Petition for Writ of Certiorari — Canadian Pacific Railway Limited, et al., Petitioners v. Joe R. Whatley, Jr., WD Trustee

Supreme Court briefFeb 13, 2019

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion of the United States Court of

Appeals for the Eighth Circuit

(September 14, 2018) . . . . . . . . . . . . . . . . 1a

Appendix B Order and Judgment of the United

States District Court District of North

Dakota, Western Division

(March 24, 2017) . . . . . . . . . . . . . . . . . . . 18a

Appendix C Order Denying Petition for Rehearing

En Banc in the United States Court of

Appeals for the Eighth Circuit

(November 15, 2018) . . . . . . . . . . . . . . . . 38a

Appendix D 49 C.F.R. § 1005.2 . . . . . . . . . . . . . . . . . . 40a

49 C.F.R. § 1035.1 . . . . . . . . . . . . . . . . . . 42a

49 C.F.R. Pt. 1035, App. B . . . . . . . . . . . 43a

49 U.S.C. § 11706 . . . . . . . . . . . . . . . . . . 54a

Appendix E Notice of Loss, Damage or Delay

(November 5, 2013) . . . . . . . . . . . . . . . . . 58a

Appendix F Disallowance of Loss, Damage and Delay

Claims

(November 27, 2013) . . . . . . . . . . . . . . . . 71a

Appendix G Excerpts from Application for Review

from WFE to Quebec Minister of

Sustainable Development, Environment,

Wildlife and Parks

(August 9, 2013) . . . . . . . . . . . . . . . . . . . 78a

Appendix H Second Notice of Claim

(April 4, 2014) . . . . . . . . . . . . . . . . . . . . . 82a

Appendix I

Second Disallowance of Claim

(April 24, 2014) . . . . . . . . . . . . . . . . . . . . 89a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 17-1677

[Filed September 14, 2018]

___________________________________

Joe R. Whatley, Jr., solely in his

)

capacity as the WD Trustee

)

of the WD Trust

)

Plaintiff - Appellant

)

Canadian Pacific Railway Limited;

)

Canadian Pacific Railway Company;

)

Soo Line Corporation; Soo Line

)

Railroad Company

)

Defendants - Appellees

)

___________________________________ )

Appeal from United States District Court

for the District of North Dakota - Bismarck

____________

Submitted: March 13, 2018

Filed: September 14, 2018

____________

Before GRUENDER, BEAM, and KELLY, Circuit

Judges.

____________

BEAM, Circuit Judge.

Joe Whatley, Trustee of the wrongful death claimants’

trust (WD Trust), appeals the district court’s order finding

that his claim under the Carmack Amendment, 49 U.S.C.

§ 11706, against Canadian Pacific Railway was untimely.

We reverse and remand for further proceedings.

I. BACKGROUND

On June 29, 2013, a train carrying crude oil left New

Town, North Dakota, destined for an oil refinery near Saint

John, New Brunswick, in Canada. The bill of lading for the

train’s cargo designated Western Petroleum Company1

(WFE) as the shipper, Irving Oil Ltd. as the consignee, and

Canadian Pacific Railway (CP) as the carrier. (CP is the

parent company of the other rail defendants, including Soo

Line Railroad Company, and we will refer to the

defendants collectively as CP). The bill of lading was

drafted and issued by CP and accepted by WFE through

an online process. The online form did not indicate or

designate any particular tariffs, price lists or any

limitations of liability by CP. Soo Line transported the train

from New Town, North Dakota, to just over the Canadian

border. From there, Canadian Pacific took the train to its

rail yard outside of Montreal, Quebec, where it turned the

train over to Montreal Maine & Atlantic Railway (MAR)

Canada.

Western Petroleum is one of several related entities that we

collectively refer to as the World Fuel Entities (WFE).

Around midnight on July 5, 2013, MAR parked the train

on the main tracks and left it unattended. At some point

early in the morning of July 6, 2013, the unattended train

began rolling downhill toward Lac-Mégantic, Quebec. As

the runaway train entered Lac-Mégantic, sixty-three of the

train’s seventy-two tanker cars derailed, spilling crude oil

and causing a series of massive explosions. The derailment

and subsequent explosions killed approximately forty-seven

people and destroyed nearly the entire town of LacMégantic. Obviously, neither the tanker cars nor the cargo

made it to the intended destination and Irving did not

receive the shipment.

On August 7, 2013, MAR filed for bankruptcy

protection. On November 5, 2013, WFE sent a notice of

damages related to the derailment to CP. This letter

notified CP that it was making a claim under Canadian law,

and expressly stated that it was not making a claim under

the Carmack Amendment. See 49 U.S.C. § 11706 (codifying

the exclusive remedy for the liability of rail carriers under

receipts and bills of lading). This WFE letter further stated

that a Carmack Amendment claim would be sent at a later

date. On November 27, 2013, CP responded to WFE by

denying the Canadian claim, and by noting that the

Canadian claim was indeed not a claim pursuant to the

Carmack Amendment. CP also stated in the November 27

denial that,

even if [WFE] were to submit a proper Carmack

Amendment claim, CP’s liability, if any, could not

exceed the value of the lading (crude oil) and would

not encompass rail-car damage claims or indemnity

against third-party tort or governmental

environmental claims. Those matters

unquestionably go beyond the value of the property

that CP received for transportation.

Appellant’s App. at 1944.

On April 4, 2014, WFE sent a notice of claim to CP

under the Carmack Amendment for all damages arising out

of the derailment, including any amounts that WFE might

be liable for to injured parties or for environmental

cleanup. CP sent a letter in response to WFE on April 24

acknowledging that the April 4 claim was proper notice for

the Carmack Amendment claim, and that WFE’s

November 5 claim was under Canadian law, but ultimately

disallowing the Carmack Amendment claim based upon

WFE’s alleged negligent conduct.2

Irving sent CP a letter on April 16, 2015, notifying it of

potential derailment claims under various laws, including

the Carmack Amendment. CP did not respond to Irving’s

letter. In October 2015, a bankruptcy court in Maine

confirmed the MAR bankruptcy plan, and the federal

district court in Maine adopted this order. CP withdrew its

objections to confirmation of the plan. As may be relevant,

the bankruptcy plan tolled any and all applicable limitations

periods.

WFE and Irving settled its negligence claims against

MAR’s Chapter 11 Trustee and the Canadian insolvency

In its November 2013 and April 2014 denial letters, CP references

several different tariffs, including ones that allegedly incorporate the

Uniform Straight Bill of Lading. Addendum at 21-24; 28-31. However,

the actual tariffs or their contents are apparently not in the record. In

a submission to a Canadian Minister of the Environment, WFE

references a similar tariff which allegedly incorporates the Uniform

Straight Bill of Lading. App. at 2246.

monitor for $110 million U.S. dollars and $75 million in

Canadian currency, respectively. The Trustee assigned

Whatley, the Trustee of the WD Trust, the rights of both

WFE and Irving to bring any possible claims against CP

under the Carmack Amendment. Whatley brought claims

pursuant to the Carmack Amendment in the District Court

of North Dakota on behalf of WFE and Irving on April 12,

2016. CP filed an answer to the complaint in May 2016, and

a motion for judgment on the pleadings or in the

alternative, for summary judgment, in November 2016,

seeking to dismiss the Carmack Amendment claims as

untimely and for other reasons. In March 2017, the district

court granted the motion. The court rejected Whatley’s

arguments that CP was barred by res judicata from

denying the claims because it did not object when the

bankruptcy Trustee was considering whether to assign the

Carmack Amendment claims to the WD Trust. The court

determined that it should consider WFE’s and Irving’s

claims separately, and ruled that WFE’s Carmack

Amendment claim was untimely because suit was not filed

within two years of the denial letter sent by CP on

November 27, 2013. The court further held that while

Irving had standing to pursue its claim, it was also untimely

because it did not provide notice of the claim within nine

months of the incident. The district court did not specify

whether the ruling was on the pleadings or on summary

judgment grounds. Whatley appeals.

II. DISCUSSION

A motion for judgment on the pleadings is reviewed de

novo and should be granted only if the moving party has

clearly demonstrated that no material issue of fact remains

and the moving party is entitled to judgment as a matter of

law. Elnashar v. U.S. Dep’t of Justice, 446 F.3d 792, 794

(8th Cir. 2006). We construe the facts in the complaint as

true, and all reasonable inferences are drawn in the

plaintiff’s favor. Id. When matters outside the pleadings are

considered by the court, the motion shall be treated as one

for summary judgment. McAuley v. Fed. Ins. Co., 500 F.3d

784, 787 (8th Cir. 2007).

The Carmack Amendment “imposes upon ‘receiving rail

carrier[s]’ and ‘delivering rail carrier[s]’ liability for

damage caused during the rail route under the bill of

lading, regardless of which carrier caused the damage.”

Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S.

89, 98 (2010) (alterations in original) (quoting 49 U.S.C.

§ 11706(a)). Its purpose is to relieve cargo owners “of the

burden of searching out a particular negligent carrier from

among the often numerous carriers handling an interstate

shipment of goods.” Reider v. Thompson, 339 U.S. 113, 119

(1950). To help achieve this goal, the Carmack Amendment

constrains carriers’ ability to limit liability by contract. 49

U.S.C. § 11706(c).

As noted, a claim under the Carmack Amendment is the

exclusive remedy to recover under a bill of lading. The

statute sets forth the following language regarding when

claims for recovery can be made:

A rail carrier may not provide by rule, contract, or

otherwise, a period of less than 9 months for filing a

claim against it under this section and a period of

less than 2 years for bringing a civil action against

it under this section. The period for bringing a civil

action is computed from the date the carrier gives a

person written notice that the carrier has disallowed

any part of the claim specified in the notice.

49 U.S.C. § 11706(e) (emphasis added). Thus, the statute

sets forth the floor–the minimum period which a carrier

must give the shipper to give notice of a claim under section

11706. See Louisiana & W. R.R. Co. v. Gardiner, 273 U.S.

280, 284 (1927) (noting that similar language from an

earlier version of the Carmack Amendment was not

“intended to operate as a statute of limitation” but rather

was meant to “restrict[] the freedom of carriers to fix the

period within which suit could be brought”). An appendix to

the implementing regulation, 49 C.F.R. pt. 1035, on the

other hand, appears to set forth a clear time limitation. See

49 C.F.R. pt. 1035, App. B, § 2(b) (stating that when a

carrier fails to deliver cargo, “[a]s a condition precedent to

recovery, claims must be filed in writing with the [carrier]

. . . within nine months after a reasonable time for delivery

has elapsed” and further specifying that a lawsuit must be

filed “within two years and one day from the day” the

carrier gave written notice denying the claim). The

regulation states that rail carriers “are required to use

straight bills of lading as prescribed in Appendix . . . B.” 49

C.F.R. pt. 1035.1(a).3 The record in the instant matter

contains a rather generic bill of lading but there is nothing

specific in the bill of lading in this record about whether the

However, we are perplexed by the fact that this regulation appendix

language seems to mandate a nine-month notice and two-year lawsuit

ceiling when the unambiguous statute sets a floor for these same time

limits. This makes the regulation completely at odds with the statute;

for instance, the regulation requires that notice of a claim be given

within nine months, while the statute clearly states that a carrier may

not provide a period of less than nine months for filing a claim. 49

C.F.R. pt. 1035, App. B, § 2(b); 49 U.S.C. § 11706(e). However, the

validity of this particular regulation has not been called into question

in this case and we express no opinion on the subject.

parties agreed to the uniform language set forth in the

regulation.

Whatley pleaded a prima facie case under the Carmack

Amendment by setting forth facts establishing: (a) that

WFE delivered the cargo to CP in good order and

condition; (b) that the cargo did not arrive; and (c) the

amount of damages incurred. See Mo. Pac. R.R. Co. v.

Elmore & Stahl, 377 U.S. 134, 138 (1964) (listing elements

of prima facie case under the Carmack Amendment). Thus,

if the district court erred in finding the claim to be

untimely, reversal is warranted at this stage of the

proceedings–either judgment on the pleadings or summary

judgment. Although Whatley has been assigned the right

to bring claims for both entities, because WFE and Irving

are somewhat differently situated, we discuss them

separately.

A. WFE

As stated, it is unclear from the current record whether

the parties agreed to the uniform language from the

regulation appendix setting a nine-month time period for

notice, and a two-year (and a day) time limit for filing suit

from the date that the claim was denied. Because of the

outcome of our WFE analysis, we will assume that those

time limits did, indeed, apply to WFE in this case. Given

that assumption, unless the November 2013 exchange of

correspondence between WFE and CP can be construed as

a claim and a denial under the Carmack Amendment,

WFE’s claim based upon the claim letter and denial in

April 2014 make Whatley’s April 2016 lawsuit timely in any

event.

Whatley alleges that the claims in the complaint were

timely pursuant to the April 4, 2014, notice, the April 24,

2014, response and the filing of this April 12, 2016, suit in

federal court. It is clear that WFE timely filed its notice of

claim by sending its Carmack Amendment notice on April

4, 2014. The incident occurred on July 7, 2013. April 4 is

less than nine months later. Thus, the essence of WFE’s

dispute centers on the effect of the November 27, 2013,

denial issued by CP for WFE’s Canadian claims. If, as CP

asserts, the November denial was a blanket denial of all

claims, including any possible future Carmack Amendment

claims, the two-year “limitations” period bars Whatley’s

claim because it ran in November 2015. If, however, the

November 2013 denial did not affect the future, as-yet-tobe-asserted Carmack Amendment claims, the suit was

timely brought within two years of the CP denial in April

2014.

CP alleges WFE’s written notice in November 2013

started the two-year clock, and the fact that the November

5, 2013, letter from WFE specifically disclaims any

reference to a Carmack Amendment claim does not matter

because the notice of claim need not reference the Carmack

Amendment; instead, CP asserts, any form of claim denial

starts the limitations period, citing Adams Express Co. v.

Croninger, 226 U.S. 491 (1913); Gulf Rice Arkansas, LLC

v. Union Pacific Railroad Co., 376 F. Supp. 2d 715 (S.D.

Tex. 2005); Zarnoski-McCathern v. Eagle Van Lines, No.

04-CV-0155, 2005 WL 292439 (N.D. Tex. Feb. 8, 2005); and

Conagra, Inc. v. Burlington Northern, Inc., 438 F. Supp.

1266, 1268 (D. Neb. 1977) (“Any written document which

identifies the damaged shipment and indicates an intention

to hold the carrier responsible is sufficient.”), in support of

its arguments.

The two Texas district court cases are quite

distinguishable as they involve shippers’ attempts to bring

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state law claims against the carriers, and once the cases

were removed to the Texas federal district courts, the

courts appropriately found the state claims preempted by

the Carmack Amendment. Gulf Rice Ark., 376 F. Supp. 2d

at 719; Eagle Van Lines, 2005 WL 292439, at *2. Moreover,

the courts in these cases analyzed the specific language of

the agreements entered into by the parties to assess

timeliness, and therefore these cases do not support the

assertion that any form of claim denial will start the

running of a two-year limitations period as a matter of law.

