referring to the “broad sweep” of the Carmack Amendment and holding that “when damages are sought against a common carrier for failure to properly perform, or for neg *477 ligent performance of, an interstate contract of carriage, the Carmack Amendment governs”
How later courts described this case
- referring to the “broad sweep” of the Carmack Amendment and holding that “when damages are sought against a common carrier for failure to properly perform, or for neg *477 ligent performance of, an interstate contract of carriage, the Carmack Amendment governs”
- holding that the Car-mack Amendment has preempted suits in specific negligence by holders of bills of lading against their carriers
- recognizing that the Carmack Amendment completely preempts state law claims regarding interstate shipping contracts
- noting that Marquette stated the correct standard for recovery of special or consequential damages
Written by the judges who cited it.
The opinion
O’SULLIVAN, Circuit Judge
(dissenting).
I regret that I must respectfully dissent. In my view, the action here involved is not controlled by the Carmack Amendment. The wrong committed here did not arise from misdelivery of the car of butadiene. Such cargo was the subject matter of the bill of lading which, in turn, was the only contract involved. That ear, although first erroneously delivered to Olin Mathieson, came on to the plant of plaintiff undamaged, and no damage was suffered because of its delayed arrival. The only property of plaintiff covered by the contract made by the bill of lading was the butadiene. The plaintiff here did not suffer any “loss, damage or injury to such property.” The wrong resulted from the delivery of ethylene oxide to plaintiff; the injury, if any, resulted from plaintiff’s unloading of the chemical, thinking it to be butadiene.
I do not read the Supreme Court decisions in Adams Express Co. v. Croninger, 226 U.S. 491 , 33 S.Ct. 148 , 57 L.Ed. 314 (1913); New York, Philadelphia & Norfolk R. R. v. Peninsula Exchange, 240 U.S. 34 , 36 S.Ct. 230 , 60 L.Ed. 511 (1916); Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28 , 57 S.Ct. 73 , 81 L.Ed. 20 (1936); and Georgia, Florida & Alabama Ry. v. Blish Milling Co., 241 U.S. 190 , 36 S.Ct. 541 , 60 L.Ed. 948 (1916), as supporting the view of my brethren in this case. Adams Express involved total loss of the cargo covered by a bill of lading; Southeastern Express Co., involved damage suffered by delay in delivery of the cargo covered by a bill of lading; Georgia, Florida & Alabama Ry. involved damage to, and conversion of, the cargo covered by a bill of lading; New York, Philadelphia & Norfolk R.R. involved damage to the value of the cargo covered by a bill of lading due to delay in delivery.
The Supreme Court has never had the precise point before it, and I do not consider that dictum in one or more of the cases referred to above can be said to clearly support the defendant’s position here. No decision of any of the United States Courts of Appeals has been cited to us. Two District Court cases, Peter Kiewit Sons’ Co. v. Colorado & Southern Ry., 199 F.Supp. 261, 264 (D.C.Colo.1961) and Norton v. Shotmeyer, 72 F.Supp. 189, 193 (D.C.N.J.1947) generally support the view I express. Respectfully, I do not believe that this Court’s decision in Marquette Cement Mfg. Co. et al. v. Louisville & Nashville R.R., 406 F.2d 731 (1969) is a controlling precedent here. The complaint in that case set out that it was based upon the Carmack Amendment. No question as to that Amendment’s applicability was raised or considered by the District Court or by us.
I agree that if the Carmack Amendment were applicable here, a sufficient notice of claim, as called for by that statute, was given by plaintiffs to defendant.
I would vacate the judgment of the District Court, with direction to remand the cause to the Circuit Court of Jefferson County, Kentucky, for trial.