Petition for Writ of Certiorari — Pilot Air Freight Corp. v. Jellico

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

(\) FILED

96 LOD AV 519%

DOCKET No Mt Of Bie CLERE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1996

PILOT AIR FREIGHT CORP.,

McDONOUGH AIR CARGO, INC. d/b/a PILOT

AIR FREIGHT CORP. Petitioners

NANCY R, JELLICO, d/b/a JELLICO STUDIO OF

WESTERN ART, Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

COLORADO

PETITION FOR WRIT OF CERTIORARI

COUNSEL OF RECORD:

ROBERT WIEGAND II

SUITE 200

5261 SOUTH QUEBEC STREET

GREENWOOD VILLAGE, CO 80111-1805

Telephone: 303-741-6410 Fax: 303/741-6512

QUESTION PRESENTED FOR REVIEW

When goods are received by a common carrier for

interstate transportation and a bill of lading is duly

issued pursuant to the Pomerene Bills of Lading Act,

49 USC Appx § 81°, is the bill of lading nevertheless

effective — even if the transportation is interrupted

before delivery and the goods are lost during the

interruption. Specifically, in those circumstances, will

the carrier be permitted to limit liability pursuant to

federal common law, as developed by the application of

the Carmack Amendment, 49 USC § 11707(a)(1) and the

Carmack Limitation Provision, 49 USC §10730 prior to

the deregulation of interstate commerce.

The Colorado courts have decided this issue in a

way that conflicts with previous decisions of this Court.

The Pomerene Act was replaced in 1994

by 49 USC § 80101, et seq., but the case at bar arises

out of an incident in 1992.

PAGE 1 OF 23 PAGES

LIST OF PARTIES TO THE PROCEEDING

Petitioners:

PILOT AIR FREIGHT CORP.

Parent corporations: None |

Subsidiary corporations: None |

and McDONOUGH AIR CARGO, INC. |

d/b/a PILOT AIR FREIGHT CORP. |

Parent corporations: None .

Subsidiary corporations: None ;

Respondent: |

NANCY R. JELLICO, an individual |

d/b/a JELLICO STUDIO OF WESTERN ART.

PAGE 2 OF 23 PAGES

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ....... l

LIST OF PARTIES TO THE PROCEEDING .... 2

TABLE OF AUTHORITIES ..........-----05: 4

CITATIONS OF REPORTS OF COLORADO

ee. as wo ne RAMS S 0.04 7

STATEMENT OF JURISDICTION ...........-- 7

STATUTES INVOLVED IN THE CASE ........ 8

STATEMENT OF THE CASE .........---+++:> 9

EE as errr Se ee ee ee ee 12

1. Federal Supremacy. .........-- 12

7: The Colorado Decisions Contravene

Applicable Decisions of the Federal

er arr eo 13

3. ce vneswebese 22

APPENDIX

PAGE 3 OF 23 PAGES

TABLE OF AUTHORITIES

Table of Portions of Record Cited

COC Are GEIS 6S cb Sk G RG SUG 00s bene kees 10

ERTS ESE onc Sc Sx caccadpanisthebes 19

peg ge ig Pe hey erating oe 11

Table of Statutes Cited

GP Uae BOP aey COMED 5.1 whee behaeoes cans 1,8

Carmack Amendment,

tees Oe BEUOe ke ii cineceweres 1, 8, 12, 13, 15, 20

Carmack Limitation Provision,

OP es OED a kh nk cc cabecunedsadedt on 1, 8, 13

Interstate Commerce Act (Definitions),

Op Sie SRO EMED £64 6 baad S ob e0eRe KoA Oe 8, 11

Pomerene Bills of Lading Act,

49 USC Appx § SI, ef. 86g. 20... ccc cece. 1, 7, 8, 12

Table of Cases Cited

American Cyanamid Company v. New Penn Motor

Express, Inc., 979 F2d 310 (CA3 - 1992) ...... 15, 16

PAGE 4 OF 23 PAGES

Balise Insurance Co., Ltd. v. United Airlines, Inc.,

723 FSUPP.. 195 (SDNY - 1989) ..........-005- 21

Cleveland, Cincinnati, Chicago, & St. Louis Railway

Company v. Dettlebach, 239 US 588, 36 SCt 177 (1916)

SONNE AGEN 12, 18, 19, 22

Deiro v. American Airlines, Inc., 816 F2d 1360 (CA9 -

ORT ch kdes 085656 ae (iw ents ee 14, 16, 17

First Pennsylvania Bank NA v. Eastern Airlines,

Incorporated, 731 F2d 1113 (CA3 - 1984) ..... 13-15

Mangus Electronics, Inc. v. Royal Bank of Canada, 611

FSUPP.. 436, 440 (USDC - NDIL 1985) .......... 22

North American Phillips Corporation v. Emery Air

Freight Corporation, 579 F2d 229 (CA2 - 1978) .. 12,

Rocky Ford Moving Vans, inc. v. USA, 501 F2d 1369

(el BS. s.|) Peer Peewee ve eeeee aera err 15, 16, 20

Southern Railway Company v. Prescott, 240 US 632,

36 ER PU 6.65 6 bo aca es se ves 12, 17

PAGE 5 OF 23 PAGES

U.S. Gold Corporation v. Federal Express Corporation,

719 FSUPP.. 1217 (USDC - SDNY 1989)...... 14, 16

PAGE 6 OF 23 PAGES

CITATIONS OF REPORTS OF COLORADO

COURTS

The Colorado Supreme Court in Case No.

95SC506 denied a Writ of Certiorari to the District

Court of the City and County of Denver, Colorado. The

District Court opinion and Order bears Case No.

94CV3728. This matter was on appeal from the County

Court, City and County of Denver, Colorado, bearing

Case No. R93005.

STATEMENT OF JURISDICTION

The Colorado Supreme Court Order was issued

on 7 May 1996. Pursuant to Colorado Appellate Rule

52(a), no motion for rehearing is required. This matter

involves a question of interstate commerce and arises

under the Pomerene Bills of Lading Act, 49 USC

Appx § 81, et. seg. and federal common law, as

PAGE 7 OF 23 PAGES

developed by the application of the Carmack

Amendment, 49 USC § 11707(a)(1) and the Carmack

Limitation Provision, 49 USC §10730 prior to the

deregulation of interstate commerce.

STATUTES INVOLVED IN THE CASE

Carmack Amendment, 49 USC § 11707

Carmack Limitation Provision, 49 USC §10730

Interstate Commerce Act (Definitions),

49 USC §10102 (28)

Pomerene Bills of Lading Act,

49 USC Appx § 81, et. seq.

49 USC § 80101, et seq.

(Replaced Pomerene Act in 1994),

PAGE 8 OF 23 PAGES

STATEMENT OF THE CASE

Respondent is an artist and the owner of a certain

sculpture and painting. In October 1992, Nadine

Marshal (not a party to this matter) delivered the

painting and sculpture to Petitioners in California for

transportation to another state, and she filled out a bill of

lading, putting down no declared value; Ms Marshal

was the consignor. For an unknown reason, the

consignee on the bill of lading prepared by Ms Marshal

was an artist in Arizona, rather than Respondent in

Colorado. When delivery was attempted in Arizona, the

consignee refused delivery; Petitioners returned the

goods to a facility in California, awaiting discovery of

the "correct" consignee. Respondent tracked down the

goods in Petitioners’ facility in San Francisco and

instructed Petitioners to ship the goods to Oregon. After

PAGE 9 OF 23 PAGES

Petitioners received the new delivery instructions, the

goods were discovered to be missing or stolen.

The federal question as to the applicability of the

limitation of liability was raised in every court below, as

the only issue in the case.

The county court judge found that:

[Petitioners] claim [Respondent’s] claims

are limited by the Carmack Amendment to

the Interstate Commerce Act, 49 USC

11707... . the consignee ... refused the

shipment. ... At this point, the entire

cycle concerning the “lost" shipment from

California to Arizona was completed. .. .

Since there was no bill of lading for the

shipment of the artwork from San

Francisco to Oregon in November 1992,

the carrier cannot limit its liability to

plaintiff in this instance. County Court

Findings 47, 9.

On appeal to the district court, the judge held

[Petitioner] argues that the county court

erred in its conclusion because the

Interstate Commerce Act defines

PAGE 10 OF 23 PAGES

“transportation” to include “a . . .

warehouse, .. . facility, . . . related to the

movement of . . . property and services

related to that movement, including . . .

storage.” Interstate Commerce Act,

Definitions, 49 USC sec. 10102(23). ...

The shipment had been delivered to the

consignee who refused shipment. ... By

the terms of its own tariff, the shipment

had been completed when refused by the

Arizona artist. District Court Order p.2,

Ist par.”

| In both decisions, it was determined that the bill

of lading originally issued had ceased to be effective,

resulting in Petitioner having the unlimited liability of a

warehouseman under the state statute. Under the bill of

lading, the goods had a “released value" of $50.

Judgement was entered for the plaintiff in the amount of

$10,000. The Colorado Supreme Court denied a writ of

certiorari.

2 The current citation to the Interstate Commerce Act

definition is to 49 USC 10102 (28).

a a i al

PAGE 11 OF 23 PAGES

The holding that the bill of lading had ceased to

be effective is in conflict with previous decisions of this

Court.

ARGUMENT

1. Federal Supremacy. This Court has long

established the supremacy of the federal statutes and

federal courts' interpretation thereof as they pertain to

interstate commerce. Pomerene Bills of Lading Act,

49 USC Appx § 81. Carmack Amendment, 49 USC

§ 11707(a)(1). Southern Railway Company v. Prescott,

240 US 632, 36 SCt 469, 471, (1916). Cleveland,

Cincinnati, Chicago, & St. Louis Railway Company v.

Dettlebach, 239 US 588, 36 SCt 177, 179 (1916).

North American Phillips Corporation v. Emery Air

Freight Corporation, 579 F2d 229, 232 (CA2 - 1978).

PAGE 12 OF 23 PAGES

First Pennsylvania Bank NA v. Eastern Airlines,

Incorporated, 731 F2d 1113, 1115 (CA3 - 1984).

2. The Col isions Contravene Applicable

Decisions of the Federal Courts.

2.1. Limitation of Liability - Before

Deregulation. The principal aspect of federal law

applicable herein has to do with the limitation of liability

available to the carrier in an interstate shipment. Federal

statutes specifically allow carriers to limit their liability

to a stated value. Carmack Amendment, 49 USC

§ 11707(c)(4); Carmack Limitation Provision, 49 USC

§10730. As was stated by the Second Circuit,

"Regardless of the rationale, it is clear that a carrier's

valid federal tariffs which are applicable to the shipment

at issue govern . . . the nature and extent of the shipper's

right of recovery." North American Phillips

PAGE 13 OF 23 PAGES

— > one

Corporation v. Emory Air Freight Corporation, 579 F2d

at 233.