See Gulf Rice Ark., 376 F. Supp. 2d at 724; Eagle Van

Lines, 2005 WL 292439, at *3. And the Burlington

Northern case cited by CP is not at all on point; in that case

the issue was whether the Carmack Amendment

notification needed to be a “[d]etailed documentation of the

claim,” rather than a simple notice. 438 F. Supp. at 1268. It

was not a situation where a claim other than one under the

Carmack Amendment was initially alleged or a matter

discussing the adequacy of a denial. Id. The Croninger case

is one of the first few Supreme Court cases construing the

Carmack Amendment, which was enacted in 1906 as an

amendment to the Interstate Commerce Act (although the

Amendment has been altered and recodified over the last

century). See Kawasaki Kisen Kaisha, 561 U.S. at 96.

Among other things, Croninger addressed the shipper’s

limited recovery options when it elected a lower shipping

rate in exchange for releasing its goods at the standard

value of the goods. 226 U.S. at 509. While Croninger does

stand for the proposition that common law claims against

carriers are preempted by the Carmack Amendment, id. at

510-11, nothing in Croninger suggests that a carrier can

preemptively deny a Carmack Amendment claim before it

has been asserted.

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Here we have the unusual situation where the first

claim made was pursuant to Canadian law. According to the

November letter, WFE was required by Canadian law to

submit notice of this claim within four months of the

occurrence. WFE’s November 5 notice expressly denied

that WFE was making its Carmack Amendment claim, and

noted that it would do so at a later time. The statute itself

defines a Carmack Amendment claim as one being brought

“under this section.” 49 U.S.C. § 11706(e). Indeed, if WFE

had failed to make its April 2014 claim, CP might be

arguing that the November notice did not assert a Carmack

Amendment claim. See, e.g., Am. Rock Salt Co., LLC v.

Norfolk S. Corp., 387 F. Supp. 2d 197, 204 (W.D.N.Y. 2005)

(holding that shipper who gave written notice that it would

be filing a claim “at some unspecified later date” but did not

do so within nine months, did not adequately preserve its

Carmack Amendment claim). To be sure, American Rock

Salt is a bit distinguishable because the “will be filing”

notice contained no specifics about damages. Id. at 203.

Here, by necessity and due to the operation of Canadian

law, damages (in the amount of approximately $4.9 million)

were mentioned in the November 2013 correspondence.

But equally clear in WFE’s November correspondence was

the notation that WFE was not yet making its Carmack

Amendment claim. When it ultimately gave its Carmack

Amendment notice in April 2014, WFE asked for damages

in the amount of $6,670,593.27 and also noted that other

damages (for property and wrongful death) were yet to be

determined. We think it would be unwise policy, and

actually unfair in this unusually complicated multi-national

case, to allow the carrier to start the two-year clock when

the shipper had not yet broken the huddle. We certainly

agree that a denial starts the clock; but according to the

statute, the denial must be from a claim brought “under

this section.” 49 U.S.C. § 11706(e). WFE’s November claim

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was assuredly and explicitly not brought pursuant to 49

U.S.C. § 11706. Accordingly we reverse the district court’s

grant of judgment on the pleadings (or summary judgment)

as to Whatley’s claim on behalf of WFE.

B. Irving

Whatley’s Irving claim is more problematic because

Irving first gave notice in April 2015. If, indeed, the time

limitations presumed in the previous section applied to the

bill of lading in this case, Whatley’s claim on behalf of

Irving could be time-barred. Whatley alleges that since

Irving was not a party to the bill of lading, it was not bound

by any possible nine-month period for bringing suit. And,

Irving alleges it was not required to provide notice of a

claim until it was able to calculate its damages with

reasonable precision. Because many of the claims against

Irving were not alleged until the MAR bankruptcy case

took shape, and the bankruptcy plan was confirmed in

October 2015, Irving argues that its claim, made in April

2015, was as timely as reasonably possible. Finally, it

alleges that the bankruptcy plan tolled any applicable

statutes of limitations, including ones that may apply to the

Carmack Amendment claims. However, CP points out that

Irving cannot both escape the timing rules (that CP alleges

are in the bill of lading and tariffs) and reap the benefits of

the damages provisions by way of the bill of lading through

the Carmack Amendment.

More persuasively, however, Whatley alleges that there

is a genuine dispute over the very existence of contractual

terms in the bill of lading providing for a nine-month notice

period and a two-year suit limitation, precluding both

dismissal on the pleadings or summary judgment as a

matter of law. Whatley alleged in the pleadings that the bill

of lading did not contain terms setting forth the nine-month

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notice and two-year period for bringing suit. And as

previously noted, the specific language and/or the tariffs

themselves do not appear to be in the record on appeal.

This omission and factual dispute precludes judgment on

the pleadings or summary judgment in favor of CP with

regard to Irving’s claims. See Shao v. Link Cargo (Taiwan)

Ltd., 986 F.2d 700, 707-08 (4th Cir. 1993) (holding that the

record was insufficient to determine whether contractual

time limits applied to bar the Carmack Amendment claim,

and thus, remand was warranted); Tr. of Oral Decision, In

re: Maine Montreal & Atlantic Ry., Ltd., Adv. No. 13-01033

(Bankr. D. Me. June 22, 2018) (rejecting argument that the

bill of lading governing the same train at issue in the

instant dispute automatically incorporated the terms of the

uniform bill of lading). Although WFE may have arguably

conceded this point, see ante n.2, Irving has not. If on

remand it becomes clear that the nine-month notice and

two-year lawsuit limits contractually apply, then Irving’s

Carmack Amendment claim is untimely, unless Irving’s

tolling arguments, based upon MAR’s bankruptcy action,

are meritorious. As the district court did not address

Irving’s tolling arguments below, we leave it to the district

court to discern the applicability of any tolling, if necessary.

III. CONCLUSION

Accordingly, we reverse and remand for proceedings

consistent with this opinion.

GRUENDER, Circuit Judge, concurring in part and

dissenting in part.

Over the past several decades, deregulation has

revolutionized the law governing the interstate shipment of

goods. See 22 Richard A. Lord, Williston on Contracts

§ 59:1 (4th ed. 2018). While these changes have given

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shippers and carriers greater freedom in making contracts,

in this case the law mandated the contractual terms at

issue. For this reason, I disagree that there is a genuine

dispute over the contractual terms governing Whatley’s

Irving Oil claim, and I respectfully dissent from Part II.B

of the court’s decision. Because the two-year limitation on

Whatley’s WFE claim ran from the April 24, 2014 denial

letter rather than the November 27, 2013 denial letter, I

agree that the WFE claim is timely and concur in that

portion of the court’s opinion and judgment.

For shipments subject to the Carmack Amendment, rail

carriers must use the uniform straight bill of lading

prescribed by federal regulations.4 49 C.F.R. § 1035.1; id.

pt. 1035, apps. A, B; see also C.A.R. Transp. Brokerage Co.

v. Darden Rests., Inc., 213 F.3d 474, 478 (9th Cir. 2000)

(explaining that rail and water carriers, but not motor

carriers, must use the uniform straight bill of lading).

Under § 2(b) of the uniform straight bill of lading, claims

involving a failure to make delivery must be filed in writing

with the carrier “within nine months after a reasonable

time for delivery has elapsed.” 49 C.F.R. pt. 1035, app. B.

Likewise, § 2(b) permits a lawsuit to be filed “only within

two years and one day from the day when notice in writing

is given by the carrier to the claimant that the carrier has

The Carmack Amendment does not necessarily apply to rail

shipments. As part of the deregulation of the transportation industry,

“shippers and carriers [may] sidestep federal regulation of

transportation agreements by entering into private contracts” that are

not subject to the Carmack Amendment, 49 U.S.C. § 11706, but instead

are governed by 49 U.S.C. § 10709. Babcock & Wilcox Co. v. Kansas

City S. Ry., 557 F.3d 134, 138 (3d Cir. 2009); see also 1 Saul Sorkin,

Goods in Transit § 5.02 n.167 (2018). But the parties here have made

no argument that this contract is governed by § 10709. On the contrary,

Whatley states that his claims arise under § 11706.

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disallowed the claim or any part or parts thereof specified

in the notice.”5 Id.

As the court points out, it is not clear from the record

whether WFE and Irving Oil expressly agreed to this

language. Ante, at 7. But because the uniform bill of lading

is required by federal law, the time limitation requirements

bind the parties regardless. See Comsource Indep.

Foodservice Cos. v. Union Pac. R.R., 102 F.3d 438, 443-44

(9th Cir. 1996); Glenn Hunter & Assocs. v. Union Pac.

R.R., No. 3:01-CV-7602, 2003 WL 403178, at *1 (N.D. Ohio

Jan. 22, 2003) (“The omission of the required language does

not relieve the Union Pacific of its effect, because the

applicable regulation requires the inclusion of that

As Whatley notes, 49 U.S.C. § 11706(e) requires a minimum of nine

months for claims and two years for instituting suits but otherwise

allows parties to negotiate limitations periods. Before the ICC

Termination Act of 1995, these floors were codified at 49 U.S.C.

§ 11707(e) and applied to carriers generally. For rail and water

carriers, the Interstate Commerce Commission (“ICC”) prescribed the

uniform straight bill of lading, which mandated the precise time periods

described above. See Bills of Lading, 58 Fed. Reg. 60797 (Nov. 18, 1993)

(to be codified at 49 C.F.R. pt. 1035); Bills of Lading, 9 I.C.C.2d 1137

(1993). Thus, there was no inconsistency between the statute, which

generally gave carriers the freedom to impose time limitations by rule

or contract subject to the statutory floors, and the regulation, which

imposed more stringent standards on rail and water carriers by

requiring them to use the uniform straight bill of lading. The ICC

Termination Act transformed § 11707 and created separate statutory

provisions for different types of carriers. 49 U.S.C. § 11706 (rail

carriers), § 14706 (motor carriers and freight forwarders), § 15906

(pipeline carriers). But because the ICC Termination Act contains a

savings clause stipulating that previous ICC regulations remain in

force, Pub. L. No. 104-88, § 204, 109 Stat. 803, 941 (1995), there is no

reason to read § 11706(e) as casting doubt on the continuing validity of

49 C.F.R. § 1035.1.

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language in the bill of lading.”); 2 Sorkin, supra n.1, § 10.02

(“If the contractual limitation of action is provided for in

the tariff and regulations, no other notice[] is required to

the shipper.”). Consequently, I disagree with the court that

“there is a genuine dispute over the very existence of

contractual terms in the bill of lading” that precludes

dismissal of the untimely Irving Oil claim.

Under the uniform straight bill of lading, Irving Oil had

nine months after “a reasonable time for delivery has

elapsed” to submit its claim to Canadian Pacific, but it did

not submit any claim until April 16, 2015. Given that the

accident occurred on July 6, 2013, this was well more than

nine months after a reasonable time for delivery had

elapsed. See Imperial News Co. v. P-I-E Nationwide, Inc.,

905 F.2d 641, 644 (2d Cir. 1990) (finding 124 days “more

than a reasonable time” for delivery). Whatley tries to

excuse Irving Oil’s failure to submit a timely claim by

arguing that it waited until it could calculate damages with

reasonable precision in light of the ongoing bankruptcy

proceedings. See Pathway Bellows, Inc. v. Blanchette, 630

F.2d 900, 905 n.10 (2d Cir. 1980). But Whatley did not make

this argument below. Gap, Inc. v. GK Dev., Inc., 843 F.3d

744, 748 (8th Cir. 2016) (“Ordinarily, this court will not

consider an argument raised for the first time on appeal.”

(internal quotation marks omitted)). And in any event, a

party cannot wait until its total financial burden is clear to

bring a claim if it reasonably knows the value of the

damaged cargo. See 5K Logistics, Inc. v. Daily Express,

Inc., 659 F.3d 331, 336 (4th Cir. 2011). Moreover, Irving Oil

could at least have filed a partial claim. See Am. Rock Salt

Co. v. Norfolk S. Corp., 387 F. Supp. 2d 197, 205 (W.D.N.Y.

2005). Indeed, the fact that WFE filed its claim within a

year of the accident undermines Whatley’s argument that

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Irving Oil was unable to file a claim until almost two years

had lapsed.6 See id.

I join the court’s opinion and judgment on the more

difficult question of the timeliness of the WFE claim. And

though Canadian Pacific has made several other arguments

that might justify dismissal of that claim, I agree that we

should allow the district court to consider them in the first

instance.

______________________________

For these reasons, the Irving Oil claim would be untimely even if the

limitations periods are tolled pursuant to Whatley’s interpretation of

the bankruptcy plan. Under that plan, statutes of limitations must be

tolled from the Execution Date—here March 2, 2015—to the Plan

Implementation Date. By the time the tolling period began, however,

Irving Oil’s claim was already untimely.

18a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

WESTERN DIVISION

1:16-CV-00074-BRW-CSM

[Filed March 24, 2017]

___________________________________

JOE R. WHATLEY, JR., solely in his

)

capacity as Trustee of the WD Trust

)

PLAINTIFF

)

VS.

)

CANADIAN PACIFIC RAILWAY

)

LIMITED, et al.

)

DEFENDANTS

)

___________________________________ )

ORDER

Pending are Defendants’ Motions for Judgment on the

Pleadings (Doc. Nos. 40, 54), Defendants’ Motion to Stay

Discovery (Doc. No. 63), and Plaintiff’s Motion for Hearing

(Doc. No. 72). Responses and replies have been filed.1 As

set out below, Defendants’ Motion for Judgment on the

Pleadings (Doc. No. 54) is GRANTED – all other Motions

(Doc. Nos. 40, 63, 72) are MOOT.

Doc. Nos. 45, 46, 48, 50, 51, 69, 70, 76, 83, 84, 77, 82, 85.

19a

I. BACKGROUND2

On June 29, 2013, Train 282 and its 723 tanker cars

laden with crude oil left New Town, North Dakota destined

for an oil refinery near Saint John, New Brunswick

(Canada). Just before midnight on July 5, Train 282’s

engineer (and lone occupant) parked Train 282 on the main

tracks and left it unattended. Shortly after midnight, Train

282 – still unattended – began rolling downhill toward LacMégantic, Quebec. As the runaway train entered LacMégantic, 63 of its tanker cars derailed, spilling their crude

oil and causing a series of massive explosions. The

derailment and subsequent explosions killed 47 people and

destroyed nearly the entire town of Lac-Mégantic – neither

the tanker cars nor their cargo made it to their destination.4

The bill of lading for Train 282’s cargo designated

Western Petroleum Company (“Western Petroleum”) as

the shipper, Irving Oil Company (“Irving Oil”) as the

consignee, and Canadian Pacific Railway Limited

(Canadian Pacific”) as the carrier.5 Canadian Pacific is the

parent company of the other Defendants.

