Opposition Brief — Swift Textiles, Inc. v. Watkins Motor Lines, Inc.

Fite

US, .

D

CLERK _—

>

CASE NO. 86-1320

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1986

SWIFT TEXTILES, INC.,

Petitioner,

Ve

WATKINS MOTOR LINES, INC.,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF RESPONDENT

JOHN B. MILLER

Post Office Box 1567

Savannah, Georgia 31498

(912) 233-5722

Counsel for Respondent

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES wcccccccccee Liwmiii

I = STATEMENT OF CASE eeeeeseeee8e2es8 @ 1

Il. SUMMARY OF ARGUMENT ...ccccecee 5

Lak = ARGUMENT eee*eeeee#s¢ee#senreesee2n7e3eseee#e#e#?*# 8

av CONCLUSION eeee*ee#2es3#s7es#3ee#e3#se7esese @ 20

ii

TABLE OF AUTHORITIES

FEDERAL CASES:

Allstate Ins. Co. v. Int'l Shipping

Corp., 703 F.2d 497 (llth Cir.

1983) eeeeees3seseeeee#es#s7nse1ee7#neoe#ee#ee#e#e#ee##ee# ce

American Railway Express Co. v.

Daniel, 269 U.S. 40 (1925) .... 20

Condakes v. Smith, 281 F. Supp. 1014,

Buae Cpomee. 1968) ..ceeee 15, 16

Farley Terminal Company v.

Atchison, Topeka and Santa

Fe Ry., 522 F.2d 1095 (9th

Cir.), cert. den., 423 U.S.

See RETO? Sedanerccccnsccvcces 20

Great Northern RR Co. v. Thompson,

222 F. Supp. 573, 582 (D.N.D.

1963) eeee#*eesesee#eses#e#e#s@¢e7#see#ee#ee#e#e#e# 4

Marvirazon Compania Naviera, S.A.,

v. H.J. Baker & Bros. Inc.,

674 F.2d 364, 366 (5th Cir.

APGL? sveedeeces sewenececess Af, 28

North Carolina Utilities Commission

v. U.S., 253 F. Supp. 930

EBetsmece 1966) e*eeees e*eeee#es e*ee2ee 13

ou >@ ¥ —< “ 7 a ae

hy oe ae i : : :

% ‘ oe) cil

Cait . , : a arabs ad

a we 3

a

re ftpe mice

2 _~

iii

TABLE OF AUTHORITIES

FEDERAL CASES (Cont.):

Reider v. Thompson, 339 U.S. 113,

70 S.Ct. 499, 94 L.Ed. 698

(1950) ceoeeeeeeeeeeeeee ee eee 14,

United States v.

Erie RR Co., 280

U.S.

74 L.Ed. 187,

98, 102, 50 S.Ct. 51, 53,

STATUTES AND RULES:

46

46

49

49

49

49

U.S.C.

§

206 (1929) ......

190 wccccccccccccee cccee

1303(6)

20(11) eoeeerenteeneeneteeeeteee

10521(a)

11707(e)

(1) (E)

ceeevevcece To 9, 12,

15

17

14

12

CASE NO. 86-1320

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1986

SWIFT TEXTILES, INC.,

Petitioner,

Vv.

WATKINS MOTOR LINES, INC.,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF RESPONDENT

I.

STATEMENT OF CASE

Respondent believes that pertinent

additions to the statement of the case

would be constructive.

At all times Petitioner, who pur-

chased the spinning machinery from Rieter

Machine Works, Ltd. in Basle, Switzer-

land, was the ultimate consignee at

LaGrange, Georgia. The ocean bill of

lading shows Rieter as the Exporter, D.J.

