Fine Foliage of Florida, Inc. v. Bowman Transp., Inc.

• Citation: 901 F.2d 1034
• Decision Date: 22 May 1990
• Docket Number: No. 89-3057,89-3057
• Parties: FINE FOLIAGE OF FLORIDA, INC., Plaintiff-Appellee, v. BOWMAN TRANSPORTATION, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1034

901 F.2d 1034

FINE FOLIAGE OF FLORIDA, INC., Plaintiff-Appellee, v. BOWMAN TRANSPORTATION, INC., Defendant-Appellant.

No. 89-3057.

United States Court of Appeals,

Eleventh Circuit.

May 22, 1990.

Kenneth E. Cohen, Kroll & Tract, Miami, Fla., for defendant-appellant.

Harlan L. Paul, Zimmerman, Paul & Baler, DeLand, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and CLARK, Circuit Judges, and ATKINS ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

This case involves an appeal by a common carrier, Bowman Transportation, Inc. ("Bowman"), from the district court's order finding it liable to Fine Foliage of Florida, Inc. ("Fine Foliage"), for the value of ferns damaged due to an incorrect temperature setting on a refrigerated container unit. Bowman contends that the lower court erred in finding that Fine Foliage established a prima facie case under the Carmack Amendment, 49 U.S.C. Sec. 11707, and that it erred in finding that a protective service tariff that Bowman had on file with the Interstate Commerce Commission ("ICC") did not release it from liability for faulty refrigeration under the Carmack Amendment. Because we find that the district court ruled correctly on both of these issues, we affirm.

I. Background

Fine Foliage, a Florida corporation located in DeLeon Springs, Florida, is a grower and international shipper of decorative ferns used in floral arrangements. Bowman is an interstate trucking company that was employed for the inland transportation of the ferns from DeLeon Springs, Florida to Savannah, Georgia.

In April of 1987, Fine Foliage, through its freight forwarder, Wilk Forwarding Company ("Wilk"), arranged for the shipment of 939 cartons of leatherleaf fern from DeLeon Springs, Florida to Tokyo, Japan. Wilk arranged to have Bowman undertake the inland transportation from DeLeon Springs to Jacksonville, Florida and then arranged for sea passage with Mitsui Lines ("Mitsui"). Mitsui arranged through its agent, Strachan Shipping, to have the ferns transported by Bowman from a terminal in Jacksonville to its port in Savannah.

The bill of lading covering the DeLeon Springs to Jacksonville portion of the trip specified that the ferns were to be transported by Bowman at a temperature of 39? Fahrenheit. The bill also had printed on it the words "PERISHABLE Keep From Perishable items such as ferns are shipped in refrigerated containers known in the industry as "reefers." In order to ensure that proper temperatures are maintained during shipping, it is customary to place a specialized recording device known as a Ryan recorder into the reefer when the ferns are loaded. At the end of the inland transportation, before the ferns are unloaded for the overseas portion of the shipment, the temperature chart drawn by the recorder is consulted. If there has been a deviation from the required temperature, a survey of the ferns is made to determine if they have been damaged before the shipment is sent abroad.

                Heat or Frost."    Leonard Davis, Bowman's driver, testified that he signed the bill of lading without reading it.  Testimony at trial established, however, that it is common knowledge among fern growers and truck drivers who transport ferns that the plant must be shipped at temperatures between 38? and 40? Fahrenheit.  Davis testified that he knew that ferns should be shipped between 38? and 40?.  Testimony at trial further established that if ferns are exposed to freezing temperatures for a sufficient period of time, the plant cells are destroyed and the rotting process commences.  According to testimony, the ferns may appear dark green in a not-completely thawed state, but three to five hours after thaw, the ferns become brown
                

Davis obtained the reefer at Bowman's Jacksonville yard where Bowman had leased it from General Transportation Services ("GTS"). A Ryan recorder was placed in the container and Davis signed the receipt for the recorder. A GTS equipment interchange receipt states that the temperature of the container was set at 39? Fahrenheit. According to Davis, the temperature setting on the reefer had been pre-set by GTS. Davis simply "fired the container up" to turn on the container's cooling system and then drove to DeLeon Springs where he was to pick up the ferns. Davis testified that he slept overnight at DeLeon Springs. Apparently, the blower on the cooling system did not work properly during the night because the container had not been properly cooled and had to be turned on again in the morning. Davis testified that Fine Foliage employees punched the reset button and then, after allowing the container time to cool, the ferns were loaded by Fine Foliage employees. Davis then drove the ferns to Savannah. The trip took approximately five hours.