Soo Line Railroad Company transported Train 282

from New Town, North Dakota to just over the Canadian

Unless otherwise noted, the facts in the Background section are taken

from Plaintiff’s Complaint, and are not in dispute.

It appears that Train 282 may have left New Town with 78 tanker

cars, but 6 of them were “bad-ordered en route.” Doc. No. 1-10.

There appears to be a dispute as to whether any of the crude oil

actually made it to the refinery. See Defendants’ Answers (Doc. Nos.

24-27).

Doc. No. 1-10.

20a

border.6 From there, Canadian Pacific took Train 282 to its

rail yard just outside of Montreal, Quebec, where it turned

Train 282 over to Maine & Atlantic Railway Canada

(“MM&A Canada”). Although no one was operating Train

282 when it derailed, MM&A Canada was the last railway

company to operate it before it derailed.

About a month after the derailment, MM&A Canada

and its United States parent company, Montreal Maine &

Atlantic Railroad (“MM&A”), filed for bankruptcy

protection.7 Plaintiff is the trustee of the wrongful-deathclaimants’ trust created by MM&A’s bankruptcy estate.8

The bankruptcy trustee assigned Plaintiff the rights of the

shipper and consignee to bring claims under the Carmack

Amendment.9

Defendants Motion for Judgment on the Pleadings,

which alternatively seeks summary judgment takes a

shotgun approach: Plaintiff lacks standing, the claim is

untimely, the relief sought is not available, etc.10 Plaintiff

asserts that Defendants’ Motion is without merit, that

“Defendants are barred and estopped from raising the

arguments made in the Motion,” and that Defendants

Id.

Additionally, at least 39 individual lawsuits sprang up in the United

States – all were consolidated in the District of Maine. See, In re: LacMégantic Train Derailment Litigation, No. 1:16-CV-01001-JDL, Doc.

No. 29 (D. Me. Sept. 28, 2016).

Doc. Nos. 1, 41.

49 U.S.C. § 11706.

Doc. Nos. 55, 83.

21a

improperly rely on matters outside the pleadings or on

inadmissable evidence.11 Because Plaintiff’s claim is

untimely, I do not address Defendants’ other arguments for

dismissal, or Plaintiff’s responses to those arguments.

II. STANDARD

A motion for judgment on the pleadings “should only be

granted if the moving party has clearly demonstrated that

no material issue of fact remains and the moving party is

entitled to judgment as a matter of law.”12 A motion for

judgment on the pleadings is evaluated under the same

standard as a motion to dismiss for failure to state a claim.13

The facts set out in the complaint are taken as true and all

reasonable inferences are drawn in Plaintiff’s favor.14

Judgment on the pleadings is only appropriate if “it

appears beyond doubt that plaintiff can prove no set of

facts to warrant a grant of relief.”15 In determining whether

judgment on the pleadings is appropriate, courts look only

to the complaint, exhibits attached to the complaint, and

materials necessarily embraced by the pleadings.16

Doc. No. 69.

Elnashar v. U.S. Dep’t of Justice, 446 F.3d 792, 794 (8th Cir. 2006).

Westcott v. Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).

McAuley v. Fed. Ins. Co., 500 F.3d 784, 787 (8th Cir. 2007) (citing

Botz v. Omni Air Int’l, 286 F.3d 488, 490 (8th Cir. 2002)).

Knieriem v. Grp. Health Plan, Inc., 434 F.3d 1058, 1060 (8th Cir.

2006).

Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993) (citing Nickens v.

White, 536 F.2d 802, 803 (8th Cir. 1976)).

22a

“Documents necessarily embraced by the pleadings include

documents whose contents are alleged in a complaint and

whose authenticity no party questions, but which are not

physically attached to the pleading.”17 If a court considers

matters outside of these sources, it may nonetheless

convert the motion to one for summary judgment under

Rule 56.18

Summary judgment is appropriate only when there is

no genuine issue of material fact, so that the dispute may be

decided on purely legal grounds.19 The Supreme Court has

established guidelines to assist trial courts in determining

whether this standard has been met:

The inquiry performed is the threshold inquiry of

determining whether there is the need for a trial -whether, in other words, there are any genuine

factual issues that properly can be resolved only by

a finder of fact because they may reasonably be

resolved in favor of either party.20

The Court of Appeals for the Eighth Circuit has

cautioned that summary judgment is an extreme remedy

that should be granted only when the movant has

Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012)

(internal quotations and citations omitted).

Fed. R. Civ. P. 12(d), 56; Mattes v. ABC Plastics, Inc., 323 F.3d 695,

697 n.4 (8th Cir. 2003).

Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

23a

established a right to the judgment beyond controversy.21

Nevertheless, summary judgment promotes judicial

economy by preventing trial when no genuine issue of fact

remains.22 A court must view the facts in the light most

favorable to the party opposing the motion.23 The Eighth

Circuit has also set out the burden of the parties in

connection with a summary judgment motion:

[T]he burden on the party moving for summary

judgment is only to demonstrate, i.e.,”[to point] out

to the District Court,” that the record does not

disclose a genuine dispute on a material fact. It is

enough for the movant to bring up the fact that the

record does not contain such an issue and to identify

that part of the record which bears out his assertion.

Once this is done, his burden is discharged, and, if

the record in fact bears out the claim that no

genuine dispute exists on any material fact, it is then

the respondent’s burden to set forth affirmative

evidence, specific facts, showing that there is a

genuine dispute on that issue. If the respondent fails

to carry that burden, summary judgment should be

granted.24

Inland Oil & Transport Co. v. United States, 600 F.2d 725, 727 (8th

Cir. 1979).

Id. at 728.

Id. at 727-28.

Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988)

(quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268,

273-74 (8th Cir. 1988) (citations omitted)).

24a

Only disputes over facts that may affect the outcome of

the suit under governing law will properly preclude the

entry of summary judgment.25

III. DISCUSSION

Although Plaintiff’s Carmack claim is the lone claim set

out in the Complaint, it is essentially two claims – one for

the shipper, and one for the consignee. Accordingly, I will

address the claim as if it were two independent claims – the

shipper’s claim, and the consignee’s claim.

Defendants assert that both claims are untimely, but for

different reasons. First, the shipper’s claim is untimely

because the shipper did not file suit within two years and a

day of receiving Defendants’ claim-denial letter. Second,

the consignee’s claim is untimely because the consignee did

not give notice of its claim “within nine months after a

reasonable time for delivery has elapsed.”26 Plaintiff asserts

“Defendants are barred and estopped from raising the

arguments made in the Motion.”27

A. Res Judicata or Issue Preclusion

The “arguments made in the Motion,” relevant here, are

that the shipper’s claim and the consignee’s claims are

untimely, and the consignee lacks standing to bring a claim

on the bill of lading. The gist of Plaintiff’s argument is that

because Defendants did not object when the bankruptcy

court was considering whether to assign the Carmack

Anderson, 477 U.S. at 248.

Doc. No. 55.

Doc. No. 71-2.

25a

claims to Plaintiff, Defendants are now barred from

defending the merits of those claims.

First, concerning the “arguments raised in the Motion,”

Plaintiff overestimates the strength of res judicata and

collateral estoppel – and the helpfulness of the cases cited.

Although Plaintiff cites several cases on this issue, none are

on point.

Plaintiff asserts that GOE Lima28 is “particularly

instructive.”29 There, a mechanical contractor and an

ethanol producer had a contract that included an

arbitration clause. The ethanol producer filed for

bankruptcy relief. The mechanical contractor filed a

breach-of-contract claim, and the ethanol producer filed a

counterclaim. The ethanol producer asked the bankruptcy

court to stay the adversarial proceeding so the parties

could arbitrate their disputes. Over the mechanical

contractor’s objection, the bankruptcy court stayed the

case pending arbitration.

Next, the ethanol producer’s rights to its counterclaim

were assigned to another entity (the “assignee”) through a

court-approved settlement agreement and a confirmed plan

of liquidation. The mechanical contractor did not object to

the assignment and even initiated arbitration proceedings

after the assignment was complete. Then, in an about face,

the mechanical contractor sought to have the stay lifted,

and argued the assignment was invalid and the arbitration

clause could not be enforced by the assignee. The court

held that the mechanical contractor was precluded from

In re GOE Lima, LLC, No. 08-35508, 2012 WL 930250, at *1 (Bankr.

N.D. Ohio Mar. 19, 2012).

Doc. No. 71.

26a

attacking the assignment’s validity because it “could have

and should have raised the issue of the validity of the

assignment . . . by objecting to the court’s approval of the

[s]ettlement [a]greement and to confirmation of the

[p]lan.”30 The court also would not hear the mechanical

contractor’s arguments against enforcing the arbitration

clause because the court had already decided that issue.

In GOE Lima, the mechanical contractor attacked the

assignment of a claim. Here, Defendants are attacking the

merits of the claim assigned. Accordingly, GOE Lima is not

helpful. Moreover, MM&A’s underlying bankruptcy case

did not address the merits of the Carmack claims – nor

would it have made sense for it to do so. Because

Defendants had neither the obligation nor opportunity to

defend the merits of the assigned Carmack claims, they are

not barred from doing so now.

B. The Carmack Amendment

A claim under the Carmack Amendment is the exclusive

remedy to recover under a bill of lading.31 Accordingly,

Plaintiff’s claim is governed by the Carmack Amendment.

Plaintiff asserts that Carmack claims have no time

limitations, and the bill of lading contained no express

notice of a limitations period.32 Both arguments fail.

In re GOE Lima, LLC, No. 08-35508, 2012 WL 930250, at *5 (Bankr.

N.D. Ohio Mar. 19, 2012)

S.E. Express Co. v. Pastime Amuse. Co., 299 U.S. 28, 29 (1936);

Fulton v. Chicago, Rock Island & P. R. Co., 481 F.2d 326, 332 (8th Cir.

1973).

Doc. No. 69.

27a

Federal regulation sets the time limits for recovery on

a bill of lading – regardless of whether expressly noticed on

the bill of lading.33 When a carrier fails to deliver cargo,

“claims must be filed in writing with the [carrier] within

nine months after a reasonable time for delivery has

elapsed.”34 A lawsuit must be filed within two years and a

day from the day the carrier gives written notice that it is

denying the claim (or any part of the claim).35 “Where

claims are not filed or suits are not [filed] in accordance

with the foregoing provisions, no carrier [will] be liable, and

such claims will not be paid.”36

C. The Shipper’s Carmack Claim

Since the cargo never made it to its destination, claims

on the bill of lading must have been made “within nine

months after a reasonable time for delivery has elapsed.”37

Plaintiff asserts that notice of the claim was given on April

4, 2014 (the “April Claim”) and denied on April 24, 2014

(the “April Denial”).38 Defendants assert that the claim was

first made on November 5, 2013 (the “November Claim”),

49 C.F.R. pt. 1035, app. B, § 2(b); 5K Logistics, Inc. v. Daily Exp.,

Inc., 659 F.3d 331, 338 (4th Cir. 2011) (time limitations are “expressly

contemplated by statute and standard in the industry”).

49 C.F.R. pt. 1035, app. B, § 2(b).

Id.

49 C.F.R. pt. 1035, app. B, § 2(b).

Doc. No. 69.

28a

and denied on November 27, 2013 (the “November

Denial”).39

Plaintiff insists that the November Claim and

November Denial “are outside of the pleadings, not part of

the public record, and contradict the allegations set forth in

the Complaint, they may not be considered as part of the

Motion pursuant to Rule 12.”40 Recognizing that

Defendants’ Motion also seeks summary judgment,

Plaintiff also asserts that they “cannot be used to support

the Motion” because the documents are inadmissable

hearsay.41 “Finally,” Plaintiff asserts, “the documents fail,

on their face, to support the Defendants’ contention”

because the November Claim expressly states that it is “not

a claim under Carmack.”42

First, it appears the documents are embraced by the

pleadings. Defendants’ Answers assert that notice of a

claim was first given on November 5, 2013.43 No party

disputes the authenticity of the documents – in fact,

Plaintiff swears under oath that the documents are

authentic.44 Accordingly, even if the documents are outside

of the pleadings, there is no dispute over their authenticity,

so they raise no genuine dispute as to a material fact.

Doc. No. 55.

Doc. No. 69.

Id.

Doc. No. 69 (emphasis in original).

Doc. Nos. 24-27.

Doc. No. 71.

29a

The November Claim is titled “Notice of Loss, Damage

or Delay.”45 The first paragraph of the November Claim

states that the shipper is making a claim against

Defendants “for all losses sustained as a consequence of the

derailment of [Train 282] . . . including but certainly not

limited to the loss, damage or delay of the shipper’s goods

on Train 282, and of all affected railcars.” Under the

heading, “Proviso and reservation of rights” the November

Claim reads:

This Notice of Loss, Damage or Delay is

submitted at this time by the Notifying Parties,

without prejudice to any of its or their rights to

bring any or all of their claims in any venue or

jurisdiction available to them, and without prejudice

to any of its or their rights to plead and rely upon

the laws of the United States of America or of

Canada as are or may be applicable. Without

limiting any of the foregoing or any rights of the

Notifying Parties this Notice of Loss Damage or

Delay is submitted at this time and shall be if and as

may be required considered as a sufficient and

comprehensive Notice to at all times satisfy any

requirement of notice under the Railway Traffic

Liability Regulations [Canada] SOR/91-488,

providing for service of a notice of loss of goods, or

delay, or damage to goods, in printed or electronic

form, which is to be received by the originating

carrier or delivering carrier within four months

after a reasonable period for delivery of the goods

has expired, in the case of loss, or within four

months after delivery of the goods, where damage

Doc. No. 71-13.

30a

or delay is claimed. This Notice shall be without any

waiver or limitation whatsoever of the rights of the

Notifying Parties under the laws of the United

States of America, including the Carmack

Amendment (49 U.S.C. § 11706), which provides a

period of not less than 9 months for filing a notice of

claim against a rail carrier and the rules of the

Surface Transportation Board (49 C.F.R. Part

1005), entitled “Principles and Practices for the

Investigation and Voluntary Disposition of Loss

and Damage Claims and Processing Salvage.” The

Notifying Parties will submit a separate notice of

claim in accordance with the aforementioned

provisions of U.S. law at the appropriate time.46

Plaintiff asserts that the November Claim did not meet

the notice requirements under the Carmack Amendment.47

Although notice is a condition precedent to recovery on a

Carmack claim, notice is to be construed in a “practical

way.”48 “The crux of the notice is whether it apprises the

carrier of the basis for the claim and that reimbursement

will be sought.”49 “Any written document which identifies

the damaged shipment and indicates an intention to hold

Id. (emphasis in original).

Doc. No. 69.

Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 198

(1916).

