Petition for Writ of Certiorari — Illinois Central Gulf Railroad v. Air Products & Chemicals, Inc.

Office - Supreme Court, U.S.

r tt D

MAY 27 1904

IN THE

ALEXANDER L. STEVAS.

Supreme Court of the Unite

OCTOBER TERM 1983

ILLINOIS CENTRAL GULF RAILRCAD COMPANY,

Petitioner

VERSUS

AIR PRODUCTS AND CHEMICAL, INC.

Defendant

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Boris F. Navratil, Trial Counsel

Murphy J. Foster, III

BREAZEALE, SACHSE & WILSON

Post Office Box 3197

Baton Rouge, LA 70821

Telephone: (504) 387 - 4000

Counsel for Petitioner

Illinois Central Gulf Railroad

Company

i

QUESTIONS PRESENTED

1. Whether the Carmack Amendment to the Interstate

Commerce Act, 49 U.S.C.A. Section 20(11), applies to a

situation where damages arise when a railroad tank car of

chemicals is mistakenly left at the receiver’s place of business,

and is not left as the result of an attempt to deliver it pur-

suant to any bill of lading?

2. Whether application of the Carmack Amendment to a

suit for damages resulting from a rail car’s misdelivery will

create bad public policy by discouraging consignee safety,

discouraging out of court settlements and encouraging

forum shopping, thus causing an additional burden on the

federal court system?

3. Whether a panel of a United States Circuit Court that

contains a judge who recuses himself after oral argument for

reasons that he knew or should have known existed prior to

oral argument, satisfies the provisions of 28 U.S.C.A. Section

46(b) which requires that a hearing be before a panel of three

qualified judges?

4. Whether, assuming the Carmack Amendment’s appli-

cability, it is necessary for the receiver of a misdelivered

tank car, in its action against the carrier, to prove special

knowledge or notice of the conditions giving rise to the

special damages sued for, such damages being the cost of

separation of the two similar chemicals; and if such knowl-

edge or notice is required, does there exist any evidence in

the record of this case to support an award of such special

damages?

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Page

United States Code Articles:

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SE ee ae 10, 11

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Cases:

Adams Express Company vy. Kroninger, 226 US.

re 12

American Synthetic Rubber Corporation v. Louisi-

ana and Nashville Railroad Company, 422 F.2d

er wks eee eeennn nee i ae Oo

Chicago R. I. and P. R. Co. v. Furniture Forwarders

of St. Louis, Inc., 420 F.2d 385 (8th Cir. 1970) ..... 8,9

Globe Refining Company v. Landa Cotton Oil Co.,

ee Ry >, 13

Hadley vy. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145

OST Ee ne rr

Litvak Meat Company v. Baker, 446 F.2d 329 (C.A.

ec pein ga ce bg th anaes 6

Marquette Cement Manufacturing Co. v. Louisville

and Nashville R.R. Co., 281 F.Supp. 944 (E.D.

Tenn. 1967), aff'd. 406 F.2d 731 (6th Cir.

EE ee Ue ee Vas sak onc ek #6 08 13,14, 15

iv

TABLE OF AUTHORITIES (Continued)

Page

F. J. McCarty Company v. Southern Pacific Co., 428

re ee ae. ies ook ue 4% 12

Reider v. Thompson, 339 U.S. 113, 70 S.Ct. 499

UE ON Nr aE el ee all 6

St. Louis Iron Mountain and Southern Railway Co.

v. Starbird, 23 U.S. 592, 37 S.Ct. 462 (1917) ......... 8

United States v. Turkette, 101 S.Ct. 2524, 452 U.S.

ee ee Se PROUD ok os54tre bo 056044 kd 6 e840 5

Von Der Ahe Van Lines, Inc. v. United States, 358

F.2d 999 (Court of Claim 1966), cert. denied,

gp oh & 5 . 3 Rei Hee Soe ae 8

No. A-843

IN THE SUPREME COURT OF THE UNITED STATES

AIR PRODUCTS AND CHEMICALS, INC.

Defendant

Versus

ILLINOIS CENTRAL GULF RAILROAD COMPANY

Petitioner

PETITIONER FOR WRIT OF CERTIORARI

TO THE UNITED STATES FIFTH CIRCUIT

COURT OF APPEALS

Petitioner prays for a writ of certiorari to review the

judgment of the United States Fifth Circuit Court of Appeals

in this case.

OPINIONS BELOW

The opinion of the United States District Court for the

Middle District of Louisiana, which is not reported, is re-

produced in Appendix A. The opinion of the United States

Fifth Circuit Court of Appeals, not yet reported, is re-

produced in Appendix B. The denial of appellant’s appli-

cation for a rehearing before the United States Fifth Circuit

Court of Appeals is reproduced in Appendix C.

JURISDICTION

The judgment of the United States Fifth Circuit Court of

Appeals was entered on December 16, 1983. The application

for a rehearing before the United States Fifth Circuit Court

2

of Appeals was timely filed on January 16, 1984. This

application was denied on January 31, 1984. The jurisdiction

of this court to review said denial is invoked under 28 U.S.

C.A. 1254(1).

PERTINENT STATUTORY PROVISIONS

28 U.S.C.A. Section 46(b)

“In each Circuit the court may authorize

the hearing and determination of cases and

controversies by separate panels, each con-

sisting of three judges, at least a majority of

whom shall be judges of that court, unless

such judges cannot sit because recused or

disqualified, or unless the chief judge of that

court certifies that there is an emergency

including, but not limited to, the unavail-

ability of a judge of the court because of

illness. Such panels shall sit at the times and

places and hear the controversies assigned as

the court directs. The United States Court

of Appeals for the Federal Circuit shall

determine by rule a procedure for the rota-

tion of judges from panel to panel to ensure

that all of the judges sit on a representative

cross section of the cases heard and, not-

withstanding the first sentence of this sub-

section, may determine by rule the number

of judges, not less than three, who constitute

a panel.” (emphasis added).

49 U.S.C.A. Section 20 (11)

“Any. . . railroad. . . receiving property

for transportation from a point in one state

3

. to a point in another state. . . shall

issue a receipt or a bili of lading therefore,

and shall be liable to the lawful holder there-

of for any loss, damage or injury to such

property caused by it or by any common

carrier. . . to which such property may be

delivered or over whose line or lines such

property may pass. . .or. . . any railroad

. delivering said property so received and

transported shall be liable to the lawful

holder of said receipt for the full actual

loss, damage or injury to such property

caused by it or by any such common carrier

. . to which such property may be delivered

or over whose line or lines such property

may pass. . .”’ (emphasis added).

STATEMENT OF THE CASE

On or about November 1, 1976, defendant Illinois Central

Gulf Railroad Company (hereinafter “ICG”) delivered tank

car SCMX 2534, along with three other similar tank cars

bearing separate numbers to Air Products & Chemicals, Inc.

in St. Gabriel, Louisiana (hereinafter Air Products). Tank

car SMCX 2534 was consigned by bill of lading to and for

Shell Chemical Company of Geismar, Louisiana and was lett

on the Air Products spur by mistake. The bill of lading 33660

covering tank car SCMX 2534 was properly delivered to

Shell Chemical Company of Geismar, Louisiana, and not

to Air Products.

