BC Truck Lines, Inc. v. Pilot Freight Carriers, Inc.

• Decision Date: 01 November 1963
• Docket Number: Civ. A. No. 7591.
• Citation: BC Truck Lines, Inc. v. Pilot Freight Carriers, Inc., 225 F. Supp. 1 (N.D. Ga. 1963)
• Parties: B. C. TRUCK LINES, INC., Plaintiff, v. PILOT FREIGHT CARRIERS, INC., and E. I. du Pont de Nemours & Company, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

225 F. Supp. 1

B. C. TRUCK LINES, INC., Plaintiff, v. PILOT FREIGHT CARRIERS, INC., and E. I. du Pont de Nemours & Company, Inc., Defendants.

Civ. A. No. 7591.

United States District Court N. D. Georgia, Atlanta Division.

November 1, 1963.

Louis D. Yancey, Jr., Edgar C. Gentry, Atlanta, Ga., for plaintiff.

Nall, Miller, Cadenhead & Dennis, A. Paul Cadenhead and Theodore G. Frankel, Atlanta, Ga., for defendant Pilot Freight Carriers, Inc.

Alston, Miller & Gaines, Daniel B. Hodgson and Lloyd T. Whitaker, Atlanta, Ga., and Peter J. Nolan of Wilmington, Del., of counsel, for defendant E. I. du Pont de Nemours & Company, Inc. MORGAN, District Judge.

STATEMENT OF THE CASE

This is an action to recover damages for the loss of cargo, trucking equipment, and terminal facilities in a fire involving 54 drums of sodium peroxide on January 3, 1959. The action is brought by B. C. Truck Lines, Inc. (hereafter called B. C.) at whose terminal the fire occurred. The action is brought against E. I. du Pont de Nemours & Company, Inc. (hereafter called du Pont) manufacturer, packer, and shipper of sodium peroxide, and Pilot Freight Carriers, Inc. (hereafter called Pilot) the initial carrier, which delivered this shipment to B. C. for carriage to point of destination. Pilot, having picked up the drums of sodium peroxide at defendant du Pont's plant at Niagara Falls, New York, delivered same to B. C. in Atlanta, Georgia.

There is no question as to proper alignment of the parties or jurisdiction of this Court.

The action was originally brought in three counts — the first sounding in negligence, the second, in breach of express warranty, and the third, in breach of implied warranty. The second and third counts as to Pilot were stricken by this Court on motion for summary judgment on the finding that Pilot had made no such warranties running in favor of the plaintiff and for other reasons. The third count as to du Pont was stricken by the Court on motion for summary judgment on the finding that the specifications of breach of implied warranty related to the same subject matter as those specified under the express warranty count, Count Two, the law being that no implied warranty may exist under those circumstances. See Cohen v. Frima Products, 181 F.2d 324, 325 (C.A. 5, 1590) and C. J. Howard, Inc. v. C. V. Nalley and Company, 44 Ga.App. 311(3), 161 S.E. 380.

With respect to du Pont, the plaintiff specified 21 acts of negligence and 10 breaches of express warranty. These specifications are set out in Footnote 1 below,¹ and may be placed under four topics as follows:

1. The sodium peroxide was not up to proper standard, was improperly manufactured, and was unduly dangerous;

2. The drums were inadequate for shipment of the sodium peroxide under the circumstances involved;

3. The shipping procedures were neither proper nor sufficient; and

4. Insufficient warning was given of the nature of the contents and how to handle the containers and contents to avoid undue exposure to hazard.

With respect to Pilot, plaintiff specified numerous acts as acts of negligence. Among these specifications may be found such allegations as failure to chock and brace the drums, failure to keep the shipment dry during transit, use of inadequate and insufficient trailer, unnecessary transferring of the drums in transit, failure to placard the trailer properly, and improper transportation routing over improper roads.

Both defendants denied they had committed any acts of negligence; du Pont denied that it had breached any express warranties made; and both defendants denied that any of their acts was the proximate cause of the fire. Both defendants asserted, on the other hand, that the fire resulted from the negligent acts of the plaintiff's employees and the failure of these employees to avoid peril known to them or which they should have known.

Pilot, as initial carrier, having paid the cargo loss of $4,346.00 to du Pont, as assignee of the consignee's claim for loss, counterclaimed against plaintiff in that amount.

The case came on regularly for trial before the Court without a jury on the issue of liability only. All parties submitted their evidence together with written argument.