S & H Hardware & Supply Co. v. Yellow Transp., Inc., 432 F.3d 550,

554 (3d Cir. 2005).

31a

the carrier responsible is sufficient.”50 Notice that is

sufficient in all other respects, but which cites to laws under

which recovery is preempted or unavailable (for example,

state law,51 common law,52 or Canadian law53) is sufficient

notice. Where a derailment destroys cargo, even actual

notice has been held sufficient, since “formal notice could

not have accomplished anything more.”54

It is undisputed that the November Claim was in

writing, was delivered within nine months, identified the

shipment, and notified the carrier that the shipper was

asserting a claim. Specifically, the shipper informed

Conagra, Inc. v. Burlington N., Inc., 438 F. Supp. 1266, 1268 (D. Neb.

1977); Union P. R. Co. v. Beemac Trucking, LLC, 929 F. Supp. 2d 904,

920 (D. Neb. 2013).

See, e.g., Zarnoski-McCathern v. Eagle Van Lines, No. 2:04-CV0155-J, 2005 WL 292439, at *3 (N.D. Tex. Feb. 8, 2005) (general denial

of state-law claims was sufficient denial of Carmack claims); Gulf Rice

Arkansas, LLC v. Union Pacific Railroad Co., 376 F.Supp.2d 715, 719

(S.D. Tex. 2005) (recharacterizing state-law claim for common-carrier

liability as a Carmack claim).

Adams Express Co. v. Croninger, 226 U.S. 491, 507 (1913).

The Carmack Amendment expressly applies to all shipments from the

United States to adjacent foreign countries, such as Canada,

transported on a through bill of lading. See, e.g., Gordon Hearn and

Jeffrey R. Simmons, Conflict of Laws Considerations, Shipping

Between the United States and Canada, 56 No. 12 DRI For Def. 66

(Dec. 2014).

Hopper Paper Co. v. Baltimore & O. R. Co., 178 F.2d 179, 182 (7th

Cir. 1949) (“Obviously, the same rule would uniformly apply under

similar facts to all other shippers and carriers.”); but see, Perini-N.

River Associates v. Chesapeake & O. Ry. Co., 562 F.2d 269, 271 (3d Cir.

1977).

32a

Defendants of a claim for “all losses sustained as a

consequence of the derailment of [Train 282] . . . including

but certainly not limited to the loss, damage or delay of the

shipper’s goods on Train 282, and of all affected railcars.”55

Accordingly, the November Claim satisfies the Carmack

Amendment’s notice requirement.

The ticking of the Carmack Amendment’s two-yearand-a-day clock began when the shipper received

Defendants’ denial of any part of the claim.56 “A

disallowance or denial is clear, final and unequivocal when

the only conclusion that can be rationally apprehended is

that the defendant refuses to allow any further

advancement of some part of the plaintiff’s claim.”57

At a minimum, the November Denial unequivocally

refused Plaintiff’s claim that exceeded the value of the

laden crude oil (for example, railcar damage, indemnity

against third-party tort or environmental claims, and

“liability for indirect and consequential damage, as well as

punitive and special damages”).58 The November Denial

also denied Defendants were responsible for Train 282

while it was in MM&A’s control because the shipper chose

MM&A Canada over a more expensive alternative.59

Doc. No. 71-13.

Zarnoski-McCathern, No. 2:04-CV-0155-J, 2005 WL 292439, at *3

(N.D. Tex. Feb. 8, 2005).

Id.

Doc. No. 71-14.

Id.

33a

Defendants denied lading liability altogether because the

shipper misrepresented the classification of the crude oil.60

In fine, Defendants’ November Denial made it clear

that Defendants denied all liability–including liability under

the Carmack Amendment. Accordingly, the shipper’s twoyear-and-a-day limitation period started to run on

November 27, 2013.

Plaintiff asserts that, even if Carmack claims have a

limitation period, and it began to run on November 27,

2013, the Complaint was timely because the limitation

period was tolled from June 8, 2015, through December 22,

2015.61 Plaintiff is mistaken as to when it began.

According to MM&A’s Liquidation Plan, which tolled

the limitations period, the tolling period began on “the

Execution Date” as defined in the shipper’s settlement

agreement with MM&A.62 The settlement agreement

defined the “Execution Date” as “the first day upon which

all Parties have executed this Amendment.”63 It is

undisputed that date was November 23, 2015.64

Accordingly, the tolling period began on November 23,

2015 – leaving the shipper four days from the day the

tolling period ended to timely file suit.

Doc. No. 71-14 (“That fraud obviates any [Defendants’] lading liability

to [the shipper].”).

Doc. No. 69.

Doc. Nos. 1-7, 1-8.

Doc. No. 1-6.

Id., pp. 44-46 of 49.

34a

It is undisputed that the tolling period ended on

December 22, 2015.65 Plaintiff’s Complaint was filed on

April 12, 2016 – about four months too late. Accordingly,

the Carmack claim on behalf of the shipper is untimely.

D. The Consignee’s Carmack Claim

1. Standing

Plaintiff overestimates Defendants’ standing argument.

Defendants do not claim that Plaintiff does not stand in the

shoes of the consignee. Instead, Defendants assert that

because the consignee was neither the shipper nor recipient

of the cargo (since the crude oil never made it), the

consignee – and therefore Plaintiff – lacks standing to bring

a claim on the bill of lading.66 Although none of the citations

provided by the parties are a world of clarity on this point,

there appears to be some authority allowing a consignee to

bring a Carmack claim against a carrier.

In Kansas City Southern Railway Company v. MixonMcClintock Co., a shipment of mules was sent from Kansas

City, Missouri, to Mariana, Arkansas.67 When the mules

arrived, many of them were “greatly injured and bruised,

[or died] soon after . . . on account of the injuries

received.”68 The consignee sued the carrier on the bill of

Doc. No. 1-6 (tolling period ended on the “Effective Date” of the

Plan); Doc. No. 1-7 (“Whereas, on December 22, 2015, the Effective

Date of the Plan occurred”).

Doc. No. 55.

Kansas City S. R. Co. v. Mixon-McClintock Co., 107 Ark. 48 (1913).

Id.

35a

lading.69 The court held, that the carrier “would not be

heard to complain that the consignee to whom it expressly

agreed to deliver the stock was without authority to bring

suit for the damage thereto.”70 Accordingly, Plaintiff has

standing to sue on behalf of the consignee.

2. Timeliness

The consignee was required to give notice “within nine

months after a reasonable time for delivery has elapsed.”71

It is undisputed that neither the November Claim nor the

April Claim were submitted on behalf of the consignee.72

Plaintiff does not allege that the consignee provided timely

notice. Instead, Plaintiff, who previously asserted standing

as a party to the bill of lading, asserts that because the

consignee was “not a negotiating or executing party” to the

bill of lading, no notice was required.73 “It is settled law that

the notice requirement applies to all claims against carriers

for losses.”74

The consignee sent Defendants a letter dated April 16,

2015 – nearly two years after the derailment – stating that

the consignee had a “potential claim [against Defendants]

Id.

49 C.F.R. pt. 1035, app. B, § 2(b).

Doc. Nos. 71-13, 71-15.

Doc. No. 69. I note the irony of Plaintiff accusing Defendants of

“arguing out of both sides of their mouth on this issue.”

S & H Hardware & Supply Co. v. Yellow Transp., Inc., 432 F.3d 550,

556 (3d Cir. 2005); see also, 49 C.F.R. pt. 1035, app. B, § 2(b).

36a

for certain losses, damages, and/or liabilities, [related to

Train 282’s derailment].”75 The letter specifically

contemplated a potential claim under the Carmack

Amendment.76

Because the consignee did not give Defendants written

notice of its claim until April 16, 2015 – more than 21

months after the derailment – Plaintiff’s claim brought on

behalf of the consignee is untimely.

CONCLUSION

Based on the findings of fact and conclusions of law set

out above, Defendants Motion (Doc. No. 54) is GRANTED

– all other pending motions are MOOT.

IT IS SO ORDERED this 24th day of March, 2017.

/s/ Billy Roy Wilson

UNITED STATES DISTRICT JUDGE

Doc. No. 1-12.

Id.

37a

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

WESTERN DIVISION

1:16-CV-00074-BRW-CSM

[Filed March 24, 2017]

___________________________________

JOE R. WHATLEY, JR., solely in his

)

capacity as Trustee of the WD Trust

)

PLAINTIFF

)

VS.

)

CANADIAN PACIFIC RAILWAY

)

LIMITED, et al.

)

DEFENDANTS

)

___________________________________ )

JUDGMENT

Consistent with the order entered today, judgment is

entered in favor of Defendants. Accordingly, this case is

DISMISSED with prejudice.

IT IS SO ORDERED this 24th day of March, 2017.

/s/ Billy Roy Wilson

UNITED STATES DISTRICT JUDGE

38a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 17-1677

[Filed November 15, 2018]

________________________________

Joe R. Whatley, Jr., solely in his

)

capacity as the WD Trustee

)

of the WD Trust

)

Appellant

)

Canadian Pacific Railway

)

Limited, et al.

)

Appellees

)

________________________________ )

__________________________________________________

Appeal from U.S. District Court for the District of North

Dakota - Bismarck

(1:16-cv-00074-BRW)

__________________________________________________

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

Judge Erickson did not participate in the consideration

or decision of this matter.

39a

November 15, 2018

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

40a

APPENDIX D

49 C.F.R. § 1005.2 Filing of claims.

(a) Compliance with regulations. A claim for loss or damage

to baggage or for loss, damage, injury, or delay to cargo,

shall not be voluntarily paid by a carrier unless filed, as

provided in paragraph (b) of this section, with the receiving

or delivering carrier, or carrier issuing the bill of lading,

receipt, ticket, or baggage check, or carrier on whose line

the alleged loss, damage, injury, or delay occurred, within

the specified time limits applicable thereto and as otherwise

may be required by law, the terms of the bill of lading or

other contract of carriage, and all tariff provisions

applicable thereto.

(b) Minimum filing requirements. A written or electronic

communication (when agreed to by the carrier and shipper

or receiver involved) from a claimant, filed with a proper

carrier within the time limits specified in the bill of lading

or contract of carriage or transportation and: (1)

Containing facts sufficient to identify the baggage or

shipment (or shipments) of property, (2) asserting liability

for alleged loss, damage, injury, or delay, and (3) making

claim for the payment of a specified or determinable

amount of money, shall be considered as sufficient

compliance with the provisions for filing claims embraced

in the bill of lading or other contract of carriage; Provided,

however, That where claims are electronically handled,

procedures are established to ensure reasonable carrier

access to supporting documents.

appraisal reports of damage, notations of shortage or

41a

damage, or both, on freight bills, delivery receipts, or other

documents, or inspection reports issued by carriers or their

inspection agencies, whether the extent of loss or damage

is indicated in dollars and cents or otherwise, shall,

standing alone, not be considered by carriers as sufficient

to comply with the minimum claim filing requirements

specified in paragraph (b) of this section.

(d) Claims filed for uncertain amounts. Whenever a claim

is presented against a proper carrier for an uncertain

amount, such as “$100 more or less,” the carrier against

whom such claim is filed shall determine the condition of

the baggage or shipment involved at the time of delivery by

it, if it was delivered, and shall ascertain as nearly as

possible the extent, if any, of the loss or damage for which

it may be responsible. It shall not, however, voluntarily pay

a claim under such circumstances unless and until a formal

claim in writing for a specified or determinable amount of

money shall have been filed in accordance with the

provisions of paragraph (b) of this section.

(e) Other claims. If investigation of a claim develops that

one or more other carriers has been presented with a

similar claim on the same shipment, the carrier

investigating such claim shall communicate with each such

other carrier and, prior to any agreement entered into

between or among them as to the proper disposition of such

claim or claims, shall notify all claimants of the receipt of

conflicting or overlapping claims and shall require further

substantiation, on the part of each claimant of his title to

the property involved or his right with respect to such

claim.

42a

49 C.F.R. § 1035.1 Requirement for certain forms of bills

of lading.

(a) All common carriers, except express companies,

engaged in the transportation of property other than

livestock and wild animals, by rail or by water subject to

the Interstate Commerce Act are required to use straight

bills of lading as prescribed in Appendix A and B to this

part, or order bills of lading as prescribed in Appendix A

and B to this Part, except that order bills of lading shall:

(1) Be entitled “Uniform Order Bill of Lading” and be

designated as “Negotiable” on the front (appendix A to

this part);

(2) Indicate consignment “to the order of * * * “ on the

front (appendix A to this part); and

(3) Provide for endorsement on the back portion

(appendix B to this part).

(b) All such bills of lading:

(1) May be either documented on paper or issued

electronically;

(2) May be a copy, reprographic or otherwise, of a

printed bill of lading, free from erasure and

interlineation;

(3) May vary in the arrangement and spacing of the

printed matter on the face of the form.

43a

49 C.F.R. Pt. 1035, App. B

APPENDIX B TO PART 1035—CONTRACT TERMS

AND CONDITIONS

Contract Terms and Conditions

Sec. 1. (a) The carrier or party in possession of any of the

property herein described shall be liable as at common law

for any loss thereof or damage thereto, except as

hereinafter provided.

(b) No carrier or party in possession of all or any of the

property herein described shall be liable for any loss

thereof or damage thereto or delay caused by the act of

God, the public enemy, the authority of law, or the act or

default of the shipper or owner, or for natural shrinkage.

The carrier’s liability shall be that of warehouseman, only,

for loss, damage, or delay caused by fire occurring after the

expiration of the free time allowed by tariffs lawfully on file

(such free time to be computed as therein provided) after

notice of the arrival of the property at destination or at the

port of export (if intended for export) has been duly sent or

given, and after placement of the property for delivery at

destination, or tender of delivery of the property to the

party entitled to receive it, has been made. Except in case

of negligence of the carrier or party in possession (and the

burden to prove freedom from such negligence shall be on

the carrier or party in possession), the carrier or party in

possession shall not be liable for loss, damage, or delay

occurring while the property is stopped and held in transit

upon the request of the shipper, owner, or party entitled to

make such request, or resulting from a defect or vice in the

property, or for country damage to cotton, or from riots or

strikes.

44a

risk and expense of owners into quarantine depot or

elsewhere, as required by quarantine regulations or

authorities, or for the carrier’s dispatch at nearest available

point in carrier’s judgment, and in any such case carrier’s

responsibility shall cease when property is so discharged,

or property may be returned by carrier at owner’s expense

to shipping point, earning freight both ways. Quarantine

expenses of whatever nature or kind upon or in respect to

property shall be borne by the owners of the property or be

a lien thereon. The carrier shall not be liable for loss or

damage occasioned by fumigation or disinfection or other

acts required or done by quarantine regulations or

authorities even though the same may have been done by

carrier’s officers, agents, or employees, nor for detention,

loss, or damage of any kind occasioned by quarantine or the

enforcement thereof. No carrier shall be liable, except in

case of negligence, for any mistake or inaccuracy in any

information furnished by the carrier, its agents, or officers,

as to quarantine laws or regulations. The shipper shall hold

the carriers harmless from any expense they may incur, or

damages they may be required to pay, by reason of the

introduction of the property covered by this contract into

any place against the quarantine laws or regulations in

effect at such place.