2.2. Limitation of Liability - After

Deregulation. Prior to deregulation of the airline

industry in 1978, the provision for a limitation of

liability had to be proved to exist in a tariff filed with the

federal authorities. Following deregulation, the federal

common law on the interstate carriage of goods has

prevailed. Deiro v. American Airlines, Inc.,

816 F2d 1360, 1365 (CA9 - 1987). First Pennsylvania

Bank NA v. Eastern Airlines, Incorporated, 731 F2d at

1115. U.S. Gold Corporation v. Federal Express

Corporation, 719 FSupp. 1217, 1223 (USDC - SDNY

1989). “After deregulation, the validity of the agreed

value provision in Eastern's voluntarily published tariff

. .. became a purely judicial question for determination

by application of the federal common law patterned

PAGE 14 OF 23 PAGES

upon the policy of the Carmack amendment. [49 USC

§ 11707(c)(4)]." First Pennsylvania Bank NA v. Eastern

Airlines, Incorporated, 731 F2d at 1122. As pointed out

by the Third Circuit, "[I]f anything, a liberalization of

the right to contract should enhance the ability of

shippers and carriers to agree on released value clauses."

American Cyanamid Company v. New Penn Motor

Express, Inc., 979 F2d at 316.

Cases both before and after deregulation have

shown that public policy favors the applicability of the

limitation. The Eighth Circuit dealt with a deliberate

violation of a specific covenant in the bill of lading, and

still held that the limitation of liability applied. Rocky

Ford Moving Vans, Inc. v. USA, 501 F2d 1369, 1372

(CA8 - 1974). In other cases, the courts have held that

"nothing short of intentional destruction or conduct in

the nature of theft of the property will permit a shipper

PAGE 15 OF 23 PAGES

to circumvent the liability provisions in a released value

provision." American Cyanamid Company v. New Penn

Motor Express, Inc., 979 F2d 310, 315-316 (CA3 -

1992), citing Rocky Ford Moving Vans, Inc. v. USA,

501 F2d at 1372-1373 and Deiro v. American Airlines,

Inc., 816 F2d 1360, 1366 (CA9 - 1987). In

understanding the rational behind the limitation, it is

important to note that:

the limitation of the carrier's liability [has

been] viewed as a consequence of the

transportation charge based upon the

agreed value rather than as an exculpation

from negligence. ... The agreed upon

value merely constitutes an estoppel

against the unfairness of asserting a larger

amount as the ‘true’ value, when a smaller

value had been used to calculate the rate.

The legal validity of an agreed value

contract enabled the carrier's rate to be

reasonably proportioned to the risk to

which it was exposed. U.S. Gold

Corporation v. Federal Express

Corporation, 719 FSupp. 1217, 1224

(USDC - SDNY 1989).

PAGE 16 OF 23 PAGES

As was so clearly stated by the Ninth Circuit,

"Under the federal common law, only an appropriation

of property by the carrier for its own use will vitiate

limits on liability." Deiro v. American Airlines,

816 F2d at 1366.

2.3. Continuing Efficacy Until Delivery. The

Colorado courts’ decisions in the case at bar assume

that, because the original consignee had refused delivery,

the carriage had ceased and could not start again in the

absence of a new bill of lading. The Colorado courts

miss the point, however, in that the crucial time beyond

which the bill of lading ceases to operate is actual

delivery. This Court has held that even a written

discharge by the consignee does not cancel the efficacy

of the bill of lading prior to actual delivery. Southern

Railway Company v. Prescott, 36 SCt at 470, 471, 472.

It that case, this Court held that the bill of lading’s

PAGE 17 OF 23 PAGES

limitation continued in force notwithstanding the

completion of the carriage, the execution of the receipt,

and the conversion of the carrier into a warehouseman

under the terms of the tariff. In another case, this Court

framed the issue as follows:

It is no longer open to question that if the

loss had occurred in the course of

transportation upon defendant's [railroad]

line, the limitation of liability agreed upon

with the initial carrier, as this was, for the

purpose of securing the lower of two rates

of freight, would have been binding upon

plaintiff. . . . The question is whether

the limitation of liability may be deemed to

have spent its force upon the completion of

the carrier's service as such, or must be

held to control, also, during the ensuing

relation of warehouseman. Cleveland,

Cincinnati, Chicago, & St. Louis Railway

Company v. Dettlebach, 36 SCt at 179.

It is notable in the above case that the carrier's own tariff

provided that the carrier had become a warehouseman

(and allowing additional charges as such) and the parties

had a signed document making the conversion from a

PAGE 18 OF 23 PAGES

carrier to a warehouseman, yet this Court held that the

limitations of the bill of lading still governed. This

Court found the tariff governing, specifically the

provision in the tariff "to the effect that ‘every service to

be performed thereunder’ is subject to the conditions

contained in it" Cleveland, Cincinnati, Chicago, & St.

Louis Railway Company v. Dettlebach, 36 SCt at 179.

The Colorado courts in the case at bar have ignored the

similar provisions in Petitioner's tariff that provides "The

Airbill, and the tariffs applicable to the shipment, shall

apply at all times when the shipment is being handled by

Petitioner." DEFENDANT'S EXHIBIT 3, p. 6, Rule 30

(emphasis added).

2.4. Warehousing Does Not Add Liability.

As to storage during the course of a shipment, the Eighth

Circuit dealt with that issue in a case where the bill of

lading prohibited the storage of the goods in an

PAGE 19 OF 23 PAGES

unapproved warehouse; the carrier nevertheless stored

the goods in an unapproved warehouse, where they were

destroyed by fire. The District Court had upheld the

limitation of liability, and the shipper appealed. The

Court of Appeals pointed out that:

The United States Supreme Court has

described the words of the Carmack

Amendment as ‘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.' Rocky Ford

Moving Vans, Inc. v. USA, 501 F2d at

1372.

The Court of Appeals upheld the District Court,

allowing the carrier the benefit of the limitation of

liability clause. Rocky Ford Moving Vans, Inc. v. USA,

501 F2d at 1372. Dealing with storage before shipment,

a federal district court has held that the carrier "should

not be treated as a warehouseman [governed by state law

liability without limitation] simply because it stores

PAGE 20 OF 23 PAGES

goods temporarily in a warehouse facility prior to

transport." Baloise Insurance Co., Ltd. v. United

Airlines, Inc., 723 FSupp. 195, 199 (SDNY - 1989)

(This case is also significant because it was decided after

the deregulation of the airline industry). Thus, Federal

courts have dealt with warehousing by the carrier before,

during, and after transportation had been completed and,

in every case, have held that the limitation of liability in

the bill of lading still governs.

Admittedly, in the case at bar, the goods were

placed in carrier's warehouse because delivery was

refused by the consignee named in the bill of lading; but

that does not change the fact that the goods remained in

the possession of the carrier awaiting instructions from

the shipper/consignor. As the Courts have repeatedly

held, the bill of lading governs transportation until actual

delivery; and "delivery" means actually placing the

PAGE 21 OF 23 PAGES

goods in the hands of the consignee. C/eveland,

Cincinnati, Chicago, & St. Louis Railway Company v.

Dettlebach, 36 SCt at 179. The refusal of a consignee to

accept the goods still leaves them in transit. There can

be no doubt that transportation had not been completed.

In other words (as stated in a case decided under Article

29 of the Warsaw Convention, but still comprising part

of the federal common law), "So long as the goods

remain in the air carrier's actual or constructive —

possession pursuant to the terms of the contract of

carriage, the period of ‘transportation by air’ does not

end." Mangus Electronics, Inc. v. Royal Bank of

Canada, 611 FSupp. 436, 440 (USDC - NDIL 1985).

3. Conclusion. The decision of the Colorado

Supreme Court letting stand the decision of the Colorado

District Court contravenes well-established decisions of

this Court and should be overturned.

PAGE 22 OF 23 PAGES

Respectfully submitted,

Rist

ROBERT WIEGAND II

Suite 200

5261 South Quebec Street

Greenwood Village, CO 80111-1819

Telephone: 303/829-1740 Fax: 303/741-6512

CERTIFICATE OF SERVICE

I certify that three copies of the foregoing pleading have

been served upon counsel for Respondent by mailing the

same to it by First Class United States M@il, properly

addressed and postage prepaid on this 30 day of

August, 1996.

All parties required to be served have been served.

Counsel for Respondent, Nancy R. Jellico, is:

Charles J. Kimball

Suite 1500

1775 Sherman Street

Denver, CO 80203

Telephone: 303/839-5856 Fax: 303/839-1555

Robert Wiegand II

PAGE 23 OF 23 PAGES

DOCKET No.

SUPREME COURT OF THE UNITED

STATES

OCTOBER TERM 1996

PILOT AIR FREIGHT CORP.,

McDONOUGH AIR CARGO, INC. d/b/a PILOT AIR

FREIGHT CORP. Petitioners

NANCY R. JELLICO, d/b/a JELLICO STUDIO OF

WESTERN ART, Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

COLORADO

APPENDIX

TABLE OF CONTENTS OF APPENDIX

SUPREME COURT, STATE OF COLORADO ........ iii

DISTRICT COURT, CITY AND COUNTY OF DENVER

Ces eh iehave se 060k eae eek eee iv

COUNTY COURT, CITY AND COUNTY OF DENVER

9 64 00 6 a5'0b 05555400855 06568407 ee Vili

UNITED STATES CODE SERVICE ............... xiv

ie Eby se...) eon y xiv

GD Ua © ROTO CIOMO) 5 con nccscncecsaucas xix

GO Uae O POPU IIE kk io 6k oennnenscaps xxii

49 USCS Appx § $1(1995) ............0.. xxiii

49 USCS @ 80101 (1995) ................ XXXiV

SUPREME COURT, STATE OF COLORADO

CASE NO. 95 SC 506

CERTIORARI TO THE DISTRICT COURT, CITY

AND COUNTY OF DENVER 94 CVC 3728

COUNTY COURT, CITY AND COUNTY OF DENVER,

5 R 3005

ORDER OF COURT

PILOT AIR FREIGHT CORP., a Pennsylvania corporation,

and MCDONOUGH AIR CARGO, INC., d/b/a PILOT AIR

FREIGHT CORP., a Colorado corporation,

Petitioners,

vs.

NANCY R. JELLICO, d/b/a JELLICO STUDIO OF

WESTERN ART,

Respondent.

Upon consideration of the Record on Appeal, together

with the Written and Oral Arguments of Counsel, and now

being sufficiently advised in the premises,

IT IS THIS DAY ORDERED that the Writ of

Certiorari heretofore granted be, and is, DENIED as having

been improvidently granted.

BY THE COURT, EN BANC, MAY 7, 1996.

DISTRICT COURT, CITY AND COUNTY OF

DENVER, STATE OF COLORADO

Case No. 94 CV 3728, Courtroom 10

Appeal from the County Court, City and County of

Denver, Colorado, Case No. 94 5 R 3005

ORDER

DEFENDANT below brings this appeal of judgement for the

PLAINTIFF below.

