# Petition — Maislin Transport of Delaware v. Farrell Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0187%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 875 ## Text Supreme Court, U.S. 80-165 ici: DN ilacdischinesciisie AUG 4 1980 MICHAEL RODAK, JR., CLERK In THE Supreme Court of the United States Octoser TERM, 1980 Maistin Transport or DeLAwaRE and Maistin Transport Ltp., Petitioners, —against— FarrELL Lines, INcorroratrep, As Successor by Merger to American Export Lines, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PETITION FOR A WRIT OF CERTIORARI JosepH S. Rosen tTHAaL Counsel for Petitioner 1140 Avenue of the Americas New York, New York 10036 (212) 575-9100 Questions Presented for Review 1. Where an ocean carrier of goods under a through bill of lading, including an inland voyage, contracted with an inland carrier for the latter to carry the goods on the in- land voyage, on an inland bill of lading prepared by the ocean carrier; the inland bill of lading stated that where the freight rate is dependent on value, the shipper is required to state in writing the agreed or declared value of the shipment; the inland carrier’s filed tariff stated that where no value for the goods is shown on the bill of lading, it is understood that the shipment has a released value of $500.00; the spaces on the inland bill of lading for both freight rate and valuation of the goods were left blank; the freight rate paid by the ocean carrier to the inland carrier was based on the released value of $500.00, although the actual value was greater; and the ocean carrier and the inland carrier had had a course of conduct under which the ocean carrier had prepared the inland bills of lading, the spaces for freight rate and valuation had been left blank and the ocean carrier had paid the minimum, or re- leased value, freight rate, did the Carmack Amendment (49 U.S.C., Sec. 20(11), in effect at the applicable times per- mit the inland carrier to avail itself of the limitation of liability of $500.00, for damage to the goods en route? 2. Assuming the same facts as are contained in the previous question, do the provisions of 49 U.S.C., Section 10730, presently in effect, permit the inland carrier to avail himself of the said limitation of liability, for damage to the goods en route? Parties to the Proceeding The title of this action in the United States District Court for the Southern District of New York, where this action was commenced, was as follows: UNITED STATES DISTRICT COURT SoutHerN District or New York 77 Civ. 4175 (LFM) Gorpon H. Mooney, Limirep, Plaintiff, —-against— TerrLtotH & Kennepy B.V., American Exporr Lings, Inc., SEABRIDGE INTERNATIONAL SHIppine Limirep, Mats- Lin Transport oF DELAWARE and Maisuin TRANSPORT LIMITED, Defendants, . The title of ths action in the United States Court of Appeals for the Second Circuit was as follows: lil IN THE UNITED STATES COURT OF APPEALS For THE SEconpD Circuit Gorpon H. Moonery, Limited, Plaintiff-Appellee, —against— TerrLoTtH & Kennepy B.V., American Export Lines, Inc., SEABRIDGE INTERNATIONAL Suippine Lrtp., Maisuin Transport oF DeLAwarE and Maistin Transport Lrtp., Defendants, and FarreELL Lines, INcorPoRATED, As Successor by Merger to American Export Lines, Defendant-A ppellant, and Matsuin Transport or DeLaware and Maisurn Transport Ltp., Defendants-Appellees, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK lv TABLE OF CONTENTS PAGE Questions Presented for Review 00.0.....0..ccccccccseseeeeeeeeeeee i Wremee CO TG Eh POCOOIIS wisi Bol ctitecsicec eves il IY TON a a alt on case la a et 1 SPUAPRIERDCROUARE FOCWECIINOINE nina occcevovecenctbidecisesnchsessachons 1 eM I a2 cet isccspcen cece rnasrotaumadelnae 2 SPIN UE” OU I ios i sede cul samedi iaorses teases 2 ARGUMENT The Writ of Certiorari Should Be Allowed ............ 7 Point I— The Court of Appeals Committed Error in Dis- allowing Petitioner’s Claim of Limitation of Lia- I Wiehe hnsehpiaccsakenatleia chile wich Shit shce chia Ab exsonbinchon 7 Point II— The Court of Appeals Has Decided an Important Question of Federal Law in a Way in Conflict With the Lindenburg Case and in Conflict With | ORME den Gis A RNASE IN cel MU oF 12 NE Baa DE SSR aE OS Le, EO TaD. Ry a by 14 APpPENDIX— PAGE Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern RE EY TU tn la Decision of Hon. Lloyd F. MacMahon, United en ere ION a 16a Memorandum of Judge MacMahon, Amending the TCS Se ES MOREE UTE IN CINDS AT OER 20a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the ERENCE ETON RO a 21a Order of United States Court of Appeals Clarify- I I cide a i 36a Order of United States Court of Appeals Extend- ing Time to File Petition for Rehearing ................ 38a Order of United States Court of Appeals Denying Uv: UOT 4la Text of Carmack Amendment, 49 U.S.C., Section 20(11), Applicable During the Times in Question .. 43a Text of 49 U.S.C., Section 10730, Effective October BRANES Dy aM We RS OO CIRCE LED 47a Inland Bill of Lading For the Shipment in MINI tipi eucnicicdsisidiiianblnsenisNbcanin diaidasenin oc ee 48a vi TABLE QF AUTHORITIES Cases: PAGE American Railway Express Co. v. Lindenburg, 260 U.S. 584, 43 Sup. Ct. 206 (1922) 000... 7-8, 8-9, 10, 11, 12, 13, 14 Anderson v. Pacific Coast Steamship Co., 225 U.S. 187, 198-199, 32 Sup. Ct. 626, 630 (1911) 00. 13 Boeing Co. v. U.S.A.C. Transport Inc. 539 F.2d 1228 RUIN TE ral Court of Appeals on a federal question “in a way in conflict with applicable decisions of this Court.” Both these criteria are present in the instant case, The decision by the Court of Appeals for the Second Circuit in 13 this case is in plain conflict with the Lindenburg decision, supra, of this Court and the Boeing decision, supra, of the Court of Appeals for the Ninth Circuit. Moreover, this case did not decide some abstruse point of law which will have no practical application except as between the instant parties. The Carmack Amendment is one of the single most important statutes regulating the interstate transportation of goods. Although, as the Cuurt of Appeals pointed out, it has recently been amended (49 U.S.C., Section 10730, Public Law 95-473, October 17, 1978), no substantive change was intended. Section 10730 states that a carrier’s liability may be “limited to a value established by a written declaration of the shipper, or by a written agreement, when that value would be reasonable under the circumstances surrounding the transportation.” (Emphasis supplied.) The corresponding language in the Carmack Amendment spoke of “rates dependent upon the value declared in writ- ing by the shipper or agreed upon in writing as the released value of the property.” (Emphasis supplied.) In view of the similarity of language, it may safely be assumed that when Congress recodified Title 49 of the United States Code, it intended that the law governing limitations of liability would remain the same. See, for example, Anderson v. Pacific Coast Steamship Co., 225 U.S. 187, 198-199, 32 Sup. Ct. 626, 630 (1911). It is a matter of common knowledge that the type of shipment which occurred in this case, a containerized ocean voyage followed by transshipment of the same container on an inland voyage, is becoming increasingly more prev- alent. It is respectfully submitted that the instant decision of the Court of Appeals will cause a great deal of mischief 14 in this field. Courses of conduct between carriers and ship- pers and between carriers and other carriers, sanctioned by many years of usage under the Lindenburg doctrine, have been called int» question. Other Courts, both state and federal, which have not as yet decided this issue, will be faced with a dilemma when they are called upon to decide that issue, in view of the present conflict in decisions. We respectfully request this Court to grant the Writ of Certiorari, so as to resolve this issue. CONCLUSION The Petition for a Writ of Certiorari Should Be Granted. Respectfully submitted, JosePH S. RosentTHAL Counsel for Petitioner 1140 Avenue of the Americas New York, New York 10036 (212) 575-9100 Harvey P. RosEnsBereG Epwarp CHERNEY Of Counsel APPENDIX Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York UNITED STATES DISTRICT COURT SoutHern District or New York 77 Civ. 4175 (LFM) Gorpon H. Moonry, Limrrep, Plaintiff, —against— TerFLotH & Kennepy B.V., American Export Lings, Inc., Seasrivce INTERNATIONAL SxHrippine Limirep, Martsiin Transport oF DerLtaAwaRE and Matsutin TRANSPORT LIMITED, Defendants. I. Preliminary Statement Plaintiff, which imported Dover sole from Rotterdam to Toronto, seeks damages against American Export Lines, Inc. (AEL) and Maislin Transport of Delaware (Maislin) because the fish (shipped in a container overseas to New York and by truck to Toronto) arrived in Toronto decom- posed and unmarketable. AEL was the ocean carrier to New York and Maislin the inland truck carrier to Toronto. The essence of the claim against AEL and Maislin is that the shipment should have been refrigerated at 5° below zero but after arrival in New York the temperature was changed and the shipment decomposed at Toronto. 