Turner's Farms, Inc. v. Maine Cent. R. Co., Civ. No. 78-71 P.

• Decision Date: 14 March 1980
• Docket Number: Civ. No. 78-71 P.
• Parties: TURNER'S FARMS, INC., Plaintiff, v. MAINE CENTRAL RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — District of Maine

486 F. Supp. 694

TURNER'S FARMS, INC., Plaintiff, v. MAINE CENTRAL RAILROAD COMPANY, Defendant.

Civ. No. 78-71 P.

United States District Court, D. Maine.

March 14, 1980.

George S. Isaacson, Lewiston, Me., for plaintiff.

Ralph I. Lancaster, Jr., Everett P. Ingalls, Portland, Me., for defendant.

OPINION AND ORDER OF THE COURT

GIGNOUX, Chief Judge.

This is an action under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11).¹ Plaintiff alleges that the defendant railroad delayed delivery of two carloads of poultry feed and one carload of "concentrate" to plaintiff's poultry farm in Livermore Falls, Maine. The complaint seeks damages for profits lost as a result of defendant's alleged delay in delivery. Defendant contends that the three carloads were delivered with "reasonable dispatch" and that, therefore, plaintiff has no claim for delayed delivery. Defendant further contends that the alleged lost profits are special damages not recoverable under the contract of carriage embodied in the bills of lading. The two issues thus presented have been submitted on the record before the Court on defendant's motion for summary judgment.

I

The material facts are largely undisputed. Plaintiff is in the business of producing and selling eggs. It requires a particular chicken feed mixture to maximize production and quality. Different elements of the mixture are delivered by rail to plaintiff's poultry farm in Livermore Falls, where they are combined at plaintiff's grain mill prior to being fed to the chickens.

On December 14, 1976, Ashland Landmark, Inc. of Ashland, Ohio, tendered for rail shipment two carloads of "bulk shelled corn" to the Erie Lackawanna Railway Company. The bill of lading listed Interstate Commodities of Troy, New York, as the consignee, but on December 17 Interstate Commodities diverted the two cars to plaintiff in Livermore Falls, before they reached Troy.

On December 17, 1976, Central Soya Company, Inc. tendered for rail shipment one carload of "bulk animal and poultry feed" (feed and vitamin concentrate) at Camp Hill, Pennsylvania, "consigned to the order of Central Soya Co., Livermore Falls, Maine, Notify Homer Simpson DBA Simpson Poultry Farm, c/o Turner Farms." Simpson Poultry Farm is an egg production farm like plaintiff to which plaintiff supplied feed mixed at its mill. Plaintiff routinely paid for and took delivery of shipments so addressed.

Plaintiff's president, John F. Newman, Jr., had ordered the feed on December 17 and was relying on the arrival of the three cars before the Christmas holiday weekend because plaintiff's supplies of feed were running low. On Thursday, December 23, Newman visited defendant's station master at Livermore Falls, Joseph P. Tenneson, Jr. Newman told Tenneson that he needed the carloads before the weekend and would have to make alternative arrangements if they did not arrive in time. Newman explained to Tenneson that without the feed the hens would not have enough to eat and would go off production, causing plaintiff a substantial loss. Tenneson checked to see where the cars were at that time and discovered that they were in Portland. Later that day he told Newman that the cars would arrive in Livermore Falls on the following morning, Friday, December 24.

The three cars arrived at defendant's Livermore Falls station at approximately 3:00 a. m. on December 24. At about 8:00 a. m. Tenneson notified Newman that the cars had arrived. At 10:30 a. m. Newman arrived at the station and surrendered to Tenneson the proper documents (the bill of lading on the Central Soya car and release orders on the Ashland Landmark cars) authorizing defendant to deliver the cars. Newman again told Tenneson that plaintiff had to have the feed and that if the cars could not be set at plaintiff's siding that day he would have to get the feed elsewhere. Tenneson told Newman that the cars would be set at plaintiff's siding that day, sometime soon after noon.

The three cars were not set at plaintiff's siding until the following Monday, December 27. Because of a mixup in orders to defendant's switching crew, neither of the two trains working in the area on December 24 received the order to set plaintiff's cars.² As a result, plaintiff and Simpson Poultry Farms both ran out of the special feed over the weekend.

Plaintiff alleges that because the three cars were not delivered to its siding until Monday, December 27, five flocks of plaintiff's chickens and two flocks of chickens owned by Simpson Poultry Farm were removed from their feeding schedules, causing a drop in egg production. The damages claimed by plaintiff represent the loss of income allegedly resulting to plaintiff and to Simpson Poultry Farm from the diminished egg production caused by the delayed delivery of the feed cars.

