31, 1956. Thereafter, the shipper closed and sealed the box-cars and the property was delivered into the possession of the initial carrier, the New York Central Railroad.² The New York Central issued a "straight bill of lading" therefor, containing a "shipper's load and count clause." The initial carrier transported the property to Welland, Ontario, where the cars were interchanged with the Toronto, Hamilton and Buffalo Railway, a connecting carrier. That carrier moved the goods to Hamilton, Ontario, where another carrier, the Canadian Pacific Railroad, moved the property to Sault Ste. Marie, Michigan. There, the goods were interchanged with the defendant which carried them to their destination in Minneapolis, Minnesota. On September 11, 1956, the first car arrived in Minneapolis; the second car arrived two days later, on September 13th. When the boxcars were opened, extensive damage was found to much of the machinery in each car. Though the cars traveled in separate trains, several days apart, the nature of the damage in each car was identical.

Defendant based its defense to plaintiff's claim on allegations that the damage to the property in question was solely caused by the improper loading of the machinery by the shipper and denied any carrier negligence in transit. At the trial it was proved that the machinery as loaded was by the "integral loading" method into boxcars, the floors of which were of steel. By this method a boxcar is loaded from both ends, ending up in the middle, and wooden blocking is put between the machines so that everything ties together as a unit. By carrier rules and regulations approved by the I.C.C., the shipper was bound to skid such machinery. It was not skidded. A skid provides a wooden frame on which the machine rests during its journey. It serves as a cushion between the floor of the car and the machine itself. It is designed so that when the machinery is in the car it will not permit any part of the machine mounted on a skid to come into contact with any other machine on a similar skid, even though the blocking gives way. Defendant claims that blocking alone, the process employed by the shipper here, is no substitute for skidding. It merely is reinforcement; for if the blocking gives way, unless there are skids for the machines, the machines may come in contact with one another during transit. There was testimony by both parties at the trial indicating that skidding was the only responsible method of loading for machinery of this type.³ Also, there was testimony that the damage to the machinery here considered resulted from their sliding or creeping on the steel floors of the boxcars in which they were carried, the machines striking each other, as well as the ends of the cars, because the bracing and blocking thereof as performed by the shipper gave way. Other specific facts will hereafter be stated in the course of this opinion.

The District Court, in its findings of fact, found that though the shipments in questions were blocked, fastened and secured within the two cars, it had not been skidded as required by the defendant's rules; that the shipper had knowledge of defendant's rules as to skidding and that skidding was the shipper's prior regular practice. In a further finding of fact, which defendant claims is unsupported by the evidence, the Court found that the damage to the machinery was "caused or contributed to, by the defendant or by the initial carrier or one of the connecting carriers over whose line such property passed in that the boxcars were subjected to unusual, abnormal, excessive and unnecessary impact force in handling, but the failure of the shipper to skid contributed to said damage." (Emp. added. F. of F. XIV.) In the light of such findings of fact, we think it is important to point out that applicable law in an action such as this, is — where the lading is "shipper's load and count" and the shipper, in fact, improperly loads the shipment, the shipper is liable therefor (Modern Tool Corp. v. Pennsylvania R. Co., 100 F.Supp. 595 (D.C.N.J.1951)) and the plaintiff must then show that some independent act of negligence on the part of the carrier contributed to cause damage to the shipment, notwithstanding the shipper's negligence, before the carrier can be held liable. Hamilton Mfg. Co. v. Chicago & N. W. Ry. Co., 277 F.2d 652, 653 (7 Cir. 1960); Crump v. Thompson, 171 F.2d 442 (8 Cir. 1948); American Rwy. Express Co. v. Ewing Thomas Converting Co., 292 F. 335, 337, (3 Cir. 1923). The carrier cannot be held liable for the act of the shipper in loading the car improperly without evidence that the defect was patent and apparent by ordinary observation. Modern Tool Corp. v. Pennsylvania R. Co., supra, 100 F.Supp. 1. c. 597, and cases there cited. Where, to rebut the prima facie showing of a claimant, the carrier introduces evidence of the good condition of its cars and normal carriage in transit, persuasively excluding the possibility of carrier negligence, such issue cannot be decided as a matter of law. Cf. Chesapeake & O. Ry. Co. v. A. F. Thompson Mfg. Co., 270 U.S. 416, 423, 46 S.Ct. 318, 70 L.Ed. 654 (1926). After a prima facie showing of damage to a shipment has been made and the carrier proves that the loss or damage arose from the act of the shipper, the burden of proving some act of the carrier concurred in or contributed to the damage remains with the plaintiff. New York Central R. Co. v. Johnson, 27 F.2d 699, 701 (8 Cir. 1928), reversed on other grounds 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706. Further, a shipper is conclusively bound by the tariff rules of the carrier. Boston etc. R. Co. v. Hooker, supra; Lever Bros. Co. v. Baltimore & O. R. Co., 164 F.2d 738 (4 Cir. 1947); Northern Pac. Ry. Co. v. Van Dusen Harrington Co., 60 F.2d 394 (8 Cir. 1932); Wheelock v. Walsh Fire Clay Products, 60 F.2d 415 (8 Cir. 1932); and parol evidence cannot be received to vary the terms thereof. South Carolina Asparagus Growers' Ass'n v. Southern Ry. Co., 46 F.2d 452 (4 Cir. 1931).

To establish carrier negligence in the case at bar, plaintiff adduced deposition evidence indicating that a New York Central inspector, before the cars in question were closed and sealed, inspected the shipment and reported to Houdaille, the shipper, that it was in good order, prior to Houdaille's closing of the cars and their departure from its siding. Plaintiff claims this act waived the shipper's liability for failure to skid the shipment as...