The evidence presented shows that on December 31, 1958, at about 10:00 A.M., at its Niagara Falls, New York, plant, du Pont tendered to Pilot 54 sealed metal drums described as sodium peroxide, weighing 23,139 pounds, for transportation to Prattville, Alabama. The shipment involved in this case was pursuant to a purchase order from Gurney Manufacturing Company, a division of Botany Cottons, Inc., Prattville, Alabama, and under an overriding purchase agreement between Gurney and du Pont. The pertinent provisions of that agreement were: Delivery terms were F.O.B. Niagara Falls, New York, freight paid to Prattville, Alabama for truckloads and seller's liability as to delivery ceased upon making delivery to the carrier at the shipping point in good condition, the carrier acting as Gurney's agent.

The purchase order from Gurney, issued December 4, 1958, directed: "One truckload of Solozone to be shipped on December 31, 1958", and that truckload was appropriated and delivered to Pilot as initial carrier on December 31, 1958. The shipment was manufactured and the quality control tests were made in a proper manner as described below.² Of the 54 drums comprising this shipment, 25 were packed on December 26, 1958; 25 on December 29th; and 4 on December 30th. All three lots met established production standards.

The 54 drums in which the shipment was packed were manufactured, tested, and shipped by the manufacturers and received by du Pont according to the procedures and specifications described below,³ and the packing, stencilling, labelling, inspection, and loading were likewise done by du Pont as described below.⁴ The testimony was uncontradicted that Yellow Labels were present on all the drums, and all who had memory of it testified that the Product and Carrier Labels and Commodity Name stencils were on the sides of all drums. Neither the name nor address of Gurney were on the drums.

The shipment moved on short-form, straight Bill of Lading No. NF34609, dated December 31, 1958, under the terms of which Pilot receipted for the shipment "in apparent good order", subject to the classifications and tariffs in effect on that date, consigned to Gurney at Prattville, Alabama, and routed according to the customer's order by Pilot with the shipment described as: "54 DRS. SODIUM PEROXIDE YELLOW LABEL APPLIED 23,139 pounds". The bill of lading contained the prescribed certification by du Pont that "the above named articles are properly described, and are packed and marked and are in proper condition for transportation according to the regulations described by the Interstate Commerce Commission. The bill of lading, being in short form, did not include the provisions of Uniform Freight Classification No. 5, but those provisions were (to the extent not excluded by operation of law or by virtue of the fact that the shipment was of a "dangerous article") applicable, including Section 6 that "every party, whether principal or agent, shipping explosives or dangerous goods, without previous full written disclosure to the carrier of their nature, shall be liable for and indemnify the carrier against all loss or damage caused by such goods.

On December 31, 1958, the drums were loaded onto Pilot's fully enclosed trailer by hand, du Pont's shipper helping Pilot's driver, one Pelligrino, and placing them as directed by Pelligrino. The drums were not braced in the trailer, except by their own weight and relative position. Pelligrino requested, received, and applied the requisite placards, closed the vehicle and left du Pont's plant at about 10:30 A.M., the weather on that date being cold and clear.

The vehicle proceeded to the Niagara Falls plant of the Carborundum Company a few blocks way, and there picked up packages and bundles of abrasive paper or cloth weighing 17,587 pounds, packed in rectangular and cylindrical pasteboard packages. These materials were loaded among, around, and behind the drums, bracing them against movement in shipment. Approximately six of the drums were shifted about in this process. The vehicle proceeded to Buffalo where it was sealed. On the next morning, January 1, 1959, at approximately 4:00 A.M., Pilot's road drivers, Davis and Greene, began the journey to point of destination. The vehicle proceeded to Lexington, North Carolina, without any significant event or occurrence, arriving there at about 11:00 A.M. on January 2nd. At this point, the trailer was opened and the carborundum materials were delivered to the consignee at Lexington and the vehicle continued on to Charlotte, North Carolina, a distance of some 60 miles, arriving there on the same afternoon. During this journey, the drums were not specially braced except by their own weight and position, but this trip was also uneventful. At Charlotte, a breaking point for Pilot, the drums were transferred to a B. & M. stake body trailer which Pilot had on interchange, Pilot's employees using barrel trucks in the process.⁵ The drums were observed to be in good condition at this time. On reloading, the drums were securely braced against movement by nailed timbers, the B. & M. trailer was completely covered by a tarpaulin, and that vehicle proceeded into Atlanta without any unusual occurrence. The Pilot driver, one Rhew, left Charlotte about 10:00 P.M., January 2nd, and arrived in Atlanta about 6:00 A.M., Saturday, January 3rd.

Pilot's original drivers did not recall if the drums were labeled or their vehicle was placarded. Pilot's Charlotte dock foreman Hartsell remembered the Yellow Labels but didn't remember if there were more or if the vehicle was placarded. Driver Rhew did not remember if the drums were labeled or the vehicle placarded, but recalled that "Sodium Peroxide" was stencilled on one drum he saw....