The three other tank cars left on Air Products’ track,

containing isobutyl alcohol, were consigned to Air Products

and were covered by bills of lading previously received by

Air Products. Tank car SMCX 2534 contained normal butyl!

4

alcohol, which is similar to isobutyl alcohol in both sub-

stance and appearance. No weighbill for normal buty! alcohol

or for tank car SCMX 2534 had been received by Air Prod-

ucts. SCMX 2534 was simply “an extra” or “renegade” car,

left on Air Products’ spur track accidentally and not as an

attempt at delivery pursuant to any bill of lading furnished

to or required by Air Products.

Shortly after its arrival Air Products’ employees unloaded

SCMX 2534 into a million gallon storage tank containing

800,000 gallons of isobutyl alcohol. Tlie employees did not

consult their file of received bills of lading before so doing

(Trial transcript pp. 40-42); nor did they test the contents

of SCMX 2534 before unloading it although they possessed

the means for such testing. (Trial transcript pp. 39 and 66).

The only precautions the employees took was to test the

contents of tank car SCMX 2534 for the presence of con-

taminants.

Air Products brought an action in federal court to recover

damages for the cost incurred in the separation of the two

chemicals mixed as a result of the foregoing. Jurisdiction was

alleged on the basis of 28 U.S.C.A. 1337. The United States

Court for the Middle District of Louisiana held that Air

Products was entitled to a cause of action under the Carmack

Amendment and was awarded damages in the amount of

$73,339.12.

From the judgment of the District Court, ICG appealed to

the United States Fifth Circuit Court of Apneals. The case

was argued before Judge Tate, Davis, and Rubin. However,

following oral argument, Judge Rubin recused himself from

participation in this matter due to the existence of a business

relationship between himself and Mr. Gerald LeVan, a

partner in the firm of Breazeale, Sachse & Wilson, counsel for

5

the appellant, ICG. That business relationship, and thus the

grounds for recusal, existed prior to the oral argument.

Subsequently, judgment was rendered by Judges Tate and

Davis, affirming the judgment of the District Court.

REASONS FOR GRANTING THE WRIT

1. THE CARMACK AMENDMENT IS NOT APPLICABLE.

The question now presented to this Court is res nova:

Does the Carmack Amendment to the Interstate Commerce

Act, 49 U.S.C.A. Section 20 (11), afford a cause of action to

a party who receives delivery of a railroad car, but does not

have a bill of lading for the car, or any other documents

describing its contents?

The cardinal rule of statute interpretation is that when the

statutory language is clear and unambiguous, it is conclusive

and must be enforced. Unambiguous statutory language may

be disregarded only when there is a clear expression of

legislative intent that is contrary to such language. United

States v. Turkette, 101 S.Ct. 2524, 452 U.S. 576, 69 L.Ed.

2nd 246 (1981). The clear language of the Carmack Amend-

ment precludes its applicability in the instant case. Neither

Air Products nor the lower courts have been able to point

to any expression of legislative intent to indicate that the

amendment was intended to provide a cause of action to

anyone other than the lawful holder of a bill of lading.

The Carmack Amendment states in pertinent part:

“Any . . . railroad. . . receiving property

for transportation from a point in one state

. to a point in another state. . . shall

issue a receipt or a bill of lading therefore.

and shall be liable to the lawful holder thereof

6

for any loss, damage or injury to such

property caused by it or by any common

carrier. . . to which such property may be

delivered or over whose line or line such

property may pass. . .or. . . any railroad

. . . delivering said property so received and

transported shall be liable to the lawful

holder of said receipt for the full actual loss,

damage or injury to such property caused by

it or by any such common carrier. . . to

which such property may be delivered or

over whose line or line such property may

wee og

The purpose of the Carmack Amendment was to relieve

shippers 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, 70 S.Ct. 499 (1950). The Carmack Amendment was

not designed as a comprehensive restatement of the law,

redefining with encyclopedic breadth and detail all rights

and responsibilities of interstate freight shippers and carriers.

Rather, the Act confines itself to a statement of the rights of

a legal holder of a receipt or bill of lading issued by a carrier

upon receiving property for interstate transportation and the

responsibilities of a carrier to such holder. Litvak Meat Com-

pany v. Baker, 446 F.2d 329 (C.A. 10th Cir. 1971). (empha-

sis added.) In the instant case the lawful holder of the SCMX

2534 bill of lading was Shell Chemical. Shell Chemical never

received SCMX 2534 pursuant to that bill of lading. There-

fore Shell Chemical mace a claim for damages for the lost

product under the Carmack Amendment that ICG paid.

That was the proper Carmack claim, rather than that of

Air Products.

+

Air Products did not hold a bill of lading for tank car

SCMX 2534 nor was that tank car delivered pursuant to any

other bill of lading held by Air Products. Therefore this

action does not fall under the Carmack Amendment. The

only possible cause of action Air Products has is a tort

action. In a tort action Air Products own negligence would

be a factor to be considered. Not having any documentation

with respect to tank car SCMX 2534, Air Products was

negligent in making the assumption that it also contained

isobutyl alcohol just as the three other cars delivered to it at

the same time, for which it did have bills of lading. Air

Products did not even test the contents of tank car SCMX

2534, although it had the ability to make such a test. It

made no effort to determine from representatives of de-

fendant why the car had been left in its plant. By taking

these precautions, Air Products could have easily avoided

the problems it encountered when it mixed the contents

of car SCMX 2534 with material contained in its storage

tanks. Defendant was entitled to have this negligence of

Air Products considered by the Court under applicable

comparative negligence rules.

In holding that the Carmack Amendment applied to

plaintiff's claims, the Fifth Circuit relied on American

Synthetic Rubber Corp. v. Louisville and Nashville Railroad

Co., 422 F.2d 462 (C.A. 6th Cir. 1970). In that case, the

plaintiff had a bill of ading for tank car GATX 84196

containing butalcne. In attempting to comply with the bill

of lading, the railroad delivered tank car GATX 84796,

containing ethylene oxide. The Court found that the Car-

mack Amendment was applicable to an abortive attempt

to deliver in accordance with an interstate contract of car-

riage - the bill of lading - and held the defendant liable under

the terms of the Act.

