Tokio Marine and Fire Ins. Co., Ltd. v. Amato Motors, Inc.

• Decision Date: 16 July 1993
• Docket Number: 92-2265,Nos. 92-2264,s. 92-2264
• Parties: , Fed. Carr. Cas. P 83,837 TOKIO MARINE AND FIRE INSURANCE COMPANY, LIMITED, as subrogee for Matsushita Electric Corporation of America, and Chiyoda Fire and Marine Insurance Company, Limited, as subrogee for Matsushita Electric Corporation of America, Plaintiffs-Appellants, Cross-Appellees, v. AMATO MOTORS, INCORPORATED, Raven Transport, Incorporated, also known as Raven Trailer Transport, and Chicago & Northwestern Transportation Company, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 874

996 F.2d 874

1994 A.M.C. 2703, Fed. Carr. Cas. P 83,837

TOKIO MARINE AND FIRE INSURANCE COMPANY, LIMITED, as

subrogee for Matsushita Electric Corporation of America, and

Chiyoda Fire and Marine Insurance Company, Limited, as

subrogee for Matsushita Electric Corporation of America, Plaintiffs-Appellants, Cross-Appellees, v. AMATO MOTORS, INCORPORATED, Raven Transport, Incorporated, also known as Raven Trailer Transport, and Chicago

& Northwestern Transportation Company,

et al., Defendants-Appellees,

Cross-Appellants.

Nos. 92-2264, 92-2265.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 3, 1992.

Decided June 11, 1993.

Rehearing and Rehearing In Banc

Denied July 16, 1993.

Dennis Minichello (argued), James D. Reinfranck, Keck, Mahin & Cate, Arthur W. Friedman, Miller, Shakman, Nathan & Hamilton, Chicago, IL, for Tokio Marine and Fire Ins. Co., Ltd. and Chiyoda Fire and Marine Ins. Co., Ltd.

Peter W. Schoonmaker, Mark E. Condon, Condon, Cook & Roche, Chicago, IL, for Amato Motors, Inc.

Donald C. Shine, Kristen E. Crisp, Nisen & Elliott, Chicago, IL, for Raven Transport, Inc.

George T. Brugess (argued), Richard A. Haydu, Robert T. Opal (argued), Chicago &amp Gus Svolos (argued), Callahan, Fitzpatrick, Lakoma & McGlynn, Oak Brook, IL, Arthur W. Friedman, Miller, Shakman, Nathan & Hamilton, Chicago, IL, for American President Intermodal Co., Inc.

Northwestern Transp. Co., Chicago, IL, for Chicago & Northwestern Transp. Co.

Before FLAUM and ROVNER, Circuit Judges, and LAY, Senior Circuit Judge. ^*

LAY, Senior Circuit Judge.

This is an interlocutory appeal certified to this court under 28 U.S.C. § 1292(b). The primary issue is the continued viability of applying the Carmack Amendment, 49 U.S.C. § 11707, to common carriers providing trailer on flatcar (TOFC) and container on flatcar (COFC) services. ¹ The district court held that deregulation under the Staggers Act exempts common carriers providing TOFC/COFC service from liability under the Carmack Amendment. The court held, however, that the statute authorizing the Interstate Commerce Commission (ICC) to create exemptions, 49 U.S.C. § 10505, provided a cause of action for a shipper's loss during transit. We reverse.

FACTS

Matsushita Electric Corporation (Matsushita) manufactures Panasonic brand name electronics. Some are made in plants in the Pacific Rim and are then shipped to the United States and stored at the Panasonic/Airtrans Warehouse in Tacoma, Washington, before being moved to distribution centers elsewhere in the United States. In June of 1989, Matsushita entered into an agreement with Hub City of Los Angeles (Hub City), whereby Hub City would arrange the shipment of the goods from the warehouse in Tacoma to inland distribution centers.

In early December 1989, Hub City arranged the transportation of six containers of Matsushita goods from the Panasonic/Air Trans warehouse in Tacoma, Washington to the Panasonic warehouse in Arlington Heights, Illinois. To accomplish this move, it first contracted with a trucking company (Wockner Trucking) to move the containers from the Panasonic/Air Trans warehouse to the Union Pacific railyard in Tacoma. Then, Hub City contracted for the rail portion of the trip with American President Intermodal Company (API), who has longstanding agreements with Union Pacific and with Chicago and Northwestern Transportation Company (C & NW). Finally, it contracted with Amato Motors, Inc. (Amato) to move the containers by truck from the C & NW railyard to the Panasonic warehouse in Arlington Heights.

The containers left Tacoma on December 12, 1989, moving on Union Pacific flatcars from Tacoma to Council Bluffs, Iowa, where the train was interchanged to the C & NW. On December 15, 1989, Hub City notified Amato via facsimile that the containers would be arriving in Chicago the following day. Amato realized it could accommodate only two of the six containers, so it subcontracted with Raven Transport, Inc. (Raven) to transport the remaining four. Amato also informed Raven of the container numbers and special pick-up numbers in order for Raven to obtain the release of the containers from the C & NW railyard.