SUMMARY OF THE CASE

Plaintiff-Appellee Nancy Jellico is a local artist. On

September 21, 1992, she used Defendant-Appellant Pilot Air

Freight to ship a painting and a bronze sculpture to a show in

California. She filled out a bill of lading and put $2,000 as the

declared value.

In October 1992, Nadine Marshall, a volunteer at the

art show, took the painting and sculpture to a place to be

picked up by Pilot. The trial judge found Marshall had filled

out Pilot's bill of lading but it was not signed by her. There

was no declared value on the bill of lading. For unknown

reasons, the addressee was not Jellico; it was an artist in

Arizona. The Arizona artist refused delivery by Pilot. Pilot

opened the box, discovered it belonged to Jellico, and shipped

it to its warehouse in San Francisco.

Jellico called Nadine Marshall in late November to

give her shipping instructions. That is when she found out her

pieces were missing. Pilot in Denver discovered the pieces

were in San Francisco. Jellico instructed Denver to tell Pilot

in San Francisco to ship the artwork to Oregon. These faxed

instructions were not a bill of lading. After San Francisco

received the instructions, they discovered Jellico's pieces were

missing or stolen. The trial judge found for Jellico in the

amount of $10,000, plus interest and court costs.

ISSUES PRESENTED FOR REVIEW

I. When does a bill of lading cease to be in effect?

Il. Alternatively, if the trial court's finding that the Nadine

Marshall bill of lading was no longer in effect at the time of

the loss is affirmed, should Jellico's damages be reduced from

$10,000 to the $2,000 she declared on her shipment to

California?

FINDINGS AND CONCLUSIONS

I. Pilot's position is that the Nadine Marshall bill of

lading was still in effect at the time Jellico's pieces were lost.

The trial judge found that the entire cycle concerning the

shipment from California to Arizona was complete when

Jellico's work was sent to Pilot's San Francisco warehouse.

Therefore, the Marshall bill of lading was no longer in effect.

Pilot argues that the County Court erred in its

conclusion because the Interstate Commerce Act defines

"transportation" to include "a ... warehouse, ... facility, ...

related to the movement of ... property and services related to

that movement, including ... storage." Interstate Commerce

Act, Definitions, 49 U.S.C. sec. 10102(23). Pilot states there

was no separate shipment "as changes in delivery instructions

are an ordinary occurrence, and temporary storage during the

course of a shipment awaiting further delivery instructions

does not create a separate shipment." The shipment had been

delivered to the consignee who refused shipment. Pilot's tariff

defines "shipment" as "a single consignment ... from one

shipper, at one time, at one address ... moving on one Pilot

airbill to one consignee at one destination address." By the

terms of its own tariff, the shipment had been completed when

refused by the Arizona artist.

Pilot is absolutely liable for any actual loss which it

caused. 49 U.S.C. sec. 11707(a)(1). Carriers can only limit

their liability through a written agreement which evidences an

absolute, deliberate and well-informed choice by the shipper.

The burden is on the carrier to establish that its liability is

limited. Carmana Designs Ltd. v. North Amer. Van Lines,

Inc., 943 F.2d 316, 319 (3rd Cir. 1991). The County Court

did not commit error by finding Pilot failed to meet its burden

of showing that plaintiff had made an absolute, deliberate and

well-informed choice concerning any limitation of liability.

The loss of Jellico's artwork occurred after the Arizona

shipment was complete. Jellico was not given any

opportunity to choose whether to allow Pilot to limit its

liability on the proposed shipment from San Francisco to

Oregon.

Il. The standard of review for setting aside an award of

compensation is abuse of discretion. Koontz v. Rosener, 843

P.2d 1378 (Colo. 1993). At the time of its loss, Ms. Jellico's

painting had been for sale for approximately three years. She

testified at trial that it was worth $10,500. The missing

sculpture was the fifteenth of a twenty cast series. She

testified it was worth $1,500. She introduced into evidence a

letter from an art gallery that gave the list prices for the pieces

as being the same amount she testified to. She testified that

the value of her pieces was based on her reputation and on

sales records. The fact that Jellico chose to declare a $2,000

value on the pieces for one shipment is not conclusive as to

their actual value. The County Court did not abuse its

discretion in finding the values ascribed by Ms. Jellico at trial

to her works were fair and reasonable.

The judgment is AFFIRMED.

Dated this 11th day of July, 1995.

COUNTY COURT, CITY AND COUNTY OF DENVER,

COLORADO

Case No. 94-5 R 3005, Courtroom 5, Civil Division

1515 Cleveland Place, 4th Floor, Denver, Colorado

FINDINGS OF FACT, CONCLUSIONS OF LAW AND

ORDER

NANCY R. JELLICO, d/b/a JELLICO STUDIO OF

WESTERN ART,

Plaintiff

PILOT AIR FREIGHT CORP., a Pennsylvania corporation,

and MCDONOUGH AIR CARGO, INC., d/b/a PILOT AIR

FREIGHT CORP., a Colorado corporation,

Defendants

THIS MATTER came on for trial to the Court on

March 28, 1994. Plaintiffs were represented by Charles J.

Kimball, Esq., Atty. Reg. No. 1319. Defendants were

represented by Robert Wiegand II, Esq., Atty. Reg. No. 7463.

Following hearing on the merits, due to unique issues of law

and fact, this Court took the case under advisement pursuant

to Rule 352, C.R.C.P. The Court now makes the following

findings of fact, conclusions of law and orders:

1. The only witness to testify, who had any

familiarity with the facts in the case, was the Plaintiff. Plaintiff

is an artist, painter and sculptor who specializes in western

old-time cowboy art. Plaintiff has been in this occupation

since 1981. Plaintiff was the artist/owner of two items, which

are the subject of this case: a bronze sculpture titled

"Mustang", and a painting, titled "Night Hawk".

2. The Plaintiff's testimony and Plaintiff's

Exhibit 1, which was received into evidence without

objection, establish the sequence of events. Plaintiff testified

that Defendants had shipped her art many times in the past,

and were used to dealing with her. Defendants' Exhibit 1

indicates that on September 21, 1992, Plaintiff caused

"Mustang" and “Night Hawk" to be shipped to Santa Rosa,

California for an art show. The bill of lading, No. 247135299,

is typed, and fully completed by Plaintiff. It indicates the

dimensions of "Mustang" and “Night Hawk," gives a declared

value of $2,000, and is signed by the Plaintiff.

3. Apparently, a friend of Plaintiff's, Nadine

Marshall, arranged for the shipment of "Night Hawk" and

"Mustang" to another artist, a Connie Foss in Prescott,

Arizona. It is unclear whether Plaintiff knew of this

arrangement, or what the legal relationship was between Ms.

Marshall and the Plaintiff. Nevertheless, on October 12,

1992, Ms. Marshall filled out Defendants' bill of lading No.

24837408 to ship "Mustang" and “Night Hawk" to Arizona.

The bill of lading is handwritten, but not signed. No declared

value is stated, and the description of "Mustang" and "Night

Hawk" is simply “artwork -- 80 pounds." The terms of

payment were "COD -- DRIVER COLLECT." Defendants

took delivery of the shipment from Mail Boxes, Etc., in

Windsor, California.

4. From Plaintiff's Exhibit 1 it is unrebutted that

on October 21, 1992, Defendants attempted COD delivery to

Ms. Foss, who refused the delivery. According to Plaintiff,

Ms. Foss disputed whether the work was “hers" [Foss's] or

not, and the Defendants' drivers took the artwork out of the

boxes to verify what it was and to whom it belonged.

Defendants’ agents and drivers actually, or impliedly,

discovered the artwork, "Mustang" and "Night Hawk,"

belonged to Plaintiff. Given the refusal of the shipment, by

Foss, the drivers took the artwork back to the Defendants’

warehouse.

3 Plaintiff testified she did not even know her

artwork was missing until around Thanksgiving, 1992, when

Plaintiff learned for the first time that Marshall had improperly

shipped "Mustang" and “Night Hawk" to Foss in Prescott. At

this time, she contacted Dan in the Defendants’ Denver office

to find out what happened to her artwork. Dan put her in

touch with Carlos in the San Francisco office, who said that

yes, "Mustang" and "Night Hawk" had been returned to the

Defendants’ docks, and had been sitting there, waiting for

further instructions. It was Plaintiff's impression that at this

time the artwork was located and at Defendants’ docks.

Plaintiff made arrangements with Dan, in Denver, to ship the

artwork to Oregon. It appears that after Dan had made the

shipping arrangements for Plaintiff, then the artwork vanished

off of the Defendants' docks. Searches for "Mustang" and

"Night Hawk" in December 1992 and January 1993 were

fruitless.

6. Plaintiff made her claim for "Mustang" and

"Night Hawk" on March 19, 1993. She valued "Mustang" at

$1,500.00 and "Night Hawk" at $10,500.00. It is for the

amount of $12,000.00 that Plaintiff has brought the instant

suit.

5 Defendants claim Plaintiff's claims are limited

by the Carmack Amendment to the Interstate Commerce Act,

49 U.S.C. sec. 11707. It is the Defendants’ theory that

somehow Plaintiff was the shipper of "Mustang" and "Night

Hawk" on October 12, 1992, on Defendants’ bill of lading No.

24837408. In fact, Nadine Marshall was the shipper, and

Connie Foss was the consignee, who refused the shipment.

The common carrier, Defendants herein, then took the refused

shipment back to its warehouse to await further instructions.

At this point, the entire cycle concerning the "lost" shipment

from California to Arizona was completed. The shipment was

not lost at this point.

8. Apparently further instructions came from

Plaintiff through Dan in Denver to Carlos in San Francisco.

There was no bill of lading with an express or implied

limitation thereon for the shipment of the artwork in question

from San Francisco to Oregon in November 1992. Before the

shipment could be effectuated, the artwork was either

misplaced or stolen. This was due to the negligence of

Defendants.

9. Since there was no bill of lading for the

shipment of the artwork from San Francisco to Oregon in

November 1992, the carrier cannot limit its liability since no

notice was given of any attempt to limit liability to Plaintiff in

this instance. In Anton v. Greyhound Van Lines, Inc., 591

F.2d 103 (1st Cir. 1978), the carrier was required to pay the

full amount of the shipper's loss where she [the shipper] had

not made an absolute, deliberate and well-informed choice

concerning any limitation of liability notwithstanding the

carrier's efforts to limit its liability pursuant to 49 U.S.C. sec.

11707. It is, of course, the burden of Defendants to establish

that the requirements for limiting liability have been met.

Acro Automation Systems v, Iscont Shipping Ltd., 706

F.Supp. 413 (D.Md.1989). Absent this evidentiary showing,

the carrier has absolute liability for the actual loss or injury

to the property pursuant to 49 U.S.C. sec. 11707(a)(1).