2a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York After hearing certain testimony Judge MacMahon by order dated May 9, 1978 referred the action to me for trial and findings of fact pursuant to stipulation among the parties. The trial was held before me on October 25, 26, and 27, 1978. Many post-trial briefs were filed and oral argu- ment was held on March 12, 1979. Briefly stated the contentions of the parties are as fol- lows: Plaintiff claims that AEL and Maislin are each re- sponsible for the damage sustained without any limitation of liability in their favor. AEL claims that 1) the damage occurred after the container was turned over to Maislin and Maislin alone is liable, and 2) while AEL does not rely on any limitation of liability as against plaintiff, it seeks indemnity from Maislin for any liability without any limi- tation in Maislin’s favor. Maislin claims that 1) it is not liable since in raising the temperature it acted reasonably and in reliance upon the negligent instructions of ABL, a sophisticated carrier, and 2) in any event it is entitled to the benefit of a tariff limitation of $500. II. Evidence At Trial A. Shipment to Canada. Decomposition of Fish. At the trial plaintiff called as witnesses Mr. Mooney, plaintiff’s president and sole stockholder (4 et. seq.); Mr. Lees, supervisor of Department of Fishing (57); Mr. Darl- ington, employee of Seabridge (agent of AEL) whose duty was to document imports (106); Mr. Hallek, maintenance manager for AEL (193); Mr. Terrell, truck driver of 3a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York Maislin (238); and Mr, Pace, director of claims for Maislin (265). AEL called Mr. Henkels, transportation consultant (144) and Mr. Crawford, surveyor (362). Maislin called Ms. Crapser, biller for Maislin (330), and Mr. Gallo, long haul dispatcher of Maislin (339). Plaintiff is in the business of merchandising frozen fish. On July 15, 1976 it contracted for the purchase of 36,000 pounds of Dover sole (Pitff. Ex. 1). It received from the seller an invoice dated August 25, 1976 (Pltff. Ex. 2). It received from AEL a bill of lading (PItff. Ex. 3) which de- scribes the goods as follows: “40 ft. reefercontainer s.t.c. 700 cartons iqf Doversoles, size 12/16 700 cartons iqf Doversoles, size 16/20 Marks: N/M Hovsr/Hovusr Surp- pers Loan Storacr anp Count Freicut Prepar Tempera- ture minus 5 degrees Fahrenheit below zero. Packers seal no: 0716 Shipped on board August 24th 1976.” As appears from Pltff. Ex. 4, AEL on three occasions transferred the 1,400 boxes of frozen Dover soles into dif- ferent containers and thus had knowledge that it was pack- ing 1,400 containers of frozen fish, AEL is not urging that the container and its contents constituted a single package subject to the loss or damage liability limitation of $500 per package. Paragraph 16 of the bill of lading provides for the $500 limitation and limits the carrier’s liability “unless the na- ture of the goods and a valuation higher than $500 per package or shipping unit shall have been declared in writ- ing by the shipper”. A significant clause of the bill of lading, upon which AEL relies, is Paragraph 10 which states in pertinent part: “... the liability of (American Export Lines) shall abso- lutely cease when the goods are out of its exclusive pos- 4a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York session and shall not resume until the goods again come into its exclusive possession; and the responsibility of this Carrier during any such period shall be that of an agent of the Shipper and/or Consignee, and (American Export Lines) shall be without responsibility whatsoever”, The shipment arrived in New York on September 10. Plaintiff was notified on that day of its arrival. In order to obtain the shipment it was necessary for plaintiff to arrange with its bank to finance the purchase (16, 29). Plaintiff negotiated with its bank in Canada from Septem- ber 10 to September 27 and made arrangements for the release of the bill of lading. In the meanwhile the con- tainer was at the Maislin yard at Toronto (117). There is no question that the shipment was properly refrigerated below zero while on the vessel but that after it was turned over to Maislin for delivery to Toronto the temperature was increased. When the shipment was finally opened at the Maislin yard in Toronto it was found to be decomposed. As testi- fied to in detail by the Canadian authorities, there were three examinations, thirty samples were examined, and the shipment was rejected as “refused entry due to decomposi- tion” (Pltff. Ex. 6, 72). Plaintiff’s insurer denied coverage (47), $4,500 was realized for the shipment in its actual condition leaving a balance claimed by plaintiff in Canadian currency of $92,100. I find that the shipment was not mar- ketable when opened in Toronto. B. Basic Documents At this point it will be helpful to diseuss the basic ship- ping and other documents, which are a backdrop of the dis- 5a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York pute, including their contents, the purpose for which prepared, the circumstances under which prepared and the expert testimony as to whether the documents and conduct of the parties was in accordance with usual business prac- tice. Inland Bill of Lading (Maislin Ex, E): As appears on its face this “inland bill”, prepared by AKL, is silent as to any temperature requirement. Crawford was asked: “Q. Would you say on a reefer container that some type of temperature or some instruc- tions as to freezing or condition should have been on that bill of lading. A. Yes. Q. Would you say that this was bad practice for AEL to do that. A. It’s certainly an error.” (402). Henkels was asked: “Q. Isn’t it a fact that ordinarily all shipping instructions are contained on the shipping order, which is the only, — represents the undertaking that the shipper imparts to the carrier and that the carrier agrees to accept. A. Yes.” (172). This document was turned over to Terrell, Maislin’s truck driver. Terrell testified that he received Maislin’s Ex. E, and Pitff. Ex. 8 (245). Interchange Order Prepared by AEL and Delivered to Trucker (Pliff. Ex. 8): As testified to before Judge MacMahon, Hallek said that this document was “an equipment interchange receipt”. It states “required temperature 50°, temperature set at 50°, temperature reads 50°”. He testified that the temperature recorded on this receipt “is the temperature that our inter- 6a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York change people felt or believed the temperature required on that container”. As appears from the face of this docu- ment, Terrell acknowledged the receipt of this document and testified that the “reefer mechanic did get up on the container and he read the temperatures that are contained in the TIR” (420). Crawford acknowledged that the tem- perature notation on Pltff. Ex. 8, as well as that on Pitff. Ex. 11, was an error explaining that “there were a number of containers of photographic material at the terminal at that time which had a 50° temperature requirement and the driver had written the number 50° down and he just wrote 50° on this slip in error” (421). Reefer Receipt (Pltff. Ex. 11): This repeats the information in the TIR (PItff. Ex. 8) as to the required temperature of 50°. Pro or way Bill Prepared by Maislin (AEL Ex. A): This document has a notation “maintain 40 deg. temp.” which was explained by the testimony of Crapser and Gallo. When the container arrived at its terminal in Carney, Crapser, who had the responsibility of preparing the pro or way bill, decided that the container needed some protec- tive service and asked Gallo, line dispatcher, about some sort of protective service (333). Gallo testified that he checked the TIR (Pitff. Ex. 8) and the maintenance super- visor Fahrenfeld told him that the reefer was running at | 40° and Gallo passed this information on to Crapser (344). A notation “40°” appears on an inspection report (Pltff. Ex. 15). There was much discussion at the trial as to whether the various witnesses understood that Dover sole was fresh 7a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York fish. Maislin relies on the testimony of Terrell, Crapser, and Gallo that they did not know what Dover sole was, It contends that this is not generally known. Maislin urges that there was no indication on any of the documents that the cargo was perishable; and indeed, if known to be fish, it could have been dried fish which would not be frozen (355). C. Testimony of Other Witnesses Including Three Experts Called or Employed by AEL Testimony of Darlington: He testified that on September 27 a woman employee of Maislin told him that the fish had gone rotten and he sought to contact Chidiac, the operation manager of Maislin in New York. Unable to reach him he talked to Giordano, the assistant terminal manager, who said that “the girl in that office had made up the bill wrong” (123). A memorandum prepared by Darlington (PItff, Ex. 7) quotes Giordano as saying that “the container was set at wrong temperature and it was Maislin’s mistake”, In my view this statement or memorandum has little significance. There is no question that the inland bill of lading was “made up wrong” but the ultimate question is who is responsible for “making it up wrong” and whether the error is attributable to AEL. Testimony of Pace: His testimony dealt primarily with the records main- tained by Maislin relating to the circumstances under which the temperature was increased. He acknowledged that there was a gap in the records from September 10 to Sep- 8a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York tember 20 (281). His investigation disclosed that the way bill was prepared after inquiries made by Gallo, the dis- patcher (275). His view is that when the container reached Toronto it was shut off to reach 40°. AEL’s counsel and its expert Crawford were given access to all documents (357). In his view the documents prepared by and received from AEL justified Maislin in maintaining the temperature