Amicus Curiae Brief — Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd.

MAR 2.4 2004

/¥ OFFICE OF THE CLERK

No. 02-1028

IN THE

Supreme Court of the United States

NORFOLK SOUTHERN RAILWAY COMPANY,

Petitioner,

Vv.

JAMES N. KIRBY, PTy LTD., DBA KIRBY ENGINEERING,

AND ALLIANZ AUSTRALIA, LIMITED

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF WATERFRONT EMPLOYERS

IN SUPPORT OF PETITIONER

THOMAS D. WILCOX *

CARROLL & FROELICH, PLLC

2011 Pennsylvania Avenue, NW

Suite 301

Washington, DC 20006-1895

(202) 296-3005

* Counsel of Record Attorneys for Amicus Curiae

March 24, 2004

ST

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

QUESTION PRESENTED

gn cargo owner who shipped goods to an

Whether a fi

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tations (the —

Himalaya Clause) in the intermediary’s bill of lading, or those

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issued to the

carrier

intermediary, when suing a railroad that subcontracted wi

the goods to their destination.

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ll of lading that an ocean

to del

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shipping intermediary is bound by the li

the ocean

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TABLE OF CONTENTS

Page

| GU THIEN PURSES BD a ccccccsccccsscccsccsccscccsccsccssccscesoes i

TARE Ge AU TIRE Bie cccecccccccsccccccccscccscsseccccsseseees iv

INTEREST OF AMICUS CURIAE ........0cccccssseeeseeeeeees l

SUMMARY OF ARGUMENT.............ccccccsessseeeeeeeeneees 3

SRT cxictrtitonstncientenesiccconensenenssrenscenccssnscecssveseensccees 4

I. DUELING BILLS OF LADING....................... 4

Il. WHICH HIMALAYA CLAUSE APPLIES’... 5

Il. WHO OR WHAT IS ICC? 000.0... ccccccccceeeseeeseees 6

IV. WITH RESPECT TO THE ACTUAL

CARRIERS, ICC ACTED AS AN AGENT

aT ll ecntcncsensinccecqeeqsccscccsenccocecenee 8

V. THE ACTUAL CARRIER’S BILL OF

LADING BINDS ALL PARTIES...................... 11

eae ee 12

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Aquascutum of London, Inc. v. S.S. American

Champion, 426 F.2d 205 (2nd Cir. 1970).......... 8

Chicago, St. Paul & Pacific R.R. Co. v. Acme

Fast Freight, 336 U.S. 468 ..........:cccccccccceeseeeeeeee 8

Great Northern Railway Co. v. O'Connor, 232

CAS, SE GRO caneesensmsveneemensntinsinmaniien 11

Robert C. Herd & Co., Inc. v. Krawill Machine.

Cam, S50 Ge Gt cemmmnnnnnnininmnne 5

Hofjman-LaRoche v. M/V TFL Jefferson et al.,

731 F.Supp. 109, (S.D.N.Y. 1990)... cece 8

Ins. Co. of North America v. S.S. American

Argosy, 732 F.2d 299 (2nd Cir. 1984)............... )

James N. Kirby, Pty Lid. D/B/A Kirby Engi-

neering, and Mmi General Insurance Limited

v. Norfolk Southern Railway Company, 300

PE: Ti le 2) |. passim

Mickinberg v. Baltic Steamship Co., Rice Unruh,

Reynolds Company, and Uts, A Division of

Universal Maritime Services, 988 F.2d 327

CG, FE ecticenisticemmnntnnminieiaaien 10

Modern Office System, Inc. v. Aim Caribbean

Express, Inc., 802 F.2d 617 (DC PR 1992)....... )

Nippon Fire & Marine Insurance Co., Lid v.

Skyway Freight Systems, Inc., 235 F.3d 53

8 12

M. Prusman Ltd. v. M/V Nathanel, 670 F.Supp.

ao FO A, en )

STATUTES

Carriage of Goods by Sea Act (COGSA), 46

ST passim

\

TABLE OF AUTHORITIES—Continued

Shipping Act of 1984, 46 U.S.C. app. 1701

et seq.

So , ;:,

es GE Flee ccrccesnessenssnensemmenesinnes

ET ee

GB UI. GR Re crencenmmeens

ST eee

LEGISLATIVE

Senate Report No. 98-3, (98th Congress, Ist

I ennsssnscsesssssscsensensesmetepeneneetinnsinnnsiantots

Page

wewn An DW

IN THE

Supreme Court of the United States

No. 02-1028

NORFOLK SOUTHERN RAILWAY COMPANY,

Petitioner,

Vv.