8

Although it is arguable that the American Synthetic case

should be overruled because the property delivered was not

covered by the bill of lading held by the plaintiff, (see

Judge O’Sullivan’s dissent, 422 F.2d at 469), it is not neces-

sary for this Honorable Court to go that far in order to

hold that the lower courts misapplied the Carmack Amend-

ment in this case. The American Synthetic case is easily

distinguishable because the defendant there made the de-

livery - albeit of a wrong car - pursuant to a bill of lading;

while in this case car SCMX 2534 was accidentally left with

Air Products without a bill of lading of any kind. The Ameri-

can Synthetic holding is arguably within the legislative intent

of making common carriers strictly liable to the holders of

bills of lading. The holding in this case goes far beyond any

such legislative intent. Every other case cited by the Court

below or Air Products involves a plaintiff who either held a

bill of lading for the car that was delivered, or a bill of lading

under which the defendant delivered a wrong car.

Plaintiff argues that if Carmack is inapplicable, then, at

the very least, an “implied contract of carriage’ existed

between the railroad and the plaintiff upon which recovery

may be had for damages allegedly caused by the misdelivery.

The same reasons that make the Carmack Amendment

inapplicable to Air Products’ claims must also lead to the

conclusion that Air Products has no general contractual claim

against {CG either. There simply was no contract between

ICG and Air Products from which the misdeliver’ of tank

car SCMX 2534 arose. The law is clear that contracts be-

tween shippers and consignees are evidenced only by valid

bills of lading issued for each individual car. See St. Louis

Tron Mountain and Southern Railway Co. yv. Starbird, 23

U.S. 592, 37 S.Ct. 462 (1917); Von Der Ahe Van Lines,

Inc. v. United States, 358 F.2d 999 (Court of Claims 1966),

cert. denied, 87 S.Ct. 83, 385 U.S. 837; and Chicago R. I.

9

and P. R. Company v. Furniture Forwarders of St. Louis,

Inc., 420 F.2d 385 (8th Cir. 1970). Each bill of lading

evidences a separate contract of carriage. For every carriage

contract which a-tually existed between Air Products and

ICG and which was evidenced by a bill of lading, ICG de-

livered the appropriate tank car. The purely accidental

relinquishment on Air Products’ spur track of car SCMX

2534 containing a different chemical, destined for a difterent

consignee, did not arise out of any contract or breach of a

contract between Air Products and Illinois Central Gulf

Railroad.

Holding the Carmack Amendment applicable to the

present fact situation would carry its imposition of strict

liability far beyond its intended scope and make common

carriers strictly liable for ordinary negligence and without

the benefit of reduction of damages by a percentage of the

plaintiff's comparative negligetice. In the absence of a clear

and unequivocal expression of legislative intent to create

such an onerous system of strict liability, this Honorable

Court should refrain from imposing it on common carriers.

2. THE APPLICATION OF THE CARMACK AMEND-

MENT WILL DISCOURAGE CONSIGNEE SAFETY,

DISCOURAGE SETTLEMENTS, AND ENCOURAGE

FORUM SHOPPING.

If consignees of railroad tank cars are allowed to utilize

the strict liability standard of the Carmack Amendment

rather than a comparative negligence standard of tort liabi-

lity, what will that do to the consignee’s need for stricter

safety standards? In light of the Fifth Circuit’s ruling, plain-

tiff consignees need only prove that the tank car was left

on their spur track. Regardless what plaintiff does subse-

quently with that tank car, if an accident occurs, the railroad

10

pays. This is bad public policy. The more reasonable ap-

proach would be to apply Louisiana’s comparative tort

negligence theory and examine the wrongs of both parties.

The Fifth Circuit has in this case held that a claim may lie

under either federal law, the Carmack Amendment, or state

tort law. If the consignee may choose which law to apply

he will undoubtedly opt for federal statute and its standard

of strict liability against which the railroad has no defense.

Since rail car misdelivery happens fairly frecuently why are

there so few federal court cases on the books? The reason

is due to the fact that in the past nearly all such misdelivery

cases have been resolved through settlement because of the

negligence of both parties. In this case, as in many others,

the railroad should not have left the car at that particular

location. Additionally, the consignee should not have un-

loaded the contents before confirming its identity. Now

however, with the American Synthetics case and this one,

there will be no more such settlements. A consignee will

only have to file his federal lawsuit and expect to be paid -

no questions asked! Again, this is bad public policy - it

discourages settlement and encourages forum shopping.

3. ICG’S APPEAL TO THE UNITED STATES FIFTH

CIRCUIT COURT OF APPEALS WAS NOT HEARD

BY A PROPER PANEL.

ICG recognizes that, under the provisions of 28 U.S.C.A.

Section 46(d), a decision by the United States Circuit Court

of Appeals may be made by a quorum of the judges who sit

on a panel and hear the argument in a given manner. If one

of the judges should happen to die, become too ill to parti-

cipate in the decision, cite, or remove himself for reasons

that arise after oral argument has begun, then the remaining

majority of the panel may still render a decision in that

matter.

11

Under the provisions of 28 U.S.C.A. Section 46(b), the

Circuit Court of Appeals has the power to decide the number

of judges that will constitute a panel; however, that number

shall not be less than three. Obviously, the judges who

make up a panel must be qualified to sit on that panel. In

this case, the panel did not constructively consist of three

qualified judges. Judge Rubin admitted that he was not

qualified to hear this matter due to his long standing business

relationship with one of the partners of the firm representing

the defendant, ICG.

Oral argument was made before the United States Fifth

Circuit Court of Appeals on March 24, 1983. Gerald LeVan

joined the firm of Breazeale, Sachse & Wilson in July of

1982. He and Judge Rubin had been receiving royalties from

a jeint publication since early 1982. Judge Rubin knew or

should have known that this relationship, and therefore the

possible conflict, existed before the oral argument began.

Judge Rubin’s failure to recuse himself prior to oral

argument, denied ICG the opportunity to possibly persuade

a third judge who might have in turn persuaded a second

judge towards appeilant’s position. The purpose of having

a three judge panel is to aliow for an_ intermingling of

thoughts and ideas relative to the decision making process

involved in every case. Obviously, the value of this thought

exchange is recognized by 28 U.S.C.A. 46(b) because of the

requirement that a panel consist of not less than three

judges. Admittedly, should Judge Rubin have become unable

to participate in the decision because of illness or grounds

that arose subsequent to oral argument, prior interpretations

of Section 46(d) would have allowed a quorum of the judges

to make the decision. However, because Judge Rubin failed

to recuse himself, for grounds which he knew or should

have known to exist prior to docketing, initial conferences

12

and prior to the beginning of oral argument, ICG was denied

the benefit of the exchange of thoughts and ideas envi-

sioned by Section 46(b). Therefore, ICG is entitled to a

rehearing before the Fifth Circuit Court of Appea!s because

it was constructively denied a hearing before a panel of

three qualified judges as required by 28 U.S.C.A. Section

46(b).

4. ASSUMING THAT THE CARMACK AMENDMENT

IS APPLICABLE, ICG EMPLOYEES DID NOT HAVE

SUFFICIENT KNOWLEDGE TO ALLOW AIR PROD-

UCTS TO RECOVER SPECIAL DAMAGES.

The Fifth Circuit erred when it held that Air Products

was entitied to recover special damages. The Court’s holding

clearly evidences the fact that it considered the damages

that it awarded to Air Products to be special damages.