at 50° or less. Testimony of Terrell: As already noted, he received from AEL emvloyees Mais- lin’s Ex. E (inland bill) and TIR (Pltff. Ex. 8). He did not discuss the requested temperature when the documents were received (250). He received Pitff. Ex. 11 which noted a required temperature of 50° from the reefer mechanic. Testimony of Hallak: He testified that the TIR (Pltff. Ex. 8) was prepared by AEL and given to the driver of the equipment (224). When questioned as to the various documents and the requested temperature of 50° he significantly testified “I feel there was an error made by both parties” (226). Asked by the Magistrate “why shouldn’t the receiving carrier be entitled to accept that (the notations on the documents) at its face value?”’, he answered “I have no opinion” (228). Testimony of Henkels: He recognized that the TIR (Pltff. Ex. 8) was usually prepared by the party giving up control and acknowledged the receipt of the equipment (168). Admits that the TIR was prepared on behalf of AEL (170). He said that people 9a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York ir. the trucking business were expected to know what Dover sole is (153). He testified that the temperature was changed on September 9 or September 10 (393). Mr. Henkels ex- pressed the opinion that the later carrier should hold the temperature without regard to the documents received from the initial carrier (385). He stated that as far as temperature and instructions are concerned “I place no reliance whatsoever on a TIR” (386). Insisted that it was not good practice to change the temperature (410). IIT. Discussion, Findings, and Conclusions A. Plaintiff’s Claim Against AEL AEL’s position, relying upon Paragraph 10 of the bill of lading (II A, supra), is that it is relieved of any liability since the damage occurred to the shipment when it no longer had exclusive possession of the cargo. However, it overlooks the important provision in Paragraph 10 that even when the goods are out of the exclusive possession of AEL “the responsibility of this carrier during any such period shall be that of an agent of the shipper” (emphasis supplied). Under the facts here present AEL, acting as agent, breached its obligation as agent to take reasonable action to protect the cargo. Its conduct in giving inac- curate instructions to Maislin as to the temperature was a breach of such obligation. We have already reviewed (IT B, supra) the many documents and circumstances which show that they not only failed to include instructions in 10a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York the inland bill of lading prepared by it (Maislin’s Ex. E) but negligently gave inaccurate and misleading instructions in the TIR and other documents (PItff. Ex. 8). AEL’s ex- perts admitted that this was a mistake and bad practice. There can be no escape from the conclusion that AEL is liable for creating the unfortunate situation that developed by giving such inaccurate and negligent instructions. AKL, acting as agent, was under a duty to act reasonably to protect the cargo. It is a basic and elementary principle that if an agent fails to perform its obligations it is respon- sible for the damage caused. As was stated by the Supreme Court, as early as 1879, in Case v. Citizen’s Bank of Louisi- ana, 100 U.S. 446: “Whenever an agent violates his duties or obliga- tions to his principal, and loss ensues to the principal, he is responsible therefor, Judge Story, and is bound to make a full indemnity. Story, Ag., 6th ed., sec. 217 a.” AEL’s reliance upon the “last carrier doctrine” is un- availing. This doctrine, usually applied to a claim by a shipper, recognizes that the last carrier is not responsible if it can prove that “it was not negligent or that it comes within one of the COGSA ‘excepted causes’ ” § 1304(2). One of such causes is an act of the shipper. See Madow Co. v. SS Liberty Exporter, 569 F.2d 1183, 1185 (2d Cir. 1978). Here plaintiff in giving instructions to Maislin was acting as agent for the shipper, as set forth in the plain language of Paragraph 10 of the bill of lading. lla Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York B. Plaintiff’s Claim Against Maislin 1) The primary and serious negligent conduct of AEL, acting as agent for plaintiff, is chargeable to and binding upon the plaintiff shipper. While AEL contends that Mais- lin should not have relied upon the temperature instruc- tions from AEL, I believe this position is unreasonable and untenable. Plaintiff must seek redress from AEL alone. The fact that Maislin’s records were not entirely complete as to the precise time when the temperature was increased can not divert attention from the basic facts here present. Maislin acted responsibly and with diligence when the em- ployee prepared the pro or way bill (AEL Ex. A) after undertaking to ascertain what protection should be afforded to the container. While conceivably it might have made in- quiries beyond what it actually did, I am not prepared to find that it acted negligently or wrongfully. 2) Maislin contends that in any event its liability must be limited to $500. This presents a troublesome question. It relies on the following tariff provision under the Nia- gara Frontier Tariff, Tariff 787-B, in particular 210, which provides: “Retzasep VaLuation. Charges named in this tariff apply only when shipment is released to a value not exceeding $500.00 per container and contents. When no value is shown on the Shipping Order or Bill of Lading, it will be understood that the shipper agrees to and declares that the value of the shipment is released to an amount not exceeding $500.00 per container and contents.” AKL and plaintiff contend that this tariff limitation is not applicable and must yield to the statutory provision in the Carmack Act (49 USC § 20(b)(11)) whieh states 12a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York that any limitation of liability shall not be valid unless “declared in writing by the shipper or agreed upon in writing as the release value of the property”. In support of this contention reliance is placed on the decision of the Court in Caten v. Salt City Movers & Storage Co., Inc., 149 F.2d 428 (2d Cir. 1945) where in an action by the shipper against a rail carrier it was held that “any attempt to limit liability is prohibited except upon a declaration of value by the shipper in writing or a release value agreed to in writing”. Of interest also are the decisions of the New York Court in Kaufman v. Pennsylvania Railroad, 64 NYS 2d 690 (Ist Dept. 1945) and Loeb v. Friedman’s Express, Inc., 187 Mise. 89, aff’d without opinion, 296 NY 1029, cert. denied, 331 US 851 (1947). In Kaufman the action was to recover damages for the actual value of a suitcase. The bill of lading provided “subject to the classification and tariff in effect”. There was a statement in writing on the bill of the amount of the charge pre-paid by the shipper. Judgment was allowed for the value of the shipment. In Loeb, an action against a truck carrier, the charges were not entered in writing on the bill of lading nor were they pre-paid by the shipper. The Court distinguished Kaufman where the limitation was upheld on the ground that there the shipper “was estopped from asserting a higher value”. The Court held that “in the guise of judicial construction the Court should not re- write a statute”, Tn all the cases relied upon by plaintiff and AEL deny- ing limitation, the action was by shipper against carrier, not carrier against carrier. Here Maislin, the second car- rier, received a sealed container. As already noted, the ocean bill of lading issued by AEL had the usual $500 lim- 13a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York itation and it would be unusual to provide for a different provision with the later truck carrier. The tariff provision involved here, unlike that in the limitation cases relied upon, involved an “assumed $500 limitation”. As appears from Maislin Ex. F, under the course of conduct between AKL and Maislin there were forty-six bills of lading pre- pared by AKL on its forms and in all of these the minimum freight rate was paid. While no direct authority can be found recognizing the limitation, in the absence of a declaration of value in writing on the bill of lading, it can be argued with con- siderable force that under the course of conduct between AEL and Maislin, especially considering that Maislin was acting as agent for the shipper, AEL is estopped from ques- tioning the limitation. However, in view of my conclusion that apart from limitation Maislin can not be held respon- sible, this need not be determined. C. Claim for Indemnity by AEL Against Maislin In my view there is no sound basis for an indemnity claim against Maislin. I have already found that AEL was primarily responsible for the change of the temperature. It was more than a “but for” or “concurrent” cause. Its negligent and inaccurate instructions were the primary cause of the damage, constituting gross negligence, and I - find that Maislin did not act irresponsibly in changing the temperature. During oral argument I suggested the possibility that if the Court were to hold some measure of liability on the part of Maislin, consideration might be given to some ap- portionment of responsibility between AEL and Maislin. l4a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York In insisting that Maislin should be held solely responsible and that there would be no basis for an apportionment of responsibility, AEL cites certain authorities, Misurella v. Isthmian Lines, 