JAMES N. KirBy, Pty Ltp., DBA KirByY ENGINEERING,

AND ALLIANZ AUSTRALIA, LIMITED

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF WATERFRONT EMPLOYERS

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE |

National Association of Waterfront Employers (NAWE)

member companies perform stevedoring and/or marine

terminal services at most ports in the United States and in

some ports in foreign countries. One NAWE member,

' In accordance with this Court’s Rule 37.6, counsel of record states

that he is the sole author of this brief, that no entity other than the named

amicus party has made a monetary contribution to the preparation of this

brief, and that NAWE member, Lambert's Point Docks, has made no

contribution other than its annual dues assessment to amicus. Pursuant to

Rule 37.2(a) blanket letters of consent have been filed with the Clerk.

2

Lambert's Point Docks in Hampton Roads, Virginia is owned

by Petitioner. {t and other NAWE member companies are

those companies which load and unload cargo on and off

vessels calling at ports in the United States, including Puerto

Rico, and some foreign countries, and as such have a very

real interest in ocean carrier bills of lading pursuant to the

___Carriage of Goods by Sea Act (“COGSA”) and the precise

language of the Himalaya Clause in those bills. NAWE

members are quite concerned about whether their respon-

sibilities and liabilities are to be governed by a bill of lading

issued by their customer ocean carrier, or by a ‘bill of lading’

issued by a stranger transportation intermediary of whom they

have no knowledge. The answer to that question will dictate

‘what NAWE members must do in the future to understand

their rights and sponsibilities with respect to cargo they

handle as well as what others, such as Petitioner, must do.

This case involves the shipment of ten containers of

machinery from a point in Australia destined for Huntsville,

Alabama via the ports of Sydney, Australia and Savannah,

Georgia. It is common knowledge that such a shipment

required the services of (1) a transport entity in Australia to

deliver the containers to (2) a marine terminal in Sydney,

Australia where the containers were loaded by (3) a stevedore

entity onto a (4) vessel, here operated by Hamburg Sud

(Columbus Line), an (5) American stevedore to unload the

containers when the vessel arrived at the (6) marine terminal

in Savannah under instructions of Hamburg Sud (Columbus

Line) delivered by the terminal operator to (7) Petitioner,

Norfolk Southern Railway Company for transportation to

Huntsville, Alabama. Unfortunately, the train was derailed en

route to Huntsville and the machinery damaged. The shipper

was paid by its insurer for the loss and an action was brought

to recover from Norfolk Southern the ameunt paid by the

insurer to the shipper.

3

Although the present action is between a shipper and its

insurer and the actual ocean carrier’s designated inland

carrier, this Court’s decision could affect all parties providing

actual transportation services pursuant to the ocean carrier's

bill of lading, including the stevedore and marine terminal

operator members of NAWE, who perform the stevedoring

and marine terminal services enumerated as (5) and (6) above

in the case of imported goods and (2) and (3) in the case of

exports. This Court’s decision as to which bill of lading

governs, that of the carrier which actually performs the

transportation or that of a transportation intermediary which

performs no actual transportation, will dictate what NAWE

members and others in the actual transportation chain must

do in the future to understand and protect their rights and

responsibilities with respect to the cargo they handle.

SUMMARY OF ARGUMENT

The decision of the court below, James N. Kirby, Pty Ltd.,

d/b/a Kirby Engineering and Mmi General Insurance Limited

v. Norfolk Southern Railway Company, 300 F.3d 1300 (11th

Cir. 2002) holding that the shipping intermediary's bill of

lading controlled the liability of the ocean carrier because

there was no “privity” between the ocean carrier and the

shipper, and therefore the U.S. inland carrier, with the owner

of the goods shipped (Kirby at 1305, 1307 and 1309) is

wrong.

There was the necessary “privity” between Kirby, the

shipper, and the ocean carrier because, at all times, with

respect to the actual ocean carrier, the intermediary, whatever

denominated, be it broker, forwarder, or non-vessel oper-

ating-common carrier (NVOCC), was the agent of the shipper

with respect to the actual carrier, and the ocean carrier’s

bill of lading issued to the agent was binding on its principal,

the shipper.