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. Every

carrier shall have the right in case of physical necessity to

forward said property by any carrier or route between the

point of shipment and the point of destination. In all cases

not prohibited by law, where a lower value than actual

value has been represented in writing by the shipper or has

been agreed upon in writing as the released value of the

45a

property as determined by the classification or tariffs upon

which the rate is based, such lower value plus freight

charges if paid shall be the maximum amount to be

recovered, whether or not such loss or damage occurs from

negligence.

(b) As a condition precedent to recovery, claims must be

filed in writing with the receiving or delivering carrier, or

carrier issuing this bill of lading, or carrier on whose line

the loss, damage, injury or delay occurred, within nine

months after delivery of the property (or, in case of export

traffic, within nine months after delivery at port of export)

or, in case of failure to make delivery, then within nine

months after a reasonable time for delivery has elapsed;

and suits shall be instituted against any carrier only within

two years and one day from the day when notice in writing

is given by the carrier to the claimant that the carrier has

disallowed the claim or any part or parts thereof specified

in the notice. Where claims are not filed or suits are not

instituted thereon in accordance with the foregoing

provisions, no carrier hereunder shall be liable, and such

claims will not be paid.

damage to any of said property shall have the full benefit of

any insurance that may have been effected upon or on

account of said property, so far as this shall not avoid the

policies or contracts of insurance: Provided, That the

carrier reimburse the claimant for the premium paid

thereon.

Sec. 3. Except where such service is required as the result

of carrier’s negligence, all property shall be subject to

necessary cooperage and baling at owner’s cost. Each

carrier over whose route cotton or cotton linters is to be

transported hereunder shall have the privilege, at its own

46a

cost and risk, of compressing the same for greater

convenience in handling or forwarding, and shall not be

held responsible for deviation or unavoidable delays in

procuring such compression. Grain in bulk consigned to a

point where there is a railroad, public or licensed elevator,

may (unless otherwise expressly noted herein, and then if

it is not promptly unloaded) be there delivered and placed

with other grain of the same kind and grade without

respect to ownership (and prompt notice thereof shall be

given to the consignor), and if so delivered shall be subject

to a lien for elevator charges in addition to all other charges

hereunder.

Sec. 4. (a) Property not removed by the party entitled to

receive it within the free time allowed by tariffs, lawfully on

file (such free time to be computed as therein provided),

after notice of the arrival of the property at destination or

at the port of export (if intended for export) has been duly

sent or given, and after placement of the property for

delivery at destination has been made, may be kept in

vessel, car, depot, warehouse or place of delivery of the

carrier, subject to the tariff charge for storage and to

carrier’s responsibility as warehouseman, only, or at the

option of the carrier, may be removed to and stored in a

public or licensed warehouse at the place of delivery or

other available place, at the cost of the owner, and there

held without liability on the part of the carrier, and subject

to a lien for all freight and other lawful charges, including

a reasonable charge for storage.

(b) Where nonperishable property which has been

transported to destination hereunder is refused by

consignee or the party entitled to receive it, or said

consignee or party entitled to receive it fails to receive it

within 15 days after notice of arrival shall have been duly

47a

sent or given, the carrier may sell the same at public

auction to the highest bidder, at such place as may be

designated by the carrier: Provided, That the carrier shall

have first mailed, sent, or given to the consignor notice that

the property has been refused or remains unclaimed, as the

case may be, and that it will be subject to sale under the

terms of the bill of lading if disposition be not arranged for,

and shall have published notice containing a description of

the property, the name of the party to whom consigned, or,

if shipped order notify, the name of the party to be notified,

and the time and place of sale, once a week for two

successive weeks, in a newspaper of general circulation at

the place of sale or nearest place where such newspaper is

published: Provided, That 30 days shall have elapsed before

publication of notice of sale after said notice that the

property was refused or remains unclaimed was mailed,

sent, or given.

hereunder to destination is refused by consignee or party

entitled to receive it, or said consignee or party entitled to

receive it shall fail to receive it promptly, the carrier, may,

in its discretion, to prevent deterioration or further

deterioration, sell the same to the best advantage at private

or public sale: Provided, That if time serves for notification

to the consignor or owner of the refusal of the property or

the failure to receive it, and request for disposition of the

property, such notification shall be given, in such manner

as the exercise of due diligence requires, before the

property is sold.

(d) Where the procedure provided for in the two

paragraphs last preceding is not possible, it is agreed that

nothing contained in said paragraphs shall be construed to

abridge the right of the carrier at its option to sell the

48a

property under such circumstances and in such manner as

may be authorized by law.

(e) The proceeds of any sale made under this section shall

be applied by the carrier to the payment of freight,

demurrage, storage, and any other lawful charges and the

expense of notice, advertisement, sale, and other necessary

expense and of caring for and maintaining the property, if

proper care of the same requires special expense, and

should there be a balance it shall be paid to the owner of

the property sold hereunder.

(f) Property destined to or taken from a station, wharf, or

landing at which there is no regularly appointed freight

agent shall be entirely at risk of owner after unloaded from

cars or vessels or until loaded into cars or vessels, and

except in case of carrier’s negligence, when received from

or delivered to such stations, wharves, or landings shall be

at owner’s risk until the cars are attached to and after they

are detached from locomotive or train or until loaded into

and after unloaded from vessels.

Sec. 5. No carrier hereunder will carry or be liable in any

way for any documents, specie, or for any articles of

extraordinary value not specifically rated in the published

classifications or tariffs unless a special agreement to do so

and a stipulated value of the articles are indorsed hereon.

Sec. 6. Every party, whether principal or agent, shipping

explosives or dangerous goods, without previous full

written disclosure to the carrier of their nature, shall be

liable for and indemnify the carrier against all loss or

damage caused by such goods, and such goods may be

warehoused at owner’s risk and expense or destroyed

without compensation.

49a

Sec. 7. The owner or consignee shall pay the freight and

average, if any, and all other lawful charges accruing on

said property; but, except in those instances where it may

lawfully be authorized to do so, no carrier by railroad shall

deliver or relinquish possession at destination of the

property covered by this bill of lading until all tariff rates

and charges thereon have been paid. The consignor shall be

liable for the freight and all other lawful charges, except

that if the consignor stipulates, by signature, in the space

provided for that purpose on the face of this bill of lading

that the carrier shall not make delivery without requiring

payment of such charges and the carrier, contrary to such

stipulation, shall make delivery without requiring such

payment, the consignor (except as hereinafter provided)

shall not be liable for such charges. Provided, that, where

the carrier has been instructed by the shipper or consignor

to deliver said property to a consignee other than the

shipper or consignor, such consignee shall not be legally

liable for transportation charges in respect of the

transportation of said property (beyond those billed against

him at the time of delivery for which he is otherwise liable)

which may be found to be due after the property has been

delivered to him, if the consignee (a) is an agent only and

has no beneficial title in said property, and (b) prior to

delivery of said property has notified the delivering carrier

in writing of the fact of such agency and absence of

beneficial title, and, in the case of a shipment reconsigned

or diverted to a point other than that specified in the

original bill of lading, has also notified the delivering

carrier in writing of the name and address of the beneficial

owner of said property; and, in such cases the shipper or

consignor, or, in the case of a shipment so reconsigned or

diverted, the beneficial owner, shall be liable for such

additional charges. If the consignee has given to the carrier

erroneous information as to who the beneficial owner is,

50a

such consignee shall himself be liable for such additional

charges. On shipments reconsigned or diverted by an agent

who has furnished the carrier in the reconsignment or

diversion order with a notice of agency and the proper

name and address of the beneficial owner, and where such

shipments are refused or abandoned at ultimate

destination, the said beneficial owner shall be liable for all

legally applicable charges in connection therewith. If the

reconsignor or diverter has given to the carrier erroneous

information as to who the beneficial owner is, such

reconsignor or diverter shall himself be liable for all such

charges.

If a shipper or consignor of a shipment of property (other

than a prepaid shipment) is also the consignee named in the

bill of lading and, prior to the time of delivery, notifies, in

writing, a delivering carrier by railroad (a) to deliver such

property at destination to another party, (b) that such

party is the beneficial owner of such property, and (c) that

delivery is to be made to such party only upon payment of

all transportation charges in respect of the transportation

of such property, and delivery is made by the carrier to

such party without such payment, such shipper or

consignor shall not be liable (as shipper, consignor,

consignee, or otherwise) for such transportation charges

but the party to whom delivery is so made shall in any

event be liable for transportation charges billed against the

property at the time of such delivery, and also for any

additional charges which may be found to be due after

delivery of the property, except that if such party prior to

such delivery has notified in writing the delivering carrier

that he is not the beneficial owner of the property, and has

given in writing to such delivering carrier the name and

address of such beneficial owner, such party shall not be

liable for any additional charges which may be found to be

51a

due after delivery of the property; but if the party to whom

delivery is made has given to the carrier erroneous

information as to the beneficial owner, such party shall

nevertheless be liable for such additional charges. If the

shipper or consignor has given to the delivering carrier

erroneous information as to who the beneficial owner is,

such shipper or consignor shall himself be liable for such

transportation charges, notwithstanding the foregoing

provisions of this paragraph and irrespective of any

provisions to the contrary in the bill of lading or in the

contract of transportation under which the shipment was

made. The term “delivering carrier” means the line-haul

carrier making ultimate delivery.

Nothing herein shall limit the right of the carrier to require

at time of shipment the prepayment or guarantee of the

charges. If upon inspection it is ascertained that the articles

shipped are not those described in this bill of lading, the

freight charges must be paid upon the articles actually

shipped.

Where delivery is made by a common carrier by water the

foregoing provisions of this section shall apply, except as

may be inconsistent with part III of the Interstate

Commerce Act.

Sec. 8. If this bill of lading is issued on the order of the

shipper, or his agent, in exchange or in substitution for

another bill of lading, the shipper’s signature to the prior

bill of lading as to the statement of value or otherwise, or

election of common law or bill of lading liability, in or in

connection with such prior bill of lading, shall be considered

a part of this bill of lading as fully as if the same were

written or made in or in connection with this bill of lading.

52a

Sec. 9. (a) If all or any part of said property is carried by

water over any part of said route, and loss, damage or

injury to said property occurs while the same is in the

custody of a carrier by water the liability of such carrier

shall be determined by the bill of lading of the carrier by

water (this bill of lading being such bill of lading if the

property is transported by such water carrier thereunder)

and by and under the laws and regulations applicable to

transportation by water. Such water carriage shall be

performed subject to all the terms and provisions of, and all

the exemptions from liability contained in the Act of

Congress of the United States, approved on February 13,

1893, and entitled “An act relating to the navigation of

vessels, etc.” and of other statutes of the United States

according carriers by water the protection of limited

liability as well as the following subdivisions of this section:

and to the conditions contained in this bill of lading not

inconsistent with this section, when this bill of lading

becomes the bill of lading of the carrier by water.

(b) No such carrier by water shall be liable for any loss or

damage resulting from any fire happening to or on board

the vessel, or from explosion, bursting of boilers or

breakage of shafts, unless caused by the design or neglect

of such carrier.

making the vessel in all respects seaworthy and properly

manned, equipped and supplied, no such carrier shall be

liable for any loss or damage resulting from the perils of

the lakes, seas, or other waters, or from latent defects in

hull, machinery, or appurtenances whether existing prior

to, at the time of, or after sailing, or from collision,

stranding, or other accidents of navigation, or from

prolongation of the voyage. And, when for any reason it is

53a

necessary, any vessel carrying any or all of the property

herein described shall be at liberty to call at any port or

ports, in or out of the customary route, to tow and be towed,

to transfer, trans-ship, or lighter, to load and discharge

goods at any time, to assist vessels in distress, to deviate

for the purpose of saving life or property, and for docking

and repairs. Except in case of negligence such carrier shall

not be responsible for any loss or damage to property if it

be necessary or is usual to carry the same upon deck.

(d) General Average shall be payable according to the

York–Antwerp Rules of 1924, sections 1 to 15, inclusive,

and sections 17 to 22, inclusive, and as to matters not

covered thereby according to the laws and usages of the

Port of New York. If the owners shall have exercised due

diligence to make the vessel in all respects seaworthy and

properly manned, equipped and supplied, it is hereby

agreed that in case of danger, damage or disaster resulting

from faults or errors in navigation, or in the management

of the vessel, or from any latent or other defects in the

vessel, her machinery or appurtenance, or from

unseaworthiness, whether existing at the time of shipment

or at the beginning of the voyage (provided the latent or

other defects or the unseaworthiness was not discoverable

by the exercise of due diligence), the shippers, consignees

and/or owners of the cargo shall nevertheless pay salvage

and any special charges incurred in respect of the cargo,

and shall contribute with the shipowner in general average

to the payment of any sacrifices, losses or expenses of a

general average nature that may be made or incurred for

the common benefit or to relieve the adventure from any

common peril.

(e) If the property is being carried under a tariff which

provides that any carrier or carriers party thereto shall be

54a

liable for loss from perils of the sea, then as to such carrier

or carriers the provisions of this section shall be modified

in accordance with the tariff provisions, which shall be

regarded as incorporated into the conditions of this bill of

lading.

(f) The term “water carriage” in this section shall not be

construed as including lighterage in or across rivers,

harbors, or lakes, when performed by or on behalf of rail

carriers.

Sec. 10. Any alteration, addition, or erasure in this bill of

lading which shall be made without the special notation

hereon of the agent of the carrier issuing this bill of lading,

shall be without effect, and this bill of lading shall be

enforceable according to its original tenor.

49 U.S.C. § 11706. Liability of rail carriers under receipts

and bills of lading

(a) A rail carrier providing transportation or service

subject to the jurisdiction of the Board under this part shall

issue a receipt or bill of lading for property it receives for

transportation under this part. That rail carrier and any

other carrier that delivers the property and is providing

transportation or service subject to the jurisdiction of the

Board under this part are liable to the person entitled to

recover under the receipt or bill of lading. The liability

imposed under this subsection is for the actual loss or

injury to the property caused by-(1) the receiving rail carrier;

(2) the delivering rail carrier; or

(3) another rail carrier over whose line or route the

property is transported in the United States or from a

55a

place in the United States to a place in an adjacent

foreign country when transported under a through bill

of lading.

Failure to issue a receipt or bill of lading does not affect the

liability of a rail carrier. A delivering rail carrier is deemed

to be the rail carrier performing the line-haul

transportation nearest the destination but does not include

a rail carrier providing only a switching service at the

destination.