328 F.2d 40 (2d Cir. 1964) and Albanese v. MV Nederi Amerik Stoom-Mats, 346 F.2d 481 (2d Cir. 1975), in which the shipowner, held responsible to a long- shoreman, was allowed indemnity against the stevedore even though there was evidence of the shipowner’s neg- ligence. The Court held that there was a breach of implied warranty by the stevedore in performing the services for which it was employed. The rationale of these cases is that “the shipowner’s own conduct will preclude it from obtain- ing indemnity from the stevedore” only when “it prevents or seriously handicaps the stevedore in his efforts to per- form his duties”. These authorities, which of course did not involve a claim by one carrier against another, are far afield from the present situation. It is my view that even if the Court were to determine that Maislin is responsible and also can not avail itself of the dollar limitation of liability, this might be an ap- propriate case for the apportionment of liability between AEL and Maislin. However, it is my strong determination that Maislin should not be held responsible and AEL alone should be held responsible. IV. Conclusions Plaintiff’s sole remedy is against AEL and it is entitled to recover the value of the shipment in Canadian dollars at the time of the decomposition on September 28, 1976. It was agreed at the time of oral argument that the value 15a Report of Magistrate Martin D. Jacobs, of the United States District Court for the Southern District of New York in American dollars of $92,100 in Canadian currency at such time was $94,760 and plaintiff should have judgment for such amount against AEL with interest from Septem- ber 28, 1976. Plaintiff’s claim against Maislin should be dismissed and also AKL’s claim against Maislin for indemnity. V. Miscellaneous There are being filed with this report the transcript of the trial, the exhibits, and the briefs submitted by the parties. Copies of this report have been mailed to counsel. Any objection to or comments upon this report should be filed directly with Judge MacMahon. Dated: New York, New York March 26, 1979 /s/ Martin D. Jacoss Martin D. Jacobs United States Magistrate 16a Decision of Hon. Lloyd F. MacMahon, United States District Judge UNITED STATES DISTRICT COURT SoutTHERN District or New York 77 Civ. 4175 (LFM) Gorpon H. Mooney, Lim:tep, Plaintiff, —against— TerFLotH & Kennepy, B.V. et al., Defendants. MacManon, District Judge. Farrell Lines Incorporated, successor by merger to de- fendant American Export Lines, Inc. (“Export”), moves pursuant to Rule 53, Fed.R.Civ.P., to modify the post-trial report of Magistrate Jacobs to grant Export full indemnity from defendants Maislin Transport of Delaware and Mais- lin Transport Limited (“Maislin”), or, in the alternative, to apportion liability between Export and Maislin as joint tortfeasors. Plaintiff, Gordon H. Mooney, Limited, brought this cargo damage action against Export and Maislin,* who then as- serted cross-claims against each other. We referred the action to Magistrate Jacobs, who filed a post-trial report holding Export solely liable. We note in considering Ex- port’s motion to modify that report that we must accept the findings below unless they are clearly erroneous. NLRB * The action was discontinued as to defendant Terfloth & Ken- nedy, B.V. by stipulation. 17a Decision of Hon, Lloyd F. MacMahon, United States District Judge v. J. P. Stevens & Co., 563 F.2d 8, 14 (2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978). It was stipulated that plaintiff contracted with Export to carry a cargo of frozen Dover sole from Amsterdam, the Netherlands, to Toronto, Canada; that plaintiff’s ship- per packed the fish into a container at minus 05° Fahren- heit; and that Maislin undertook to take the cargo from the ship at New York and transport it overland to Toronto. Furthermore, it is not disputed that the temperature inside the container was subfreezing upon its arrival in New York; that Maislin turned up the temperature setting to 40° Fahrenheit after taking custody of the cargo from Export; and that the cargo was in decomposed condition when opened in Toronto, resulting in a loss to plaintiff of $92,100 in Canadian dollars. The undisputed facts leave no doubt that plaintiff made out its prima facie case against Maislin under the Inter- state Commerce Act, 49 U.S.C. § 20(11) (1951), see Mis- sourt Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 138 (1964), and against Export under the Carriage of Goods by Sea Act, 46 U.S.C. § 1303 (1975), see Demsey & Associates, Inc. v. 8.8. Sea Star, 461 F.2d 1009, 1014 (2d Cir. 1972). The principle question below was whether either could rebut plaintiffs prima facie case by showing an absence of neg- ligence or that the loss resulted from excepted causes. On that question, Magistrate Jacobs found as follows: When Export first took custody of the cargo in Amster-. dam, it delivered to plaintiff a bill of lading which indicated that the cargo had been stored at minus 05° Fahrenheit. Upon turning the cargo over to Maislin in New York, Ex- port prepared an “inland bill of lading” for Maislin which was silent as to any temperature requirement, Upon turn- 18a Decision of Hon, Lloyd F. MacMahon, United States District Judge ing over the cargo, Export also prepared a “Trailer Inter- change Receipt,” which stated, “required temperature 50°, temperature set at 50°, temperature reads 50°.” Maislin then prepared a “way bill,” which stated, “Maintain 40 deg. temp.” Based on these findings, Magistrate Jacobs concluded that Export had been negligent in that it had prepared an inland bill of lading with no instructions regarding tem- perature settings and in that its Trailer Interchange Re- ceipt specified a temperature of 50°. He also concluded that, in light of these documents, Maislin had not been negligent in raising the temperature setting to 40°. Our review of the testimony at the three-day trial and the sup- porting exhibits convinces us that neither the initial find- ings of fact nor the inferences drawn therefrom were clearly erroneous. Our holding renders Export’s contentions before us un- tenable. First, Export contends that Magistrate Jacobs erred in holding Maislin not liable, since the shipper had made out its prima facie case under the Interstate Com- merce Act, 49 U.S.C. § 20(11), and Maislin had presented no evidence of its freedom from negligence. However, Mag- istrate Jacobs’ finding that Maislin acted without negli- gence rebuts plaintiffs prima facie case. Second, Export contends that Maislin should have been held liable under the last carrier doctrine. However, that doctrine does not apply if the last carrier can show, as Maislin has, that it acted without negligence. Madow Co. v. S.S. Liberty Ex- porter, 569 F.2d 1188, 1185 (2d Cir. 1978). Likewise, the findings below leave Export with no grounds for contending that Maislin breached its warranty of workmanlike service or that it failed in its duties as bailee. 19a Decision of Hon, Lloyd F. MacMahon, United States District Judge Export also contends that paragraph 10 of its bill of lading exempts it from liability from damage occurring after the cargo left its exclusive possession. We believe that Magistrate Jacobs correctly rejected that contention on the ground that paragraph 10 also imposes on Export the responsibility of an agent of the shipper after the cargo has left its custody. Clearly, paragraph 10 offers Export no protection if the damage resulted from Export’s breach of its duty as the shipper’s agent. We uphold the finding below that Export’s erroneous instructions to Maislin con- stituted such a breach. In sum, we adopt Magistrate Jacobs’ conclusion that Export is solely liable for plaintiff’s loss of $92,100 in Canadian dollars. Plaintiff is also entitled to interest on that amount, at the rate of 6% from the date the cargo arrived in Toronto. Iligan Int'l Corp. v. S.S. John Weyer- haeuser, 372 F, Supp. 859, 869 (S.D.N.Y.), aff’d, 507 F.2d 68 (2d Cir, 1974), cert. denied, 421 U.S. 965 (1975). How- ever, we reject plaintiff’s prayer for attorneys’ fees. Since there was no evidence that Export’s shipper, de- fendant Seabridge International Shipping Ltd., was re- sponsible for the loss, we dismiss the action as to it. Accordingly, we deny defendant American Export Lines, Ine.’s motion, pursuant to Rule 53, Fed.R.Civ.P., to modify the report of Magistrate Jacobs. Settle judgment within twenty (20) days. Dated: New York, N.Y. June 12, 1979 /s/ Luoyp F., MacManon Lioyp F. MacManon United States District Judge 20a Memorandum of Judge MacMahon, Amending the Decision UNITED STATES DISTRICT COURT Souruern District or New York 77 Civ. 4175 (LFM) Gorpon H. Moonry, Limrrep, Plaintiff, —against— TerrLota & Kennepy B.V. et al., Defendants, MacManon, District Judge. We make two amendments to our memorandum decision, filed on June 13, 1979, denying Farrel] Lines Incorporated’s motion to modify the report of Magistrate Jacobs in this action, First, the next to last paragraph on page 6 should begin, “Accordingly, we deny Farrell Lines Incorporated’s mo- Gam ws” Second, the number “78 Civ. 0913” should appear on the first page immediately under the number “77 Civ. 4175.” Case 78 Civ. 0913 is identical in all respects to 77 Civ. 4175, and was consolidated with the latter case. Its number was inadvertently omitted from Magistrate Jacobs’s report, and hence from our memorandum decision. So ordered. Dated: New York, N.Y. July 3, 1979 /3/ Lioyp F. MacManon Luoyp F. MacManon United States District Judge