PETER KIEWIT SONS'CO. v. COLORADO & SOUTHERN RAILWAY CO.

Decision Date26 October 1961
Docket NumberCiv. A. No. 7086.
Citation199 F. Supp. 261
PartiesPETER KIEWIT SONS' CO. and J. A. Park Machinery Co., Plaintiffs, v. COLORADO & SOUTHERN RAILWAY COMPANY, Defendant.
CourtU.S. District Court — District of Colorado

Stockton, Linville, Lewis & Mitchell, William D. Mitchell, Denver, Colo., for plaintiffs.

John C. Street and Willard L. Peck, Denver, Colo., for defendant.

DOYLE, District Judge.

The Complaint herein describes distinct claims on behalf of Kiewit and Park. The former is alleged to be the prime contractor engaged in constructing a bridge at Thompson Falls, Montana; the Park Company is alleged to be a subcontractor which had undertaken to erect structural steel on the same project.

The defendant is alleged to have negligently damaged a shipment of structural steel which had been marked and fitted for use on the described project. Special damages to each of the plaintiffs are set forth and these involve the delay resulting from the damage, the consequence of which was removal of other parts, and transportation back to the fabricator so that they could be properly fitted. These special damages are described in Exhibits "A" and "B" attached to the Complaint.

The defendant removed the case on March 31, 1961, claiming that the action had arisen under the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., and that the cause was one in respect to which the United States District Court would have original jurisdiction. Pursuant to this motion the cause was removed to this Court and thereafter plaintiffs filed their motion to remand.

This motion recites that the claims do not arise under the Constitution, treaties, and laws of the United States and that the cause should not, therefore, have been removed.

Defendant relies on Title 28 U.S.C. § 1441(b) which provides that any action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable. Title 28 U.S.C. § 1337 declares that the district court shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce.

The so-called Carmack Amendment of the Interstate Commerce Act Title 49 U.S.C.A. § 20(11) subjects the initial carrier of goods to liability to the lawful holder of a receipt or bill of lading for loss, damage or injury to such property caused by the initial carrier, or any other carrier to which the property may be delivered over whose line property may pass. Defendant's argument is that the Carmack Amendment applies to all carriers and subjects them to liability directly or indirectly, and thus that any action against the carrier predicated upon alleged damage to goods or freight must of necessity invoke the provisions of the Carmack Amendment and is, therefore, within the scope of 28 U.S.C. § 1337 and § 1441(b) and (c).

The inquiry is, therefore, whether the Carmack Amendment has preempted the entire field of remedies by shippers against carriers so that under any and all circumstances an action asserted against a carrier alleging damage to goods and consequent special damages must fall within the terms of the Carmack Amendment, whether it is expressly invoked or not.

It is noteworthy, of course, that the Complaint does not purport to be based on any federal statute—it merely alleges that plaintiff Kiewit was the consignee of the fabricated structural steel in question and that the defendant, while transporting the shipment, carelessly and negligently damaged it.

A further allegation is that defendant knew, or should have known, that the shipment was part of a series since it had carried previous shipments and presumably could, therefore, have foreseen the special damages which were suffered. The plaintiff Park is not, of course, either a shipper or consignee of the goods in question and its claim is based upon the consequential delays and the expense which resulted from these delays. Defendant contends, however, that it makes no difference whether the statute is expressly invoked or not; that it comes in play automatically.

It may be that under allegations which spell out a claim based on the Carmack Amendment this would be true. If, however, claims can possibly be set forth which arise under the common law, or which have other sources, it would follow that removal would not be proper where there had been no express pleading of a federal statute such as the Carmack Amendment. See 1 Moore's Federal Practice, 630. The author indicates that the Complaint should be tested by referring to its allegations and not by reference to the Petition for Removal or the defendant's answer. See also Peyton v. Railway Express Agency, Inc., 316 U.S. 350, 62 S.Ct. 1171, 1173, 86 L.Ed. 525. Here the Court said:

"Whether a suit arises under a law of the United States must appear from the plaintiff's pleading, not the defenses which may be interposed to, or be anticipated by it."

The present motion could be granted on the basis that the Complaint describes common-law actions thus indicating its desire to stand or fall on the existence of a nonstatutory (federal) right. However, we consider further inquiry appropriate. Is there a possible remedy such as that described in the Complaint, or is defendant correct in its contention that the Carmack Amendment has undertaken to regulate all possible recovery in this field? If the Amendment has preempted this field then the plaintiffs would have no action other than that prescribed by the statute and the consequence would be that the right would depend on the statute and the claim would have to arise under the statute or not at all.

Some of the cases give the impression that the Amendment sets up exclusive remedies and that the shipper must pursue his remedy against the initial carrier. See Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 152, 57 L.Ed. 314, and Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190,...

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4 cases
  • American Synthetic Rubber Corp. v. Louisville & NR Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 18, 1970
    ...performance of, an interstate contract of carriage, the Carmack Amendment governs. To the extent that Peter Kiewit Sons' Co. v. Colorado & Southern Ry., 199 F.Supp. 261 (D.C.Colo.1961), relied on by appellants, adopts a different view, we regard it as inconsistent with the principles establ......
  • National Fuel Gas Distribution Corp. v. Amstead Industries, Inc.
    • United States
    • Pennsylvania Commonwealth Court
    • July 1, 1980
    ... ... Penn Central) and the Youngstown and Southern ... Railway Company. National Fuel Gas ... Shippers, 451F.Supp. 727 (W.D. Pa. 1978); Peter ... Kiewit Sons' Co. v. Colorado & Southern Rwy ... ...
  • American Synthetic Rubber Corp. v. Louisville & NR Co.
    • United States
    • U.S. District Court — Western District of Kentucky
    • September 17, 1968
    ...of loss, damage or delay in the shipment covered by the bill of lading. Plaintiffs rely primarily on Peter Kiewit Sons' Co. v. Colorado & Southern Ry. Co., 199 F.Supp. 261 (D.C.Colo.1961). In that case the Colorado District Court, in distinguishing a long line of Supreme Court cases dealing......
  • Chemical Bank New York Trust Company v. Kennedy
    • United States
    • U.S. District Court — District of Columbia
    • November 27, 1961

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