United States v. Mississippi Valley Barge Line Co.

Decision Date27 December 1960
Docket Number16409.,No. 16400,16400
Citation285 F.2d 381
CourtU.S. Court of Appeals — Eighth Circuit


Sherman L. Cohn, Atty., Civil Div., Dept. of Justice, Washington, D. C., for the United States. George Cochran Doub, Asst. Atty. Gen., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., and William H. Webster, U. S. Atty., St. Louis, Mo., were with Sherman L. Cohn, Washington, D. C., on the brief filed by the Government.

John O. Hichew, St. Louis, Mo., for the Mississippi Valley Barge Line Co. J. Richard Skouby, and Thompson, Mitchell, Douglas & Neill, St. Louis, Mo., were with John O. Hichew, St. Louis, Mo., on the brief filed for the Mississippi Valley Barge Line Co.

Before SANBORN, MATTHES and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

Mississippi Valley Barge Line, a common carrier by water in interstate commerce, instituted this action in July 1957, asserting jurisdiction under the Tucker Act and, specifically, under 28 U.S.C. §§ 1346 and 1337, against the United States for unpaid portions of charges for shipments of government freight in 1956 and 1957. The United States by its amended answer conceded liability for these charges but, by permissive counterclaims filed under Rule 13(b), F.R.Civ.Proc., 28 U.S.C., alleged offsetting liability on the part of the Barge Line for damages to other government property transported by it in two 1955 shipments.

The 4 shipments involved, so far as they concern the actual water transportation by the Barge Line, are:

                Shipment From To
                  January 10, 1955   Baton Rouge, La.   Memphis, Tenn
                  February 17, 1955  Baton Rouge, La.   Memphis, Tenn
                  July 19, 1956      Rock Island, Ill.  New Orleans, La
                  March 4, 1957      New Orleans, La.   Memphis, Tenn

The Government paid the 1955 charges in full. It paid the 1956 and 1957 charges only in part. The portions it did not pay equate with the alleged damages to the respective 1955 shipments and are the subject of the Barge Line's present suit.

The District Court entered judgment for the Barge Line for only the unpaid portion of the 1956 shipment but allowed interest thereon at 6% per annum. Both sides have appealed.

The case was submitted upon exhibits and stipulated facts. Each of the 1955 shipments originated at an off-river point known as Sharpe Station near Baton Rouge. It moved from that point by the Illinois Central Railroad about 7 miles to the Port of Baton Rouge. There the Greater Baton Rouge Port Commission, a municipal and state agency, unloaded the shipment from the rail cars and reloaded it on the plaintiff's barges. The Barge Line then transported the shipment by water to Memphis where Mississippi Valley Stevedoring Company, the Barge Line's wholly owned subsidiary, unloaded it from the barges and placed it on other rail cars. The Illinois Central then again transported the shipment about 4½ miles to Memphis General Depot which was another off-river point and the ultimate destination.

The damage (the amount of which is not in contest) to the February 1955 shipment consisted principally of a cut automobile tire and was discovered when this shipment was being discharged from the barge at Memphis. The damage to the January 1955 shipment (the monetary measure of which has not yet been resolved) was discovered only upon arrival at Memphis General Depot. No unusual incident occurred during the water transportation which would have caused the damages and the time, place and cause of the losses are unknown.

Each of the 1955 shipments moved under government form bills of lading. Each of these named the Barge Line in a lead space entitled "Name of Initial Transportation"; each described the shipment as one from "Sharpe Station, Baton Rouge, Louisiana" and from "Transportation Officer, Baton Rouge Engineer Depot"; each named "Memphis, Tennessee" as the destination and the consignee as "T. O. Memphis General Depot"; each recited that the pickup service at the origin was not by the Government or its agent; each routed the shipment "Via" the Barge Line and mentioned no other rail or water carrier; each also described the Barge Line as the "Name of Transportation Company"; each contained a Consignee's Certificate of Delivery signed by the transportation officer in favor of the Barge Line as the "Transportation Company" and "Memphis, Tennessee" as the "Actual Point of Delivery"; each recited that switching charges and handling charges "at point of origin and destination will be advanced by Mississippi Valley Barge Line"; and each stated that the shipment was unloaded from the barge and "switched" by the Illinois Central to Memphis General Depot. On its reverse side each bill contained Administrative Directions that "Government property will be transported on the prescribed form of Government bill of lading" and that through bills "will be issued in all instances between initial and ultimate points" except where more advantageous rates could be secured, and a Condition that "Unless otherwise specifically provided or otherwise stated hereon, this bill of lading is subject to the same rules and conditions as govern commercial shipments made on the usual forms provided therefor by the carrier."