Powers Company, Inc. of Savannah, Georgia

(Petitioner's agent, Freight Forwarder

and custom house broker), as Consignee

and Petitioner as the Notify Party. The

destination on the ocean bill was Sa-

vannah. The container came to rest only

temporarily in a trucking company holding

yard in Savannah solely for the purpose

of awaiting arrangement by Petitioner for

motor carrier movement to LaGrange,

Georgia. Petitioner's agent prepared the

bill of lading on agent's short form of

motor carrier uniform straight bill of

lading. Agent's short form motor carrier

bill of lading contained the the follow-

ing certification: “It is certified that

\ iene.

the property in this receipt was imported

in the importing carrier TFL Enterprise

Sing. from port of Hamburg". The bill of

lading also acknowledged that the ship-

ment was: “Received, subject to the

classification and tariffs in effect on

the date of the issue of this Bill of

Lading". The motor carrier bill of

lading showed Petitioner as both the

shipper and the consignee. This motor

carrier bill of lading recited agreement

between the shipper (Petitioner) and the

carrier (Respondent) that every service

would be subject to the terms and condi-

tions of the applicable motor carrier

classification or tariff and further

contained the following: "Shipper hereby

certifies that he is familiar with all

the terms and conditions of the said bill

of lading, including those on the back

~

—eeEeEEu

I

Der al

thereof, set forth in the classification

or tariff which governs the transporta-

tion of the shipment, and the said terms

and conditions are hereby agreed to by

the shipper and accepted for himself and

his assigns". (Emphasis added)

Respondent had no intrastate operat-

ing rights in the State of Georgia and

thus had no tariffs on file with the

Georgia Public Service Commission. The

only tariff of Respondent available to

Petitioner or its agent at Savannah was

the tariff governing imported containers

on file with the Interstate Commerce

Commission, governing the motor carrier

transportation of containers which had

been imported by ocean carrier. This was

the tariff to which the motor carrier

bill of lading prepared by Petitioner's

agent committed Petitioner to be bound.

ROE Ae SEE Sek RE fe

os es

2

lene ca ee eS

SIRT E eae Ae ae:

isi.

It was the only applicable Carmack permis-

sible tariff in existence and contained

the two-year, one-day Statute of Limita-

tions.

Il.

SUMMARY OF RESPONDENT'S ARGUMENT

A.

The Eleventh Circuit Court Correctly

Held That the Carmack Amendment to the

Interstate Commerce Act Applies to the

Savannah, Georgia to LaGrange, Georgia

Segment of the Movement of a Shipment

Originating in Basle, Switzerland Des-

tined to LaGrange, Georgia.

The shipment from Basle, Switzerland

to LaGrange, Georgia was one single

continuous movement of a product manu-

factured in Basle, Switzerland, purchased

by Petitioner from the Swiss manufac-

turer, and imported by Petitioner to

ae

ee

LaGrange, Georgia. When the shipment

left Basle the consignee was Petitioner

at LaGrange, Georgia, and it never became

a part of the general mass of commerce in

the United States and never came to rest

until delivered to LaGrange, Georgia.

The fact that destination on the ocean

bill was the Port of Savannah, Georgia

and that the subsequent movement was on a

separate bill of lading does not change

the character of the commerce. pe

difficult to find a fact situation where

the nature of the commerce was more

clearly defined from point of origin to

point of destination as being a single

movement of foreign commerce. Neither

che ultimate consignee nor the ultimate

destination ever changed. The Interstate

Commerce Commission has jurisdiction over

the transportation by motor carrier of

-6-

7:

ee =

i i _

property transported by motor common

carrier "between a place in the United

States and a place in a foreign country

to the extent that the transportation is

in the United States" 49 U.S.C.

§ 10521(a)(1)(E). The statute does not

say "from" a place in the United States

"to" a place in a foreign country but

"between" the places. Thus it covers the

domestic segment of the movement in

either direction.

B.

The Eleventh Circuit Court Correctly

Held that Respondent's Tariff Published

and Filed with the Interstate Commerce

Commission was Effectively Incorporated

in the Bill of Lading Prepared by Peti-

tioner's Agent at Savannah.

The Eleventh Circuit Court opinion

sought to be reviewed does not conflict

=

with any opinion of any other Circuit

Court nor any prior opinion of the

Eleventh Circuit as contended by Peti-

tioner.

Iil.

