Seaboard Coast Line R.R. v. Mobil Chemical Co.
| Decision Date | 07 November 1984 |
| Docket Number | Nos. 68759,68760,s. 68759 |
| Citation | 323 S.E.2d 849,172 Ga.App. 543 |
| Parties | SEABOARD COAST LINE RAILROAD v. MOBIL CHEMICAL COMPANY; and MOBIL CHEMICAL COMPANY v. SEABOARD COAST LINE RAILROAD. |
| Court | Georgia Court of Appeals |
William B. Brown, Atlanta, for appellant.
W. Pitts Carr, David H. Pope, Joe C. Freeman, Jr., Atlanta, H. Michael Madsen, Tallahassee, Fla., for appellee.
These appeals are from the grant and denial of partial summary judgments to the parties in a suit and counterclaim arising from the derailment of a tank car carrying a chemical product classified as a hazardous material by the United States Department of Transportation, and shipped pursuant to the regulations promulgated under the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.).
The undisputed facts are as follows. Mobil Chemical Company (Mobil) leased the tank car for use in its business operation from General American Transportation Corporation (GATX). In February of 1982 Mobil contracted with Seaboard Coast Line Railroad d/b/a Georgia Railroad to transport the tank car loaded with phosphorus tricholoride (PC13) from Mobil's plant in Charleston, South Carolina to its customer's plant in Mount Pleasant, Tennessee. The contract consisted of a "straight bill of lading--short form," which was issued at the time of shipment, and a longer and more detailed bill of lading, designated as a "Uniform Domestic Straight Bill of Lading," which was incorporated by reference into the short form bill of lading. Before the tank car was delivered to the railroad from the Mobil plant in Charleston for shipment, it was inspected by a Mobil employee and no defects were discovered. On February 24, 1982 the tank car was placed in the railroad train and examined by two railroad inspectors, but no defects were found. Traveling in a westerly route, while the train stopped in Augusta, Georgia, the tank car was again inspected by two railroad employees whose scrutiny revealed no defects. On the morning of February 25, 1982, passing through Greensboro, Georgia, the train derailed, causing the tank car to leak PC13 into the environment and necessitating the evacuation of the community. In addition to extensive damage to its property and equipment, the railroad subsequently made substantial payments to third persons in settlement of claims made against it for personal injuries and damage to freight and surrounding properties caused by the derailment. The railroad's investigation to determine the cause of the derailment made evident that it resulted from a fracture of the tank car's truck bolster, that portion of the undercarriage which supports the tank. At least 25% of the fracture was a defect which existed while the tank car was in Mobil's possession before it was delivered to the railroad, but each party contends that the defect was not discoverable upon a reasonable inspection by its own personnel.
This action was initially instituted by Mobil for a declaratory judgment as to its liability for the derailment. The railroad answered and filed a counterclaim in three counts for the damages sustained based upon Mobil's alleged negligence; breach of express and implied warranties in regard to the condition of the tank car; and for indemnity or contribution. Upon the railroad's motion the trial court dismissed Mobil's complaint for declaratory relief. Subsequently, Mobil filed a motion for summary judgment as to the railroad's counterclaim, which was granted only as to the breach of warranty count. The main appeal is brought by the railroad from this grant of summary judgment. The cross-appeal by Mobil is from denial of summary judgment on the other two counts.
1. The railroad has filed a motion to dismiss the cross-appeal, contending that Mobil failed to comply with the proper interlocutory procedure for appealing from the denial of a motion for summary judgment under OCGA § 5-6-34(b) as interpreted in Ins. Co. of North America v. Fowler, 148 Ga.App. 509(3), 251 S.E.2d 594 (1978), and the cases cited therein. That, and other similar holdings, are no longer valid authority, however, and must be expressly overruled. See, e.g., Walter E. Heller & Co. v. Color-Set, Inc., 152 Ga.App. 347, 262 S.E.2d 614 (1979); Allstate Ins. Co. v. Renshaw, 151 Ga.App. 80(4), 258 S.E.2d 744 (1979); Globe Life etc. Ins. Co. v. Mapp, 148 Ga.App. 565, 252 S.E.2d 5 (1978). The latest expression of the Supreme Court in this regard is "that when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court." Southeast Ceramics v. Klem, 246 Ga. 294, 295, 271 S.E.2d 199 (1980). This applies equally to appeals and cross-appeals. Executive Jet Sales v. Jet America, 242 Ga. 307, 248 S.E.2d 676 (1978). Thus, when as here, "there is a direct appeal of a grant of partial or complete summary judgment, in the interest of 'judicial economy,' other rulings in the case may be reviewed." Gulf Oil Co. v. Mantegna, 167 Ga.App. 844, 845, 307 S.E.2d 732 (1983). Consequently, the motion to dismiss is denied and a review of both appeals is in order. Accord U.S.F. & G. Co. v. Ryder Truck Lines, 160 Ga.App. 650(1), 288 S.E.2d 1 (1981).
2. We are unable to agree with the railroad that it was the intent of 49 U.S.C. § 1801 et seq. or the federal regulations governing the safe transportation of hazardous materials in interstate commerce to impose either an express or implied warranty against latent defects in the tank car upon the shipper, Mobil. These regulations, found in 49 CFR § 171 et seq., require the shipper to describe in the shipping papers the hazardous material being transported in the manner set forth therein. The "Shipper's Certification," 49 CFR § 172.204, upon which the railroad bases its assertion that the bills of lading constituted an express contractual warranty of fitness, provides only that the shipper must certify that the hazardous "materials are properly classified, described, packaged, marked and labeled, and are in proper condition for transportation according to the applicable regulations of the Department of Transportation."
The fact that 49 CFR § 171.8 defines "packaging" as "the assembly of ... containers and any other components ... and includes ... tank cars," and that 49 CFR § 171.2 states that "[n]o person may offer or accept a hazardous material for transportation ... unless that material is properly ... packaged...," does not create an express warranty by the shipper alone that the material is "properly" packaged and in the requisite condition for shipment. The same regulations also require the carrier to inspect for defects before accepting and transporting such materials, and prohibit it from doing so unless all the conditions are met. See 49 CFR §§ 174.3, 174.9 and 174.12. The...
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