4

ARGUMENT

I. DUELING BILLS OF LADING

There were two bills of lading issued. The first was issued

by International Cargo Control Pty Ltd. (ICC) to the shipper

of the machinery, James N. Kirby, Pty Ltd., d/b/a Kirby

Engineering (Kirby) who had sold the machinery to General

Motors for delivery at Huntsville, Alabama. That bill of

lading was issued ‘to formalize the contract of carriage’

entered into by Kirby with ICC to fulfill Kirby’s ‘obligation

to deliver the machinery to Huntsville.’ (Kirby at 1302). The

second bill of lading was issued by Hamburg Sud to ICC for

the actual movement of the machinery from Sydney to

Huntsville via the port of Savannah and named ICC as

shipper. The Hamburg Sud bill contained its own Clause

Paramount, and its own Himalaya Clause that extended the

bill’s limitations on Hamburg Sud’s liability to ‘all agents,

servants, employees, representatives, all participating (inclu-

ding inland) carriers and all stevedores, terminal operators,

warehousemen, crane operators, watchmen, carpenters, ship

cleaners, surveyors and independent contractors whatsoever.’

(Kirby at 1303).

In essence, the Hamburg Sud bill of lading extended

Hamburg Sud’s Carriage of Goods by Sea Act (COGSA), 46

U.S.C. §§ 1300-1315, limitation of liability to each and

everyone, the actual participants in the transport of Kirby’s

containers. However, the court below held that because there

was no “privity” between Hamburg Sud and Kirby, the

Hamburg Sud bill of lading did not protect Norfolk Southern.

In effect, by the court’s reasoning, none of Hamburg Sud’s

contractors would have been protected. However, the court

also stated had there had been the necessary “privity,” then

the clearly stated Hamburg Sud bill of lading would include

Norfolk Southern.

“This is not to say that a Himalaya Clause can never

readily identify a well-defined class of persons that in-

—ee - -

5

cludes inland carriers like Norfolk Southern. However, if

the Himalaya clause is to extend inland, it must say so

with specificity, as, for example did the Himalaya clause

in the Hamburg Sud bill when it clearly identified as

among its beneficiaries “all participating carriers

(including inland) carriers. (emphasis added)” (Kirby

at 1311).

However, since the court found there to be no “privity”

between the shipper and the actual [ocean] carrier, it

determined that the actual carrier’s bill of lading did not

apply. Thus, it found that intermediary’s bill of lading was

controlling and that its limitation of liability provision was

too indefinite and broad to include Norfolk Southern.

Il. WHICH HIMALAYA CLAUSE APPLIES

The legality of the Himalaya Clause is not an issue in this

case, Robert C. Herd & Co. Inc. v. Krawill Mach. Corp., 359

U.S. 297, 79 S.Ct. 766, 3 L.Ed. 2d 820 (1958). Neither is this

Court’s requirement that contracts purporting to grant

limitation of liability must be strictly construed and limited to

their intended beneficiaries. The issue here is which bill of

lading applies: that of a transportation intermediary or that of

the ocean carrier actually providing the transportation.

Amicus submits that it must be the latter. If not, then any

shipper in combination with a transportation intermediary

holding itself out as a carrier could—by a defective bill of

lading—knowingly or unknowingly defeat the entire inter-

national shipping regime’s liability provisions as set forth in

COGSA. It simply makes no sense to hold that a shipping

document issued by a non-vessel operating transportation

intermediary takes legal precedence over an ocean bill of

lading issued by an ocean common carrier which actually

performs the contracted transportation. The fact that the inter-

mediary appears as the “shipper” on the actual carrier’s bill of

6

lading does not mean that the true owner of the goods shipped

on whose behalf the intermediary was acting is not bound by

the actual carrier’s bill of lading.

Ill. WHO OR WHAT IS ICC?

A key issue in this case is who, or what, was ICC, iden-

tified by the court below as “an Australian freight forwarder.”

(Kirby at 1302). However, the trial judge described ICC as

“an Australian cargo broker. ICC does not transport cargo,

but rather arranges for cargo transportation by carriers.”

(Petitioner’s Appendix C at 28a.). Unfortunately, the record

below is silent as to what an Australian freight forwarder or

cargo broker is, or can do, under Australian law. ICC’s legal

identity is important, because the court below indicates that

the outcome of this case depends upon the relationship

between ICC and the actual owner of the cargo shipped,

Kirby (Kirby at 1305), and that if ICC was acting as an

agent for Kirby when the shipping contract with the actual

ocean carrier, Hamburg Sud, was made, its decision would

have been in favor of Petitioner, Norfolk Southern. (Kirby

at 1311).