Qla Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT > No. 415—September Term, 1979 (Argued December 13, 1979 Decided February 22, 1980.) Docket No. 79-7536 + GORDON H, MOONEY, LTD., | Plaintiff-Appellee, eal FARRELL LINES, INC., as successor by merger to Ameri- can Export Lines, Defendant-Appellant, and MAISLIN TRANSPORT OF DELAWARE and MAISLIN TRANS. PORT LTD., Defendants-Appellees. ss Before: MULLIGAN, OAKES, and GURFEIN,* Circuit Judges. ~~ Judge Gurfein participated in the oral argument in this case and voted before his death on December 16, 1979 to dispose of the case in the manner set forth in this opinion. He was unable to concur in the opinion itself since it was drafted after his death, 22a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court Appeal from a judgment of the United States Dis- trict Court for the Southern District of New York, Lloyd F. MacMahon, Judge, holding appellant Farrell Lines, Inc., solely liable for the spoilage of a shipment of Dover sole from the Netherlands to Canada, Because the facts demonstrate that a second defendant, appel- lee Maislin Transport, was also negligent, we hold that appellant and Maislin are jointly liable for the loss. Reversed and remanded. > JOHN J. PALMERI, New York, New York, for Appellee Mooney. CHESTER D. Hooper, New York, N.Y. (Haight, Gardner, Poor & Havens, New York, N.Y., Keith L. Flicker, M. E. De- Orchis, of counsel), for Appellant Far- rell Lines, Inc. HARVEY P. ROSENBERG, New York, N.Y. (Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, New York, N.Y.), for Ap- pellees Maislin Transport of Delaware and Maislin Transport Ltd. ined OAKES, Circuit Judge: This appeal, by the ocean carrier of a refrigerated (“reefer”) container of frozen Dover sole, is from a judgment of the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge. The judgment held the ocean carrier solely lia- ble to the Canadian buyer-consignee for the value of 23a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court the fish, which arrived in a decomposed state, even though it was. the inland carrier that changed the reefer temperature setting from -5° or -10° Fahrenheit to 40° Fahrenheit. Following reference to and a report by Magistrate Jacobs, the district court held that the ocean carrier, American Export Lines, Inc. (Export), was solely negligent; that Export’s negli- gence in presenting the inland carrier, Maislin Trans- port of Delaware and Maislin Transport Ltd. (collectively Maislin), with an inland bill of lading (“in- land bill”) that contained no temperature directions and an “equipment interchange receipt” or “Trailer In- terchange Receipt” (TIR) that referred to a 50° “re- quired” temperature setting, rendered Maislin not negligent; and that it was therefore unnecessary to determine Export’s claim of a right to indemnity or contribution or Maislin’s claim of a $50 limitation of liability. Judgment was awarded to the plaintiff ship- per solely against Export’s successor by merger, Farrell Lines, Inc., for 92,100 Canadian dollars plus interest. We reverse. FACTS A brief review of the evidence and the documents is necessary. After receipt from Gordon H. Mooney, Ltd., the plaintiff below, of a purchase order for 1400 car- tons of Dover sole, the Netherlands supplier packed the cartons into a pre-cooled refrigerated reefer without incident. When received at the Amsterdam dock, how- ever, the refrigerated unit developed a malfunction and the 1400 cartons had to be transferred to another reefer by the carrier, Export. A second malfunction developed and another transfer was made, but there is no dispute in the case that following the second trans- 24a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court fer the 1400 cartons were still in their original, frozen condition, and the trip from Holland to New York was without incident. When the container was delivered to Maislin for transportation from New York to Toronto on September 8, 1976, Export prepared an inland bill of lading which, while it referred to “Dover Sole,” con- tained no instructions concerning temperature. In addi- tion, Export’s “Equipment Condition Inspection Report” said nothing in section 7 relating to “reefers,” where there are three lines as to “req. temp. ___,” “temp. set at a. and “temp. reads ___..” According to the testimony of the truck driver for Maislin, Mr. Terrell, he received these two documents and he also observed an Export reefer mechanic' get up on the container and read the temperature setting and then fill out a handwritten slip of paper or “chit,” which he gave to Terrell. The reefer mechanic’s chit, after noting the date and number of the trailer, says “req. temp. 50°, temp. set at 50°, temp. reads 50°.” Terrell then gave the chit to another Export employee who com- pleted the equipment interchange receipt (TIR). There was no separate temperature reading when the TIR was filled out; rather, reference was made solely to the “chit.” There is no dispute, however, that the tempera- ture both was set at, and read, between —5° and —10° at the time of delivery to Maislin, though Maislin could not produce the “Partlow” thermograph chart that was on the reefer at the time of delivery.’ l There was testimony that the reefer mechanic was an employee not of Export itself but of an independent maintenance contractor engaged by Export. Export, however, does not deny its responsibil- ity for his acts on this account. 2 This assumes, of course, that such a chart—on a disc—was in- serted. Export did have its chart up to the date of delivery. There was testimony that in the ordinary course of business, a new one 25a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court How or why the Export reefer mechanic made the error on the handwritten “chit” is only one of the several mysteries in the record. It is possible that the mechanic misread the thermograph, although that seems unlikely. The Maislin driver remembered the mechanic’s climbing up to look at the chart. According to the surveyor who subsequently checked the matter out, there was some talk in the Export yard that there were several other containers containing photographic equipment or film in the yard on September 8 and that some of these carried with them a 50° required tem- perature. The mechanic may have assumed that the Dover sole reefer was one of those, but this explana- tion would mean that he did not look at the Partlow chart and conflicts with the Maislin driver’s memory of the event. Or, conceivably, the mechanic may have acted intentionally, for reasons that can only be sur- mised.’ The mystery is unsolved. The fact remains, however, that it was the Maislin people who changed the temperature setting on the containers in question to 40°, probably after the reefer would have been inserted by the reefer mechanic. It is interesting that on October 8, 1976, after the damage to the fish was discov- ered, the surveyor removed a Partlow chart from the reefer which was a 7-day rather than the 31-day recording type although the thermograph operates on a 31-day cycle. The 7-day chart had no notations as to temperature, date installed, container number, or the like. Thus, if a Partlow chart had been installed at the time of delivery to Maislin it had also been removed by Maislin. It is also interesting that Maislin’s own records—kept on “Thermo-King” charts and representing drivers’ notations of the reefer temperatures supposedly taken every two hours—are missing for the period Sept. 10-20 and intermittently thereafter. 3 Crawford, the surveyor, testified that various maintenance people at the pier informed him of what he called this “photographic material scenario,” but when he asked if the people involved would talk to the Export lawyer he “was informed that if [he] mentioned anything of this nature again, that they would take physical action against [him].” 26a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court arrived at Fort Erie, Ontario. The Maislin witnesses testified that when their clerical office sought to fill out their “pro” or “way” bill at the terminal in South Kearny, New Jersey, Mrs. Crapser, the clerk with the responsibility for preparing the bill, decided that the container needed some “protective service,” not, she said, because she knew what Dover sole was, but be- cause she saw the word “reefer” and wondered if it was fish. She made inquiry of the Maislin line haul dis- patcher, Mr. Gallo, and brought to his attention the fact that the container was a reefer and that ic should have “protective service.” According to his testimony, although he had the TIR showing a 50° required set- ting, he called the maintenance man, Lefty Fahrenfeld. Lefty left the terminal to check the setting, presum- ably made a physical check, and came back in a matter of minutes and said that it was running at 40°. All this supposedly occurred on September 8, the day the shipment arrived at Maislin’s yard in South Kearny, New Jersey. The 40° figure was inserted by Mrs. Crap- ser on the pro or way bill as the temperature to be maintained, and it was subsequently carried on the Maislin record of “Thermo-King” temperature checks as the required setting. There is also in evidence a memo dated September 9 on a Crystal Glass Company memo pad, evidentiy written at Fort Erie, Ontario by a Maislin employee, reading: Came from Buffalo at 10°F, Temp. does not go up. Should be a 40°F. Shut off. leave it shut off Bill 27a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court And the Maislin Thermo-King temperature-check re- cords contain two notations for September 9, when the truck left Buffalo for Canada: “reset for [illegible]” and “just arrived, shut off.