PILGRIM DISTRIBUT. CORP. v. TERMINAL TRANSP. CO., INC.

• Decision Date: 15 October 1974
• Docket Number: Civ. A. No. 7592.
• Citation: 383 F. Supp. 204
• Parties: PILGRIM DISTRIBUTING CORP., Plaintiff, v. TERMINAL TRANSPORT CO., INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

383 F. Supp. 204

PILGRIM DISTRIBUTING CORP., Plaintiff, v. TERMINAL TRANSPORT CO., INC., Defendant.

Civ. A. No. 7592.

United States District Court, S. D. Ohio, W. D.

October 15, 1974.

Harold G. Korbee, Cincinnati, Ohio, for plaintiff.

Theodore K. High, Cincinnati, Ohio, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DAVID S. PORTER, District Judge.

The instant action was brought pursuant to Title 28 U.S.C. § 1332 (diversity jurisdiction) and Title 49 U.S.C. §§ 319 and 20 (11) ("Carmack Amendment" to the Interstate Commerce Act) and tried by the court without a jury.

Plaintiff, Pilgrim Distributing Corporation ("Pilgrim") is a corporation incorporated under the laws of the State of Kentucky, with its principal place of business in the State of Kentucky. Plaintiff is engaged in the business of wholesaling wine and liquors.

Defendant, Terminal Transport Company, Inc. ("Terminal Transport") is an interstate common carrier incorporated in a state other than the State of Kentucky and has a terminal located in Cincinnati, Ohio.

This action was brought against the defendant as delivering carrier for damages to a shipment of imported German wine ordered by the plaintiff. The defendant counterclaimed for storage charges for the wine.

FINDINGS OF FACT

In 1969, the plaintiff ordered four hundred (400) cases of wine from West Germany. The wine was imported from Germany through the port of Mobile, Alabama, consigned to "Collector of Customs, care of Pilgrim Distributing Company, Newport, Kentucky."

Upon arrival at Mobile, the plaintiff's agent paid a sight draft for $2,383.00 and received an original bill of lading, which it endorsed and delivered to Southern Traffic Association, a division of W. A. Zanes and Company of Louisiana, Inc. As agent for the plaintiff, Southern Traffic then arranged for the inland freight carriage of the wine to Pilgrim in the Cincinnati, Ohio freight district. The inland carriage was interlined with the Central Motor Express, the initial carrier, transporting the wine from Mobile, Alabama to Chattanooga, Tennessee, where the trailer was transferred to the defendant, who delivered it to its destination. Pursuant to these arrangements, Southern Traffic prepared a uniform straight bill of lading consigning the shipment to "Collector of Customs, care of Pilgrim Distributing Company" and transmitted a copy of the bill of lading it had prepared to Central Motor Express, the initial carrier. The wine was placed in a trailer, which was sealed by the customs official in Mobile.

At the trial on the merits, the plaintiff introduced its copies of the bill of lading prepared by Southern Traffic Association which copies contained the notation, "Protect Wines From Freezing." However, the Copy No. 2 given to Central Motor Express, and subsequently transferred to the defendant, was also introduced at the trial and this copy contained no such notation. From other evidence adduced at trial, it seems likely, and this court so finds, that the notation, "Protect Wines From Freezing," was typed on the copies of the bill of lading introduced by the plaintiff at some point in time subsequent to the shipment in question, and that defendant did not receive notice of any "Protect Wines From Freezing" request by plaintiff or plaintiff's agents on defendant's copy of the bill of lading.

The tariff on file with the Interstate Commerce Commission provided that the carriers would provide protective heating on request.

The trailer used to transport the wine was equipped with heaters which could have been used to provide protective heating.

As previously arranged by Southern Traffic, the shipment of wine was picked up by Central Motor Express and transported to Chattanooga, Tennessee, where on December 9, 1969, it transferred the entire sealed trailer containing the wine to Terminal Transport. Terminal Transport in turn carried the wine to its terminal in Cincinnati, Ohio, where it arrived on December 12, 1969.