(b) The rail carrier issuing the receipt or bill of lading

under subsection (a) of this section or delivering the

property for which the receipt or bill of lading was issued

is entitled to recover from the rail carrier over whose line

or route the loss or injury occurred the amount required to

be paid to the owners of the property, as evidenced by a

receipt, judgment, or transcript, and the amount of its

expenses reasonably incurred in defending a civil action

brought by that person.

(c)(1) A rail carrier may not limit or be exempt from

liability imposed under subsection (a) of this section except

as provided in this subsection. A limitation of liability or of

the amount of recovery or representation or agreement in

a receipt, bill of lading, contract, or rule in violation of this

section is void.

(2) A rail carrier of passengers may limit its liability under

its passenger rate for loss or injury of baggage carried on

trains carrying passengers.

(3) A rail carrier providing transportation or service

subject to the jurisdiction of the Board under this part may

establish rates for transportation of property under which--

56a

(A) the liability of the rail carrier for such property is

limited to a value established by written declaration of

the shipper or by a written agreement between the

shipper and the carrier; or

(B) specified amounts are deducted, pursuant to a

written agreement between the shipper and the carrier,

from any claim against the carrier with respect to the

transportation of such property.

(d)(1) A civil action under this section may be brought in a

district court of the United States or in a State court.

(2)(A) A civil action under this section may only be

brought-(i) against the originating rail carrier, in the judicial

district in which the point of origin is located;

(ii) against the delivering rail carrier, in the judicial

district in which the principal place of business of the

person bringing the action is located if the delivering

carrier operates a railroad or a route through such

judicial district, or in the judicial district in which the

point of destination is located; and

(iii) against the carrier alleged to have caused the loss

or damage, in the judicial district in which such loss or

damage is alleged to have occurred.

(B) In this section, “judicial district” means (i) in the case

of a United States district court, a judicial district of the

United States, and (ii) in the case of a State court, the

applicable geographic area over which such court exercises

jurisdiction.

(e) A rail carrier may not provide by rule, contract, or

otherwise, a period of less than 9 months for filing a claim

57a

against it under this section and a period of less than 2

years for bringing a civil action against it under this

section. The period for bringing a civil action is computed

from the date the carrier gives a person written notice that

the carrier has disallowed any part of the claim specified in

the notice. For the purposes of this subsection-(1) an offer of compromise shall not constitute a

disallowance of any part of the claim unless the carrier,

in writing, informs the claimant that such part of the

claim is disallowed and provides reasons for such

disallowance; and

(2) communications received from a carrier’s insurer

shall not constitute a disallowance of any part of the

claim unless the insurer, in writing, informs the

claimant that such part of the claim is disallowed,

provides reasons for such disallowance, and informs the

claimant that the insurer is acting on behalf of the

carrier.

58a

APPENDIX E

NOTICE OF LOSS, DAMAGE OR DELAY

Dated November 5, 2013

TO:

(1)

Canadian Pacific Railway Company1

c/o Damage Prevention & Claim Services

14 Fultz Boulevard, Winnipeg MB, R3Y 0L6

Email: contact_dpfc@cpr.ca and Fax: 1-877-6853555

And also to CPR at its registered, executive and

head office, located at:

Suite 500, 401 - 9th Avenue S.W., Calgary,

Alberta T2P 4Z4

c/o Chief Legal Officer and Corporate Secretary

(CPRL and CPRC), P.A. Guthrie, Q.C.

Email: Paul_Guthrie@cpr.ca and Fax: 1-403319-6770

“CPR” “Canadian Pacific” “CP” and “CPRC” refer to Canadian

Pacific Railway Company (“CPRC”), wholly owned by Canadian Pacific

Railway Limited (“CPRL”). This Notice shall also constitute and be

understood to extend to and include notice to CPRL and to each of its

principal subsidiaries (including, without reserve, CPRC and Soo Line

Corporation, Soo Line Railroad Company, and Dakota, Minnesota &

Eastern Railroad Corporation), insofar as any participated in any

respect of any aspect of the subject movements of rail traffic.

59a

This Notice of Loss, Damage or Delay is submitted

by World Fuels Services Corporation (“WFSC”), World

Fuels Services, Inc. (“WFSI”), and Western Petroleum

Company (“WPC”) (collectively the “Notifying

Parties”) to the Canadian Pacific Railway Company

(“CPR”) (including any of its subsidiaries, associated or

affiliated railway companies listed in Appendix A of

Certificate of fitness No. 96001-3 issued by the Canadian

Transportation Agency by its Decision No. 396-R-2007) and

to the parent owner of CPRC, CPRL, for all losses

sustained as a consequence of the derailment of Unit Train

606-282 (“Train 282”) on July 6, 2013 near Lac-Mégantic,

Québec, on the line of the Montreal, Maine & Atlantic

Canada Co. (“MMAC”), a wholly-owned subsidiary of

Montreal, Maine & Atlantic Railway, Ltd. (together, here

described as “MMA”). The Notifying Parties are

submitting this Notice to CPR as the originating carrier

that issued a through bill of lading for transportation of

Train 282 pursuant to a joint through rate, and as the rail

carrier which obtained possession of the goods on Train 282

at their point of origin. The Notifying Parties assert that

the carrier CPR is liable to them for the losses related to

this traffic described in this Notice, including but certainly

not limited to the loss, damage or delay of the Notifying

Parties’ goods on Train 282, and of all affected railcars.

60a

AND TO:

(2)

Montreal, Maine & Atlantic Railway, Ltd.

and its wholly-owned subsidiary Montreal,

Maine & Atlantic Canada Co.2

c/o M. Donald Gardner, Jr., VP Finance &

Administration, CFO,

15 Iron Road, Hermon, Maine (U.S.A.) 044019621

E-mail: mdgardner@mmarail.com Fax: 1-207848-4341

c/o counsel of record for MMA collectively in

CCAA proceedings:

This Notice shall constitute and be understood to extend to and

include notice to each of the Montreal, Maine & Atlantic Canada Co.

and Montreal, Maine & Atlantic Railway, Ltd. Montreal, Maine &

Atlantic Railway, Ltd. (MMA) and its wholly-owned subsidiary

Montreal, Maine & Atlantic Canada Co. (MMAC), which at the material

time held Certificate of Fitness No. 02004-3 issued by the Canadian

Transportation Agency (Agency) pursuant to section 92 of the Canada

Transportation Act, S.C. 1996, c. 10, as amended.

In particular this Certificate of Fitness in Canada permitted “MMAC

to operate a railway: between Saint-Jean, Quebec and Lennoxville,

Quebec; ... ; and between Lennoxville, Quebec and the Canada/United

States border near Boundary, Quebec; and by virtue of an interchange

agreement with the Canadian Pacific Railway Company, on the

Canadian Pacific Railway Company’s Adirondack Subdivision

between Saint-Jean, Quebec and Saint-Luc Junction, Quebec.” The

derailment of Train 282 on July 6, 2013 near Lac-Mégantic, Quebec,

was on the line of the Montreal, Maine & Atlantic Canada Co., owned

and operated by MMA collectively.

61a

Gowling Lafleur Henderson LLP, Attention:

Denis St-Onge

1, Place Ville-Marie, 37th Floor, Montréal QC

H3B 3P4

E-mail: denis.st-onge@gowlings.com ; Fax : 1514-876-9519

And also to: counsel to MMA, Pierre Legault, of

Gowling Lafleur Henderson LLP

E-mail: pierre.legault@gowlings.com ; Direct

Fax : 1-514-876-9599

And also to: the Monitor, CCAA proceedings:

Richter Advisory Group, Inc., c/o Gilles

Robillard

1981 McGill College, Montreal, QC H3A 0G6

E-mail: grobillard@richter.ca Fax: 1-514-9343504

And also to: counsel of record for the Monitor,

(Richter Advisory Group Inc.):

Woods LLP, c/o Sylvain Vauclair

2000, avenue McGill College, suite 1700,

Montreal, QC H3A 3H3

E-mail: svauclair@woods.qc.ca Fax : 1-514-2842046

This Notice of Loss, Damage or Delay is submitted

by the Notifying Parties to MMA for all losses sustained

as a consequence of the derailment of Train 282 on July 6,

2013 near Lac-Mégantic, Québec, on the MMA line. The

62a

Notifying Parties are submitting this Notice to MMA as a

carrier on whose line of railway Train 282 was located at

the time of the derailment, during the course of the rail

movement pursuant to the through bill of lading issued

under a joint through rate to destination by CPR for

transportation of Train 282. The Notifying Parties provide

notice that MMA is also liable to them for the losses related

to this traffic described in this Notice, including but not

limited to the loss, damage or delay of the Notifying

Parties’ goods on Train 282, and of all affected railcars.

Proviso and reservation of rights:

This Notice of Loss, Damage or Delay is submitted

at this time by the Notifying Parties, without prejudice

to any of its or their rights to bring any or all of their claims

in any venue or jurisdiction available to them, and without

prejudice to any of its or their rights to plead and rely upon

the laws of the United States of America or of Canada as

are or may be applicable. Without limiting any of the

foregoing or any rights of the Notifying Parties, this Notice

of Loss, Damage or Delay is submitted at this time and

shall be, if and as may be required, considered as a

sufficient and comprehensive Notice to at all times satisfy

any requirement of notice under the Railway Traffic

Liability Regulations, [Canada] (SOR/91-488), providing

for service of a notice of loss of goods, or delay or damage

to goods, in printed or electronic form, which is to be

received by the originating carrier or delivering carrier

within four months after a reasonable period for delivery of

the goods has expired, in the case of loss, or within four

months after delivery of the goods, where damage or delay

is claimed. This Notice shall be without any waiver or

limitation whatsoever of the rights of the Notifying Parties

under the laws of the United States of America, including

63a

the Carmack Amendment (49 U.S.C. § 11706), which

provides a period of not less than 9 months for filing a

notice of claim against a rail carrier, and the rules of the

Surface Transportation Board (49 C.F.R. Part 1005),

entitled “Principles and Practices for the Investigation

and Voluntary Disposition of Loss and Damage Claims

and Processing Salvage.” The Notifying Parties will submit

a separate notice of claim in accordance with the

aforementioned provisions of U.S. law at the appropriate

time.

I. Background Information on Train 282 & particulars

of contracting.

On July 6, 2013, Train 282 consisted of one buffer car

and 72 tank cars containing petroleum crude oil (STCC

4910165) (UN/NA Code: UN1267) to be transported from

New Town North Dakota (U.S.A.) through to destination,

Saint John, New Brunswick (Canada). CPR issued Waybill

No. 243537 (attached as EXHIBIT 1) and an unnumbered

bill of lading (EXHIBIT 2). The bill of lading identifies

WPC as the “Shipper,” Irving Oil Ltd: as the “Consignee,”

and WFSC as the party to be billed. WFSI held title to the

crude oil and was the entity actually invoiced by CPR for

Train 282 (EXHIBIT 3). WPC is also the lessee of the

railcars.

CPR originated Train 282 at New Town on June 29,

2013, obtaining possession of the Notifying Parties’ goods

and the railcars at their point of origin, and transported

Train 282 to CPR’s Côte Saint-Luc Yard, in the greater

Montreal area, Quebec, where, on July 5, 2013, it

interchanged Train 282 with MMA. On the evening of July

5th, MMA parked Train 282 on its mainline track at

Nantes, Quebec, and left Train 282 unattended. Early the

following morning, July 6, 2013, the unattended Train 282

64a

began to roll down a grade towards Lac-Mégantic, where,

63 of the 72 tank cars derailed, spilling their contents; there

was an ensuing fire, loss of 47 lives, and property and

environmental damage.

II. Summary of the Notifying Parties’ Losses.

Except for the value of the lost freight (goods), the

Notifying Parties’ losses cannot be determined with

greater specificity at this time. Many of these losses are not

yet fully known because they are continuing to accrue

and/or the Notifying Parties’ liability has not yet been

determined. In addition the Notifying Parties have suffered

and shall foreseeably incur the costs and expense of all

counsel and contracted expertise, and the risk of costs and

loss in projected and pending suits, actions or proceedings

in multiple jurisdictions. Such losses and costs cannot yet

be determined, and CPR and MMA are put on notice of all

such prospective losses.

A. Value of Freight.

The derailment resulted in a total loss of the cargo

(goods) in each of 63 cars destroyed at Lac-Mégantic. Each

of the 63 derailed tank cars contained approximately 32,000

US gallons of petroleum crude oil with the derailed cars

containing a total of 42,254 barrels of oil. The crude oil had

been sold FOB destination to Irving Oil Ltd., the consignee

for Train 282, and had a full value, including the 9 railcars

referenced below, of $4,968,334.82 (U.S. Dollars). The

Notifying Parties reserve all rights to establish and seek

recovery of the full value of the goods, including the added

freight and other charges and customs duties as may have

been paid or were payable, all costs and expense associated

with causing these railcars and all cargo therein to be

further moved to delivery at destination, including, if

65a

required, any inspection to enable their forwarding to

destination plus any accruing prejudgment interest on all

losses, so as to make the Notifying Parties whole.

In addition to notice of the loss of freight claims as to

the 63 railcars, for each of the 9 railcars within Train 282

not destroyed at Lac-Mégantic, but removed to MMA’s

Farnham Yard, the delivery of the railcars and of the goods

within these 9 railcars has been delayed beyond the

reasonable period for delivery or as contracted, as a result

of the breach by CPR of its contractual undertaking to the

Notifying Parties, and the neglect or refusal of the rail

carriers CPR and MMA to meet their statutory level of

service obligations to the Notifying Parties and their

contractual and statutory or other obligations and

undertakings with or to each other. Whether the customer

will assert any damage to the goods is as yet

undeterminable, before delivery to and acceptance by a

customer for such goods. Loss to the Notifying Parties as

a result of the delay in delivery has also been suffered,

including but not limited to all costs and expense associated

with causing these railcars and, all cargo therein to be

further moved to delivery at destination, including, if

required, any inspection and any trans-loading of the goods

from any of the 9 railcars to enable their forwarding to

destination. This Notice of Loss, Damage or Delay

therefore additionally gives notice for any damage to or

delay in the transportation of the goods within these 9

railcars. Particulars of the amount of such damage are not

presently available to or known by the Notifying Parties.

B. Damaged or Destroyed Railcars.

The 63 derailed tank cars were destroyed beyond

repair. WPC leased those cars from six different lessors. If

those lessors are unable to recoup the casualty value of the

66a

destroyed cars from MMA in accordance with the AAR

Interchange Rules, WPC may be responsible under the

terms of its leases. Another railcar which was not derailed

and destroyed, car ACFX 73452, also suffered apparent

damage. Transport Canada issued a Detention Notice for

this car on October 25, 2013 based on structural damage

that the car sustained at the Lac-Mégantic derailment. The

Notifying Parties assert that it is the obligation of MMA

and CPR to repair this damage and to transport the crude

oil cargo (goods) that is contained in car ACFX 73452 to its

final destination. Costs of further inspection and any repair,

if assessed to or payable by the Notifying Parties, are as

yet unknown. In addition to the destroyed tank cars and to

car ACFX 73452, one or more of the remaining 8 tank cars

and buffer car may have been damaged and the lessors may

demand that WPC or any of the Notifying Parties pay for

additional inspection and testing, movement to shop and

repairs. Consequently, the Notifying Parties are unable to

determine the precise amount of their losses for all

damaged or destroyed railcars at this time, and they put

the CPR and MMA on notice of all such prospective losses.