“ The Thermo-King readings between September 11 and September 20, by which time the container was sitting in Maislin’s Toronto terminal, were lost or not available, see note 3 supra, but by September 20, the temperature reading had crept up to 35°. Thereafter, it stayed at 40° until about September 24. The Maislin records show no temperature readings after the 25th until 8:00 a.m. on the morning of the 27th, at which time the reading was 0°, even though the same Maislin record sheet called for a setting of 40°.‘ The tempera- ture check record of September 29 shows the setting at O° and the temperature reading at 20°. That was the day Maislin sought to make delivery to the consignee, but it was refused.’ The following day, delivery was again attempted, but it was again refused and the goods were returned to the Maislin terminal for survey and potential salvage. The fish was subsequently found to be largely decomposed and spoiled, although some of 4 There was evidence that a Maislin employee in New York, ap- parently advised that the temperature setting was wrong, told the Toronto office on September 28: “Show 5 degrees. This is fish and where blood is coming from I don’t know. Suggest you get this down before effecting delivery . 5 A skeptic might surmise that at the last minute, carrying out the instructions from New York, see note 5 supra, the Maislin people turned down the temperature of the reefer to stem the flow of fish blood and make the fish appear properly frozen before delivery to the consignee. This would tend to support the veracity of a record made by Mr. Darlington, an Export customs agent, of a telephone conversation he had with a Maislin employee in New York on Octo- ber 8. He was informed in that call that the Maislin employee in the New York office who had sent these instructions “was aware that the container was set at wrong temp. and it was Maislin’s mistake.” 28a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court it was apparently salvaged at a very low price immate- rial to the consideration of our case. There was expert testimony from a transportation consultant, Cecil W. Henkels, to the effect that a TIR generally goes to a trucking line’s operating department, as opposed to the rate clerk, but that an upward temperature change would not be made without authorization from either the original shipper or the carrier from which the ship- ment was obtained. DISCUSSION The magistrate’s and district court’s findings that Export was negligent, and therefore liable,® were clearly supported by the evidence. Even though Export submitted evidence of numerous other reefer inland bills it had prepared which went to Maislin and con- 6 The question of what law governs Export’s conduct is a somewhat difficult one. The district court thought that the applicable provi- sion was in the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1303(2) (“The carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.”). But COGSA further states that “(t]he term ‘carriage of goods’ covers the period from the time when the goods are loaded on to the time when they are discharged from the ship.” 46 U.S.C. § 1301(e). Thus an issue arises here because Export’s negligence took place on land, after discharge from the ship. If COGSA does not apply here, then the applicable provision is the earlier Harter Act, 46 U.S.C. §§ 190- 196, which has the effect of preserving the common law duty of a carrier to exercise due care in all handling of cargo, even when there are contrary contractual provisions. The question of which act applies ultimately matters little, however, because, “except for un- important differences in phraseology, the two Acts come down to much the same thing, as to liabilities which might be incurred before loading or after unloading.” G. Gilmore & C. Black, The Law of Admiralty § 3-25, at 148 (2d ed. 1975). For the same reason, we find it unnecessary to discuss the validity of a provision in Export’s bill of lading stating that COGSA governs “before the shipment is loaded on or after it is discharged.” See id. (no provision in COGSA explicitly authorizes “contracting out of Harter and in COGSA” for period after unloading and before delivery). 29a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court tained no temperature directions, there was testimony by the marine surveyor that it was “certainly an error” not to have included such directions on the inland bill. Export’s consultant, Mr. Henkels, confirmed that or- dinarily all shipping instructions are contained on the shipping order. Moreover, there was the handwritten chit erroneously prepared by the Export reefer me- chanic—for whatever reason—which did contain a 50° reading as well as a 50° setting. The same figures appear on the TIR, a more formal document prepared and signed by Export, though also signed by Terrell, the Maislin trucker. These errors at least contributed to the unfortunate chain of events and render Export liable. Export’s own manager of maintenance and re- pair testified that he felt “there was an error made on both parts,” the reefer mechanic’s and the truck driver’s. But Maislin too was at fault, in a variety of ways. Its driver, Terrell, signed the TIR, noting that the equipment was “received in good condition except as noted.” The temperature setting at that time was, in- disputably, —-5° and the temperature reading was at or about -—10°.7 Yet the TIR, based on the mechanic’s chit, showed the reading as well as the setting at 50°, indicating that Terrell did not double-check the reefer mechanic. Moreover, even though Mrs. Crapser in the Maislin terminal at South Kearny may not have been alert as to what “Dover Sole” is, she was at least aware enough to suspect that “fish” was involved and that, 7 The district court found: [I]t is not disputed that the temperature inside the container was subfreezing upon its arrival in New York; that Maislin turned up the temperature setting to 40° Fahrenheit after taking custody of the cargo from Export; and that the cargo was in decomposed condition when opened in Toronto. .. . 30a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court the container being a reefer, some “protective service” was required. When Gallo accordingly sent “Lefty” out to check the trailer at a time when, according to all the expert testimony, the cargo was still at a very low temperature and probably had not thawed at all (it obviously would not have thawed at all if the tempera- ture setting had not yet been changed), Lefty came back to report that the reefer was running at 40°. This was the figure adopted for use in the inland bill Mrs. Crapser prepared, an erroneous figure under any fac- tual construction. An inquiry as to what “Dover Sole” is at this point, or a check with either Export, the original shipper, or even the consignee, would have revealed that the fish was or might be frozen, not smoked, and hence would require a 0° setting or lower. Instead, Lefty’s 40° figure—the source of which re- mains undetermined*—was adopted without further check. Despite the figure inserted on the TIR or the setting on the Maislin Thermo-King charts, the reefer ap- parently continued to retain its —10° temperature. At least this is what the Thermo-King charts show, though a Maislin witness, its claims director, surmised that this was an error by the truck driver(s) and that he (they) had read the compression indicator rather than the temperature chart. In any event, on arrival September 9 at Fort Erie, Ontario, in the Maislin hold- ing area, the reefer was “shut off” in according with “Bill’s” directions on the Crystal Glass memo paper, in S The Maislin claims man, Pace, said that Gallo, the dispatcher, “concluded in his own observations that it would be safe to hold it somewhat cooler than [the 50° required by the TIR], and he chose a temperature of 40 degrees.” Gallo testified that, after talking to Lefty, he told Mrs. Crapser that “{t]he reefer is running at 40 degrees and I will set it at 40 degrees.” 3la Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court order to get it up to the 40° temperature called for, since “Temp. does not go up.” The fact that it had to be “shut off’—the record does not disclose for how long because the Maislin records are missing—to get it up to a temperature of 40° is an indication that it was prob- ably still set at a much lower temperature, or at least running at one. This shutting off would not have oc- curred had Maislin itself used proper procedures. True, as the magistrate suggested, it was partly due to the error in the TIR and hence to some extent “attributable to” Export. But it was negligent to change the tem- perature setting of the reefer without further inquiry. It was also negligent to prepare the way bill with a 40° setting requirement, without further inquiry or investigation, once it was learned that the cargo was fish being transported in a refrigerated contained. Even assuming that there was total reliance by the trucker on the TIR for temperature requirements here (which seems dubious because the 40° appearing on Maislin’s way bill differs from the 50° figure on the TIR), we think that such reliance was unjustified. When a trailer is transferred from one carrier to another, employees of each do, or should, inspect it, and the receiving crucker’s signature on the TIR is as much of a certification by him as to its condition as is the signture of the transferring carrier’s employee. Cf. Anello v. Murphy Motor Freight Lines, Inc., 525 F.2d 276, 278 n.2 (2d Cir. 1975) (as to condition of trailer itself). Moreover, the actual setting of the container temperature control is, if it differs substantially from the TIR figures, notice to the receiving carrier—notice that at least should provoke further inquiry. A finding of negligence or lack of it, unlike a finding of the underlying facts, is subject to review not based 32a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court on the “clearly erroneous” standard of Fed. R. Civ. P. 52(a). Master Shipping Agency, Inc. v. M.S. Farida, 571 F.2d 131, 133 (2d Cir. 1978); Director General of India Supply Mission v. S.S. Maru, 459 F.2d 1370, 1373 n.3 (2d Cir. 1972), cert. denied, 409 U.S. 1115 (1973). On these facts, we have little difficulty in con- cluding that Maislin was negligent. As a result, Maislin must be held liable along with Export. Under the Carmack Amendment,’ which gov- erns interstate motor carriers, a prima facie case for liability is made by proof of shipment in good condi- tion, arrival in damaged condition, and the amount of damages. Missouri Pacific Railroad v. Elmore & Stahl, 377 U.S. 134, 188 (1964). “Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” Jd. (emphasis added).’