Under applicable U.S. law in effect in 1997, namely the

Shipping Act of 1984, 46 U.S.C. § 1701 et seg., ICC was not

an “ocean freight forwarder” as defined in § 3(19) of the

Shipping Act (46 U.S.C. app. 1703(19)). That section

requires that the shipments dispatched by the ocean freight

forwarder be “from the United States.” An ocean freight

forwarder dispatches shipments via common carriers or other-

wise arranges space for those shipments “on behalf of

shippers.” As the court below pointed out at page 1307, ICC

clearly did not meet that requirement. COGSA has no

definition of freight forwarder. While ICC did not actually

transport the cargo, it nevertheless

issued to Kirby a bill of lading and assumed responsibility

for the shipment to Huntsville. (Kirby at 1302). Under

5

applicable. U.S. law, the Shipping Act of 1984, that would

make ICC a “non-vessel-owning-common carrier,” (or an

“NVOCC’”), which is defined as “a common carrier that does

not operate vessels by which the ocean transportation is

provided, and is a shipper in its relationship with a common

carrier.” (46 U.S.C. app. 1703(17)). (emphasis supplied)?

As ‘a “common carrier,” in order to function lawfully in the

trade from Australia to the United States ICC would have had

to file a complete “tariff’ with the Federal Maritime

Commission showing “all its rates, charges, classifications,

rules and practices between all points or ports on its own

route and on any through transportation route that has been

established” and include sample copy of “any bill of lading,

contract of affreightment, or other document evidencing the

transportation agreement.” (46 U.S.C. 1707(a)).

The record is silent as to ICC meeting its tariff filing

obligations as an NVOCC under the Shipping Act. What is

clear is that however described, ICC did not undertake to

actually provide any of the ocean transportation it contracted

‘for with Kirby and that Kirby knew it. As the dissenting judge

below succinctly stated at Kirby page 1312:

“There is nothing in the record which indicated that

Kirby expected ICC to ship the goods other than by

contracting it with another carrier. . . . When the bill of

> Comments of the Senate Committee on Commerce, Science and

Transportation on Senate bill, S. 504, a predecessor to Senate bill, S. 47

which became Pub. L. 98-237, the Shipping Act of 1984, about “non-

vessel-operating common carrier” should be noted. The Committee report

states at page 20; “(17) ‘Non-vessel-operating common carrier’ gives

statutory recognition to this marine operator who acts as a consolidator

~ and intermediary between vessel operators and shippers of less-than—

container loads. The shipper status of an NVO, in its relationship with the

vessel operator, is intended to afford the NVOs the same protection

against unjust discrimination.” Senate Report No. 98-3, 98th Congress,

Ist Session.

8

lading between Kirby and ICC was issued, Kirby knew

that an inland carrier would have to be used, because of

the destination being Huntsville, Alabama.”

The dissent concludes that “Kirby knew from the start that the

ultimate destination would have to be through an inland

carrier, so it should not be able to prevail on the technicality

of its lack of “privity” of contract.” The plain fact is that ICC

was acting as Kirby’s agent and that Kirby (and its insurer)

were bound by contracts entered into by ICC on Kirby’s

behalf.

IV. WITH RESPECT TO THE ACTUAL CAR-

RIERS, ICC ACTED AS AN AGENT FOR

THE SHIPPER

Who or what was, or is ICC, and what effect did its alleged

bill of lading have on the actual participants in the through

movement of goods in international waterborne commerce?

Was the bill of lading it issued to Kirby any more than a

contract between the shipper/owner of the goods and a

transportation intermediary under which the latter undertakes

to perform certain services on behalf of the shipper/owner,

and thus is binding only those two parties? Obviously, ICC

did not undertake to actually transport any machinery to

Huntsville. It only agreed to make the necessary arrange-

ments. Thus, ICC, with respect to Hamburg Sud and its

subcontractors, was not acting as a common carrier, and the

fact that it issued a document entitled “bill of lading” is in

itself not determinative. Chicago, Milwaukee, St. Paul &

Pacific R.R. Co. v. Acme Fast Freight, 336 U.S. 465, 484, 93

L.Ed. 817, 69 S.Ct. 692 (1949). Simply arranging for

transportation and not actually effecting it does not make a

carrier. Aquascutum of London, Inc. v. S.S. American

Champion, 426 F.2d 205, 210 (2nd Cir. 1970) and Hoffman-

Laroche v. M/V TFL Jefferson et al., 731 F.Supp 109, 111

(S.D.N.Y. 1990).