The award is tased upon the finding that the railroad

employees should reasonably have anticipated (1) that

Air rroducts did not have a procedure for checking tank

cars received against bills of lading (2) that Air Products did

not test chemicals before unloading them and (3) that there

was more than one type of butyl alcohol or the results of

mixing “iso” and “‘normal”’ buty] alcohol.

Normally, the measure of damages for a carrier’s breach

of contract to transport and deliver is the value of the

shipment at the correct place and time of delivery, less

transportation charges paid by the claimant. It is clear that

a carrier’s liability is not that of an insurer or a guarantor.

Adams Express Co. v. Kroninger, 226 U.S. 491, 33 S.Ct.

148 (1913). The Carmack Amendment did not expand this

common law of carrier’s liability. F. J. McCarty Co. v.

Southern Pacific Co., 428 F.2d 690 (9th Cir. 1970). The

court in McCarty stated:

13

“Only those damages can be recovered as

may be reasonably supposed to have been in

the contemplation of the parties at the time

they made the contract.”

See also Marquette Cement Manufacturing Co. v. The Louis-

ville and Nashville Railroad Company, 281 F.Supp. 944

(E.D. Tennessee 1967) affirmed 406 F.2d 731 (6th Cir.

1969), in which the court stated:

“The Carmack Amendment did not alter the

common law as to special damages. Knowl-

edge is a prerequisite for liability.’’ (emphasis

added).

See also Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145

(1854) ana Globe Refining Company v. Landa Cotton Oil

Co., 190 U.S. 540, 23 S.Ct. 754 (1902).

The costs incurred by Air Products in separating the mis-

delivered normal butyl alcohol from the isobutyl alcohol

were clearly special damages falling within the special knowl-

edge rule. In Marquette, supra, the carrier misdelivered

“air-entrained’’ cement suitable only for making concrete

pipe, to the ready-mix division of a materials company. The

ready-mix concrete made from this shipment was defective

and suit was brought against the railroad to recover damages

that resulted from the misdelivered cement. The Court

awarded the plaintiff the value of the shipment and the

freight charges but refused to award any special damages.

With regard to special or consequential damages not awarded,

the Court stated:

“With respect to the remaining items of

damage claimed by the plaintiff, that is the

14

cost of testing and removing the defective

concrete from the construction sites, such

damages may be considered only as special

or consequential damages. With respect to

their recovery the issue then arises as to

whether the special circumstances giving

rise to the damages were communicated to

or were known by the defendant at the time

the contract of carriage was made. In order

to recover special damages under the cir-

cumstances of this case, it must appear that

at the time of the making of the contract

of carriage that the defendant had notice

or knowledge of the special conditions

rendering such damages the natural and

probable result of the breach [citations

omitted] .” (At page 950).

The costs incurred by the plaintiff in Marquette in re-

moving or separating defective cement from the construction

sites are closely analogous to the costs incurred by Air

Products in the instant case in separating the normal butyl]

alcohol from the isobutyl alcohol. Again, and clearly, such

damages are “special damages’’.

it is also evident that Air Products has not shown that ICG

or any of its employees, at the time of the making of the

contract of carriage with Shell Chemical or at the time of

entering the contract of carriage with Air Products for the

isobutyl alcohoi, had any “notice or knowledge of the

special conditions” rendering such damages, “the cost of

alcohol separation” or the natural and probable result of a

breach of contract (the misdelivery). Each of the tank cars of

both “iso” and “normal” butyl alcohol were marked with

the same placard - “Dangerous Butyl Alcohol”. The record

15

is totally void of any evidence showing that any ICG em-

ployee had any knowledge that there even existed more

than one type of butyl alcohol, much less knowledge of

the damages which might result from the mixing of the

two chemicals.

The mere fact that the bill of lading for tank car SCMX

2534 sent to Shell Chemical Company at Geismar was

correctly marked stating that it contained normal butyl

alcohol does not establish sufficient knowledge for ICG to

have known the possible consequential results of misdelivery.

The Marquette decision specifically found such information

on the bill of lading to be insufficient to establish special

knowledge on the part of the railroad. The Court stated

in Marquette:

“The court is of the opinion that the evidence

does not establish such notice or knowledge

upon the part of the defendant. It is true

that the bill of lading did designate the ship-

ment as ‘air-entrained cement’. This infor-

mation is not sufficient, however, to put the

carrier on notice as to the use for which it

would be put. Nor is it sufficient to put the

carrier on notice that an additional ‘air-

entraining agent would be added to the

cement by the plaintiff, thereby rendering

it unsuited for structural use. The notice here

received by the carrier by the inclusion of

the words ‘air-entrained cement’ upon the bill

of lading was not sufficient to render reason-

ably foreseeable the subsequent events which

resulted in the expenses incurred by the

plaintiff in testing and removing the de-

fective concrete.” Marquette at 950-951.

16

The special damages claimed by Air Products are simply not

supported by any evidence and are not a proper part of any

award in this case.

CONCLUSION

The decision of the Court of Appeals for the Fifth Circuit

is contrary to the clear and unambiguous language of the

Carmack Amendment to the Interstate Commerce Act.

Further it will frustrate settlement possibilities in cases of

rail car misdeliveries between carriers and consignees and

will encourage forum shopping. The decision is of national

importance and merits this Court’s attention. The petition

for writ of certiorari should be granted.

RESPECTFULLY SUBMITTED:

BREAZEALE, SACHSE & WILSON

Post Office Box 3197

Baton Rouge, LA 70821

Telephone: (504) 387 - 4000

Boris F. Navratil, Trial Attorney

Musphy | Jeitin., I per Bes

Murphy J. Foster, III

17

PROOF OF SERVICE

I, Boris F. Navratil, attorney for Illinois Central Gulf

Railroad Company, petitioner herein, and a member of the

bar of the Supreme Court of the United States, hereby

certify that on the 30th day of May, 1984, I served the

foregoing petition for a writ of certiorari, and its appendices,

on Air Products and Chemical, Inc., respondent in connec-

tion with this application for a writ of certiorari, by mailing

three copies thereof to its counsel of record, Wallace A.

Hunter, Esquire, Suite 614, Louisiana National Bank Build-

ing, 451 Florida Street, Baton Kouge, Louisiana 70801.

Bors t Nawratit nor BPS

Boris F. Navratil

A-1

APPENDIX A

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CIVIL ACTION

NUMBER 80-522-A

Received May 13, 1982

AIR PRODUCTS AND

CHEMICALS, INC.

VERSUS

ILLINOIS CENTRAL GULF

RAILROAD COMPANY

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Findings of Fact

1. Plaintiff, Air Products, is a corporation organized and

existing under the laws of the State of Delaware, with its

principal place of business in the Commonwealth of Pennsyl-

vania. Illinois Central Gulf Railroad is a corporation, autho-

rized to do and doing business in the State of Louisiana,

with its principal place of business in the State of Illinois.