ARGUMENT

A.

The Eleventh Circuit Court Correctly

Held That the Carmack Amendment to the

Interstate Commerce Act Applies to the

Savannah, Georgia to LaGrange, Georgia

Segment of the Movement of a Shipment

Originating in Basle, Switzerland Des-

tined to LaGrange, Georgia.

The jurisdiction of the Interstate

Commerce Act governed the motor carrier

movement from Savannah, Georgia to

LaGrange, Georgia because that movement

was transportation by a motor common

carrier “between a place in the United

-8-

States and a place in a foreign country

to the extent that the transportation is

in the United States." 49 U.S.C.

§ 10521(a)(1)(E).

No more clearly stated authority for

this conclusion can be cited than that

contained in the opinion of the Eleventh

Circuit in this case:

"The nature of a shipment is not

determined by a mechanical inspection of

the bill of lading nor by when and to

whom title passes but rather by ‘the

essential character of the commerce'

United States v. Erie RR Co., 280 U.S.

98, 102, 50 S.Ct. 51, 53, 74 L.Ed. 187,

206 (1929), reflected by the ‘intention

formed prior to shipment, pursuant to

which property is carried to a selected

destination by a continuous or unified

movement', Great Northern RR _ Co. Vv.

Thompson, 222 F. Supp. 573, 582 (D.N.D.

1963) (3-judge court).

"It is well settled that, in deter-

mining whether a particular movement of

freight is interstate or intrastate or

foreign commerce, the intention existing

at the time the movement starts governs

and fixes the character of the _ ship-

ment...{TJlemporary stoppage within the

State, made necessary in furtherance of

the interstate carriage, does not change

its character."

The fact situation here is unequiv-

ocal. All of the facts demonstrate with

unimpeachable clarity that Petitioner was

the consignee of the movement at all

times from origin at Basle, Switzerland

to destination at LaGrange, Georgia.

Petitioner bought the machinery from the

Swiss manufacturer. The record is silent

-10-

on the shipping document from Basle,

Switzerland to the Port of Hamburg,

Germany. However, the record is clear.

Petitioner's agent was the consignee on

the ocean bill of lading and Petitioner

was the notify party on the ocean bill.

Petitioner was the consignee on the motor

carrier bill on which the textile ma-

chinery moved from Savannah, Georgia to

LaGrange, Georgia. There is not a scin-

tilla of evidence to suggest that the

"essential character of the commerce"

ever changed from being one continuous

movement of foreign commerce by various

forms of transportation from Basle,

Switzerland to LaGrange, Georgia. Any

intermediate stops were only those essen-

tial to the mechanical changes in mode of

transportation.

white

a

s

i

3

3

The jurisdiction of the Interstate

Commerce Commission under 49 U.S.C.

§ 10521(a)(1)(E) is beyond question. 49

U.S.C. § 10762 requires a motor common

carrier providing transportation subject

to the jurisdiction of the Interstate

Commerce Commission to publish and file

with the Commission tariffs containing

rates, classifications, rules and prac-

tices. Respondent complied with this

requirement. The parties agreed in the

motor carrier bill of lading prepared by

Petitioner's agent to be bound by the

published tariffs applicable to’ the

movement. The applicable published

tariff on file with the Interstate Com-

merce Commission contained the two-year,

one day limitation within which suit

could be brought as is authorized by the

Carmack Amendment [49 U.S.C. § 11707(e).]

=} =

F

.

i

i

*

*%

|

wot in aa. ll. ai

e.. “apt De

ae

i

8

&

A case very much in point which was

most convincing both to the trial judge

and to the Eleventh Circuit Court of

Appeals is the three judge court case of

North Carolina Utilities Commission v.

U.S., 253 F. Supp. 930 (E.D.N.C. 1966).

B.

The Eleventh Circuit Court Correctly

Held that Respondent's Tariff Published

and Filed with the Interstate Commerce

Commission was Effectively Incorporated

in the Bill of Lading Prepared by Peti-

tioner's Agent at Savannah.