Inspection of the temperature chart at the Savannah port indicated that the temperature in the container had been set improperly at zero degrees. Strachan therefore requested a survey of the ferns, which was performed by a Savannah marine surveyor. The surveyor described his inspection of the ferns as follows:

Two of the cartons were removed from the container and opened. The cargo, i.e.: fern, were packaged in clear plastic.... A thin layer of ice was sighted on the ferns resting on the top layer. No ice was sighted on the other layers. Random spike temperatures were taken in two of the cartons with a reading of 42 degrees F. low and 44 degrees F. high.

The refrigerator unit had been turned off and was not operating when the undersigned arrived at the container. Also the disc had been removed approximately one hour before the survey was performed. At the time the disc was removed it showed a temperature reading of 0 degrees F. which is the temperature the unit had been set for when it left DeLeon Springs. This of course was an improper setting for the type of cargo being shipped in the container. The proper setting should have been 39 degrees F.

The cargo did not appear to be damaged because of the low setting of the temperature (0 degrees F.). The ice sighted on the top layers melted quickly when exposed to the sun light. There was no evidence of discoloration or brittleness or any other damage to the cargo itself.

Based on this survey, Mitsui decided to continue the shipment of the ferns to Tokyo. In its bill of lading for the ocean going portion of the trip, however, it specified the following exception:

EXCEPTION: CONTAINER RECEIVED BY CARRIER SET AT ZERO DEGREES FARENHEIT [sic]. CARRIER NOT RESPONSIBLE FOR POSSIBLE DAMAGE TO CARGO DUE TO INCORRECT TEMP. SETTING.

When the ferns arrived in Tokyo, Fine Foliage's consignee, Classic Japan, with whom it had been doing business for ten years, requested a survey. The survey found that the 939 cartons were a "total loss." As the cause of damage, it stated that:

The fern, stowed in container No. MOLU-5020134 must have been exposed in lower carrying temperature and frozen and then, the ferns were thawed during the transportation of the shipper's yard and Barden [sic] city terminal, Savannah and the damage must have aggravated little by little.

Classic Japan notified Fine Foliage of its liability for the loss and Fine Foliage sued Bowman for $21,000, alleging that the ferns were destroyed because of defendant's failure to maintain the requested 39? Fahrenheit temperature. Apparently there were no complaints regarding other ferns, sent abroad and stored in the same cooler on the ship. Fine Foliage sued Bowman under the Carmack Amendment and under a theory of common law negligence.

II. The Carmack Amendment

The district court found this action controlled by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. Sec. 11707 (formerly 49 U.S.C. Sec. 20(11)). On appeal, Bowman does not dispute that the Carmack Amendment is controlling.

The Carmack Amendment provides that a common carrier is liable for the actual loss or injury to goods in an interstate commerce shipment. It states in part that:

A common carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission ... and a freight forwarder shall issue a receipt or bill of lading for property it receives for transportation under this subtitle. That carrier or freight forwarder and any other common carrier that delivers the property and is providing transportation or service subject to the jurisdiction of the Commission ... are liable to the person entitled to recover under the receipt or bill of lading.... Failure to issue a receipt or bill of lading does not affect the liability of a carrier or freight forwarder.

49 U.S.C. Sec. 11707(a)(1). The purpose of the Carmack Amendment is to protect shippers against the negligence of interstate carriers and "to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods." Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 502, 94 L.Ed. 698 (1950). Once liability is established, the defendant carrier may then seek to recover damages from the connecting carrier which had possession of the goods when loss was sustained. Arnold J. Rodin, Inc. v. Atchison, T. & S.F. Ry. Co., 477 F.2d 682, 688 (5th Cir.1973). ¹

A. Fine Foliage's Prima Facie Case

A shipper establishes a prima facie case of the carrier's negligence and liability under the Carmack Amendment by evincing proof by a preponderance of the evidence that the goods "1) were delivered to the carrier in good condition, 2) arrived in damaged condition, and 3) resulted in the specified amount of damage." Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1014 (11th Cir.1987) (per curiam).

At trial, Fine Foliage put forth evidence in support of each of these elements, and the district court found that Fine Foliage succeeded in establishing a prima facie case. First, it found that "the subject fern...