2. Plaintiff is the owner of a chemical plant facility

located near St. Gabriel, Louisiana. In connection with its

operations at this facility in November, 1976, plaintiff used

a liquid raw material known as “isobutanol’ routinely

purchased under a contract between plaintiff and Shell

Chemical Company, Houston, Texas. The raw material

ordered was shipped by rail from Shell’s facility in Houston

A-2

to plaintiffs facility in St. Gabriel as requisitioned by plain-

tiff.

3. The parties have stipulated to the following facts:

a. On or about November 1, 1976, car no.

SCMX 2534, along with several other cars was delivered

to Air Products and Chemicals, Inc. on its inbound switch-

track at St. Gabriel, Louisiana, by Illinois Central Gulf

Railroad.

b. The product contained in Car No. SCMX

2534 was normal butanol.

c. Tank car SCMX 2534 was not consigned to

Air Products and Chemicals, Inc. but to Shell Chemical at

Geismar, Louisiana.

d. Tank car no. SCMX 2534 together with three

other cars delivered to Air Products on November 1, 1976,

were shipped from Shell Chemical, Houston, Texas.

e. All four cars which were delivered to Air

Products on November 1, 1976, including car no. SCMX

2534, were identified by placards reading “contains butyl

alcohol.”

f. There are four types of butyl alcohol, one of

which is “normal butanol” and another which is “‘iso-

butanol.”

g. Air Products and Chemicals, Inc. had placed

an order with Shell Chemical, Houston, Texas for ship-

ments of “‘isobutanol” which it used at its St. Gabriel,

Louisiana facility.

A-3

h. Tank car no. SCMX 2534 was unloaded by

representatives of Air Products and Chemicals, Inc. into

an above ground storage tank which at the time contained

811,873 gallons of “‘isobutanol.”’

i. Following the unloading of tank car no.

SCMX 2534 it was discovered by representatives of Air

Products that the car SCMX 2534 had not been consigned

to Air Products but was on consignment to Shell Chemical

at Geismar, Louisiana, and that the product contained

therein was normal butanol.

j. Both normal butanol and isobutanol are clear

and colorless liquids of the same viscosity.

4. The established procedure was that a copy of the bill

of lading would be mailed to Air Products near the time the

shipment was placed with the railroad.

5. Air Products would receive these bills of lading at

various times, sometimes before and sometimes after the

shipment had arrived.

6. Plaintiff was holder of the three bills of lading for

the three tank cars of isobutanol ordered from Shell in

Houston.

7. When these tank cars arrived in Geismar, Louisiana,

it was normal procedure for ICG to call Air Products and

inform them of the number of cars arriving that day.

8. Air Products then made up a switch list from the

information supplied by ICG and by the plant as to how

many cars were already at the plant and where they were

located.

A-4

9. The switch list told the railroad how many tanks to

deliver and where to place them, either on track A or B.

10. When cars are delivered, Air Products runs an analysis

on the contents of the tank cars to obtain the quality of

the chemical, bu“ does not run tests to ascertain the type of

chemical contained therein.

11. Air Products unloads all deliveries of isobutanol

into a large storage tank at the plant and the railroad em-

ployees were aware of that established procedure.

12. It was not feasible to wait until the bills of lading

were received before unloading, because Air Products han-

dled about 19 tank cars of isobutanol a month during the

relevant period of time.

13. Since the plant uses this chemical every day, plain-

tiff cannot allow tank cars to sit idly by and stack up; they

must be unloaded for processing and to make room for

additional cars.

14. The load of normal butanol contaminated contents of

the storage tank which contained at that time about 800,000

gallons of product.

15. Air Products used its own plant facilities to decon-

taminate a substantial portion of the product. Use of the

plant facilities minimized damages.

16. After the initial processing at the Air Products Plant,

an additional quantity of raw material remained contami-

nated and plaintiff, after shipping a test truck load of the

material, shipped the remainder of the contaminated product

to Dow Badische Company at Freeport, Texas for further

A-5

processing. That company was able to decontaminate the

remaining amount of product.

17. During the processing at the Air Products Plant and

at Dow Badische Company, a certain amount of product was

lost due to the distillation process employed.

18. Plaintiff claims that it sustained damages in the

amount of $95,184.48 as a result of the misdelivery of the

tank car containing normal butanol. Although plaintiffs

evidence was somewhat inconsistent and uncertain, plaintiff

has established the following damages caused by the mis-

delivery of the tank car by a preponderance of the evidence:

a. Cost of “reprocessing” contaminated material at Air

Products Plant:

1. Labor and materials $11,199.30

Fuel Oil Cost 41,101.86

Electricai Cost 1,880.26

Raw material loss 11,039.61

SUBTOTAL 65,221.03

b. Cost of reprocessing contaminated material at Dow

Badische Company and transportation to and from that

plant:

1. “Reprocessing” cost $15,656.60

Delivery charges and

cost of initial truck load 9,720.73

Raw material loss 4,277.89

SUBTOTAL $29,655.22

Ba AD el ut $94,876.25

As

19. Air Products shipped the entire contents of the

misdelivered tank car to Dow Badische and made no attempt

to recover it. The value of the contents of the tank car was

$21,537.13.

20. The defendant railroad paid the sum of $21,537.13

to Shell Chemical Company, the concern which had actually

ordered the contents of the misdelivered tank car.

II. Conclusions of Law

1. The court has jurisdiction under 28 U.S.C. §1337

and under 28 U.S.C. § 1332.

2. The Carmack Amendment, 49 U.S.C. §20(11) is

applicable to this litigation and plaintiff has standing to

assert a cause of action for breach of a contract of carriage

in interstate commerce. American Synthetic Rubber Corp. v.

Louisville & N.R. Co., 422 F.2d 462 (6th Cir. 1970); Mar-

quette Cement Mfg. Co. v. Louisville & Nashville Railroad

Co., 281 F.Supp. 944 (E.D. Tenn. 1967), affirmed 406 F.2d

731 (6th Cir. 1969); Stroh Brewery Co. v. Grand Truck

Western Railroad Co., 513 F.Supp. 827 (E.D. Mich. 1981).

3. An interstate carrier is liable not only for the delay

in delivery but also for misdelivery and for the foreseeable

damages thereby incurred by the consignee; that is to say,

despite the fact that plaintiff did not hold a bill of lading

for the misdelivered tank car, it may nevertheless assert

a cause of action for breach of its contract of carriage and

for foreseeable damages thereby incurred. American Syn-

thetic Rubber Copr. v. L. & N. Railroad Co., supra; see

also, Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct.

148, 57 L.Ed. 314 (1913); New York, Philadeiphia & Nor-

folk Railroad Co. v. Peninsula Produce Exchange, 240 US.

34, 36 S.Ct. 230, 60 L.Ed. 511 (1916).