9

Amicus submits that a bill of lading issued by a trans-

portation intermediary, such as an “Australian freight

forwarder” or “cargo broker,” or even an NVOCC, to its ship-

per principal (disclosed or not) can not trump the contractual

relationship between the actual common carrier and the

parties enumerated in that carrier’s bill of lading for the

transportation actually performed thereunder.

As one court has stated,

“Thus -for the purposes of the Shipping Act . . . the

NVOCC is a hybrid; it is a common carrier with respect

to the shippers who use its services: as such it files a rate

tariff with the Federal Maritime Commission and is

subject to all laws governing common carriers. With

respect to the vessel and her owner, NVOCC is an

agent of the shipper, and thus merely a customer.

. . . indeed, only one customer among hundreds on any

given voyage. ”

“While the NVOCC is considered an agent of its shipper

in relation to the vessel and her owner, the nature and

scope of said agency is limited to the transportation

services contract by the NVOCC on the shipper’s behalf.

The NVOCC is itself liable to the shipper by virtue of its

own bill of lading, the tariff and the law applicable to the

particular trade in which the NVOCC is involved.”

Modern Office System, Inc. v. Aim Caribbean Express,

Inc. (DC, PR 1992), 802 F. Supp. 617, 622), citing Ins.

Co. of North America v. S.S. American Argosy, 732 F.2d

299, 301 (2nd Cir. 1984), and M. Prusman Ltd. v. M/V

Nathanel, 670 F.Supp.1141 (S.D.N.Y. 1987).

The court below at Kirby pages1304-5 found that the ocean

carrier’s (Hamburg Sud) bill of lading and Himalaya Clause-

could limit Norfolk Southern’s liability to Kirby, (the cargo

owner ) if Kirby is bound by the terms of that bill. If ICC had

been acting as Kirby’s agent when it entered into the shipping

contract with Hamburg Sud, then ICC had authority to—and

did—bind Kirby to the terms of the Hamburg Sud bill,

10

including its package limitation and Himalaya Clause. Thus

the required “privity” between the shipper, Kirby, and the

inland carrier, Norfolk Southern, would be satisfied.

Actually, the required “privity” is only some contractual

relationship between a party claiming protection of a

Himalaya Clause on the one who issued the clause. Thus, in

Mikinberg v. Baltic Steamship Co., Rice Unruh, Reynolds

Company, and UTS, a_ Division of Universal Maritime

Services, 988 F.2d 327 (2nd Cir. 1993) the Second Circuit

denied Himalaya Clause protection (limitations of liability)

to Universal because Universal showed no “contractual

relationship” with the ocean carrier, Baltic. The court said

at 332:

“There must be a contractual relationship between

Universal and Baltic in order for the provisions of the

‘Himalaya Clause to apply. Otherwise, any transporter in

the flow of commerce would be automatically protected

by a single bill of lading regardless of its privity of

contract with the shipper or carrier. We decline to extend

COGSA protections through the ‘Himalaya clause to

indefinite and unforeseeable defendants who have

only an attenuated connection to the ‘carriage of goods

by sea.”

The case was then remanded to the district court to allow

Universal to establish what its relationship to Baltic was.

However, in the case at bar, Norfolk Southern was not an

unforeseeable defendant under either of the bills of lading.

Both the ICC bill of lading and Hamburg Sud bill called for

inland transportation in the United States, and all parties

knew that such transportation was significantly more than an

“attenuated connection.” Neither contract could have been

fulfilled without inland rail service.

ee OR gee 6 aS -

Vv. THE ACTUAL CARRIER’S BILL OF LADING

BINDS ALL PARTIES

Both the district court and the dissenting judge below,

Kirby at 1312, determined that ICC was acting as Kirby's

agent and that ICC was not going to ship the goods other than

by contracting it with another carrier. Kirby accepted a

limitation of liability and Himalaya Clause in the written

contract with ICC. As the dissent below points out at page

1312“. . . that would include a limitation for Hamburg Sud.”

The dissent also states that it should also include the Norfolk

Southern. More importantly, the dissent below agrees with

amicus that “. . . . Kirby was bound by the Hamburg-Sud bill

of lading .. .”.