II

The two issues disputed by the parties in this case are: first, whether defendant failed to deliver the feed with "reasonable dispatch" as required by the bills of lading and, second, whether plaintiff may recover as special damages the lost profits it seeks. The Court will separately consider each of these questions.

A.

Defendant contends that it is not liable for delayed delivery because the three carloads of feed were delivered with "reasonable dispatch." The Court must disagree.

The Carmack Amendment provides, in relevant part:

Any . . . railroad . . . receiving property for transportation from a point in one State . . . to a point in another State . . . 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 . . ..

Although a literal reading of the statutory language suggests that the Carmack Amendment covers only cases in which the property transported is itself damaged or reduced in value, the Amendment applies to any cause of action arising by virtue of a breach of an interstate contract of carriage. American Synthetic Rubber Corp. v. Louisville & Nashville Railroad, 422 F.2d 462, 464-67 (6th Cir. 1970).

The parties agree that the contract of carriage is contained within the bills of lading. Shippers Service Co. v. Norfolk & Western Railway, 528 F.2d 56, 57 (7th Cir. 1976); American Synthetic Rubber Corp. v. Louisville & Nashville Railroad, supra at 467-68. The Uniform Bill of Lading covering the three shipments at issue in this case provided:

Sec. 2. (a) No carrier is bound to transport said property by any particular train or vessel or in time for any particular market or otherwise than with reasonable dispatch. (Emphasis added)³

The duty to transport goods with reasonable dispatch is "an integral part of the normal undertaking of the carrier." New York, Philadelphia & Norfolk Railroad v. Peninsula Produce Exchange, 240 U.S. 34, 38-39, 36 S.Ct. 230, 232, 60 L.Ed. 511 (1916). A party injured by the carrier's breach of that duty is entitled to recover damages under the Carmack Amendment. Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29, 57 S.Ct. 73, 74, 81 L.Ed. 20 (1936) (per curiam); New York, Philadelphia & Norfolk Railroad v. Peninsula Produce Exchange, supra, 240 U.S. at 39, 36 S.Ct. at 232; Great Atlantic & Pacific Tea Co. v. Atchison, Topeka & Santa Fe Railway, 333 F.2d 705, 707-08 (7th Cir. 1964), cert. denied, 379 U.S. 967, 85 S.Ct. 661, 13 L.Ed.2d 560 (1965).

Defendant argues that the carrier's duty to transport with reasonable dispatch relates to the time required for the entire journey. Defendant points out that it delivered the cars exactly ten days after the feed was ordered and shipped and that Newman acknowledged he expects shipments of grain to take between five and 15 days to reach Livermore Falls and he normally figures on ten days for delivery. Defendant contends, therefore, that the undisputed facts in this case establish that defendant met its contractual obligation to deliver the feed with reasonable dispatch.

Plaintiff does not dispute that defendant transported the goods with reasonable dispatch, considering the time required for the entire journey. Plaintiff argues, however, that, in determining whether an unreasonable delay occurred in this case, the Court should "look at the particular part of the transportation involved and not to the entire trip as a whole." The position is that, even if the transportation time for the entire journey is reasonable, a railroad may still fail to meet its carrier's duty if there is unreasonable delay on a particular segment of the journey. There was clearly such a delay in this case. The evidence demonstrates that railroad cars are invariably delivered from defendant's Livermore Falls station to plaintiff's siding on the same day that plaintiff delivers the bills of lading and requests delivery, absent a blockage of snow or similar problem. Moreover, plaintiff has affirmatively demonstrated that the delay was caused by defendant's negligence.

Neither the Court nor counsel have discovered any case directly on point. The two cases upon which plaintiff places principal reliance are distinguishable. In New York, Philadelphia & Norfolk Railroad v. Peninsula Produce Exchange, supra, 240 U.S. at 38, 36 S.Ct. at 232, the Supreme Court said in 1916 that the language of the Carmack Amendment is "comprehensive enough to embrace all damages resulting from any failure to discharge a carrier's duty with respect to any part of the transportation to the agreed destination." (Emphasis added) The Court, however, was speaking to the liability of the initial or delivering carrier for delays by any connecting carrier, rather than delays in a part of the transportation by a particular carrier. In Condakes v. Southern Pacific Co., 295 F.Supp. 121 (D.Mass.1968), the court, citing the quoted language from Peninsula Produce, looked to a particular segment of the entire trip in determining that an unreasonable delay had occurred. Id. at 124. But in Condakes the overall transportation time exceeded the...