A-7

4. Defendant seeks to limit its liability to ‘tnon-con-

sequential damages” suffered by plaintiff, specifically the

cost of delivering a proper tank car containing isobutanol as

called for in the contract of carriage. Defendant cites Mar-

quette Cement Mfg. Co. v. Louisville & Nashville Railroad

Co., 281 F.Supp. 944 (E.D. Tenn. 1967), affirmed 406 F.2d

731 (6th Cir. 1969), for that proposition. Whatever may

have been the situation in that case, the court finds that it

was foreseeable to the employees of the railroad in this

case that damages such as those sustained by Air Products

could be caused by a misdelivery of product.

5. The railroad employees were on notice that ship-

ments of isobutanol were unloaded into a storage tank of

1,000,000 gallon capacity. Obviously all such chemicals were

mixed when unloaded into the tank. It is not necessary that

the employees know the exact properties of the chemicals

involved for them to reasonably anticipate that a mixture of

chemicals in the tank would result in contaminaticn of the

entire contents. It is also foreseeable that it would cost

money to decontaminate the contents of the storage tank.

The court finds that these damages sustained by Air Products

were foreseeable as a result of the misdelivery of a tank car

containing chemicals other than those requested.

6. There was no contributory negligence upon Air

Products relating to failure to run extensive chemical analyses

of the products prior to unloading. All the railroad had to do

was to make the correct delivery and there was no necessity

for any chemical analysis. The railroad’s contract of carriage

calls for it to make correct deliveries.

7. The value of the chemical contained in the mis-

delivered tank car must be deducted from the award in favor

of Air Products since it retained that chemical and apparently

A-8

gave it away to Dow Badische Company.

8. There will judgment herein in favor of plaintiff and

against defendant in the sum of $94,876.25, subject to a

credit in the amount of $21,537.13, or $73,339.12 together

with interest and costs.

Baton Rouge, Louisiana, May 12, 1982.

/s/ John V. Parker

JOHN V. PARKER,

CHIEF JUDGE

MIDDLE DISTRICT OF

LOUISIANA

A-9

APPENDIX B

CORRECTED

AIR PRODUCTS & CHEMICALS v. ILL. CENT. GULF

R.R.

AIR PRODUCTS AND CHEMICALS,

INC., Plaintiff-Appellee,

V.

ILLINOIS CENTRAL GULF

RAILROAD COMPANY,

Defendant-Appeilant.

No. 82-3356

United States Court of Appeals,

Fifth Circuit.

Dec. 16, 1983.

Consignee brought action against carrier to recover dam-

ages resulting misdelivery of chemicals. The United States

District Court for the Middle District of Louisiana, John V.

Parker, Chief Judge, entered judgment in favor of consignee,

and carrier appealed. The Court of Appeals, Tate, Circuit

Judge, held that: (1) carrier was liable to consignee for

misdelivery of chemicals, and (2) consignee was entitled to

recover processing costs for decontamination of large storage

tank contaminated by wrong chemical delivered by carrier.

Affirmed.

A-10

1. Carriers key 69(1)

Statute providing that a railroad is required to issue a bill

of lading upon receiving property for transportation in inter-

state commerce, and that railroad is liable to lawful holder of

bill of lading for damages with regard to property trans-

ported, provides exclusive remedy for a breach of a contract

of carriage provided by a bill of lading, including foreseeable

damages resulting from delivery of different cargo than that

specified by bill of lading issued to damaged consignee.

Interstate Commerce Act, §20(11), 49 U.S.C. (1976 Ed.)

§20(11).

2. Carriers key 93

Carrier’s delivery of different chemicals than those for

which bills of lading were issued and which carrier had con-

tracted to deliver to consignee rendered carrier liable under

statute providing that a railroad is required to issue a bill

of lading upon receiving property for transportation in

interstate commerce, and that railroad would be liable to

lawful holder of bill of lading for damages with regard to

property transported, even though no bill of lading was

issued to consignee with regard to misdelivered chemicals,

since misdelivery plainly resulted from a breach in carrier’s

duty to deliver to consignee the right product as intended

by series of bills of ladings issued by railroad to transport

the given chemical to consignee’s premises in accordance

with their terms. Interstate Commerce Act, §20(11), 49

U.S.C. (1976 Ed.) §20(11).

3. Carriers key 94(4)

Fact that a mixture of chemicals would result in con-

tamination of entire contents of consignee’s large storage

tank, and that it would cost money to remove the contami-

A-11

nation, should reasonably have been anticipated by carrier's

employees, entitling consignee to recover reprocessing costs

of decontaminating storage tank caused by carmier’s mis-

delivery to consignee’s premises of chemical which was

intended for another consignee and which caused contami-

nation.

Appeal from the United States District Court for the

Middle District of Louisiana.

Before TATE, Circuit Judge, and DAVIS,* _ District

Judge.**

TATE, Circuit Judge:

The defendant carrier (“Illinois Central’) appeals. The

district court judgment awarded the plaintiff consignee

(“Air Products”) damages caused by a misdelivery to its

premises of contaminating cargo intended for another con-

signee. Air Products’ complaint is based upon the Carmack

Amendment. 49 U.S.C. §20(11) (1906). The district

court awarded Air Products the damages resulting from

the breach through such misdelivery of Illinois Central’s

contract to deliver the intended cargo to Air Products,

as specified by the bill(s) of lading issued by Illinois Central

to Air Products. Illinois Central appeals, principally con-

*Judge Davis participated by designation in the oral argument of this

case as a United States District Judge for the Western District of Louisi-

ana. Since that time he has been appointed as a Fifth Circuit Judge.

** This opinion is being entered by a quorum of this panel pursuant to

28 U.S.C. §46(d). Judge Rubin was a member of the panel that heard

oral argument, but subsequently disqualified himself from further

participation in this case.

A-12

tending that the present consignee does not have a cause

of action against a carrier for breach of a contractual obliga-

tion under the Carmack Amendment, because, as to the

misdelivered damage-causing cargo, the consignee Air Prod-

ucts had not been issued a bill of lading and, therefore, as to

this cargo, no contract was made between the parties.

[1] We affirm. We agree with the district court that the

Carmack Amendment, as judicially interpreted, provides an

exclusive remedy for a breach of a contract of carriage

provided by a bill of lading, and that this remedy includes

foreseeable damages resulting from misdelivery of differ-

ent cargo than that specified by the bill of lading issued to

the damaged consignee. This conclusion, moreover, is in

accord with the only other reported decision on the issue

cited to us. American Synthetic Rubber Corporation y.

Louisville & Nashville Railroad Company, 422 F.2d 462

(6th Cir. 1970).

This litigation arises out of the following facts:

The plaintiff-consignee, Air Products, had ordered 400,

000 gallons of a chemical from the shipper (‘‘Shell’’) to be

delivered over a period of days, during which a series of

bills of lading were issued by the defendant railroad, Illinois

Central, one for each tank car delivered without incident.