Carmana Designs v. North American Van Lines, 943 F.2d 316

(3rd Cir. 1991).

10. In this case, since Defendants have failed to

meet their burden of showing that Plaintiff had made an

absolute, deliberate and well-informed choice concerning any

limitation of liability, they have absolute liability for Plaintiff's

actual loss or injury to the property pursuant to 49 U.S.C.

sec. 11707(a)(1).

11. | Thecourt is aware of the Plaintiff's testimony

that the painting titled "Night Hawk" had been for sale since

1990 and was unsold as of the date of the loss, and that the

sculpture titled "Mustang" was the fifteenth of twenty similar

casts of the same sculpture by her. However, an owner may

testify as to the value of her property. Plaintiff says

"Mustang" was worth $1,500.00 and “Night Hawk" was

worth $10,500.00. There was no other testimony as to value.

Therefore, the court finds that the values ascribed by the

Plaintiff to her works of art are fair and reasonable values.

IT IS THEREFORE ORDERED that, based upon the

foregoing findings of fact and conclusions of law that

judgment enter in favor of Plaintiff, Nancy R. Jellico, d/b/a

Jellico Studio of Western Art, and against the Defendants,

Pilot Air Freight Corp., a Pennsylvania corporation, and

McDonough Air Cargo, Inc., d/b/a Pilot Air Freight Corp., a

Colorado corporation, for actual and compensatory damages

in the sum of $10,000.00, together with interest thereon at the

legal rate from date of judgment, and her court costs incurred

herein. The parties are further advised that if the trial exhibits

are not claimed within 35 days from this date, they will be

destroyed.

DONE AND SIGNED THIS 5TH DAY OF JULY,

1994.

UNITED STATES CODE SERVICE

*** THIS SECTION IS CURRENT THROUGH P.L.

104-12, APPROVED 05/18/95 ***

TITLE 49. TRANSPORTATION SUBTITLE IV.

INTERSTATE COMMERCE CHAPTER 117.

ENFORCEMENT: INVESTIGATIONS, RIGHTS, AND

REMEDIES

49 USCS § 11707 (1995)

§ 11707. Liability of common carriers under receipts and bills

of lading

(a)(1) A common carrier providing transportation or service

subject to the jurisdiction of the Interstate Commerce

Commission under subchapter I, II, or IV of chapter 105 of

this title and a freight forwarder shall issue a receipt or bill of

lading for property it receives for transportation under this

subtitle. That carrier or freight forwarder and any other

common carrier that delivers the property and is providing

transportation or service subject to the jurisdiction of the

Commission under subchapter I, II, or I'V are liable to the

person entitled to recover under the receipt or bill of lading.

The liability imposed under this paragraph is for the actual

loss or injury to the property caused by (1) the receiving

carrier, (2) the delivering carrier, or (3) another carrier over

whose line or route the property is transported in the United

States or from a place in the United States to a place in an

adjacent foreign country when transported under a through

bill of lading and, except in the case of a freight forwarder,

applies to property reconsigned or diverted under a tariff filed

xiv

under subchapter IV of chapter 107 of this title. Failure to

issue a receipt or bill of lading does not affect the liability of a

carrier or freight forwarder. A delivering carrier is deemed to

be the carrier performing the line-haul transportation nearest

the destination but does not include a carrier providing only a

switching service at the destination.

(2) A freight forwarder is both the receiving and delivering

carrier. When a freight forwarder provides service and uses a

motor common carrier providing transportation subject to the

jurisdiction of the Commission under subchapter II of chapter

105 of this title to receive property from a consignor, the

motor common carrier may execute the bill of lading or

shipping receipt for the freight forwarder with its consent.

With the consent of the freight forwarder, a motor common

carrier may deliver property for a freight forwarder on the

freight forwarder's bill of lading, freight bill, or shipping

receipt to the consignee named in it, and receipt for the

property may be made on the freight forwarder’s delivery

receipt.

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

subsection (a) of this section or delivering the property for

which the receipt or bill of lading was issued is entitled to

recover from the carrier over whose line or route the loss or

injury occurred the amount required to be paid to the owners

of the property, as evidenced by a receipt, judgment, or

transcript, and the amount of its expenses reasonably incurred

in defending a civil action brought by that person.

(c)(1) A common carrier and freight forwarder may not

limit or be exempt from liability imposed under subsection (a)

of this section except as provided in this subsection. A

limitation of liability or of the amount of recovery or

representation or agreement in a receipt, bill of lading,

contract, rule, or tariff filed with the Commission in violation

of this section is void.

(2) If loss or injury to property occurs while it is in the

custody of a water carrier, the liability of that carrier is

determined by its bill of lading and the law applicable to water

transportation. The liability of the initial or delivering carrier

is the same as the liability of the water carrier.

(3) A common carrier of passengers may limit its liability

under its passenger rate for loss or injury of baggage carried

on passenger trains, boats, or motor vehicles, or on trains, or

boats, or motor vehicles carrying passengers.

(4) A common carrier may limit its liability for loss or injury

of property transported under section 10730 of this title [

<=1> 49 USCS § 10730].

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

against a delivering carrier (other than a rail carrier) in a

district court of the United States or in a State court. Trial, if

the action is brought in a district court of the United States is

in a judicial district, and if in a State court, is in a State,

through which the defendant carrier operates a railroad or

route.

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

brought--

(i) against the originating rail carrier, in the judicial district

in which the point of origin is located;

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

which the principal place of business of the person bringing

the action is located if the delivering carrier operates a

railroad or a route through such judicial district, or in the

judicial district in which the point of destination is located;

and

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

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

alleged to have occurred.

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

United States district court or in a State court.

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

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

geographic area over which such court exercises jurisdiction.

(e) A carrier or freight forwarder may not provide by rule,

contract, or otherwise, a period of less than 9 months for

filing a claim against it under this section and a period of less

than 2 years for bringing a civil action against it under this

section. The period for bringing a civil action is computed

from the date the carrier or freight forwarder gives a person

written notice that the carrier or freight forwarder has

disallowed any part of the claim specified in the notice. For

the

purposes of this subsection--

(1) an offer of compromise shall not constitute a

disallowance of any part of the claim unless the carrier or

freight forwarder, in writing, informs the claimant that such

part of the claim is disallowed and provides reasons for such

disallowance; and

(2) communications received from a carrier's or freight

forwarder's insurer shall not constitute a disallowance of any

part of the claim unless the insurer, in writing, informs the

claimant that such part of the claim is disallowed, provides

reasons for such disallowance, and informs the claimant that

the insurer is acting on behalf of the carrier or freight

forwarder.

UNITED STATES CODE SERVICE

*** THIS SECTION IS CURRENT THROUGH P.L.

104-12, APPROVED 05/18/95 ***

TITLE 49. TRANSPORTATION SUBTITLE IV.

INTERSTATE COMMERCE CHAPTER 107. RATES,

TARIFFS, AND VALUATIONS SUBCHAPTER II.

SPECIAL CIRCUMSTANCES

49 USCS § 10730 (1995)

§10730. Rates and liability based on value

(a) The Interstate Commerce Commission by a household

goods freight forwarder may require or authorize a carrier

(including a motor common carrier of household goods but

excluding any other motor common carrier of property and

excluding any rail carrier) providing transportation or service

subject to its jurisdiction under subchapter I, II, or IV of

chapter 105 of this title [<=1> 49 USCS §§ 10501 et seq.,

10521 et seq., or 10561 et seq.], to establish rates for

transportation of property under which the liability of the

carrier for that property is limited to a value established by

written declaration of the shipper, or by a written agreement,

when that value would be reasonable under the circumstances

surrounding the transportation. A rate may be made applicable

under this section to livestock only if the livestock is valuable

chiefly for breeding, racing, show purposes, or other special

uses. A tariff filed with the Commission under subchapter IV

of this chapter [<=2> 49 USCS §§ 10761 et seq.] shall refer

specifically to the action of the Commission under this

section.

(b)(1) Subject to the provisions of paragraph (2) of this

subsection, a motor common carrier providing transportation

or service subject to the jurisdiction of the Commission under

subchapter II of chapter 105 of this title [ <=3> 49 USCS §§

10521 et seq.]} or a freight forwarder may, subject to the

provisions of this chapter (including, with respect to a motor

carrier, the general tariff requirements of section 10762 of this

title [ <=4> 49 USCS § 10762]), establish rates for the

transportation of property (other than household goods)

under which the liability of the carrier or freight forwarder for

such property is limited to a value established by written

declaration of the shipper or by written agreement between

the carrier or freight forwarder and shipper if that value would

be reasonable under the circumstances surrounding the

transportation.

(2) Before a carrier or freight forwarder may establish a rate

for any service under paragraph (1) of this subsection, the

Commission may require such carrier or freight forwarder to

have in effect and keep in effect, during any period such rate

is in effect under such paragraph, a rate for such service which

does not limit the liability of the carrier or freight forwarder.

to the jurisdiction of the Commission under subchapter I of

chapter 105 of this title [ <=5> 49 USCS §§ 10501 et seq.]

may establish rates for transportation of property under which

the liability of the carrier for such property is limited to a

value established by written declaration of the shipper or by a

written agreement between the shipper and the carrier, and

may provide in such written declaration or agreement for

specified amounts to be deducted from any claim against the

carrier for loss or damage to the property or for delay in the

transportation of such property.

UNITED STATES CODE SERVICE

*** THIS SECTION IS CURRENT THROUGH P.L.

104-12, APPROVED 05/18/95 ***

TITLE 49. TRANSPORTATION SUBTITLE IV.

INTERSTATE COMMERCE CHAPTER 101. GENERAL

PROVISIONS

49 USCS § 10102 (1995)

§10102. Definitions

In this subtitle--

(28) "transportation" includes--

(A) a locomotive, car, vehicle, motor vehicle, vessel,

warehouse, wharf, pier, dock, yard, property, facility,

instrumentality, or equipment of any kind related to the

movement of passengers or property, or both, regardless of

ownership or an agreement concerning use; and

(B) services related to that movement, including receipt,

delivery, elevation, transfer in transit, refrigeration, icing,

ventilation, storage, handling, and interchange of passengers

and property.

UNITED STATES CODE SERVICE

*** THIS SECTION IS CURRENT THROUGH P.L.

104-12, APPROVED 05/18/95 ***

TITLE 49 APPENDIX. TRANSPORTATION CHAPTER

4. BILLS OF LADING

49 USCS Appx § 81 (1995)

§81. [Repealed]

HISTORY; ANCILLARY LAWS AND DIRECTIVES

This section (Act Aug. 29, 1916, ch 415, § 1, 39 Stat. 538)

was repealed by Act July 5, 1994, P.L. 103-272, § 7(b), 108

Stat. 1379, except for rights and duties that matured, penalties

that were incurred, and proceedings that were begun before

enactment, as provided by § 7(b) of such Act, which appears

as a note preceding <=1> 49 USCS § 101. The section

provided for transportation included. The subject matter

formerly covered in this section is now covered generally in

49 USCS § 80101 et seq.

49 USCS Appx § 81 TRANSPORTATIO

CROSS REFERENCES

This chapter is referred to in 46 USCS Appx. § 1303.