C. Other Potential Liabilities.

In addition to the foregoing damage to the Notifying

Parties’ cargo and railcars, the Notifying Parties have

incurred, and will continue to be exposed to, other losses

for alleged liabilities arising from the derailment. These

include, but are not limited to, environmental clean-up costs

that have been imposed by the Quebec government in

Order 628 issued under section 114.1 of the provincial

Environment Quality Act, c.Q-2, on July 29, 2013, as

amended by Order 628-A, issued on August 14, 2013 . In

addition, the Notifying Parties are co-defendants in

multiple lawsuits filed by victims of the derailment and

67a

their relatives. To the extent that the foregoing liabilities

may be recoverable under Railway Traffic Liability

Regulations, [Canada] (SOR/91-488), this Notice shall

constitute appropriate and timely notice to CPR and MMA

that the Notifying Parties may seek to recover from them

all such losses for or arising from any such alleged

liabilities.

III. Contact Information.

Please address all correspondence concerning this Notice

to the Notifying Parties, care of:

R. Alexander Lake

SVP, General Counsel & Corporate Secretary

World Fuel Services Corporation

9800 NW 41st Street

Miami, FL, 33178, USA

(305) 428-8233 (office)

(305) 392-5645 (fax)

alake@wfscorp.com (e-mail)

68a

EXHIBIT 1

69a

EXHIBIT 2

70a

EXHIBIT 3

71a

APPENDIX F

CANADIAN

PACIFIC

Suite 1000

120 South 6th St.

Minneapolis MN

55402

William M Tuttle

General Counsel U.S.

Tel 612 904 5967

Fax 612 851 5647

bill_tuttle@cpr.ca

VIA U.S. MAIL AND EMAIL (alake@wfscorp.com)

November 27, 2013

Mr. R. Alexander Lake

SVP, General Counsel & Corporate Secretary

World Fuel Services Corporation

9800 NW 41st Street

Miami, FL 33178

RE: Notice of Loss, Damages or Delay

Dear Mr. Lake:

Enclosed and served upon you via U.S. Mail and electronic

mail, please find Canadian Pacific’s Disallowance of Loss,

Damage and Delay Claims. Copyholders are receiving by

email only.

72a

Sincerely,

/s/William M. Tuttle

William M. Tuttle

General Counsel – U.S.

cc: Ken Peel (ken@fcrplaw.ca)

Donal Gardner, Jr. (mdgardner@mmarail.com)

Denis St-Ogne (denis.st-ogne@gowlings.com)

Pierre Legault (pierre.legault@gowlings.com)

Gilles Robillard (grobillard@richter.ca)

Sylvain Vauclair (svauclair@woods.qc.ca)

Enrico Fortini (eforlini@fasken.com)

Tim Thornton (tthornton@briggs.com)

Paul Guthrie

Patrick Riley

Bruce Turnbull

73a

Disallowance of Loss, Damage and Delay Claims

November 27, 2013

To:

World Fuels Services Corporation, World Fuel

Services, Inc., and Western Petroleum Company

(collectively Notifying Parties).

c/o R. Alexander Lake

SVP, General Counsel & Corporate Secretary

World Fuel Services Corporation

9800 NW 41st Street

Miami, FL 33178, USA

alake@wfscorp.com

Canadian Pacific Railway Company for itself and for its

parent, subsidiary, and affiliated companies (CP) disallows

the Notifying Parties’ Notice of Loss, Damage, or Delay

follows:

Jurisdiction

The Notifying Parties submitted their claim under

Canadian law – namely the Railway Traffic Regulation

[Canada] [SOR/91-488). But claims for damaged or

delayed goods on Train 282 are governed by United States

law – namely, the Carmack Amendment, 49 U.S.C. § 11706.

By invoking Canadian law, the Notifying Parties have

failed to submit a valid claim.

All Notifying Parties are United States corporations.

Notifying Parties tendered Train 282 to CP in the United

States at New Town, North Dakota, and the substantial

portion of CP’s movement of Train 282 took place in the

United States. Hence, as Sandra Brown’s August 19, 2013

letter on behalf of Notifying Parties acknowledges, the

Carmack Amendment (49 U.S.C. § 11706) governs the

74a

relationship between CP, as carrier, and any Notifying

Party, as shipper. In fact, ¶ 23 of the Notifying Parties’

Contestation of the Quebec Minister of Sustainable

Development, Environment, Wildlife, and Parks Order

insists that U.S. law governs lading claims.

Importantly, the Carmack Amendment limits lading

claim liability to the person “entitled to recover under the

... bill of lading.” As the designated shipper, that person

would appear to be Western Petroleum, and no other

Notifying Party entity. Further the Carmack Amendment

restricts carrier liability to “the actual loss or injury to the

property” received for transportation. Thus, even if

Western Petroleum were to submit a proper Carmack

Amendment claim, CP’s liability, if any, could not exceed

the value of the lading (crude oil) and would not encompass

rail-car damage claims or indemnity against third-party

tort or governmental environmental claims. Those matters

unquestionably go beyond the value of the property that

CP received for transportation.

Even though U.S. law delineates the rights and

obligations of CP, as carrier, and Western Petroleum, as

shipper, regarding lading claims, that statutorily

prescribed relationship does not restrict CP’s right to plead

and to rely upon the laws of Canada, including the Province

of Quebec, bearing on any extra-contractual claims, tort

claims, statutory claims, rail-car-damage claims, or

indemnity against third party extra-contractual claims

arising out of the Lac Mégantic derailment. In other words

the statute governing the shipper/carrier lading claim

relationship does not go beyond that context.

75a

CP Tariff

Items 41, 61, and 81 of CP Tariff 1 provide that “[b]y

ordering service from CP you are agreeing to and

accepting the terms and conditions published in CP tariffs

in effect at the time you place your order.” Similarly, Item

120 provides “[b]y sending shipping instructions for a

shipment to move CP you are agreeing to and accepting the

terms and conditions published in CP’s tariffs in effect at

the time you send the shipping instructions.” In recognition

of World Petroleum’s acceptance of those terms and

conditions, Richard Neville’s July 22, 2013 letter to Keith

Creel recognized that CP tariffs govern CP’s rights and

obligations regarding Train 282.

Tariff 1 specifies that the rules of Tariff 1 through 10

apply to all shipments carried on CP. Item 200 ¶ 1. And

Item 200 ¶ 2 specifies that shipments originating in the

United States will be deemed to use a U.S. Uniform

Straight Bill of Lading, which is exactly the shipping

document under which Train 282 moved – again confirming

the applicability of U.S. law. Item 200 ¶ 11(b) also subjects

this U.S. originating shipment (Train 282) to U.S. law, the

Carmack Amendment, 49 U.S.C. § 11706.

And contrary to Notifying Parties’ contention that CP

contracted with Montreal, Maine and Atlantic Railroad to

move Train 282, in ¶ 4 of Item 200, Tariff 1, Western

Petroleum represented and warranted to CP that Western

Fuels controlled the routing of Train 282, which is exactly

what happened in the case. As Item 130 specifies, “[f]or

shipments traveling to or from other railways, you request

which other railway(s) and where the interchange will

occur.” Train 282 moved beyond the Montreal area via

Montreal, Maine and Atlantic Railroad despite the

availability of an alternative, although more expensive,

76a

routing to the St. John’s refinery. According to the

governing tariffs that decision was Western Petroleum’s to

make. Hence, upon interchange with MM&A, CP’s

responsibility for and control over Train 282 ceased.

And since Train 282 carried hazardous commodities in

private cars, CP Tariff 8 and Tariff 6 applied. Those tariffs

made Western Petroleum responsible for the safety and

suitability of the cars in which the crude oil was to be

transported: the safety and suitability of DOT -111 rail cars

are the basis for many of the claims now pending in various

jurisdictions against the Notifying Parties. See Tariff 8,

Item 20 & Tariff 6, Item 2.

Besides that, Tariff 1, Item 120 requires the shipper to

submit accurate shipping instructions and offers help if

shippers have questions about shipping instruction

obligations. Yet even though Item 122 requires, for

ensuring safety, accurate disclosures of hazardous

commodity “Packing Groups,” Western Fuel

misrepresented that information: the crude oil was

designated as Packing Group 3, rather than the accurate

classification, Packing Group 2. That fraud obviates any CP

lading liability to Notifying Parties.

Additionally, Tariff 1, Item 200 ¶¶ 11(f) & (j) disclaims

liability for indirect and consequential damage, as well as

punitive and special damages. Nevertheless, the Notifying

Parties’ Notice seeks exactly those damages, including

damages the Notifying Parties will incur as a result of the

litigation, as well as the cost of defense, spawned by the Lac

Mégantic derailment.

Finally, Tariff 1, Item 200 ¶¶ 11(u) and 13 specify that

CP will only be liable for loss and damage that is directly

and proximately caused by or the result of CP’s intentional

77a

acts or omissions, or negligence. No CP act, omission, or

negligence caused or contributed to the Lac Megantic

derailment. To avoid tariff fault liability limitations,

shippers must request and pay for Full Liability

Transportation coverage (49 U.S. C. § 11706). Item 200 ¶

11(w). Notifying Parties failed to make a Full Liability

Transportation selection or payment.

Contact information

William M. Tuttle

Canadian Pacific

Suite 1000

120 South 6th Street

Minneapolis, MN 55402

(612) 904-5967

Bill_Tuttle@cpr.ca

78a

APPENDIX G

EXHIBIT A

Sheahan and Partners G.R. Environment and Litigation

4620 Sainte-Catherine Street West,

Westmount, Quebec H3Z 1S3

T. 514 507 9146 / F. 514 507 9846

N:628

Montréal, August 9, 2013

TO:

The Minister of Sustainable

Development, Environment,

Wildlife and Parks (the “Minister”)

BY:

Western Petroleum Company, legal

person duly constituted, having its

head office at 9531 W 78th Street,

suite 102, Eden Prairie, Minnesota

55344, United States

World Fuel Services Corporation,

legal person duly constituted, having

its head office at 9800 N.W. 41st

Street, suite 400, Miami, Florida

33178 United States

APPLICATION FOR REVIEW

Order n°628 issued by the Minister of Sustainable

Development, Environment, Wildlife and Parks on July

29, 2013 (the “Emergency Order”)

To the Honourable Minister,

79a

The Emergency Order at issue was aimed at four parties:

Montréal, Maine & Atlantique Canada Cie, Montréal,

Maine & Atlantic Railway Ltd. (collectively “MMA”),

Western Petroleum Company (“WPC”), and World Fuel

Services Corporation (“WFSC”) and provides, in

accordance with section 5 of the Act respecting

administrative justice, the parties to whom it is addressed

the opportunity to submit observations regarding the

Emergency Order within ten (10) days following the date

of notification of the Emergency Order. For the record,

WPC and WFSC both received the Emergency Order on

August 1st, 2013. It was however agreed between the

undersigned counsel and the attorneys of the Ministry of

Sustainable Development, Environment, Wildlife and

Parks (“MSDEWP”) that the delay to provide the

application for review under the EQA would be August 9,

2013.

Since the issuance of the Emergency Order, WPC and

WFSC have deployed all necessary due diligence to ensure

that the terms of the Emergency Order are being complied

with, under reserve of their right to seek review and to

contest it in accordance with section 96 of the

[p.6]

attached as Schedule 2 because it coordinated the

entrustment of the shipment to Canadian Pacific.

Because the crude oil was never owned by WFSC or WPC,

the Emergency Order is improperly directed against these

parties.

Moreover, WFSI is not the owner of the crude oil because

ownership effectively transferred to MMA when that

company assumed the right to dispose of or to sell the

80a

spilled crude oil after the derailment. As discussed above,

WPC entrusted the tank cars and crude oil to Canadian

Pacific under a through bill of lading issued in New Town,

North Dakota. Because the point of origin of the shipment

was in the United States, we have been informed by U.S.

counsel it is subject to the Carmack Amendment discussed

above. See 49 U.S.C. § 11706(a), Schedule 3. Under

Canadian choice of law principles, the Carmack

Amendment governs the parties’ respective rights and

obligations with respect to the crude oil after the

derailment. See Article 3111 CCQ as a result of item 200-2

of Canadian Pacific Tariff 1 rules and regulations

incorporating by reference the U.S. Uniform Straight Bill

of Lading which is therefore expressly designated as the

applicable U.S. law.

According to U.S. counsel, under the Carmack

Amendment, Canadian Pacific and MMA became jointly

and severally liable for the actual loss and damage to the

cargo once the derailment occurred. See 49 U.S.C. § 11706

referred to above. As such, either railroad had the right to

salvage and dispose of or sell the compromised crude oil on

its own account. Once a railroad does so, it has effectively

exercised ownership rights over the oil and the railroad has

the right to dispose of the oil however it sees fit. In that

circumstance, WFSI’s recourse under 49 U.S.C. § 11706 is

to be compensated for the actual loss and damage by one of

the railroads, including the origin carrier that was

originally entrusted with the goods (Canadian Pacific in

this instance). Consistent with these principles, MMA

asserted immediately after the derailment that it is the

owner of the crude oil that was damaged and released from

the tank cars, and has exercised its right to reclaim and

dispose of or sell that compromised crude oil. WFSI did not

contest MMA’s doing so. Consequently, WFSC, WPC and

81a

WFSI relinquished any ownership in the crude oil they had

when MMA assumed its right to dispose of and sell the

compromised oil after the derailment.

Paragraph 5:

To the extent that the statements contained in paragraph

5—stating that “section 8 of the Regulation respecting

hazardous materials (“RRHM”) provides that it is

prohibited to emit, deposit, release or discharge a

hazardous material into the environment or into a sewage

system, or to allow the emission, deposit, release or

discharge”—are directed at WPC or WFSC, it is incorrect

to do so.

The Emergency Order is directed at WFSC and WPC

solely by virtue of their alleged ownership of the spilled

crude oil. Setting aside the fact that these companies were

never the owners of

82a

APPENDIX H

NOTICE OF CLAIM

Dated April 4, 2014

TO:

Canadian Pacific Railway Company

c/o Damage Prevention & Claim Services

14 Fultz Boulevard, Winnipeg MB, R3Y 0L6

E-mail: contact_dpfo@cpr.ca

Fax: 1-877-685-3555

This Notice of Claim is submitted by World Fuel

Services Corporation (“WFSC”), World Fuel Services Inc.