The shipment arrived at C & NW's Global One railyard in Chicago on the morning of December 16, 1989. At approximately 5:30 a.m. on December 18, 1989, a driver identifying himself as Wilson in Raven Tractor No. 105 arrived at the C & NW railyard. After giving the secret numbers at the checkpoint, the driver was allowed to leave the railyard with one of the containers. About one-half hour later, at 6:00 a.m., four tractors and drivers from Raven arrived at the C & NW railhead to pick-up the containers. As noted, however, one of the containers had previously been released to what appeared to be a Raven employee. Upon further inquiry, it Matsushita carried insurance policies through Tokio Marine and Fire Insurance Company (Tokio Marine) and Chiyoda Fire and Marine Insurance Company (Chiyoda). The loss of the container caused damages to Matsushita in the amount of $490,311.41, of which $452,117.41 was paid by Tokio Marine and $38,194.00 was paid by Chiyoda.

                was determined that Raven did not employ a driver named Wilson and that Tractor No. 105 was missing from its yard.   The goods contained in this container were never delivered to the Panasonic warehouse in Arlington Heights
                

Tokio Marine and Chiyoda, as subrogees for Matsushita, sued to recover the amounts they paid. Initially, they sued Amato, Raven and C & NW, but later amended their complaint to add API as a defendant. Plaintiffs alleged a Carmack Amendment violation against all four defendants. They also pleaded three common law claims against defendants--breach of contract by Amato and API, negligence by Amato, Raven and C & NW, and a breach of the duty of due care as bailee against C & NW.

Defendants moved to dismiss the complaint, arguing that the Carmack Amendment no longer applied after deregulation; moreover, because the ICC retained jurisdiction over TOFC/COFC service, the common law claims were preempted. The district court agreed with defendants' arguments, noting that Congress appeared to have "unintentionally left a tear in the fabric of the law." In the absence of common law or Carmack Amendment liability, the court concluded that liability could be premised on the congressional statute authorizing the ICC to create exemptions ² and the ICC regulation granting the TOFC/COFC exemption. ³ It permitted plaintiffs leave to replead based on this theory. ⁴

All of the parties petitioned for certification for interlocutory appeal. ⁵

THE CARMACK AMENDMENT

In 1906, Congress incorporated common law principles relating to liability of interstate carriers in the Carmack Amendment to the Interstate Commerce Act. ⁶ Under the Carmack Amendment, the general rule is that the carrier is liable for actual loss or

                injury to property.  49 U.S.C. § 11707(a)(1). 7  However, as at common law, the carrier and shipper could agree to limit the carrier's liability pursuant to a released value agreement.  49 U.S.C. § 11707(c), § 10730(c). 8  Under the Carmack Amendment, a shipper may recover from the receiving carrier, the delivering carrier, or any other carrier over whose line or route the property is transported.  49 U.S.C. § 11707(a)(1).   In so providing, Congress intended "to relieve shippers of the difficult, and often impossible, task, of determining on which of the several connecting lines the damage occurred."  Missouri, K. & T. Ry. v. Ward, 244 U.S. 383, 387, 37 S.Ct. 617, 619, 61 L.Ed. 1213 (1917);  see also Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 503, 94 L.Ed. 698 (1950).
                

THE STAGGERS RAIL ACT

In October 1980, Congress enacted the Staggers Rail Act. ⁹ The purpose of the Act was to rid railroads of unnecessary and inefficient regulations that impeded the railroads' ability to compete with other modes of transportation. H.R. Conf. Rep. No. 96-1430, 96th Cong., 2d Sess. 80 (1980), reprinted in 1980 U.S.C.C.A.N. 3978, 4110-11. Congress authorized the ICC to exempt persons or services from regulation in certain situations, 49 U.S.C. § 10505(a), and specifically identified transportation "provided by a rail carrier as a part of a continuous intermodal movement" as appropriate for deregulation, id. § 10505(f). Accordingly, in 1981, the ICC exempted from regulation rail and truck transportation provided by rail carriers in connection with TOFC/COFC service:

Except as provided in 49 U.S.C. § 10505(e) and (g), ... rail TOFC/COFC service provided by a rail carrier either itself or jointly with a motor carrier as part of a continuous intermodal freight movement is exempt from the requirements of 49 U.S.C. subtitle IV....

49 C.F.R. § 1090.2; 46 Fed.Reg. 14,348 (1981).

However, Congress did not confer on the ICC unlimited authority to deregulate, but rather stated certain specific limitations. One such limitation is found at 49 U.S.C. § 10505(e) (the Matsui Amendment), which provides as follows:

No exemption order issued pursuant to this section shall operate to relieve any rail carrier from an obligation to provide contractual terms for liability and claims which are consistent with the provisions of section 11707 of this title. Nothing in this subsection or section 11707 of this title shall prevent rail carriers from offering alternative terms nor give the Commission the authority to require any specific level of rates or services based upon the provisions of section 11707 of this title.

EFFECT OF DEREGULATION ON THE CARMACK AMENDMENT

Defendants argue, and the district court agreed, that they are no longer subject to the liability provisions of the Carmack Amendment after deregulation. It is urged that the ICC order exempts them from "the requirements of 49 U.S.C. subtitle IV," of which the Carmack Amendment is a part.

Defendants further contend that § 10505(e) does not preserve the Carmack Amendment as a theory of liability on which...