§ 81. Transportation included

Bills of lading issued by any common carricr for the transportation «

goods in any Territory of the United States, or the District of Columbia, «

\ from a place in a State to a place in a foreign country, or from a place i

one State to a place in another State, or from a place in one State to

place in the same State through another State or foreign country, shall tb

governed by this Act [49 USCS Appx. §§ 81 et seq.].

(Aug. 29, 1916, ch 415, § 1, 39 Stat. 538.)

IIISTORY; ANCILLARY LAWS AND DIRECTIVES

Effective date of section:

Act Aug. 29, 1916, ch 415, § 45, 39 Stat. 545, provided that this Act

[49 USCS §§ 81 et seq.] shall take effect and be in force on and after

the first day of January next after its passage.

Short titles:

Act Aug. 29, 1916, ch 415, 39 Stat. 518 [49 USCS Appx. §§ 81 et seq.],

is popularly known as the Pomerene Bills of Lading Act.

CODE OF FEDERAL REGULATIONS

Transportation of houschold goods in interstate or forcign commerce, 49

CFR Part 1056.

RESEARCH GUIDE

Am Jur:

13 Am Jur 2d, Carriers § 264.

1SA Am Jur 2d, Commerical Code § 43.

Am Jur Proof of Facts:

12 Am Jur Proof of Facts 2d, Status as Comunon Carricr Rather Than

Warchousemen, p. |.

‘ /

Forms:

16 Fed Procedural Forms L Ed, T ransportation §§ 66:2, 152.

ton Review Articles:

Heard, Pomerene Act—False Bills of Lading—Applicability to Bills of

Lading for Shipments to the United States. ad J Mar L & Com 87,

January, 1989.

XXIV

ie ecrenceerenaensirrees renee ein cum sence

BILLS OF LADING

49 USCS Appx § 81, 5

INTERPRETIVE NOTES AND DECISIONS

1. Constitutionality

A lity

Relationship with other laws

Preemption of state law

“Common carriers”

Liabilities of common carriers

Transportation of goods

Delivery of goods

. Modification of bills by parol evidence

1. Constitutionality

Bills of lading for movement of interstate

commerce are instrumentalitics of that com-

merce which Congress has authority to deal

with. United States v Ferger (1919) 250 US 199,

63 L Ed 936, 39 S Ct 445.

SP es avaew

2. Purpose

Purpose of 49 USCS Appx §§ 81-124

render bills of lading negotiable. Chicago

W. R. Co. v Bewsher (1925, CA8 Neb) 6

947, cert den 270 US 641, 70 L Ed 775, 46

205.

3. Construction

Interpretation of bill of lading is controlled by

federal law, not by law of state where bill of

lading is signed. National Garment Co. v New

York, C. & S. L. R. Co. (1949, CA8 Mo) 173

F2d 32; Bedig v Southern Pacific Co. (1927) 84

Cal App 325, 258 P 148.

Construction of 49 USCS Appx §§ 81-124 by

is t

& N.

F2d

S$ Ct

United States courts is controlling, and courts of |

various states are bound to follow this construc-

tion. Davis v Fruita Mercantile Co. (1923) 74

Colo 247, 220 P 983; Morse-Ilubbard Co. v

Michigan C. R. Co. (1936) 286 Ill App 163, 3

NE2d 93.

Questions of construction and effect of inter-

state bills of lading are controlicd by 49 USCS

Appx §§ 81-124. Kasden v New York, N. I. &

H. R. Co. (1926) 104 Conn 479, 133 A 573.

Proper construction of bill of lading is federal

question. M. & T. Trust Co. v Export S. S.

Corp. (1933) 262 NY 92, 186 NE 214, cert den

290 US 650, 78 L Ed 563, 54 S Ct 70.

4. Applicability

Shipments in interstate commerce are gov-

erned by 49 USCS Appx §§ 81-124. George F.

Hinrichs v Standard Trust & Sav. Bank (1922,

CA2 NY) 279 F 382, cert den 258 US 629, 66 L

Ed 800, 42 S Ct 462; Dock & Mill Co. v

Southern R. Co. (1930, Mo App) 23 SW2d 202;

Chicago S. P. M. & O. R. — ¥ gee

(1924) 184 Wis 227, 199 NW 68.

Pomerene Act (49 USCS Appx §§ 81-124) is

not applicable to bills of lading issued in forcign

ports. Portland Fish Co. v States S.S. Co. (1974,

CA9 Or) $10 F2d 628 (disagreed with by United

States v Castro (CAI Fla) 829 F2d 1038, 1989

AMC 1518, rch den, corrected (CAI1 Fla) 837

F2d 441); Archibald & Lewis Co. v ue

Internationale de Commerce (1926) 216 App Div

322, 214 NYS 366.

Although Pomerene Dills of Lading Act (49

USCS Appx §§ 81 et seq.) is applicable, where

carrier is to deliver goods on C.O.D. basis, to

common carrier's duty to transport goods, and

although Act sets standards on such matters as

loading, delivery, and contents of bill in such

situations, Act docs not cover collection duties

which are established and governed solely by

private contract. Littleton Stamp & Coin Co. v

Delta Airlines, Inc. (1985, CAl NII) 778 F2d

: oe

Liability of carrier for misdelivery of interstate

shipment must be determined under 49 USCS

Appx §§ 81-124. Carter v St. Louis S. F. R. Co.

(1929) 179 Ark 865, 18 SW2d 376; Freedman v

George W. Bush & Sons Co. (1925) 284 Pa 16,

130 A 263.

Laws respecting charges for transportation in

interstate commerce must be decided according

to Federal Uniform Bills of Lading Act, 49

USCS Appx §§ 81-124, so far as it is applicable.

Hayden v Wabash R. Co. (1933) 269 Ill App

356.

Rights of parties in any action upon bills of

lading issued by common carrier for transporta-

tion of goods in interstate commerce are gov-

erned by 49 USCS Appx §§ 81-124. Chesapeake

' rs O. R. Co. v State Nat. Bank (1939) 280 Ky

444, 133 SW2d 511, 130 ALR 1306; Canal-Com-

mercial Trust & Sav. Bank v New Orleans, T. &

M. R. Co. (1926) 161 La 1051, 109 So 834, 49

ALR 274.

Purchaser of shipment which is en route be-

comes consignee and his relationship to carticr

and shipment is as defined by bill of lading and

“49 USCS Appx §§ 81-124. Carollo v Railway

Fayress Agency, Inc. (1935, Lucas Co) 52 Ohio

App 272, 6 Ohio Ops 351, 21 Ohio L Abs 552, 3

NE2d 659.

5. Relationship with other laws

Harter Act, 46 USCS Appx §§ 190-196, pro-

hibiting certain limitations on carrier's liability,

was not modified by provisions of 49 USCS

Appx §§ 81-124. Mississippi Valley Darge Line

Co. v Inland Waterways Shippers Asso. (1961,

CA8 Mo) 289 F2d 374, ceit den 368 US 876, 7

L Ed 2d 77, 82 S Ct 123.

49 USCS Appx § 81, n 5

There is difference between criminal law of

and commercial law of possession and

title, and 49 USCS Appx §§81 ct seq. are

inapplicable in determining issue of possession

for purposes of venue of prosecution for posses-

sion of controlled substance under 21 USCS

§ 841(aX(1). United States v Boney (1978, CA2

NY) 572 F2d 397.

Fact that Warsaw Convention applies to ac-

tion alleging liability of airline for damages

caused by plaintiffs detrimental reliance upon .

air way, bills, does not preclude claim founded

on Federal Bill of Lading Act (49 USCS Appx

§§ 81 et seq.). Gensplit Finance Corp. v Pan

American World Airways, Inc. (1984, ED Wis)

$81 F Supp 1241.

6. Preemption of state law

For purposes of carrier's suit against consignor

to recover freight charges for transportation of

cement in intrastate commerce, District Court

will look for guidance to analogous situations

covered by common law and Uniform Commeri-

cal Code even though Dills of Lading Act (49

USCS Appx §81) pre-empts field regarding

questions of law pertaining to interstate ship-

ment, where there is no applicable federal law.

Carna v Bessemer Cement Co. (1983, WD Ia)

558 F Supp 706. 35 UCCRS 1410.

As to interstate shipment, 49 USCS Appx

§§ 81-124 supersede state laws. Browne v Union

P. R. Co. (1923) 113 Kan 726, 216 P 299, affd

267 US 255, 69 L Ed 601, 45 S Ct 315; First

Nat. Bank v Tchula Commercial Co. (1923) 132

Miss 58, 95 So 742; Dock & Mill Co. v Southern

R. Co. (1930, Mo App) 23 SW2d 202. -

7. “Common carriers”

" ‘Vessel was “carrier” within meaning of 46

USCS § 1301(a) and 49 USCS Appx §§ 81 et

seq. where (1) vessel transported and discharged

cargo, (2) bill of lading was issued for master

and (3) no contractual relationship existed ab-

solving ship and its owner from liability for

cargo. Industria Nacional Del Papel, CA. v M/

V “Albert F” (1984, CAI1 Fla) 730 F2d 622,

1985 AMC 1437, cert den 469 US 1037, 83 L

Ed 2d 404, 105 S Ct $15, 1985 AMC 2397.

Barge hired by shipper to transfer goods cov-

ered by bil of lading from one steamer to

another is private carrier rather than common

carrier. The Bowling Green (1935, DC NY) i!

F Supp 109, alld (CA2 NY) 81 F'2d 1017.

8. Liabilities of common carriers

Uniform straight bill of lading issued by initial

carrier governs entire transportation and fixes

XXVi

TRANSPORTATION

rights of all participating carriers, including ter-

minal carrier. Rice & Lockwood Lumber Co. v

Boston & M. R. R. (1941) 308 Mass 101, 31

NE2d°219.

Initial carricr is liable for acts of tcrminal

carrier under Federal Uniform Bills of Lading

Act, 49 USCS Appx §§ 81-124, where shipments

are between States. Kemper Mill & Elevator Co.

v Hines (1922) 293 Mo 88, 239 SW 803.

9. Transportation of goods

Company's services as clearing house which

do not have direct relation to transportation of

’ crude oil and are provided for convenience of

crude oil resellers or recording of in-line trans-

fers, which occur prior to time of shipment,

which is bookkeeping or clearing house function

provided gratuitously by company for crude oil

resellers are not services incidental to physical

movement of property sufficiently related to

transportation under 49 USCS Appx § 81 or 49

USCS § 11707. Coastal States Trading, Inc. v

Shell Pipeline Corp. (1983, SD Tex) 573 F Supp

1415.

