Anton v. Greyhound Van Lines, Inc.

• Decision Date: 21 December 1978
• Docket Number: No. 77-1409,77-1409
• Citation: 591 F.2d 103
• Parties: Juliet M. D. ANTON, Plaintiff-Appellee, v. GREYHOUND VAN LINES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 103

591 F.2d 103

Juliet M. D. ANTON, Plaintiff-Appellee, v. GREYHOUND VAN LINES, INC., Defendant-Appellant.

No. 77-1409.

United States Court of Appeals,

First Circuit.

Argued Sept. 14, 1978.

Decided Dec. 21, 1978.

Gordon A. Rehnborg, Jr., Manchester, N. H., with whom Wiggin & Nourie, Manchester, N. H., on brief, for defendant-appellant.

Grenville Clark, III, Manchester, N. H., with whom McLane, Graf, Greene, Raulerson & Middleton, Manchester, N. H., on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, KUNZIG, ^* Judge, U. S. Court of Claims, DUMBAULD, ^** District Judge.

KUNZIG, Judge.

This is a suit by Col. Juliet Anton (plaintiff or shipper) against Greyhound Van Lines, Inc. (defendant or carrier) to recover the full value of her household goods destroyed by fire while in transit in the carrier's van between Montgomery, Alabama and Manchester, New Hampshire. The principal question for decision is whether the carrier effectively limited its liability for loss and damage of the goods in question within the meaning of 49 U.S.C.A. § 20(11) ¹ of the Interstate Commerce Act. Because we affirm the district court's finding that the carrier did not properly limit its liability, we hold the shipper is entitled to recover the full value of her destroyed goods.

In 1972, plaintiff retired from the United States Air Force after having served on active duty for approximately 27 years. Her last active duty station was at Maxwell Air Force Base in Montgomery, Alabama. In connection with her retirement, plaintiff made arrangements to have her household goods and furnishings stored, at Government expense, in Montgomery at the Alabama Transfer & Warehouse Company.

Some 20 months later, in December 1973, plaintiff was notified that she could no longer have her belongings remain in storage at the expense of the Government. Consequently, she requested the Air Force to have her goods shipped from Montgomery to Manchester, New Hampshire, where she was in the process of building a new home.

Pursuant to such request, the Air Force contacted Greyhound's agent, Triple A Associates Moving & Storage Company, and engaged its services for the proposed shipment. In connection with these arrangements, the Traffic Management Office at Maxwell Air Force Base prepared and issued a Government Bill of Lading signed by an Air Force representative as well as Greyhound's agent. This document, which made reference to Military and Government Rate Tariff No. 1-F, ² contained the following clause, "household goods released at a valuation of ______ cents per pound per article." The evidence at trial indicated that no figures were inserted in such clause at the time the document was received by Greyhound's agent. ³

Following receipt of the Government Bill of Lading, Greyhound prepared its own internal bill of lading. This document, which was not signed by either Greyhound, the Air Force or the plaintiff, contained no limitation of liability other than reference back to the Government Bill of Lading and Military and Government Rate Tariff No. 1-F.

In January 1974, pursuant to the authorization extended by the Government Bill of Lading, plaintiff's goods were picked up at the Alabama Transfer & Warehouse Company for shipment to New Hampshire. Unfortunately, the van transporting the goods was involved in a fire and many of the items were damaged or destroyed.

After the loss, plaintiff filed a Claim for Personal Property Against the United States and received $10,000 from the Government pursuant to the terms of 31 U.S.C. §§ 240-43. ⁴ In conjunction with this claim, plaintiff executed an assignment to the United States of any right she had to further recovery against any carrier or private insurer of her property and also signed an agreement to remit to the United States any monies received, said remission not to exceed the amount ($10,000) already obtained from the United States. ⁵

The United States then made demand upon Greyhound in the amount of $2,896.03 (computed at the rate of $.60 per pound contained in Military and Government Rate Tariff No. 1-F) for the loss of plaintiff's goods. Greyhound paid this amount to the U.S., which in turn gave this money to plaintiff since her damages exceeded the $10,000 she already had received from the Air Force.

Before the district court, Greyhound contended, Inter alia, that its liability was limited to $.60 per pound or $2,896.03. The court, however, found that the failure of both the plaintiff and the Air Force to agree specifically in writing to any limitation of liability was fatal to the defendant. Accordingly, the court directed a verdict on the issue of liability in plaintiff's favor.