° Because of its negligence, Maislin failed to rebut the prima facie case against it. See Continental Can Com- pany v. Hazor Express, Inc., 354 F.2d 222 (2d Cir. 1965). It is true that certain actions of the shipper itself are one of the “excepted” causes that, if shown, ) 49 U.S.C. § 20(11), (12) (1976), revised without substantive change and reenacted as 49 U.S.C.A. § 11707 (West Supp. 1979). 10 Under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1304(2), liability falls upon the last ocean carrier, unless it can prove that it was not negligent, or that the loss was within one of the COGSA “excepted causes,” Madow Co. v. S.S. Liberty Exporter, 569 F.2d 1183, 1185 (2d Cir. 1978). However, under the Carmack Amendment, 49 U.S.C. § 20(11) (1976), reenacted without substan- tive change as 49 U.S.C.A. § 11707 (West Supp. 1979), the -turden on an inland carrier is clearly to show both that it was free from negligence and that the damage to the cargo resulted from one of the excepted causes. Martin Imports v. Courier-Newsom Express, Inc., 580 F.2d 240, 242 (7th Cir.), cert. denied, 439 U.S. 983 (1978). This rule was misstated by the court below. 33a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court can protect a carrier from liability for damage to goods. And the “shipper” for these purposes (Export, which delivered the goods to Maislin) certainly contrib- uted to the events through its negligence. But a show- ing that Export as “shipper” is liable does not relieve Maislin as carrier of liability for the damage, if that damage would not have occurred except for Maislin’s concurrent fault. Lehigh Valley R. Co. v. State of Rus- sia, 21 F.2d 396, 405 (2d Cir.), cert. denied, 275 U.S. 571 (1927). That is to say, the excepted cause (here negligence of the ocean carrier qua “shipper”) must be the sole cause. Id.; cf. Levatino Co. v. American Presi- | dent Lines, 337 F.2d 729, 730 (2d Cir. 1964) (ad- miralty case under Harter Act) (“act of God” was not sole cause of loss). At the same time, because Export’s negligence con- tributed to the loss, Expert cannot obtain indemnity from Maislin. Cf. Weyerhaeuser Steamship Co. v. Na- cirema Operating Co., 355 U.S. 563, 567 (1958) (shi- powner “entitled to indemnity absent conduct on its part sufficient to preclude recovery”). With respect to the issue of possible contribution between these two tortfeasors, we note that maritime law, applicable to the conduct of Export, does permit contribution. Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106 (1974). On the other hand, the liability of Maislin is predicated on the Carmack Amendment, and that legis- lation, as well as case law under it, is silent on the issue of contribution. See 49 U.S.C. § 20(11), (12) (1976), revised without substantive change and reen- acted as 49 U.S.C.A. § 11707 (West Supp. 1979). Nev- ertheless, because that amendment was merely an enactment of already existing common law rights, to which certain specific remedial rights were added, J & 34a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court H Flyer Inc. v. Pennsylvania Railroad Co., 316 F.2d 203 (2d Cir. 1963), we feel justified in turning to com- mon law principles to fill in the gap in the statute concerning contribution. Because there is a clear trend in the law toward a rule allowing contribution among joint tortfeasors, we hold that contribution is available here—in this situation of joint liability shared by a maritime shipper and an inland trucker. To the extent that Maislin may be said to have breached a warranty of workmanlike service, see Fair- mont Shipping Corp. v. Chevron International Oil Co., 511 F.2d 1252 (2d Cir.), cert. denied, 423 U.S. 838 (1975), Export’s own acts contributed to the breach, so that the parties are joint tortfeasors, see Hurdich v. Eastmount Shipping Corp., 503 F.2d 397 (2d Cir. 1974), as noted above. Maislin argues, in a brief which otherwise simply relied on the magistrate’s and district judge’s findings, that Export, acting as agent for a shipper, voluntarily chose a lower release value rate carrying a $500 limita- tion of liability under the applicable tariff. The magis- trate also thought that, due to the course of dealing between the two, Maislin’s liability might be so limited, even though the Carmack Amendment requires that any such limitation of liability be “declared in writing by the shipper or agreed upon in writing as the re- leased value of the property.” 49 U.S.C. § 20(11) (1976).'! The course of dealing referred to by the mag- 11 The 1978 revision of this portion of the Carmack Amendment, intended to make no substantive change, is in 49 U.S.C.A. § 10730 (West Supp. 1979) (carrier may establish rates “under which the liability of the carrier . . . is limited to a value established by written declaration of the shipper, or by a written agreement, when that value would be reasonable under the circumstances surrounding the transportation”) (emphasis added). 35a Opinion of United States Court of Appeals for the Second Circuit, Reversing the Judgment of the District Court istrate consisted of some 46 bills of lading prepared by Export on its forms and paying the minimum rate, But because neither the freight rate nor the valuation itself was written on the bill of lading, Maislin may not limit its liability under the statute. Mass v. Braswell Motor Freight Lines, 577 F.2d 665, 667 (9th Cir, 1978); Tho- mas Electronics, Inc. v. H.W. Taynton Co., 277 F. Supp. 639 (M.D. Pa. 1967); Loeb v, Friedman's Ex- press, Inc., 187 Misc. 89, 65 N.Y.S.2d 450 (Sup. Ct. App. Term), affd mem., 271 A.D. 873, 66 N.Y.S.2d 634 (1946), affd per curiam, 296 N.Y. 1029, 73 N.E.2d 906, cert. denied, 331 U.S. 851 (1947). Judgment reversed; cause remanded; costs of appel- lant to be equally divided between appellant and appel- lee Maislin. 86a Order of United States Court of Appeals Clarifying Its Opinion UNITED STATES COURT OF APPEALS Seconp Crrovir 79-7536 At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the day of March 21, one thousand nine hundred and eighty. Present: Hon. William Hughes Mulligan, Hon, James L, Oakes, Circuit Judges. Gorpon H. Mooney, Lrp., Plaintiff-Appellee, v. Farrevi Lives, Inc., as successor by merger to American Export Lines, Defendant-Appellant, and Malrsuin TRANSPORT OF DELAWARE and Maistin Transport Lrtp., Defendants-A ppellees. ORDER In response to the request for clarification of our opinion filed on February 22, 1980, in holding that appellant Farrell 37a Order of United States Court of Appeals Clarifying Its Opinion Lines, Inc., and appellee Maislin were jointly liable for the loss, it was the intention of the court that each party should be liable for 50% of the damages, /s/ Wituiam H, Muwuican /s/ James L, Oakes Circuit Judges. 38a Order of United States Court of Appeals Extending Time to File Petition for Rehearing UNITED STATES COURT OF APPEALS For tue Seconp Cracurr 79-7536 Gorpon H. Mooney, Liuirep, Plaintiff-A ppellee, —against— TerFrLorH & Kennepy B.V., et al., Defendants, FarrecL Lines, IncorPoraten, et al., Defendant-Appellant, and Maisun Transport or DeLaware, et al., Defendants-Appellees. Notice or Morton ror Orper En iarcine Time Tro Fixx Peririon ror REHEARING Motion By: (Name and tel. no. of attorney in charge) Sipney Gaines, Esq. (212) 575-9100 Has opposing counsel consented? Yes [] No Has service been effected? Yes [] No Is oral argument desired? N/A [] Yes [J] No (Substantive motions only) 39a Order of United States Court of Appeals Extending Time to File Petition for Rehearing Requested return date: N/A (See Second Circuit Rule 27(b)) Date of argument of appeal, if scheduled: N/A Judge or agency whose order is being appealed: Decision of Hon. Lloyd M. MaeMahon, U.S.D.J., U.S. Dist. Court (S.D.N.Y.) filed June 13, 1979 Opposinc CoUNSEL: (Name and tel, no. of attorney in charge) Joun Patent, Esq.—(212) 269-1010 Cuester D. Hoorrr, Hisq.