Neither issuance of bill of lading nor character

of bill is determinative of whether or not goods

are transported in interstate commerce. Pitman v

Yazoo & M. V. R. Co. (1935) 171 Miss 799, 158

So M7.

10. Delivery of goods

In absence of special contract or usage, carrier

of shipment between states need not make per-

sonal delivery to consignee, but may carry goods

to depot or station to which they are destined,

put goods in warehouse or other place of safcty

and hold goods ready for delivery when called

for by consignee after notifying consignee of its

readiness to deliver. Burton v Wabash R. Co.

(1933) 332 Mo 268, 58 SW2d 443.

11. Modification of bills by parol evidence

Bill of lading cannot be varied by parol testi-

mony. Kemper Mill & Elevator Co. v Hines

(1922) 293 Mo 88, 239 SW 803.

Shipper who allegedly delivered to carrier 20

cases of meat, weighing 1,263 pounds, was enti-

tled to ‘submit parol evidence to such effect,

though bill of lading recited 15 cases, weighing

1,263 pounds. Agar Packing & Provision Co. v

Weldon (1956) 42 Tenn App 175, 300 SW2d Si,

67 ALR2d 1023.

Presumption that consignee named in bill of

lading has title to shipment may be rebutted by

parol evidence. Pacific Lumber Agency v Na-

tional Aircraft Materials Corp. (1936) 108 Vt 10,

182 A 192.

Ee ey eee eee NN ee RT TNS oN ERNE

BILLS OF LADING

§ 82. Straight bill of lading

49 USCS Appx § 82, n 3

A bill in which it is stated that the goods are consigned or destined to a

specified person is a straight bill.

(Aug. 29, 1916, ch 415, § 2, 39 Stat. 539.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Effective date of section:

Act Aug. 29, 1916, ch 415, § 45, 39 Stat. 545, provided that this

January next after its passage.

section shall take effect and be in force on and after the first day of

RESEARCII GUIDE

Am Jur:

13 Am Jur 2d, Carriers § 265.

ISA Am Jur 2d, Commerical Code § 43.

Forms:

19 Am Jur Legal Forms 2d, Uniform Commercial Code § 253:2693.

INTERPRETIVE NOTES AND DECISIONS

1. Generally

2. Classification as straight bill

3. Rights and liabilities during shipment

4. Rights and liabilities upon delivery

1. Generally

Straight bill is assignable. Bedig v_ Southern

Pacific Co. (1927) 84 Cal App 325, 258 P 148.

Rights arising out of straight or nonnegotiable

bills of lading are essentially different from those

arising from “shipper's order,” or negotiable bills

of lading. Erskine Williams Lumber Co. v John

I. Hay & Co. (1935, La App) 160 So 650.

Uniform straight bill of lading issued by initial

cartier governs entire transportation and fixes

rights of all participating carriers, including ter-

minal carrier. Rice & Lockwood Lumber Co. v

Boston & M. R. R. (1941) 308 Mass 101, 31

NE2d 219.

Uniform straight bill of lading under which

goods are shipped constitutes contract, and ship-

per’s recovery, if any, from carrier for damaged

goods is limited by terms of b* Chicago, R. 1.

A Fg Co. v Geissler (1936) 177 Okla 560, 61

2. Classification as straight bill

Bill of lading for shipment of poultry, naming

seller as both consignor and consignee, with

directions to spot car at place of buyer, is

straight bill of iading. Estherville Produce Co. v

Sore R. L. & P. R. Co. (1932, CA8 Lowa) 57

Nonnegotiable express receipt naming con-

signor as consignee, but giving instructions for

notice and surrender to another, is straight bill

of lading. Wall v American R. E. Co. (1925) 220

Mo App 989, 272 SW 76, later app (Mo App)

291 SW 161.

Dill of lading having ali elements of straight

bill, except that it is on yellow and not white

paper, and contains expression “notify” specified

company, could be properly classified as straight

bi. Rountree v Lydick-Barmann Co. (1941, Tex

Civ App) 150 SW2d 173, writ dism w oj.

3. Rights and liabilities Uuring shipment.

Consignor was lawfully entitled to possession

of goods shipped under straight bill of lading

and railroad was not liable to transferee for

conversion, where check from intermediate

transferee to consignor in payment for shipment

was returned for insufficient funds and shipment

was diverted by railroad. prior to delivery to

transferee upon issuance of reconsignment order

by consignor; while straight bills are transferabie,

transferce acquired no greater tights than those

held by intermediate transferee who is not bona

fide purchaser for value, and carrier could redi-

rect shipment in transit to person lawfully enti

tled to possession upon failure of checks, the

consignor. Clock v Missouri K. T. R. Co. (1976,

ED Mo) 407 F Supp 448, 19 UCCRS 224, affd

without op (CA8 Mo) 553 F2d 102.

39°

DILLs OF LADING 49 USCS Appx § 88, n 2

§ 88. Duty to deliver goods on demand; refusal

A carricr, in the absence of some lawful excuse, is bound to deliver goods

upon a demand made either by the consignee named in the bill for the

eoods of, if the bill is an order bill, by the holder thereof, if such a demand

is accompanicd by— .

(a) An offer in good faith to satisfy the carrier's lawful lien upon the.

goods;

(b) Possession of the bill of lading and an offer in good faith to surrender,

properly indorsed, the bill which was issued for the goods, if the bill is an

order bill; and

acknowledgement that they have been delivered, if such signature is

requested by the carrier.

’ In case the carricr refuses or fails to deliver the goods, in compliance with

a demand by the consignee or holder so accompanied, the burden shall be

upon the carrier to establish the cxistence of a lawful excuse for such

refusal or failure.

(Aug. 29, 1916, ch 415, § 8, 39 Stat. 539.)

ILISTORY; ANCILLARY LAWS AND DIRECTIVES

Effective date of section:

Act Aug. 29, 1916, ch 415, § 45, 39 Stat. 545, provided that this

section shall take effect and be in force on and after the first day of

January neat after its passage.

RESEARCH GUIDE

- Am Jur:

13 Am Jur 2d, Carriers §§ 417, 419.

ISA Am Jur 2d, Commerical Code § 43.

“ ee INTERPRETIVE NOTES AND DECISIONS

——_,. etey Le Duty of carrier to deliver, and of consignee to

Carrier's to lading accept, are reciprocal. Crinella v Northwestern

3. Satisfaction of carrier’s tien

: Sa P. R. Co. (1927) 85 Cal App 440, 259 P 774.

5. —What constitutes delivery

6. Diversion or stoppage 2. Carrier's duty to take up bill of lading

7. Delivery as affected by custom Federal Dills of Lading Act, 49 USCS Appx

8. Misdelivery §§ 81-124, impose upon carrier specific duty to

9. —Damages shipper to take up bill of lading befure making

1, Generally delivery, but under § 88 carrier is not obliged to

BILLS OF LADING | 49 USCS Appx § 89, n 1

§ 89. Delivery; when justified

A carrier is justified, subject to the provisions of the three following

ne we [49 USCS Appx §§ 90, 91, 92], in delivering goods to one who.

(a) A person lawfully entitled to the possession of the goods, or

(b) The consignce named in a straight bill for the goods, or

which the goods are deliverable to his order; or which has becn indorsed to

him, or in blank by the consignee, or by the mediate or immediate indorsce

of the consignec.

(Aug. 29, 1916, ch 415, § 9, 39 Stat. 540.)

CROSS REFERENCES

Liability for delivery to person not entitled thereto, 49 USCS Appx. § 90.

Liability for delivery without cancellation of bill, 49 USCS Appx. § 91.

Liability in case of deiivery of part of goods, 49 USCS Appx. § 92.

This section is referred to in 49. USCS Appx. §§ 90, 99.

RESEARCII GUIDE

Am Jur:

13 Am Jur 2d, Carriers §§ 417-419, 423, 448.

ISA Am Jur 2d, Commerical Code § 43.

INTERPRETIVE NOTES AND DECISIONS

lL. IN GENERAL 16. Delivery without surrender of bill

1. Generally 17. Persons entitled to delivery

2. Place of delivery 18. Delivery effected by fraud

ll. DELIVERY TO PERSON ENTITLED TO >

POSSESSION 1. IN GENERAL

3. Generally 1. Generally

4. Surrender of bill unnecessary Carrier failed to sustain his burden of proof

5. Misdelivery that he delivered goods to the consignce named

6. Defenses in a straight bill of lading, or a person lawfully

. entitled to the possession of the goods, pursuant

lll. DELIVERY UNDER STRAIGIIT BILL to 49 USCS Appx § 89, where evid , ,

——— that shipper instructed carrier-to ship goods to

% Aggie be particular destination and to hold them there for

&. nom bok ptm his pickup, but defendant-carticr delivered the

Ren ba goods at another point, listed on the bill as

11. Misdelivery shipper's street address, and where defendant

12. Delivery effected by fraud offered no evidence that the person who signed

13. Liability after delivery for the goods was cither the owner of the equip-

14, Liability of initial carrier ment or entitled to its Richardson v

Railway Express Agency, Inc. (1971) 258 Or

IV. DELIVERY UNDER ORDER BILL OF 170, 482 Pld 176.

LADING In determining whether carrier is liable for

15. Possession of bill misdelivery of goods shipped interstate, consider-

49 USCS Appx § 89, n 1

ation should be given to 49 USCS Appx §§ 89

and 90. Freedman v George W. Bush & Sons

Co. (1925) 284 Pa 16, 130 A 263.

ll, DELIVERY TO PERSON ENTITLED TO

-POSSESSION

3. Generally

Person lawfully entitled to possession of goods |

under 49 USCS Appx § 8%a) refers to person

lawfully entitled to possession as between ad-

verse claimants. Chandler Motor Car Co. v

United Fruit Co. (1926) 127 Misc 432, 216 NYS

413.

4. Surrender of bill unnecessary

Dill of lading need not be surrendered, where

delivery is to one lawfully entitled to possession

of goods. Fleming v St. Louis S. R. Co. (1929,

Tex Civ App) 13 SW2d 440.

5. Misdelivery

Carricr is liable in damages for delivery of

shipment to one which it knows is not truc

owner. Turner Lumber & Invest. Co. v Chicago,

R. 1. & P. R. Co. (1929) 223 Mo App 564, 16

SW2d 705.

6. Defenses

Carrier transporting merchandise in interstate

commerce has right to deliver goods to truc

owner, and such delivery is defense to action by

shipper who holds order bill of lading. Stefani v

Southern Pacific Co. (1931) 119 Cal App 69, 5

P2d 946,

Delivery of goods to true owner caoncratcs

carrier from liability to consignor holding order

bill directing delivery to himself as consignee.

Danik v M. & S. P. R. Co. (1920) 147

Minn 175, 179 NW 899.

