Association of Maryland Pilots v. Baltimore & OR Co.

• Decision Date: 08 October 1969
• Docket Number: Civ. No. 17648.
• Citation: 304 F. Supp. 548
• Parties: ASSOCIATION OF MARYLAND PILOTS v. The BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: U.S. District Court — District of Maryland

304 F. Supp. 548

ASSOCIATION OF MARYLAND PILOTS v. The BALTIMORE AND OHIO RAILROAD COMPANY.

Civ. No. 17648.

United States District Court D. Maryland.

October 8, 1969.

COPYRIGHT MATERIAL OMITTED

J. Cookman Boyd, Jr., Stanford D. Hess, and Sauerwein, Boyd & Decker, Baltimore, Md., for plaintiff.

Michael P. Crocker, and Piper & Marbury, Baltimore, Md., for defendant.

HARVEY, District Judge:

In this action brought under the Interstate Commerce Act, a shipper is seeking to recover from a common carrier by rail for loss and damage to a shipment of parts of a marine engine allegedly sustained during a trip from Slidell, Louisiana, to Baltimore, Maryland. The shipment was originally delivered to a carrier of the Southern Railway System in Louisiana,¹ but when it eventually arrived in Maryland, it had passed over lines of the Southern Railway Company ("the Southern Railway") and of the Baltimore and Ohio Railroad Company ("the B & O"), which has been named as the defendant in this action. Under 49 U.S.C. § 20(11), the so-called Carmack Amendment, suit may be brought against the delivering carrier by a shipper suffering loss which occurs during an interstate shipment.

The plaintiff is an organization known as The Association of Maryland Pilots ("the Pilots"). It is an unincorporated association which has been accorded statutory recognition by Maryland law. See Article 74 of the Annotated Code of Maryland (1967 Repl.Vol.). § 10 of Article 74 requires that all vessels engaged in foreign trade to and from any port within the State must take a licensed State pilot. Under § 19, as many as three pilot boats may be required to be kept at sea for furnishing pilots for vessels entering the Chesapeake Bay. One of these boats currently maintained by the Pilots is the BALTIMORE. In order to provide replacement parts for the two old Winton diesel engines which propel the BALTIMORE, the Pilots had in 1965 purchased for $8500 another old Winton engine located in Slidell, Louisiana. This engine was dismantled, and various parts were loaded on a single Southern Railway flat car and shipped to Baltimore to be stored at the Maryland Shipbuilding and Drydock Company ("Maryland Drydock") and used as replacements when needed.²

During the interstate trip, a derailment occurred near Trabor, South Carolina, with the result that 36 cars of the 2-mile long train left the track. The flat car on which these engine parts were located was the first of these cars to be derailed.³ Following the derailment, the Southern Railway transferred the Pilots' shipment from the flar car to a gondola car which eventually arrived in Baltimore more than a month after the derailment had occurred. When the engine parts were unloaded by representatives of Maryland Drydock, allegedly some were missing, others were damaged and many parts were covered with rust, mud, dirt and other foreign matter. In its complaint, the Pilots originally sought judgment in the amount of $135,667. However, at the trial, counsel conceded that the plaintiff's maximum recovery could be no more than $73,899.

The B & O contends that it is not liable because any loss or damage sustained by the plaintiff was caused by its own negligence in loading the shipment. The B & O further maintains that even if the carrier were found liable, the shipper has not sustained its burden of proving that it suffered any damages at all, or if the fact of damages be found to have been proved, the amount should be limited to the market value of the goods themselves.

The case has been tried by the Court without a jury. This Court's findings of fact and conclusions of law under Rule 52(a) of the Federal Rules of Civil Procedure are embodied in this opinion, whether or not expressly so characterized.

Liability

Two questions arise with reference to the issue of liability presented in this case: (1) whether the derailment was caused by the negligent act of the shipper in loading the goods, and (2) whether, if the accident was caused by negligent loading, the derailment was in fact the cause of the loss and damage to the engine parts.