These government bills also contained the following recital: "Received by the transportation company named above, subject to conditions named on the reverse hereof, the public property hereinafter described, in apparent good order and condition (contents and value unknown), to be forwarded to destination by the said company and connecting lines, and to be delivered in like good order and condition to said consignee".

The Illinois Central issued Miscellaneous Bills to the Barge Line for the railroad's services in the transportation of the January 1955 shipment from Baton Rouge Engineer Depot "to Miss. Valley Barge" and other invoices for its movement of the shipment from Memphis to Memphis General Depot. The Baton Rouge Port Commission also sent the Barge Line an invoice covering its handling charges for the January shipment. Similar Miscellaneous Bills and invoices were issued by the railroad and the Commission to the Barge Line for the February 1955 shipment. In addition, the railroad issued at Baton Rouge straight bills of lading for that shipment; each of these was directed to the Barge Line, stated "switching charges to be billed to Mississippi Valley Barge Lines", and was stamped "shipper's load and count". The dates on the respective Baton Rouge instruments indicate that each shipment had moved to the docks there before the government bills of lading were issued. The Barge Line advanced and paid all switching and handling charges on the 1955 shipments.

The two shipments moved under Rate B of the Barge Line's filed Freight Tariff 25-C, I.C.C. 101. This recited that except as otherwise provided "rates named herein apply f.o.b. barge at origin to f.o.b. barge at destination" and that Rate B did not include switching and handling charges at origin and destination advanced by the Barge Line. The Tariff rates related only to water transportation. B rates included "only limited liability" and it was stated that "carrier will act as customer's agent only in making arrangements for loading, unloading or otherwise handling of shipments to or from barges, and carrier shall not be liable for any loss or damage to goods during loading, unloading or handling beyond that provided for in * * * this Tariff". The Tariff then stated that the "carrier shall be liable as at common law for any loss of, or damage to, the shipment herein described, except as hereinafter provided"; certain liabilities were then described which did not coincide with the liability of a common carrier by water under common law.

The Tariff also included the Barge Line's form of straight bill of lading. This recited that "Unless otherwise indicated by endorsement hereon, the said shipment has been loaded by the shipper and the contents, quality, quantity and condition of the shipment and the packages, if any, are unknown".

At the trial the Government argued that the Barge Line was the "receiving" or "initial" carrier within the meaning of the Carmack Amendment1 to the Interstate Commerce Act;2 that it is therefore liable for shipment damage even though it may not have occurred during the Barge Line's segment of the transportation; that under Section 43 of the Harter Act of 1893 the recital in each government bill that the 1955 shipments had been received "in apparent good order and condition" established a prima facie case to that effect for the Government; and that, in the alternative, the Barge Line had agreed to transport the goods all the way from origin to destination and thus was liable for the damages as a matter of contract. The Barge Line defended on the theory that the Illinois Central was the receiving carrier under Carmack; that the railroad and not the Barge Line thus incurred the liabilities statutorily presumed for the receiving carrier; and that the Barge Line did not contract for a through shipment of the goods and, indeed, could not inasmuch as it had no authority so to do under its Tariff.

The District Court concluded that under Carmack the initial carrier is the one first receiving the goods; that the Illinois Central was the initial carrier here and subject to the statutory liabilities; that, in contrast, the Barge Line was a connecting carrier and its liability was to be determined upon common law principles; and that the application of the common law resulted in liability of the Barge Line for the damage discovered with respect to the February 1955 shipment upon its discharge from the barge but also resulted in no liability on the part of the Barge Line for the damage to the January 1955 shipment discovered...

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