Delivery to true owner is defense to claim of

misdelivery, irrespective of bill of lading. Turner

Lumber & Invest Co. v Chicago R. I. & P. R.

Co. (1931) 225 Mo App 1002, 34 SW2d 1009.

Where shipper consigned goods on a shipper's

order bill of lading and retained the bill of lading

in his the delivery of the goods

without obtaining the bill of lading properly

endorsed was a delivery to a person entitled tu

possession, where it was shown that such deliv-

ery was in conformity with au agreement be-

tween the shipper and consignee to the effect

that the consignce would accept and unload the

goods for the purpose of testing and possible

TRANSPORTATION

future sale of the goods to the consignee and, on

the failure to agree on the price, consignee

agreed to reload the goods at the consignor's

expense. Eigin Mills, Inc. v & N. W. R.

Co. (1964) 177 Neb 110, 128 NW2d 384.

Carrier is not liable to shipper, who is named

as consignee in order bill, for delivery to buyer

notify-party without requiring surrender of bill,

where buyer is true owner of goods, in that

buyer's f.0.b. contract with shipper title in

goods to buyer from moment delivery to

carrier. Miller v New York C. R. Co. (1923) 205

App Div 663, 200 NYS 287.

Ill, DELIVERY UNDER STRAIGHT BILL

OF LADING

7. Applicable law

Straight, nonnegotiable bills of lading, so

marked upon their face, are not governed by

local statutes, but by federal law, particularly 49

' USCS Appx §§ 82, 86, 88-90, and 102. Bedig v

“ag Pacific Co. (1927) 84 Cal App 325, 258

P 148. ;

Rights of partics undcr uniform straight bill of

lading are to be determined by bill of lading and

common law principles accepted and enforced by

federal courts. Rice & Lockwood Lumber Co. v

Boston & M. R. R. (1941) 308 Mass 101, 31

NE2d 219.

Carricr is liable to consignor, who ships goods

under straight bill of lading, for losses which

result from delivery made by carrier untce any

other conditions than those provided in 49 USCS

Appx §§ 88 and 89. Rountree v Lydick-Barmann

Co. (1941, Tex Civ App) 150 SW2d 173, writ

dism w oj.

8. Control of goods during shipment

Consignor shipping under straight bill of lad-

ing retains control over goods, and he has right

to stop them in transit; consignee in straight bill

has right to divert or stop goods during trans-

portation, subject to qualification that he docs

not possess this right where carricr has been

requested by person having right of property not

to permit it. Southern Pac. Co. v Agencia Jof-

froy, S. A. (1946) 65 Ariz 65, 174 P2d 278.

Consignor who ships under straight bill retains

control over goods, and he can reclaim them,

convey them to thiid party, or stop them in

transitu, or they can be levied upon or attached

by his creditors. Tennessee Egg Co. v Monroc

(1925) 151 Tenn 121, 268 SW 372, cert den 269

US 580, 70 L Ed 422, 46 S Cr 105.

9. Surrender of bill

Carrier need not require surrender of bills of

lading before making delivery of shipments,

where goods ate shipped under straight bill of

lading and delivery is made to consignee named

in bill. Erskine Williams Lumber Co. v John I.

Hay & Co. (1935, La App) 160 So 650.

SLI LS TNL AT GOT Haha og

BILLs OF LADING

Carrier is under no duty to or

consignor to demand surrender of straight bill of

lading prior to delivery on order of

Utley v Lehigh V. R. Co. (1928) 292 Pa 251,

141 A 33.

10. Acts effecting delivery

In shipping goods under straight bill of lading,

where goods are consigned to named

in care of third party, delivery to third party will

fully discharge carricr’s obligation. Erskine Wil-

liams Lumber Co. v John I. Hay & Co. (1935,

La App) 160 So 650; Rountree v Lydick-Dar-

mann Co. (1941, Tex Civ App) 150 SW2d 173,

writ dism w oj.

il. Misdelivery

Express company, as carricr, is liable to con-

signor named as consignee in express receipt

which constitutes straight bill, on delivery of

goods to another not entitled to possession. Wall

v American R. E. Co. (1925) 220 Mo App 989,

272 SW 76, later app (Mo App) 291 SW 161.

Carrier's duty to deliver cargo under straight

bill of lading is breached when delivery is not

made to right person, at proper time and in

proper manner; parenthetical matter inserted in

bill afier name of warehouse consignee, indicat-

ing identity of ultimate receiver of goods after

warchouse's reconsignment, docs not make carri-

er's delivery at street corner to stranger not

named in bill nor shown by record to have

presented any credentials or authority a valid

delivery. Refrigerated Transport Co. v Hernando

Packing Co. (1976, Tenn) 544 SW2d 613.

12, Delivery effected by fraud

Carrier is justified in delivering goods to con-

signee who is named in straight bill and is real

owner of goods, evcn though consigace acquired

title to goods through fraud perpetrated on

consignor, where carrier has no actual knowl-

edge of fraud. Chicago, M., St. P. & P. R. Co. v

Flanders (1932, CA8 Iowa) 56 F2d 114.

Carrier is justified in delivering goods to agent

of consignor upon agents’ surrender of consign-

Ors straight bill of lading, even though agent

had, unknown to carrier, procured shipment

from consignor by fictitious order in name of

another with intent to convert goods to his own

use. Swift v Davis (1922) 118 Misc 205, 193

NYS 848.

13, Liability after delivery

Carrier completes delivery of goods shipped to

consignee under straight bill of lading upon

placing goods at "s private siding for

partial unloading, and carricr is not liable to

consignor for subsequent damage to goods. Rice

& Lockwood Lumber Co. v Boston & M. R. R.

(1941) 308 Mass 101, 31 NE2d 219.

Upon acceptance of delivery by consignee,

liability of carricr ceases, and subsequent move-

49 USCS Appx § 89, n 18

ment of goods by carrier at request of consignee

would not give rise to liability on part of carrier

to shipper. Continental Tanners, Inc. v Gonic

Footwear, Inc. (1965) 106 NII 297, 210 A2d

480.

14, Liability of initial carrier

Initial carrier is liable for act of connecting

carrier in delivering goods to consignee named in

straight bill, after direction by shipper not to

deliver until price had been paid. Louisville & N.

R. Co. ¥ Lumber Co. (1932) 45 Ga

App 851, 166 SE 252.

IV, DELIVERY UNDER ORDER BILL OF

LADING

15. Possession of bill

Prior to enactment of Federal Uniform Dills of

Lading Act, 49 USCS Appx §§ 81-124, carricr

was not ordinarily relieved from liability to

consignor or owner for delivery of goods to

person not legally entitled to receive them, even

h such person was in possession of order

of lading duly endorsed in blank, surren-

to carrier at time of delivery; under 49

Appx § 89, carrier is justified in delivering

any person in physicial possession of

endorsed in blank, and it is immaterial

t capacity person holds possession of bill

80 long as carricr has no notice of any infirmity

of title. Pere Marquette R. Co. v J. F. French &

195.

hit

g-Zs

16, Delivery without surrender of bill

Consignor taking shipper's order-notify bill,

and holding same through bank with draft at-

tached, could authorize notify-party as his agent

to receive delivery from carrier without surren-

dering bill, provided consignor is holder of bill,

and such agency need not be evidenced by

writing. Kemper Mill & Elevator Co. v Ilincs

(1922) 293 Mo 88, 239 SW 803.

17. Persons entitled to delivery

One holding bill of lading as collateral security

is entitled to delivery of goods. First Nat. Bank

v Missouri I’. R. Co. (1925) 220 Mo App 941,

278 SW 1075. hap

18, Delivery effected by fraud

Railroad is not justified as matter of law to

deliver merchandise to buyer, holder of order

bill, where manufacturer of goods crroncously

sent unendorsed bill of lading to buyer instead of

seller, and buyer presented bill to railroad with

alleged forged indorsement thereon. Adel Peeci-

sion Products Corp. v¥ Grand T. W. R. Co.

(1952) 332 Mich S19, $1 NW2d 922, cert den

344 US 831, 97 L Ed 647, 73S Cr 38.

BILLS OF LADING

1, Bill

“Through” bill of lading is one whereby

freight forwarder agrees to transport goods from

point of origin to designated point of destination,

although such transportation may extend over

lines of connecting carriers. Lifschultz v United

States (1956, DC NY) 144 F Supp 606.

2. Consignee

Buyer who has right to inspect goods and

right to claim delivery upon production of bill of

lading may be treated by carrier as consignee, at

least in respect to notice. Porter vy

R. Co. (1926) 217 App Div 49, 215 NYS 727,

later app 224 App Div 440, 231 NYS 432.

Under 49 USCS § 122, straight, nonnegotiable

bill, showing by memorandum upon its face that

delivery was to be made to party, fixes status of

such party as consignee. Atchison, T. & S. F. R.

§ 123. [Omitted]

49 USCS Appx § 124

INTERPRETIVE NOTES AND DECISIONS

Co. v Tulsa Rig, Reel & Mig. Co. (1923) 99

Okla 40, 225 P 696.

3. Consignor

In action where purchaser contracted to pur-

‘chase lumber from buyer, purchaser contracted

with carricr for delivery of lumber, and only

contact between seller and carrier occurred when

carrier picked up lumber at seller's yard, carrier

is not entitled to recover unpaid freight charges

from seller since, in absence of evidence of

implied-in-fact contract between seller and car-

rier, purchaser, admittedly consignee, was also

shipper. Thunderbird Motor Freight Lines, Inc.

v Seaman Timber Co. (1984, CAI Ala) 734

F2d 630. ,

Lumbermen who receive order in writing fur

lumber on form designating them as shipper and

who make shipment on bili of lading issued by

initial carrier signed by lumbermen as shipper

are consignors as matter of law. Pennsylvania R.

Co. v Adams Mercantile Co. (1944) 245 Ala

268, 16 So 2d 796.

HISTORY; ANCILLARY LAWS AND DIRECTIVES

This section (Act Aug. 29, 1916, ch 415, § 43, 39 Stat. 545) was

omitted as it is no longer classified to the United States Code. It

provided that provisions of 49 USCS A

x. §§ 81 et seq. should not

apply to bills made and delivered prior to January 1, 1917.

§ 124. Invalidity of part of 49 USCS Appx. §§ 81 et seq.

The provisions and cach part thereof and the sections and each part

thereof of this Act [49 USCS Appx. §§ 81 et seq.] are independent and

severable, and the declaring of any provision or part thereof, or provisions

or part thereof, or section or part thercof, or sections or part thereof,

unconstitutional shall not impair or render unconstitutional any other

provision or part thercof or section or part thereof.

(Aug. 29, 1916, ch 415, § 44, 39 Stat. 545.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Effective date of section:

Act Aug. 29, 1916, ch 415, §45, 39 Stat. 545, provided that this

section shall take cffect and be in force on and after the first day of

January next after its passage.