Amicus submits that the rule in cases such as this should be

that which the United States, as amicus curiae, discusses at

page 18 of its brief filed in this proceeding:

“This Court’s decision in Great Northern Railway, Co.

v. O'Connor, 232 U.S. 508 (1914) suggests, that when a

carrier accepts goods for transport from an intermediary,

the liability limitations in the carrier’s terms of carriage

are enforceable against the cargo owner regardless of

whether the intermediary contracted with the carrier “as

agent [of the cargo owner] or Forwarder.’ /d. at 514.”

In that case this Court stated at 515 that, “if the Forwarder

was shipper for the purpose of securing carload rates, it was

also shipper jor the purpose of classifying and valuing, in

order to determine which tariff was applicable. . . . “the

carrier has the right to assume that the [Forwarder] could

agree upon the terms of the shipment, some of which were

embodied in the tariff. The carrier is not bound by [the

shipper]’s private instructions or limitation on the authority of

the [Forwarder], whether it be treated as agent or Forwarder.”

And at 516 the Court concluded that:

“. . . The carrier, in the absence of something showing

rebating, or false billing, is entitled to collect the rate

12

which applies to goods of that class, and if sued for their

loss & liable only for the loss of what the shipper had

declared them to be in class and value.”

The net result is that the shipper is bound by the terms of

the contract (bill of lading) entered into for the shipment of its

goods between an actual carrier and transportation

intermediary engaged by the *ipper including the lower

ocean freight rate and the limitation of liability provisions in

the ocean carrier’s bill of lading.

Finally, in Nippon Fire & Marine Insurance Co, Lid., v.

Skyway Freight Systems, Inc., American International Air-

wavs, Inc. and United Airlines, Inc., 235 F.3d 53 (2nd Cir.

2000), the Second Circuit held at page 61 that as between an

intermediary's bill of lading and the actual (secondary)

carrier's bill of lading, the latter governs the rights of the

shipper and the actual carrier. In that case the secondary

carrier’s bills of lading restricted the nature of a claim the

shipper and its intermediary could bring against them for loss

or damage—breach of contract, and not tort or bailment. The

court found that limitation of liability binding on the shipper

and its insurer. Since the shipper/insurer did not state a claim

for breach of contract, the claim against the actual

(secondary) carriers was dismissed.

ee Lee

CONCLUSION

The court below applied the wrong bill of lading and its

limitation of liability provisions. It should have applied the

bill of lading issued by Hamburg Sud, not that issued by ICC,

and by the court’s own reasoning the decision of the district

court should have been affirmed. This Court can and should

put the issue to rest and avoid future litigation concerning

who is what, and what rights does it have in intermodal

international transportation. It can do so by finding a trans-

portation intermediary's contract or bill of lading with its

shipper client is not binding on the carrier actually per-

13

forming the transportation. The governing contract or bill of

lading setting forth the rights of the shipper vis-d-vis those

who actually perform the transportation functions is the one

issued by the actual carrier to the transportation intermediary.

If the decision below is left to stand, ocean carriers

involved in through intermodal transportation such as that in

the instant case will have to take steps to protect themselves

and their subcontractors from the effect of deficient inter-

mediary bills of lading. One such step could be to require all

intermediaries to name themselves and their principal as

shippers on the ocean carrier’s bill of lading. Another poss-

ibility could be to require all intermediaries to state in the bill

of lading they issue to the shipper that the terms of the actual

carrier's bill of lading are included by reference in the

intermediary’s bill of lading. Another possibility could be for

an ocean carrier to publish in the tariff it is required by § 8 of

the Shipping Act, 46 U.S.C. app. § 1707 (2002) to “keep open

to public inspection in an automated tariff system” its rates,

rules, bills of lading, etc., a rule providing that its bill of

lading takes precedence over any intermediary’s bill of lading

for goods carried by the ocean carrier.

All of those possible actions and others not prohibited by

§ 10 of the Shipping Act 46 U.S.C. app. § 1709 (2002),

complicated cross indemnification agreements and other legal

devices would be unnecessary if the decision below is

reversed and a determination that the bill of lading issued by

the actual carrier to a transportation intermediary holding

itself out as a carrier—by whatever name—determines the

rights and liabilities of the shipper.

Therefore, the decision below should be reversed by this

Court.

* Counsel of Record

March 24, 2004

14

Respectfully submitted,

THOMAS D. WILCOX *

CARROLL & FROELICH, PLLC

20! 1 Pennsylvania Avenue, NW

Suite 301

Washington, DC 20006-1895

(202) 296-3005

Attorneys for Amicus Curiae