The jury, considering only the issue of damages, returned a verdict in plaintiff's favor for $13,405.09. The court reduced this by $2,896.03 since Greyhound had already paid such amount to the Air Force. Judgment was then entered for the plaintiff for $10,509.06. Greyhound then filed a Motion to Alter or Amend Judgment in accordance with Rule 59(e) of the Federal Rules of Civil Procedure to have the judgment reduced by $10,000 by virtue of plaintiff's assignment of her rights to the U.S. Air Force and her receipt of $10,000 from the Air Force. This motion was denied. Defendant then timely filed this appeal.

Greyhound raises two arguments on appeal. First, that the district court erred, as a matter of law, in concluding that Greyhound failed properly to limit its liability pursuant to the terms of the Carmack Amendment. In this connection, defendant contends that it need only establish (A) it had an approved tariff schedule on file with the Interstate Commerce Commission (ICC) and (B) the shipper's goods were transported pursuant to the applicable tariff schedule. There is no requirement, defendant states, that the shipper actually sign the bill of lading which establishes the limits of a carrier's liability.

Secondly, Greyhound contends that, even if it failed properly to limit its liability, the judgment should be reduced by $10,000. Defendant argues that when plaintiff received $10,000 from the Air Force, she assigned her rights to any further recovery up to that amount to the United States Government. Thus, since the United States had previously demanded and was paid $2,896.03 by Greyhound, defendant argues, the U.S. released Greyhound from any further liability as to the first $10,000.

Plaintiff predictably replies that the district court was correct in concluding that Greyhound failed properly to limit its liability pursuant to the terms of the Carmack Amendment. ⁶ Plaintiff, relying on the wording of the amendment as well as case law construing it, argues that there are four steps a carrier must take in order to limit its liability: (1) maintain approved tariff rates with the ICC; (2) obtain the shipper's written declaration of his choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment.

Plaintiff also argues that the $10,000 received from the Air Force pursuant to 31 U.S.C. §§ 240-43 does not entitle Greyhound to a reduction of the jury verdict. The monies received under the statute are in the nature of an insurance benefit, argues plaintiff, and thus the "collateral source rule" applies to estop a tort-feasor from escaping liability merely because an insured has received a benefit from a collateral source. Additionally, the collateral source rule is not affected by the fact that an insurer is entitled to be subrogated to the rights of the insured. The question of the right to the proceeds of the recovery, contends plaintiff, is a matter solely between the insured (plaintiff) and the insurer (the Air Force).

The extent of Greyhound's liability in the instant case is controlled by the terms of the Carmack Amendment to the Interstate Commerce Act. Although the amendment provides that when an interstate carrier receives property for transportation, it shall issue a receipt or bill of lading therefor and "shall be liable for the full, actual loss, damage or injury to property delivered to them, a carrier's liability may be limited by Agreement upon a 'released value' of a shipment." Strickland Transp. Co. v. United States, 334 F.2d 172, 175 (5th Cir. 1964) (emphasis added). Limitation of liability can be effected only when in compliance with an ICC "order authorizing special rates dependent upon either a declaration of value by the shipper In writing or a released value In writing." Glickfield v. Howard Van Lines, 213 F.2d 723, 725 (9th Cir. 1954) (emphasis in original). The shipper necessarily may "agree in writing" only after he has had the opportunity to inspect the written terms of the agreement. See, e. g., Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481, 486 (3rd Cir. 1965). "Although action in writing by the shipper is plainly required, his signature is not necessary but it does furnish good evidence that he did declare or agree in writing." Caten v. Salt City Movers & Storage Co., 149 F.2d 428, 432 (2d Cir. 1945); Accord, American Ry. Express Co. v. Lindenburg, 260 U.S. 584, 43 S.Ct. 206, 67 L.Ed. 414 (1923). "Congress no doubt used these words to indicate that a shipper should agree in the same sense that one agrees or assents to enter into a contractual obligation." Chandler v. Aero Mayflower Transit Company, 374 F.2d 129, 135 (4th Cir. 1967); Rhoades, Inc. v. United Airlines, supra at 486. Such assent is effective, however, only if given after "a fair opportunity to choose between higher or lower liability by paying a correspondingly greater or lesser charge . . ." New York, N.H. & H. R.R. Co. v. Nothnagle, 346 U.S. 128, 135, 73 S.Ct. 986, 990, 97 L.Ed. 1500 (1953).

It is conceded by plaintiff that Greyhound maintained tariff rates approved by the ICC dependent upon the declared value of its shipments. It is further agreed by both parties th...