There is no conflict between the

decision of the Eleventh Circuit in this

case which is the object of the Petition

for Writ of Certiorari and any decision

of the United States Supreme Court, or of

the Eleventh Circuit or any other Cir-

cuit.

-]|3-

:

are

tem - 4 ‘ A a

inetd i . ‘ oo tn #@ oO

; - - " _ re VLjIEee a = |

Petitioner argues that the opinion

of the Supreme Court of the United States

in Reider v. Thompson, 339 U.S. 113, 70

S.Ct. 499, 94 L.Ed. 698 (1950) is author-

ity for the proposition that if a con-

tinuous movement from a foreign country

to a destination within the United States

moves on a separate bill of lading from

the port of entry in the United States

the character of the commerce is con-

trolled by whether the shipment crosses

state lines within the U.S. From this

Petitioner argues that the movement from

Savannah, Georgia to LaGrange, Georgia is

intrastate commerce and not subject to an

interstate tariff on file with the Inter-

state Commerce Commission. fThe original

wording of the Carmack Amendment in 49

U.S.C. 20(11) appeared to limit the

Carmack Amendment to interstate commerce

~)4=

i acd

oi? vei. ant ——

and foreign commerce involving a point

from within the U.S. to an adjacent

foreign county, thus excluding the do-

mestic segment of inbound foreign com-

merce. Apparently, this language was

designed by Congress to avoid legislating

concerning foreign commerce entering the

United States and moving to a destination

in the United States on a foreign bill of

lading. See Condakes v. Smith, 281

F. Supp. 1014, 1015 (D.Mass. 1968) in-

volving a shipment of cantaloupes from

Mexico to Boston on a single through

foreign bill of lading. However, the

teaching of Reider v. Thompson is that on

an imported movement when the domestic

portion of the movement is on a separate

bill of lading the Carmack Amendment will

apply without regard to whether the

United States segment crosses state

lines.

=)5-

el Ret ta, a ls as Aan, SANMB n ctti llils SeMewemaw do te Ce

The recodification of the United

States Code involving the Interstate

Commerce Act found in the 49 U.S.C.

§ 10521(a)(1)(E) clarifies this point and

renders it clear that the Interstate

Commerce Commission has jurisdiction over

the transportation of property by motor

carrier “between a place in the United

States and a place in a foreign country

to the extent that the transportation is

in the United States". This language

avoids the distinction between the do-

mestic segment of an importation and an

exportation relied upon in Condakes, and

thus now avoids the necessity to dis-

tinguish between a foreign bill and a

Gomestic bill.

Petitioner also contends that the

decision of the Eleventh Circuit in the

case sought to be reviewed is in conflict

-16-

le ty eam dak bie

with the Eleventh Circuit decision of

Allstate Ins. Co. v. Int'l Shipping

Corp., 703 F.2d 497 (llth Cir. 1983), and

the Fifth Circuit decision in Marvirazon

Compania Naviera, S.A. v. H.J. Baker &

Bros. Inc., 674 F.2d 364, 366 (5th Cir.

1982). These cases involved admiralty

law, ocean shipping and liability of

ocean carriers. The Carriage oi Goods by

Sea Act (COGSA), 46 U.S.C. § 1303(6),

prescribes a one year Statute of Limi-

tations for liability of the ocean car-

rier and the ship and narrowly defines

the areas of liability. The Harter Act,

46 U.S.C. § 190, makes it unlawful for an

ocean carrier to insert in a bill of

lading any provision limiting the car-

rier's liability. On the one hand Con-

gress carefully protected ocean carriers

in COGSA and on the other in Harter

=)

prohibited insertions in bills of lading

attempting to further limit liability.

The statutory schemes and judicial de-

cisions involving ocean carriage under

COGSA and Harter and land carriage under

the Carmack Amendment cannot be analo-

gized as the histories and statutory

approaches are so vastly different. It

is interesting that the colorful author

of the opinion sought to be here reviewed

was likewise the author of Marvirazon.