On November 1, Illinois Central delivered four tank cars

to Air Products, but one of them (for which a bill of lading

had been issued to a different consignee at another location)

was delivered at Air Products’ premises through the rail-

road’s misrouting error. This fourth tank car contained a

chemical similar to and indistinguishable in appearance to

the chemical ordered by Air Products that was intended to

be delivered. Without fault on the part of Air Products,

which had then tested the liquids for impurities, all four

A-13

tank cars thus received were, in accordance with the normal

practice, emptied into a large storage tank of the chemical

on its premises - but an ingredient in the misdelivered chemi-

cal contaminated the entire contents of the large storage

tank. The reprocessing costs caused net damages of $73,393.

12. The district court awarded this amount to Air Products.

In its complaint, Air Products kad alleged that the “mis-

delivery” of the tank car entitled it to recover under the

Carmack Amendment.! Pertinently to the present cause of

action, this statutory enactment provides that a railroad is

required to issue a bill of lading upon receiving property for

transportation in interstate commerce, and that this railroad

“delivering said property so received and transported shall

be liable to the lawful holder of [the] bill of lading” for

damages with regard to the property transported. 49 U.S.C.

§ 20(1 1) (1906).2

1. This action was originally filed in the Northern District of Ilinois

seeking damages primarily under a tort theory and alternatively under

the Carmack Amendment for breach of contract. After two venue

transfers, the action was retained by the Middle District of Louisiana.

The plaintiff's tort action was met with a motion to dismiss based on

the Louisiana one year prescriptive period. The district court ruled

that Dlinois Central’s misdelivery of the car breached the railroad’s

obligation under its contract of carriage and granted a recovery to Air

Products. The district court, therefore, found it unnecessary to de-

termine whether plaintiff’s tort action had prescribed under Louisi-

ana law.

2. The Carmack Amendment pertinently provides:

Any * * * railroad * * * receiving property for

transportation from a point in one state * * * toa

point in another state * * * shall issue a receipt or

bill of lading therefor, and shall be liable to the law-

ful holder thereof for any loss, damage, or injury to

A-14

Despite the apparent statutory limitation to recovery of

damage caused to the property itself transported, the Su-

preme Court (as the present carrier does not dispute) from its

earliest interpretation has consistently construed the Amend-

ment as likewise imposing liability upon the carrier for all

reasonably foreseeable consequential damages resulting from

a breach of the contract of carriage, including those resulting

from nondelivery of the shipped goods as provided by the

bill of lading. See, e.g., Southeastern Express Company vy.

Pastime Amusement Company, 299 U.S. 28, 57 S.Ct. 73,

81 L.Ed. 20 (1936); New York, Philadelphia & Norfolk

Railroad Company v. Peninsula Produce Exchange of Mary-

land, 240 U.S. 34, 36 S.Ct. 230, 60 L.Ed. 511 (1906); Adams

Express Company v. Croninger, 226 U.S. 491, 33 S.Ct. 148,

57 L.Ed. 314 (1913). “The words ‘any loss, damage, or in-

jury to such property’. . . are comprehensive enough to

embrace all damages resulting from any failure to discharge

a carrier’s duty with respect to any part of the transportation

to the agreed destination.” Peninsula Produce Exchange,

supra, 240 U.S. at 38, 36 S.Ct. at 232. See also Georgia,

Florida & Alabama Railway Company vy. Blish Milling Co.,

241 U.S. 190, 196, 36 S.Ct. 541, 544, 60 L.Ed. 948 (1916).

2. Continued

such property caused by it or by any common

carrier * * * to which such property may be

delivered or over whose line or lines such property

may pass * * * orany * * * railroad * * * deliv-

ering said property so received and transported

shall be liable to the lawful holder of said receipt or

bill of lading * * * for the full actual loss, damage,

or injury to such property caused by it or by any

such common carrier * * * to which such proper-

ty may be delivered or over whose line or lines

such property may pass * * *. 49 U.S.C. §20(11)

(1906).

A-15

This broad interpretation of a carrier's liability under its

bills of lading was premised upon what the Court conceived

to be a paramount object of the legislation - to provide a

uniform rule that the carrier issuing the bill of lading would

be responsible to the consignee for all loss, damage, or

delay arising out of the contract to transport the goods so

shipped. Peninsula Produce Exchange, supra, 240 U.S. at

37, 36 S.Ct. at 231; Adams Express Company, supra, 226

U.S. at 503-10, 33 S.Ct. at 151-53; Atlantic Coast Line

Railroad Company yv. Riverside Mills, 219 U.S. 186, 199-

203, 31 S.Ct. 164, 167-70, 55 L.Ed. 167 (1911). Moreover,

a purpose was to substitute a paramount and uniform nation-

al law as to the rights and liabilities of interstate carriers

subject to the Amendment. As stated in Adams Express

Company, 226 U.S. at 505-06, 33 S.Ct. at 152:

That the legislation supersedes all the

regulations and policies of a particular state

upon the same subject results from its general

character. It embraces the subject of the

liability of the carrier under a bill of lading

which he must issue, and limits his power to

exempt himself by rule, regulation, or con-

tract.

* * * * * *

To hold that the liability therein declared

may be increased or diminished by local

regulation or local views of public policy will

either make the provision less than supreme,

or indicate that Congress has not shown a

purpose to take possession of the subject.

The first would be unthinkable, and the

latter would be to revert to the uncertainties

and diversities of rulings which led to the

A-16

amendment. The duty to issue a bill of lading,

and the liability thereby assumed, are covered

in full; and though there is no reference to

the effect upon state regulation, it is evident

that Congress intended to adopt a uniform

rule and relieve such contracts from the

diverse regulation to which they had been

theretofore subject.

What is the liability imposed upon the

carrier? It is a liability to any holder of

the bill of lading which the primary carri-

er is required to issue “for any loss, damage,

or injury to such property caused by it,”

or by any connecting carrier to whom the

goods are delivered. . . . The liability thus

imposed is limited to “any loss, injury, or

damage caused by it or a succeeding carrier

to whom the property may be delivered;”’

and plainly implies a liability for some default

in its common-law duty as a common carrier.

Il.

Illinois Central, the defendant carrier, points out that no

bill of lading was issued to Air Products with regard to the

misdelivered tank car, and that thus the only contract with

regard thereto is represented by the bill of lading issued to

the different (intended) consignee. Illinois Central forcefully

argues that the Carmack Amendment does not provide a

cause of action with regard to the misdelivered cargo, since

with regard thereto Air Products, the plaintiff consignee,

was not“the lawful holder of [a] bill of lading” who, under

the statutory language, is entitled to recover the “‘full actual

loss. . . caused by” the carrier. 49 U.S.C. §20(11) (quoted

in note 2 supra).

A-17

{2] What Illinois Central’s argument overlooks, however,

is that no claim is made that the Carmack Amendment

relationship of carrier and consignee between Illinois Central

and Air Products arose out of the bill of lading for the mis-

delivered tank car (that had been issued to a third party).

