Blue Bird Food Products Co. v. Baltimore & Ohio R. Co.

• Decision Date: 19 February 1974
• Docket Number: No. 73-1684 through 73-1687.,73-1684 through 73-1687.
• Citation: 492 F.2d 1329
• Parties: BLUE BIRD FOOD PRODUCTS CO., Appellant, v. BALTIMORE & OHIO RAILROAD COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

492 F.2d 1329 (1974)

BLUE BIRD FOOD PRODUCTS CO., Appellant, v. BALTIMORE & OHIO RAILROAD COMPANY.

Nos. 73-1684 through 73-1687.

United States Court of Appeals, Third Circuit.

Argued November 30, 1973.

Decided February 19, 1974.

Robert C. Cohen, Walter W. Rabin, Meltzer & Schiffrin, Philadelphia, Pa., for appellant.

Alan Edward Casnoff, Frederick H. Ehmann, Jr., Norman R. Bradley, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for appellee.

Before ADAMS and ROSENN, Circuit Judges, and SHERIDAN, District Judge.

OPINION OF THE COURT

PER CURIAM.

This appeal, which brings these parties before this court for the second time,¹ involves four actions² filed by plaintiff-consignee, Blue Bird Food Products Co. (Blue Bird), against defendant-carrier, Baltimore & Ohio Railroad Company (B&O), for alleged damage to four carloads of fresh hams shipped by midwest meat packers via defendant to plaintiff in Philadelphia. The action is brought under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11). The issue presented is whether the introduction of a bill of lading with the notation,

Received, subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading, ... the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown) ....

is sufficient to establish the good condition of the lading at the time it was delivered by the shipper to the carrier. The district court, both in its initial opinion and on remand, held that it was not. Having considered the contentions of the parties, we affirm the judgment of the district court.

The facts necessary to our decision are as follows.³ The four carloads at issue were shipped from the midwest to the Philadelphia destination point pursuant to a "piggy-back" transportation operation where trailers are hauled to the destination on railroad flatcars. As developed in testimony before the district court on remand, the mode of shipment designated by the shipper in these cases required the shipper to load a trailer furnished by the carrier. The district court found as facts:

1. When the shipper was ready to load the trailer, it contacted a "spotter" (a railroad agent who is on the shipper\'s premises) who backs the trailer to the shipper\'s loading dock.

2. The hams were individually loaded by the shipper, one piled upon the other, so that when loading was completed, the hams extended from the front to the rear of the trailer to a height of approximately three to four feet.

3. Subsequent to loading but prior to the doors of the trailer being sealed, only the rear portion of the contents of the trailer were "open and visible" and the subject of a reasonable inspection.

4. When loading is completed the trailer is pulled away from the loading dock, the rear doors are closed and the shipper places its seal upon the doors of the trailer.

5. The seal affixed by the shipper is a small, thin metal band which locks when one end of the band is snapped into the other end.

6. The trailer is then driven to a location upon the shipper\'s premises.

7. Upon notification that the plaintiff was ready to ship the load, the railroad\'s drayman was dispatched to the plant site.

8. Upon his arrival, the drayman hooks his cab to the trailer, inspects the seal, refrigeration system and the outside of the trailer.

9. This inspection revealed no evidence of visible damage to the refrigeration system or the outside of the trailer.

* * * * * * 11. The trailer was then driven from the plaint sic site to the piggyback train for cross country transit.

12. The seals applied at origin were not broken until their arrival at the Bluebird plant in Philadelphia.

13. The tariff applicable to the shipments involved in the instant cases is Tariff 450 D of Western Trunk Lines, and the Plan under which the shipments were sent is commonly known as Plan 2¼.

14. Under Plan 2¼ it is the obligation of the shipper to load the trailer "subject to carrier\'s supervision."

As more fully set forth in our opinion in the original appeal, the lawful holder of a bill of lading makes out a prima facie case of liability for damaged goods against a carrier by proving delivery of goods in good condition, arrival of goods in damaged condition and the amount of damages. 474 F.2d at 104. In the present case, Blue Bird produced no direct evidence of the condition of the hams on delivery to the carrier. Instead, Blue Bird introduced the bills of lading under which the goods were shipped and, relying on our decision in Tuschman v. Pennsylvania Railroad, 230 F.2d 787 (3d Cir. 1956),⁴ contended that the carrier's representation of receipt "in apparent good order" created a prima facie case of delivery of the goods in good condition. The district court, in its initial opinion, rejected this argument. It determined that when merchandise is delivered to a carrier in a sealed trailer, it is not "open and visible." It held that in these circumstances the consignee who sues the carrier for damages to the goods cannot establish a prima facie case by means of the "apparent good order" representation in the bill of lading but instead must "establish by direct evidence that the goods were delivered to the carrier in good order." 329 F.Supp. at 1118.

On the initial appeal, we held that the district court's implicit finding that the trailer was "sealed" was clearly erroneous and remanded for further findings on that issue. In addition, we requested that the court supplement the record with findings of fact and conclusions of law on issues including:

A. Was any part of the contents of the trailer "open and visible" in light of the time and condition of its being sealed and the party responsible for such sealing?

B. Is there a custom governing the sealing of such trailers shipped under Plan 2¼ ...?

474 F.2d at 107, n. 16. On remand the district court made additional findings of fact as noted above and again concluded that Blue Bird "has failed to prove that the cargo was delivered to the carrier in good order."

On this appeal, Blue Bird makes two contentions. First, it argues that the shipper's delivery of a trailer sealed with a "small thin metal band" to the carrier's drayman does not preclude an internal...