While there is dispute between the parties on the point, the testimony and evidence adduced at the trial indicates, and this court finds as a fact, that on the very day that the wine arrived in Cincinnati, the defendant notified the United States Custom Service of the arrival of the wine. Further, the Court finds that through an established procedure whereby the plaintiff's agent in Cincinnati, Henry Wess and Company, regularly visited the customs office in Cincinnati several times a day to pick up copies of transportation entries relating to the arrival of shipments to its principals, the plaintiff's agent, Henry Wess and Company, received notice of the arrival of the shipment at about the same time. Plaintiff's agent, Henry Wess and Company, did not testify at the trial, but plaintiff's president testified that plaintiff first received actual notice of delivery on January 8, 1970.

After arrival of the shipment of wine in Cincinnati, the wine remained in the trailer at the defendant's terminal while it awaited the plaintiff's instructions for delivery. The evidence produced at trial indicates that it was the responsibility of Pilgrim to furnish the customs officials with whatever they needed to prepare their warehouse entry and to set up the delivery date. The plaintiff did not furnish the customs officials with the pertinent documents until January 8, 1970, on which date the delivery of the wine and the customs inspection finally occurred.

Upon inspection of the wine shipment at plaintiff's docks in Newport, Kentucky, a city immediately across the Ohio River from Cincinnati, it was discovered that the bottles were frozen. The Pilgrim officials quickly conferred with their experts and determined that wine which has been frozen is not marketable, since freezing causes wine to lose its bouquet and become musty. The plaintiff, therefore, refused the shipment and the driver was instructed by the defendant to return the wine to the defendant's terminal, where it was stored and thawed.

Sometime after the rejection of the first delivery of the wine, the plaintiff decided, and apparently communicated its decision to the defendant, that if the defendant would redeliver the wine to the plaintiff, the latter would accept delivery. However, when the defendant did in fact, redeliver the wine on January 21, 1970, the shipment was again refused. This second rejection by Pilgrim was motivated by its refusal to pay the redelivery costs and storage costs demanded by the defendant. After this second rejection, the driver again returned the wine to the defendant's facilities for storage.

At the trial, evidence was introduced by the defendant in the form of climatological data compiled from records of the National Weather Records Center and published by the U. S. Department of Commerce, which showed the high, low and average temperatures prevailing at major cities along the route taken by the carriers in delivering the wine during the month of December 1969. The same data concerning temperatures prevailing the Cincinnati area during the months of December 1969 and January 1970, was also introduced into evidence. This data indicates that the temperatures along the route of the shipment at the approximate time of shipment, were not such as would likely have caused the wine to freeze. Thus, the high and low temperatures in Chattanooga on December 9, 1969, the day that the trailer was transferred to Terminal Transport from Central Motor Express, were 48° and 25°, respectively, with an average of 37°. In Louisville, Kentucky, on the 10th and 11th of December, 1969, the approximate days on which the wine shipment passed through that area, the average temperatures on both dates were 37° and the low was 33°. Keeping in mind the alcoholic content of the goods in question, it seems clear that these temperatures were not so severe as to cause the wine to freeze.

In contrast, the data introduced showed that the temperatures in Cincinnati during the twenty-seven day interim between the arrival and delivery of the wine, when it was, through the delay of plaintiff's agent in making the necessary arrangements for inspection and delivery, kept in an unheated trailer, were generally sub-freezing and were particularly severe during the latter part of the twenty-seven day period. Thus, on January 7th and 8th, the day before and the day of delivery, the temperatures were sub-zero.

From this evidence the court finds that the wine became frozen sometime after its arrival in Cincinnati, and sometime before the first rejection by the plaintiff. Further, we find that the freezing occurred toward the latter part of this 27 day period.

CONCLUSIONS OF LAW

A. Plaintiff's Claim

Plaintiff's cause of action in this case is founded upon the Carmack Amendment to the Interstate Commerce Act (Title 49 U.S.C. § 20(11)) which provides in part as follows:

§ 20 par. (11) "Liability of initial and delivering carrier for loss; limitation of liability; notice and filing of claim. Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, and no contract, receipt, rule, regulation or other limitation of any character whatsoever shall exempt such common carrier, railroad, or transportation company from the liability imposed; . . ."

It is apparent...