Instead, the relationship of carrier and shipper here arose

out of the issuance of a series of bills of ladings by Illinois

Central to transport the given chemical to Air Products’

premises in accordance with their terms.

The breach of the contract here urged is Illinois Central’s

delivery to Air Products, causing damage, of a tank car

concerning an injurious substance, instead of one of the tank

cars containing the proper chemicals for which the bills of

lading were issued and which Illinois Central contracted to

deliver to Air Products. The misdelivery was as much a

breach of the contract to deliver the right product in a tank

car for which a bill of lading had been issued, as a failure to

deliver or a delay in delivery of a tank car according to the

terms of the bill of lading. The carrier thus breached a

contractual duty to deliver a tank car containing the product

specified to Air Products’ premises.

Indeed, although it is well settled that the same act may

result in tortious as well as contractual-breach liability at

the election of the injured person, here the primary reason

for the misdelivery arose from the bills of lading issued by

Illinois Central to carry the intended chemicals to Air Prod-

ucts’ premises, and Illinois Central's breach, in attempted

performance of those contracts, through its mistaken delivery

of the wrong tank car.3

3. For present purposes, it is unnecessary to characterize the con-

tract breached as the entire series of bills of ladings or, instead, as only

the bill of lading issued for the tank car that next arrived and for

which, instead, the misdelivered car was furnished.

A-18

As the authorities previously noted hold, Congress in-

tended by the Carmack Amendment to provide a uniform

national remedy against carriers for breach of the contract

of carriage, including a liability for default in any common-

law duty as a common carrier. The misdelivery here in

question, in our opinion, plainly resulted from a breach

in the carrier’s duty to deliver to Air Products the right

product as intended by the bill(s) of lading issued by it.

Mo authority cited or that we have found indicates that

Congress intended by the Carmack Amendment that an

injured consignee be deprived of a remedy for breach of

contract available to him under general contractual theory.

This statutory attempt to supercede overlapping and some-

times differing state remedies for breach is nowhere shown

to have been intended to modify the common-law duties

of a common carrier under its contract of carriage, nor

to eliminate recovery for their breach simply because the

carrier issued a bill of lading. To the contrary, as the de-

cisions show, the statutory emphasis upon a carrier’s liability

under the bill of lading issued by it was, in the interests of

shippers and consignees, to centralize in one carrier - the

one that issued the bill of lading - liability for breaches in the

contract of carriage, so that shippers and consignees could

look to this one source (instead of seeking out fault from

among connecting carriers) for damages caused by any

default in the performance of the contract of carriage.

In i970, the Sixth Circuit rejected contentions similar

to those now advanced by Illinois Central and arising from

a generically identical situation. American Synthetic Rubber

Curporation, supra. No opposing decision is cited to us.

As there stated,

Under this interpretation [of the Amend-

ment], the carrier is liable not only for delay

A-19

in delivery but also for a misdelivery and the

foreseeable damages thereby incurred by the

consignee. Stated differently, the carrier is

responsible under the Act for what is de-

livered as well as when it is delivered. The

significant factor is that a carrier is answer-

able in damages for its breach of the contract

of carriage. In the instant case, appellants’

cause of action is essentially one for breach

of contract of carriage in that, due to a mix-

up of waybills, the carrier delivered the wrong

tank car. Appellants’ damages were incurred

by the abortive attempt of the carrier to

perform its contract. Except for the con-

tract of carriage, no car would have been

delivered. Except for the contract of carriage

and their reliance on it, appellants’ employees

would not have accepted a tank car of un-

known chemicals and fed them into appel-

lants’ plant facilities.

422 F.2d at 466.

We see no reason to reach a contrary conclusion and,

therefore, we affirm the district court’s decision on this

issue, which was guided by this precedent.4

4. Despite carrier dissatisfaction with the interpretation reached by

American Synthetic Congress has not seen fit to narrow a carrier’s

liability under its bill of lading as there interpreted more than thirteen

years ago. Even if we were not persuaded that the American Synthetics

construction is more consistent with the statutory purpose and Su-

preme Court jurisprudence than that advanced by Illinois Central, we

would be disinclined to adopt for this circuit an interpretation that

differs from this previously established rule.

A-20

Ill.

[3] Alternatively, Illinois Central argues that, even if

the Carmack Amendment does recognize a cause of action

for damages resulting from the present misdelivery, Air

Products has not borne its burden of proving that the parti-

cular damages sought are recoverable. It relies upon the

rule that recoverable damages only include those reasonably

within the contemplation of the parties at the time they

made the contract, so that therefore “special damages” not

readily foreseeable as the ordinary and natural consequences

of the contractual breach are not recoverable unless the

carrier had notice or knowledge of the special circumstances

from which such damage would flow. See, e. g., Marquette

Cement Manufacturing Company vy. Louisville and Nashville

Railroad Company, 281 F.Supp. 944, 941-49 (E.D.Tenn.,

1967), aff'd 406 F.2d 731 (6th Cir. 1969).

In rejecting this argument, the district court found that,

under the present facts, it was foreseeable to employees of

Illinois Central that damages such as those sustained would

result from a misdelivery of product. The facts included

the knowledge of the railroad employees that Air Products

immediately unloaded all deliveries of chemicals into its

800,000-gallon storage tank, since it was not feasible to do

more than impurity-testing or to have tank cars (17 a month)

pile up while awaiting bills of lading or more extensive

chemical testing. The district court concluded that, even

without knowing the exact properties of the chemicals

delivered, the railroad employees should reasonably have

anticipated, under the facts known to them, that a mixture

of chemicals would result in contamination of the entire

contents of the large storage tank, and that it would cost

money to rernove the decontamination.

A-21

We are unable to hold that these primarily factual de-

terminations by the district court are clearly erroneous,

Fed.R.Civ.P. 52(a), and therefore affirm them.

Conclusion

Accordingly, we AFFIRM the judgment of the district

court.

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APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-3356

AIR PRODUCTS AND CHEMICAL, INC.,

Plaintiff-Appellee,

versus

ILLINOIS CENTRAL GULF RAILROAD COMPANY,

Defendant-Appellant.

FILED JANUARY 31, 1984

Appeal from the United States District Court for the

Middle District of Louisiana

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion December 16, 1983, 5 Cir., 198_, _.-_ F.2d

)

(January 31, 1984)

Before TATE, Circuit Judge, and DAVIS*, District Judge.**

PER CURIAM:

(x) The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

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banc, (Federal Rules of Appellate Procedure and Local

Rule 35) the Suggestion for Rehearing En Banc is DENIED.

() The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it, (Federal

Rules of Appellate Procedure and Local Rule 35) the Sug-

gestion for Rehearing En Banc is also DENIED.

() A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ Tate

United States Circuit Judge

*Judge Davis participated by designation in the oral argu-

ment of this case as a United States District Judge for the

Western District of Louisiana. Since that time he has been

appointed as a Fifth Circuit Judge.