Marvirazon held actual notice of the one

|

:

|

:

'

year tariff limitation of the stevedore

liability on file with the Federal Mari-

time Commission was necessary because

such limitations are not required by law

to be in the tariff. The Eleventh Cir-

cuit opinion in the present case sought

to be reviewed deals very effectively

with the distinctions between these

a]B-

cases. Another point that should be

mentioned is that the contract of car-

riage which Petitioner seeks to evade was

prepared by Petitioner's own agent, a

presumably experienced custom house

broker and this contract bound the par-

ties to the terms and conditions of the

tariff and classifications governing the

movement. Certainly a custom house

broker knows that the bill of lading it

prepares which certified that the con-

tainer had a prior ocean movement would

be subject to the applicable container

tariff on file with the Interstate Com-

merce Commission. Petitioner in this case

is not a victim of any unfair fine print

in # contract but is a victim of its own

failure to file suit within the period

authorized by statute and provided by the

contract of carriage. Furthermore,

=~], 9-

aan

aly: te

oO

ay

ae |

Petitioner is chargeable, as a matter of

law, with notice of the tariff and classi-

fication required to be on file with the

Interstate Commerce Commission. American

Railway Express Co. v. Daniel, 269 U.S.

40 (1925); Farley Terminal Company vv.

Atchison, Topeka and Santa Fe Ry., 522

F.2d 1095 (9th Cir.), cert. den., 423

U.S. 996 (1975). Petitioner's actual

knowledge is irrelevant.

IV.

CONCLUSION

The Petition for Writ to- the

Eleventh Circuit does not qualify under

United States Supreme Court Rule 17. The

Petition does not present to the United

States Supreme Court a conflict of de-

cisions within the Eleventh Circuit or a

conflict of decisions with another Cir-

cuit nor a conflict with a State Court of

-20-

last resort nor has it so far departed

from the accepted and usual course of

judicial proceedings or so far sanctioned

such a departure by a lower court as to

call for the exercise by the United

States Supreme Court of its power of

Supervision nor does it otherwise in any

manner suggest the need for the Supreme

Court of the United States to exercise

its discretion to review the Circuit

opinion.

The Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

MILLER, SIMPSON & TATUM

By: CMill

n 3, S622

nsel for Respondent

Post Office Bok/1567

Savannah, GA 31498

(912) 233-5722

-2l|-

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1986

SWIFT TEXTILES, INC.,

Petitioner,

WATKINS MOTOR LINES,

)

)

)

)

vs. ) CASE NO. 86-1320

)

)

INC., )

)

)

Respondent.

PROOF OF FILING AND SERVICE

I, the undersigned JOHN B. MILLER,

attorney of record for the Respondent and

a member of the Bar of the Supreme Court

of the United States, deposes and says

that on the | 3th. day of Fabeusnns ’

1987, I filed 40 copies of the foregoing

BRIEF OF RESPONDENT ON WRIT OF CERTIORARI

to the Supreme Court of the United States

with the Clerk of the Supreme Court of

the United States and I served three

copies of this BRIEF OF RESPONDENT ON

=22=

WRIT OF CERTIORARI to the Supreme Court

of the United States on Alan S. Gaynor,

attorney for Petitioner, whose address is

Bouhan, Williams & Levy, Post Office Box

2139, Savannah, Georgia 31498-1001, who

are all the parties required to be

served, by causing to be placed these

copies of said BRIEF OF RESPONDENT ON

WRIT OF CERTIORARI in an authorized

depository for mail at a United States

Post Office in a properly addressed en-

velope with sufficient prepaid postage

thereon to insure First Class Certified

Mail delivery within the time allowed for

=23-

such filing.

n B. Miller

ounsel for Respondent

ost Office Box 1567

Savannah, GA 31498

(912) 233-5722

Sworn to and subscribed

before me this | Rthv

day of ’

1987.

Sus Public, State of Georgia

My: Commission Expires:

JUDITH L. ASARO

Notary Public, Chatham County, Georgia

My Commission Expires Oct. 31, 1989

-—24-