(1) Negligence

A shipper makes out a prima facie case of negligence against a carrier when it is shown that goods were delivered to a carrier in good condition and that the carrier delivered them to the consignee in a damaged condition. Missouri Pac. R. R. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964); Chesapeake & Ohio Ry. v. Thompson Mfg. Co., 270 U.S. 416, 422-423, 46 S.Ct. 318, 70 L.Ed. 659 (1926); Atlantic Coast Line R. R. v. Georgia Packing Co., 164 F.2d 1, 3 (5th Cir. 1947). However, the carrier is ordinarily not liable for acts or defaults of the shipper in loading a car in an improper manner. South Carolina Asparagus Growers' Ass'n v. Southern Ry., 46 F.2d 452, 454 (4th Cir. 1931); United States v. Savage Truck Line, Inc., 209 F.2d 442, 445, 44 A.L.R.2d 984 (4th Cir. 1953), cert. den. 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098 (1954); Modern Tool Corp. v. Pennsylvania R. R., 100 F.Supp. 595, 597 (D.N.J.1951). Section 1(b) of the Bill of Lading covering this shipment specifically so provided.

It is not disputed in this case that an agent of the Pilots loaded the flat car which had been provided by the Southern Railway for the trip. What is in issue here is whether one of the parts comprising the shipment was so negligently secured to the flat car by such agent that it fell off during the interstate trip, causing the derailment.

The Winton marine engine which the Pilots purchased in Louisiana came from a tug originally built in 1929. In 1964, the tug owner, DeBardeleben Marine Corporation of New Orleans, had removed this engine from the tug and left it in an open field belonging to the Southern Shipbuilding Company near Slidell, Louisiana. A New York Marine broker purchased this engine from DeBardeleben early in 1965 and in turn sold it to the Pilots pursuant to a Bill of Sale dated August 23, 1965.

Robert Wood, a marine consultant residing in New Orleans, was employed by the Pilots to make arrangements for shipping to Maryland the parts of the engine needed as possible replacements for the BALTIMORE's engines. Wood engaged on behalf of the Pilots a New Orleans firm known as Power Engineering, Inc. ("Power Engineering")⁴ to undertake the dismantling, cleaning and loading of the engine parts. This work was under the direction of the firm's President, Herman Oosterhuis. Following dismantling of the DeBardeleben engine, various parts were steam-cleaned and covered with preservative. A railroad car was ordered from the Southern Railway for use in shipping the parts selected to Maryland, and in the latter part of September, 1965 a flat car, No. 117672, was delivered to Power Engineering at the premises of the Southern Shipbuilding Company. Under Oosterhuis's direction, both large and small parts of the DeBardeleben engine were loaded onto the Southern Railway flat car. Left behind as not being usable for the Pilots' purposes were the crankcase, flywheel and certain other parts.

The flat car left Louisiana on October 6, 1965. On October 13, at approximately 6:30 A.M., a derailment occurred near Trabor, South Carolina, as the train was heading in a northerly direction. Inspection by the Conductor, Alfred W. Mann, Jr., who was in the caboose at the time of the derailment, disclosed that the flat car loaded by Oosterhuis was the first of 36 cars to the South derailed or overturned. This particular car was found to be upright and still coupled to a box car to the immediate north, but its rear wheels were off the rails. The remaining eighty-three cars to the north and the six locomotives had remained on the rails.

Three-tenths of a mile south of car No. 117672, Mann observed continuous wheel marks on the cross ties. He further came upon an oblong piece of machinery located six feet from the west rail in the area of the derailed cars. This piece of machinery was observed near a switch where the single line track from the south branched into a double line. From the point at which wheel marks indicated that the derailment had started back to a spot adjacent to where the cylinder head was found, irregular gouged-out marks appeared on the ties between the rails. The cut lever⁵ located at the coupling point between the front end of the flat car and the box car immediately ahead was bent downward and contained freshly-made gouge marks and abrasions upon its metal. One of the nine cylinder heads on the flat car was missing. Mann further noticed that there was a newly skinned place or marking on the journal or axle running between the front wheels of the flat car. This axle lay just beneath the space that had been occupied by the missing cylinder head and just back of the coupling space where the bent and marked cut lever was located. According to Mann, the train had been going down grade to the point of derailment.

In view of these facts, this Court finds that the derailment occurred when a heavy marine engine part which had been loaded on flat car No. 117672 slid forward and fell off the front edge of the car. The piece in question was one of the nine cylinder heads which were included in the shipment. It came loose as the train was proceeding down a slight grade, slid forward over the front edge of the car and dropped to the bed of the road. After falling off the flat car, the cylinder head came in contact with the rear wheels of the car, causing the wheels to leave the track and further causing derailment of the 35 cars that followed.

The evidence further shows that the flat car in question was negligently loaded by the plaintiff's agent. Herman Oosterhuis, President of Power Engineering, was a native of Holland who had been in the United States for about two years at the time of the loading operation. At his deposition, he admitted that he had had no experience in the loading of railroad freight and in fact had never loaded a railroad car before....