—(212) 344-6800 Emercency Mortons, Morions ror Stays & InsUNOTIONS Punpire APPEAL | Has request for relief been made below? (See F.R.A.P. Rule 8.) [] Yes [] No Would expedited appeal eliminate need for this motion? [1] Yes [J No If no, explain why not: Brief statement of the relief requested: Defendants-Ap- pellees request a reasonable enlargement of time within which to file a Petition for Rehearing pursuant to Rule 40, F.R.A.P. Previous requests for similar relief and disposition: NONE Statement of the issue(s) presented by this motion: Whether Defendants-Appellees are entitled to a reasonable enlargement of time within which to file a Petition for Re- hearing of the decision of this Court, dated and filed Feb- 40a Order of United States Court of Appeals Extending Time to File Petition for Rehearing ruary 22, 1980, in light of circumstances set forth in the accompanying affidavit of Martin J. Hertz, Esq. Brief statement of the facts (with page references to the moving papers): The presence of substantial questions of law (pp. 2, 3; Aff’t. of Martin J. Hertz) and a voluminous record (p. 5; Aff’t.) make it impossible to prepare Ap- pellees’ Petition for Rehearing within the time prescribed by Rule 40 F.R.A.P. Summary of the argument (with page references to the moving papers): See Statement of Facts, above. March 6, 1980 /s8/ Swwney Gaines Smwwney Gaines Attorney for Defendants-Appellees OrpER Ir Is Heresy Orperep that the motion to extend the time to file a petition for rehearing to and re April 10, 1980 be and it hereby is Granrep. /8/ James L. Oakes Hon. James L. Oakes, CJ Cireuit Judge March 18, 1980 4la Order of United States Court of Appeals Denying Petition for Rehearing UNITED STATES COURT OF APPEALS Seconp Circuit 79-7536 At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the thirteenth day of May, one thousand nine hundred and eighty. Present : Hon. Wiiuiam H. Mvutwican Hon. James L. Oakes Circuit Judges. Gorpon H. Mooney, Limirep, Plaintiff-A ppellee TrerrLtotH & Kennepy B.V., American Export Lines, Inc., et. al., Defendants Farrett Lines Inc. as Successor by merger to American Export Lines, Inc., Defendant-Appellant Maisuin TrRANsPoRT oF DeLawareE and Maistin TRANSPORT LimItep, Defendants-A ppellees. A petition for a rehearing having been filed herein by counsel for the Defendants-Appellees 42a Order of United States Court of Appeals Denying Petition for Rehearing Upon consideration thereof, it is Ordered that said petition be and hereby is DENIED. /s/ A. Dantet Fusaro A. Danie, Fvusaro, Clerk Due to his untimely death on December 16, 1979, Judge Gurfein, a member of the panel, did not participate in the consideration of this petition. 43a Text of Carmack Amendment, 49 U.S.C., Section 20(11), Applicable During the Times in Question § 20, par. (11). Liability of initial and delivering carrier for loss; limitation of liability; notice and filing of claim. Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall ex- empt such common carrier, railroad, or transportation company from the liability imposed; and any such common carrier, railroad, or transportation company so receiving property for transportation from a point in one State, Territory, or the District ef Columbia to a point in another State or Territory, or from a point in a State or Territory to a point in the District of Columbia, or from any point in the United States to a point in an adjacent foreign coun- try, or for transportation wholly within a Territory, or any common carrier, railroad, or transportation company delivering said property so received and transported shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such 44a Text of Carmack Amendment, 49 U.S.C., Section 20(11), Applicable During the Times in Question receipt or bill of lading has heen issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transporta- tion company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any receipt or bill of lading, or in any contract, rule, regula- tion, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void: Provided, That if the loss, damage, or injury occurs while the property 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 and by and under the laws and regulations applicable to transportation by water, and the liability of the initial or delivering carrier shall be the same as that of such ear- rier by water: Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or re- covery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carrying passengers; second, to property, except ordinary livestock, received for transportation concerning which the carrier sha!l have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and 45a Text of Carmack Amendment, 49 U SC., Section 20(11), Applicable During the Times in Question maintain rates dependent upon the value declared in writ- ing by the shipper or agreed upon in writing as the re- leased value of the property, in which case such declara- tion or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section 10 of this title; and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon; and the commis- sion is empowered to make such order in cases where rates dependent upon and varying with declared or agreed values would, in its opinion, be just and reasonable under the circumstances and conditions surrounding the transporta- tion. The term “ordinary livestock” shall include all cattle, swine, sheep, goats, horses, and mules, except such as are chiefly valuable for breeding, racing, show purposes, or other special uses: Provided further, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law: Provided further, That all actions brought under and by virtue of this paragraph against the deliver- ing carrier shall be brought, and may be maintained, if in a district court of the United States, only in a district, and if in a State court, only in a State through or into which the defendant carrier operates a line of railroad: Provided further, That it shall be unlawful for any such receiving or delivering common carrier to provide by rule, contract, regulations, or otherwise a shorter period for the filing of claims than nine months, and for the institution of 46a Text of Carmack Amendment, 49 U.S.C., Section 20(11), Applicable During the Times in Question suits than two years, such period for institution of suits to be computed 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: And provided further, That for the purposes of this paragraph and of paragraph (12) of this section the delivering carrier shall be construed to be the carrier performing the line-haul service nearest to the point of destination and not a carrier performing merely a switch- ing service at the point of destination: And provided fur- ther, That the liability imposed by this paragraph shall also apply in the case of property recousigned or diverted in accordance with the applicable tariffs filed as in this chapter provided. Feb. 4, 1887, c. 104, Pt. I, § 20, 24 Stat. 386; June 29, 1906, c.. 3591, § 7, 34 Stat. 593; Mar. 4, 1915, ce. 176, § 1, 38 Stat. 1196; Aug. 9, 1916, ¢. 301, .39 Stat. 441; Feb. 28, 1920, c. 91, §§ 436-438, 41 Stat. 494; July 3, 1926, ce. 761, 44 Stat. 835; Mar. 4, 1927, c. 510, § 3, 44 Stat. 1448; Apr. 238, 1930, ¢. 208, 46 Stat. 251; Aug. 9, 1935, ¢. 498, §1, 49 Stat. 543; Sept. 18, 1940, ¢. 722, Title I, § 13(b), 54 Stat. 919. (Underlining supplied.) 47a Text of 49 U.S.C., Section 10730, Effective October 17, 1978 § 10730. Rates and liability based on value The Interstate Commerce Commission may require or authorize a carrier providing transportation or service sub- ject to its jurisdiction under subchapter J, II, or IV of chapter 105 of this title, to establish rates for transporta- tion of property under which the liability of the carrier for that property is limited to a value established by written declaration of the shipper, or by a written agreement, when that value would be reasonable under the circumstances surrounding the transportation. A rate may be made ap- plicable under this section to livestock only if the livestock is valuable chiefly for breeding, racing, show purposes, or other special uses. A tariff filed with the Commission under subchapter IV of this chapter shall refer specifically to the action of the Commission under this section. Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1389. 48a Inland Bill of Lading For the Shipment in Question _ pig PRES OE, sieg cane |— -— MOLLWZIMOMENY BQORLIA CISVETEM 2a JON LENW WENT Y¥EHOS, . .. DYRGaA 0@ OL, Gunes 2 |—— -— - _ RE - a9 a (2002;sma) 70 eanjea?iy) mane Jee ef _ ae | im aoDyso | ("4205 04 >9!1qQ95) s$D[D 1yGia/r, ~ SJDUNU] B12149A 40 DD U0 14Aeox3 PUD HOW [O)/2edg ‘sary yO YONd!s280g ‘“eBOx2Dg jo pUly GUOUSNVUL NTISIVM 7712°D Su (ioqveys Aeajop JOf OP|AOID $4530) Burusar ‘G pun saisap saddiys uaym Ajo ui Pajyty aq 0} ») - wesipPy Cone SMDIOU WOLDS CUOREAN TAATION 21903 a a eee __. IVAW, WON, LUGUTZaOOITN 801 vayNvo “N° OLNOMOL = =—(S XANOOM NOTWOD"H wopomeneg CA1NO MOLLVDI4110N 40 SESOdUNd BOs — Z3NDISNOD 4O SS3BQQGY 133¥is &O Tivm) VUVNYS* LNO*VNOWSSISSIN'° ZS THIWIN LELPGL1 ONiddIHS TWNOILVNUILNI JDdiuavas % PeUB:su0> Dee Se et EE EE ee eee see SS inipaie see ae LENT cee pea eae SCPE Sie Sees pase aon ey SUG pus Genes) pace we ieee soee =e e ‘410, MO tv “ON 20P10 “ng OAN “SOVld AMELLVG LT wii ey ‘= @ : ‘ th int ee ess » ees : TN £,4812:09 (40}4209 yo ewoN) 3 Vere Surpey 20 111g HewIbD oy w) PEqEDTEp Added ay jo K i Ag pGyre! OM Jo MEP a UO PeYe w sjuUm Sworeripstey) em ep se peesde oy my a‘o of -— , fysadosd OYF JO ONPRA PIIETIp 2 Poesse egy Buypjsm uy 4] Ssyjoeds epe1e OG) pesynhbes ese SJOda;YsS “UN(¥s BO WWePUedODP sf e782 Oy) —SLLON “wa ow te 20-G. 2914282 S) 2] JOM CLwEe TTRUF BUpPS] JO TG CYS IR seA;NDeL mB] OG) “Je1¥m fy 49; 1280 & fy 8)20d Om] UveMIOG SesOW ys eg dle | __AIN3N4IKS “G09 ee ex J $ —<-—— ———— . 4 Se lg ee me. $ ie | ae bets “J | | | | «GT Sateen 1. UNT aoorumvas Woud | ~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0187%3A1. Public record. Not legal advice.