(“WFSI”), and Western Petroleum Company (“WPC”)

(collectively “Claimants”) to the Canadian Pacific Railway

Company (“CPR”), Canadian Pacific Railway Limited

(“CPRL”), CPRC and Soo Line Corporation (“CPRC”), Soo

Line Railroad Company (“Soo Line”), and Dakota,

Minnesota & Eastern Railroad Corporation (“DME”)

(collectively “CPR entities”), pursuant to 49 U.S.C. § 11706,

for losses sustained as a consequence of the derailment of

Unit Train 606-282 (“Train 282”) on July 6, 2013 near Lac

Mégantic, Quebec. Claimants assert that the CPR entities

are liable to Claimants for the losses described in this

Notice.

This Notice of Claim is submitted at this time by the

Claimants without prejudice to any of their rights to bring

any or all of their claims in any venue or jurisdiction

available to them, and without prejudice to any of their

rights to plead and rely upon the laws of the United States

of America or Canada as are applicable.

83a

I. Background Information on Train 282.

On July 6, 2013, Train 282 consisted of one buffer car

and 72 tank cars1 containing petroleum crude oil (STCC

4910165) to be transported from New Town, ND (U.S.A.)

through to destination at Saint John, New Brunswick

(Canada). CPR issued Waybill No. 243537 (attached as

EXHIBIT 1) and an unnumbered bill of lading (EXHIBIT

2). The bill of lading identifies CPR as the origin carrier

that issued a through bill of lading for transportation of

Train 282. Train 282 moved pursuant to a joint through

rate. The bill of lading identifies WPC as the “Shipper,”

Irving Oil Ltd. as the “Consignee,” and WFSC as the party

to be billed. WFSI held title to the crude oil and was the

entity invoiced by CPR for Train 282 (EXHIBIT 3).

CPR originated Train 282 at New Town on June 29,

2013, obtaining possession of the Claimants’ cargo and rail

cars at their point of origin, and transported the Train to

CPR’s Côte Saint-Luc Yard, in the greater Montreal area,

Quebec, where, on July 5, 2013, it interchanged Train 282

with the Montreal, Maine & Atlantic Canada Co. (“MMA”).2

Claimants did not contract separately with MMA. Early

the following morning, July 6, 2013, the Train rolled

towards Lac-Mégantic, where 63 of the 72 tank cars

derailed, spilling their contents; there was an ensuing fire,

loss of 47 lives, and property and environmental damage.

Although Train 282 consisted of 78 tank cars when it departed New

Town, ND, 6 cars were bad-ordered en route, leaving only 72 cars on

the Train at the time of the derailment.

The Montreal, Maine & Atlantic Canada Co. is owned and operated by

Montreal, Maine & Atlantic Railway, Ltd., and all references herein to

“MMA” shall encompass both entities.

84a

II. Claimants’ Losses.

Claimants’ determinable and calculable losses, as of the

filing of this Notice, are as follows:

Lost Cargo

$4,346,429.30

Damaged or

Destroyed Rail Cars

$2,324,163.97

Environmental

Clean-Up Expenses

To be determined

Wrongful Death,

Personal Injury,

Property Damage,

and Other Litigation

Loss

To be determined

TOTAL

DETERMINABLE/

CALCULABLE

DAMAGES AS OF

APRIL 4, 2014

$6,670,593.27

Except for the costs incurred for the lost cargo and

some costs related to damaged or destroyed railcars, the

foregoing summary of Claimants’ losses cannot be

determined or calculated with greater specificity at this

time. Many of these losses are not yet fully known because

they are continuing to accrue and/or Claimants’

responsibility, if any, has not yet been determined. In

addition, the Claimants have suffered and shall foreseeably

incur costs and expense of all counsel and contracted

expertise, and the risk of costs and loss in projected and

pending suits, actions or proceedings in multiple

85a

jurisdictions. Therefore, Claimants reserve the right to

supplement this Notice as such losses accrue and the

amount of such losses becomes known. Through this

Notice, Claimants assert that the CPR entities are liable

for all such losses as they accrue.

A. Lost Cargo.

The derailment resulted in a total loss of the cargo in

each of the 63 cars damaged or destroyed at Lac-Mégantic.

Each tank car contained approximately 30,000 US gallons

of petroleum crude oil. The 63 derailed cars collectively

contained a total of 42,254 barrels of oil. The crude oil had

been sold FOB destination to Irving Oil Ltd., the consignee

for Train 282, for $4,346,429.30. The transaction price is

supported by the invoices attached as EXHIBIT 4.

Claimants assert that the CPR entities are liable to them

for the full value of the lost and destroyed cargo.

B. Damaged or Destroyed Rail Cars.

The 63 derailed tank cars were damaged or destroyed

beyond repair. WPC leased those cars from six different

lessors. Claimants expect that the lessors will attempt to

recoup the casualty value of the damaged or destroyed cars

from MMA; if the lessors are not successful at recouping

the full value of the rail cars (or any value at all), Claimants

assert that the CPR entities are liable for the remaining

costs and expenses related to this loss.

Claimants are unable to determine the precise amount

of their losses for damaged or destroyed rail cars at this

time. Nevertheless, Claimants have attempted to provide

as complete an estimate as possible based upon information

currently known. EXHIBIT 5 is a spreadsheet that, for

each destroyed rail car, identifies the Lessor, car number,

and casualty value. The estimated casualty values have

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been provided by the lessors in correspondence attached as

EXHIBIT 6. Several of the lessors, however, have not yet

provided Claimants with casualty values and may not do so

until the status of their claims against MMA in bankruptcy

have been resolved. In the meantime, Claimants continue

to experience losses from continuing rental obligation

under the leases as shown in EXHIBIT 7. Even for those

lessors that have provided casualty values for their tank

cars, the amount of Claimants’ liability, if any, under the

terms of their leases has not been determined.

The amount in this Notice of $2,324,163.97 is based upon

the known casualty values identified in EXHIBIT 5 and

currently known rental obligations identified in EXHIBIT

7. Claimants will supplement this Notice with additional

casualty values and rental payments as they become known

and when the tank car lessors demand payment from the

Claimants.

In addition to the 63 derailed railcars, one or more of

the remaining 9 non-derailed tank cars may have been

damaged and the lessors may demand that Claimants pay

for such repairs or damage. If and when such claims are

made against the Claimants, this Notice will be amended.

Claimants assert that the CPR entities are liable for all of

these costs and expenses.

C. Environmental Clean-Up Expenses.

When Train 282 derailed, 63 rail cars released their

contents into the environment. Claimants are involved in

proceedings involving the Minister of Sustainable

Development, Environment, Wildlife and Parks (the

“Minister”) before the Tribunal Administratif du Québec

through which they are contesting two Orders issued by

the Minister (EXHIBIT 8). Claimants expect that there

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could be additional environmental actions brought against

them. To the extent that Claimants are held liable and

incur loss related to environmental assessments and cleanup costs, containment and recovery efforts, or other

environmental loss (“Clean Up Expenses”), such losses are

included in this Notice. The precise amount of both the

Clean Up Expenses and Claimants’ portion of such Clean

Up Expenses has not yet been determined. Claimants

assert that the CPR entities are liable for Claimant’s

portion of such costs, and Claimants will amend this Notice

periodically to report additional costs as they accrue.

Personal Injury, Wrongful Death, Property

Damage, and Other Litigation Loss.

Claimants are co-defendants in multiple lawsuits filed

by victims of the derailment and their relatives. EXHIBIT

9 is a list of all known actions as of the date of this Notice.

Claimants are also co-defendants in a lawsuit filed by

MMA’s trustee in the United States Bankruptcy Court for

the District of Maine (EXHIBIT 10) and anticipate that

future claims may be filed against them, including claims

for personal injury, wrongful death, property damage,

indemnification, and other claims related to the July 6, 2013

derailment. Although no action or claim has resulted in the

imposition of liability upon Claimants at this time, to the

extent that Claimants may incur any liability or loss

(including settlements) in any of these actions or claims,

such losses are included within the scope of this Notice. In

addition, Claimants have incurred, and will continue to

incur, costs to defend these legal actions and claims, for

which Claimants assert that the CPR entities are

responsible. Claimants will amend this Notice as and when

such amounts accrue and are determinable. Claimants

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assert that the CPR entities are liable for all of these costs

and expenses.

IV.

Contact Information.

Please address all correspondence concerning this Notice

to the Claimants, care of:

R. Alexander Lake

SVP, General Counsel & Corporate Secretary

World Fuel Services Corporation

9800 NW 41st Street

Miami, FL, 33178, USA

(305) 428~8233 (office)

(305) 392~5645 (fax)

alake@wfscorg.com (e-mail)

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APPENDIX I

Disallowance of Carmack Amendment claims

April 24, 2014

To:

World Fuels Services Corporation, World Fuel

Services, Inc., and Western Petroleum Company

(collectively Claimants).

c/o R. Alexander Lake

SVP, General Counsel & Corporate Secretary

World Fuel Services Corporation

9800 NW 41st Street

Miami, FL 33178, USA

alake@wfscorp.com

Canadian Pacific Railway Company for itself and for its

parent, subsidiary, and affiliated companies (CP) disallows

Notice of Claim follows:

Jurisdiction

In November of 2013 Claimant submitted a claim under

Canadian law – namely the Railway Traffic Regulation

[Canada] [SOR/91-488] for damages associated with Train

282’s derailment. In April those same Claimants submitted

a claim regarding Train 282 under United States law –

namely, the Carmack Amendment, 49 U.S.C. § 11706.

All Claimant are United States corporations. Claimants

tendered Train 282 to CP in the United States at New

Town, North Dakota, and the substantial portion of CP’s

movement of Train 282 took place in the United States. As

a result, the Carmack Amendment (49 U.S.C. § 11706)

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together with CP’s tariffs govern the relationship between

CP, as carrier, and any Claimant, as shipper. In fact, ¶ 23

of the Notifying Parties’ Contestation of the Quebec

Minister of Sustainable Development, Environment,

Wildlife, and Parks Order insisted that U.S. law governs

lading claims.

Importantly, the Carmack Amendment limits lading

claim liability to the person “entitled to recover under the

. . . bill of lading.” As the designated shipper, that person

would appear to be Western Petroleum, and no other

Claimant entity. Further the Carmack Amendment

restricts carrier liability to “the actual loss or injury to the

property” received for transportation. Thus in the event of

a proper Carmack Amendment claim, CP’s liability, if any,

could not exceed the value of the lading (crude oil) and

would not encompass rail-car damage claims or indemnity

against third-party tort or governmental environmental

claims. Those matters unquestionably go beyond the value

of the property that CP received for transportation.

Even though U.S. law delineates the rights and

obligations of CP, as carrier, and Western Petroleum, as

shipper, regarding lading claims, that statutorily

prescribed relationship does not restrict CP’s right to plead

and to rely upon the laws of Canada, including the Province

of Quebec, bearing on any extra-contractual claims, tort

claims, statutory claims, rail-car-damage claims, or

indemnity against third party extra-contractual claims

arising out of the Lac Megantic derailment In other words

the statute governing the shipper/carrier lading claim

relationship does not go beyond that context.

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CP Tariff

Items 41, 61, and 81 of CP Tariff 1 provide that “[b]y

ordering service from CP you are agreeing to and

accepting the terms and conditions published in CP tariffs

in effect at the time you place your order.” Similarly, Item

120 provides “[b]y sending shipping instructions for a

shipment to move CP you are agreeing to and accepting the

terms and conditions published in CP’s tariffs in effect at

the time you send the shipping instructions.” In recognition

of World Petroleum’s acceptance of those terms and

conditions, Richard Neville’s July 22, 2013 letter to Keith

Creel insisted that CP tariffs govern CP’s rights and

obligations regarding Train 282.

Tariff 1 specifies that the rules of Tariff 1 through 10

apply to all shipments carried on CP. Item 200 ¶ 1. And

Item 200 ¶ 2 specifies that shipments originating in the

United States will be deemed to use a U.S. Uniform

Straight Bill of Lading, which is exactly the shipping

document under which Train 282 moved – again confirming

the applicability of U.S. law. Item 200 ¶ 11(b) also subjects

this U.S. originating shipment (Train 282) to U.S. law, the

Carmack Amendment, 49 U.S.C. § 11706.

And contrary to Claimant’s contention that CP

contracted with Montreal, Maine and Atlantic Railroad to

move Train 282, in ¶ 4 of item 200, Tariff 1, Western

Petroleum represented and warranted to CP that Western

Petroleum controlled the routing of Train 282, which is

exactly what happened in the case. As Item 130 specifies,

“[f]or shipments traveling to or from other railways, you

request which other railway(s) and where the interchange

will occur.” Train 282 moved beyond the Montreal area via

Montreal, Maine and Atlantic Railroad despite the

availability of an alternative, although more expensive,

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routing to the refinery in St. John NB. According to the

governing tariffs, that decision was Western Petroleum’s to

make. Hence, upon interchange with MM&A, CP’s

responsibility for and control over Train 282 ceased.

And since Train 282 carried hazardous commodities in

private cars, CP Tariff 8 and Tariff 6 applied. Those tariffs

made Western Petroleum responsible for the safety and

suitability of the cars in which the crude oil was

transported: the safety and suitability of DOT-111 rail cars

are the basis for many of the claims now pending in various

jurisdictions against the Claimants. See Tariff 8, Item 20 &

Tariff 6, Item 2.

Besides that, Tariff 1, Item 120 requires the shipper to

submit accurate shipping instructions and offers help if

shippers have questions about shipping instruction

obligations. Yet even though Item 122 requires, for

ensuring safety, accurate disclosures of hazardous

commodity “Packing Groups,” Western Petroleum

misrepresented that information: the crude oil was

designated as Packing Group 3, rather than the accurate

classification, Packing Group 2. That fraud obviates any CP

lading liability to Notifying Parties.

Additionally, Tariff 1, Item 200 ¶¶ 11(f) & (j) disclaims

liability for indirect and consequential damage, as well as

punitive and special damages. Nevertheless, the Claimants’

claims seek that exact relief, including damages the

Claimants will incur as a result of the litigation, as well as

the cost of defense, spawned by the Lac Megantic

derailment.

Finally, Tariff 1, Item 200 ¶¶ (u) and 13 specify that CP

will only be liable for loss and damage that is directly and

proximately caused by or the result of CP’s intentional acts,

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omissions, or negligence. No CP act, omission, or

negligence caused or contributed to the Lac Megantic

derailment. To avoid tariff fault liability limitations,

shippers must request and pay for Full Liability

Transportation coverage (49 U.S.C. § 11706). Item 200 ¶

11(w). Claimants failed to make a Full Liability

Transportation selection or payment.

Contact information

William M. Tuttle

Canadian Pacific Railway Limited

Suite 100

120 South 6th Street

Minneapolis, MN 55402

(612) 904-5967

Bill_Tuttle@cpr.ca

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.