RESEARCH GUIDE

Am Jur:

ISA Am Jur 2d, Commerical Code § 43.

- jl ins OF bticdalidinn ah teed ids cna ek

on ae

wee

49 USCS Appx § 121, n 11

that finding of guilt must be supported by entire

evidence beyond reasonable doubt. Jackson v

United States (1920, CA9 Wash) 266 F 770, cert

den 254 US 649, 65 L Ed 456, 41 S Ct 63.

Court may instruct jury that if defendant

employer originated scheme for forging and ut-

tering forged bills of lading, and then aided his

employee in commission of acts charged, then

employer would be criminally responsible for

acts of employee, where such instruction does

not preclude finding that employer had entirely

withdrawn from unlawful practices, and had

order his employee to stop. Wellman v United

§ 122. Definitions

TRANSPORTATION

States (1924, CA6 Mich) 297 F 925, 2 Ohio L

Abs 330.

12. Nature of offense

Provision under 18 USCS § | that any offense

punishable by imprisonment for term exceeding

one year is felony, makes offense under 49 USCS

‘Appx § 121 felony, even though designated as

misdemeanor, and penalty under § 121 remains

unchanged. United States v Chesapeake & O. R.

Co. (1955, CA4 Va) 224 F2d 443, revd on other

grounds 352 US 77, 1 L Ed 2d 140, 77S Ct 172.

In this Act [49 USCS Appx. §§ 81 et seq.], unless the context of subject

matter otherwise requires—

“Action” includes counterclaim, set-off, and suit in equity.

“Bill” means bill of lading governed by this Act [49 USCS Appx. §§ 81 et

seq. }.

“Consignec” means the person named in the bill as the person to whom

delivery of the goods is to be made.

“Consignor” means the person named in the bill as the person from whom

the goods have been received for shipment. “Goods” means merchandise

or chattels in course of transportation or which have been or are about to

be transported.

“Holder” of a bill means a person who has both actual possession of such

bill and a right of property therein.

“Order” means an order by indorsement on the bill.

“Person” includes a corporation or partnership, or two or more persons

having a joint or common interest.

To “purchase” includes to take as mortgagee and to take as pledgee.

“State” includes any territory, District, insular possession, or isthmian

possession.

(Aug. 29, 1916, ch 415, § 42, 39 Stat. 545.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Act Aug. 29, 1916, ch 415, § 45, 39 Stat. 545, provided that this

section shall take effect and be in force on and after the first day of

January next after its passage.

RESEARCH GUIDE

Am Jur:

ISA Am Jur 2d, Commerical Code § 43.

UNITED STATES CODE SERVICE

*** THIS SECTION IS CURRENT THROUGH P.L.

104-12, APPROVED 05/18/95 ***

TITLE 49. TRANSPORTATION

SUBTITLE X. MISCELLANEOUS

CHAPTER 801. BILLS OF LADING

49 USCS @ 80101 (1995)

@ 80101. Definitions

In this chapter--

(1) "consignee" means the person named in a bill of lading

as the person to whom the goods are to be delivered.

(2) “consignor" means the person named in a bill of lading

as the person from whom the goods have been received for

shipment.

(3) "goods" means merchandise or personal property that

has been, is being, or will be transported.

(4) "holder" means a person having possession of, and a

property right in, a bill of lading.

(5) “order" means an order by indorsement on a bill of

lading.

(6) "purchase" includes taking by mortgage or pledge.

(7) "State" means a State of the United States, the District

of Columbia, and a territory or possession of the United

States.

HISTORY: (July 5, 1994, P.L. 103-272, @ 1(e), 108 Stat.

1346.)

INTERPRETIVE NOTES AND DECISIONS

1. Bill

"Through" bill of lading is one whereby freight forwarder

agrees to transport goods from point of origin to designated

point of destination, although such transportation may extend

over lines of connecting carriers. Lifschultz v United States

(1956, DC NY) 144 F Supp 606.

2. Consignee

Buyer who has right to inspect goods and right to claim

delivery upon production of bill of lading may be treated by

carrier as consignee, at least in respect to notice. Porter v

Pennsylvania R. Co. (1926) 217 App Div 49, 215 NYS 727,

later app 224 App Div 440, 231 NYS 432.

Under former 49 USCS @ 122, straight, nonnegotiable bill,

showing by memorandum upon its face that delivery was to be

made to party, fixes status of such party as consignee.

Atchison, T. & S. F. R. Co. v Tulsa Rig, Reel & Mfg. Co.

(1923) 99 Okla 40, 225 P 696.

3. Consignor

In action where purchaser contracted to purchase lumber

from buyer, purchaser contracted with carrier for delivery of

lumber, and only contact between seller and carrier occurred

when carrier picked up lumber at seller's yard, carrier is not

entitled to recover unpaid freight charges from seller since, in

absence of evidence of implied-in-fact contract between seller

and carrier, purchaser, admittedly consignee, was also

shipper. Thunderbird Motor Freight Lines, Inc. v Seaman

Timber Co. (1984, CA11 Ala) 734 F2d 630.

Lumbermen who receive order in writing for lumber on

form designating them as shipper and who make shipment on

bill of lading issued by initial carrier signed by lumbermen as

shipper are consignors as matter of law. Pennsylvania R. Co.

v Adams Mercantile Co. (1944) 245 Ala 268, 16 So 2d 796.

UNITED STATES CODE SERVICE

*** THIS SECTION IS CURRENT THROUGH P.L.

104-12, APPROVED 05/18/95 ***

TITLE 49. TRANSPORTATION

SUBTITLE X. MISCELLANEOUS

CHAPTER 801. BILLS OF LADING

49 USCS § 80102 (1995)

§ 80102. Application

This chapter applies to a bill of lading when the bill is issued

by a common carrier for the transportation of goods--

(1) between a place in the District of Columbia and another

place in the District of Columbia;

(2) between a place in a territory or possession of the

United States and another place in the same territory or

possession;

(3) between a place in a State and a place in another State;

(4) between a place in a State and a place in the same State

through another State or a foreign country; or

(5) from a place in a State to a place in a foreign country.

HISTORY: (July 5, 1994, P.L. 103-272, § 1(e), 108 Stat.

1346.)

INTERPRETIVE NOTES AND DECISIONS

1. Constitutionality

Bills of lading for movement of interstate commerce are

instrumentalities of that commerce which Congress has

authority to deal with. United States v Ferger (1919) 250 US

199, 63 L Ed 936, 39 S Ct 445.

2. Purpose

Purpose of former 49 USCS Appx §§ 81--124 is to render

bills of lading negotiable. Chicago & N. W. R. Co. v

Bewsher (1925, CA8 Neb) 6 F2d 947, cert den <=5> 270

US 641, 70 L Ed 775, 46 S Ct 205.

3. Construction

Interpretation of bill of lading is controlled by federal law,

not by law of state where bill of lading is signed. National

Garment Co. v New York, C. & S. L. R. Co. (1949, CA8

Mo) 173 F2d 32; <=7> Bedig v Southern Pacific Co.

(1927) 84 Cal App 325, 258 P 148.

Construction of former 49 USCS Appx §§ 81--124 by

United States courts is controlling, and courts of various

states are bound to follow this construction. Davis v Fruita

Mercantile Co. (1923) 74 Colo 247, 220 P 983; Morse-

Hubbard Co. v Michigan C. R. Co. (1936) 286 Ill App 163, 3

NE2d 93.

Questions of construction and effect of interstate bills of

lading are controlled by former 49 USCS Appx §§ 81--124.

Kasden v New York, N. H. & H. R. Co. (1926) 104 Conn

479, 133 A 573.

Proper construction of bill of lading is federal question. M.

& T. Trust Co. v Export S. S. Corp. (1933) 262 NY 92, 186

NE 214, cert den 290 US 650, 78 L Ed 563, 54 S Ct 70.

4. Relationship with other laws

eee

Harter Act, former 46 USCS Appx §§ 190--196, prohibiting

certain limitations on carrier's liability, was not modified by

provisions of former 49 USCS Appx §§ 81-124. Mississippi

Valley Barge Line Co. v Inland Waterways Shippers Asso.

(1961, CA8 Mo) 289 F2d 374, cert den <=14> 368 US 876,

7 L Ed 2d 77, 82 S Ct 123.

There is difference between criminal law of possession and

commercial law of possession and title, and former 49 USCS

Appx §§ 81 et seq. are inapplicable in determining issue of

possession for purposes of venue of prosecution for

possession of controlled substance under 21 USCS §

841(a)(1). United States v Boney (1978, CA2 NY) 572 F2d

397.

Fact that Warsaw Convention applies to action alleging

liability of airline for damages caused by plaintiff's detrimental

reliance upon air way, bills, does not preclude claim founded

on Federal Bill of Lading Act (former 49 USCS Appx §§ 81

et seq.). Gensplit Finance Corp. v Pan American World

Airways, Inc. (1984, ED Wis) <=17> 581 F Supp 1241.

5. Preemption of state law

For purposes of carrier's suit against consignor to recover

freight charges for transportation of cement in intrastate

commerce, District Court will look for guidance to analogous

situations covered by common law and Uniform Commerical

Code even though Bills of Lading Act (former 49 USCS

Appx § 81) pre-empts field regarding questions of law

pertaining to interstate shipment, where there is no applicable

federal law. Carna v Bessemer Cement Co. (1983, WD Pa)

XXXiX

558 F Supp 706. 35 UCCRS 1410.

As to interstate shipment, former 49 USCS Appx §§

81--124 supersede state laws. Browne v Union P. R. Co.

(1923) 113 Kan 726, 216 P 299, affd 267 US 255, 69 L Ed

601, 45 § Ct 315; First Nat. Bank v Tchula Commercial Co.

(1923) 132 Miss 58, 95 So 742; Dock & Mill Co. v Southern

R. Co. (1930, Mo App) 23 SW2d 202.

6. "Common carriers"

Vessel was "carrier" within meaning of 46 USCS Appx §

1301(a) and former 49 USCS Appx §§ 81 et seq. where (1)

vessel transported and discharged cargo, (2) bill of lading was

issued for master and (3) no contractual relationship existed

absolving ship and its owner from liability for cargo.

Industria Nacional Del Papel, CA. v M/V “Albert F" (1984,

CA11 Fla) 730 F2d 622, 1985 AMC 1437, cert den 469 US

1037, 83 L Ed 2d 404, 105 S Ct 515, 1985 AMC 2397.

Barge hired by shipper to transfer goods covered by bill of

lading from one steamer to another is private carrier rather

than common carrier. The Bowling Green (1935, DC NY)

11 F Supp 109, affd (CA2 NY) <=27> 81 F2d 1017.

ROBERT WIEGAND II

Suite 200

5261 South Quebec Sireet

Greenwood Village, CO 80111-1819

Telephone: 303/829-1740 Fax: 303/741-6512

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.