providing these services from Carmack Amendment liability.
Despite the plaintiffs' argument to the contrary, it is possible that defendant API has been lost in the regulating shuffle and is now technically free from liability under any theory except an equitable one. On the other hand, the cases explain the state and common law preemption on the basis of ICC regulation and Carmack Amendment liability. Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1414-15 (7th Cir. 1987). No caselaw supports the interpretation of ICC regulation, or the lack of it, in a case where the court finds deregulation and preemption have worked together to preclude liability.
The alternative claims in the complaint suggest two ways to reach liability: state common law or the Carmack Amendment. The defendants have pointed out the problems with each and they are obligated to go no further than that. Judge Moran, in the Quasar opinions, found in federal common law a way to mend the presumably inadvertent tear in the law. Quasar Co. v. Atchison, Topeka, and Santa Fe Ry. Co., 632 F. Supp. 1106, 1112-13 (N.D. Ill. 1986) ("To the extent that losses from a deregulated portion of interstate freight carriage would not be directly governed by statute, they would be controlled by federal common law which is drawn from the statutes.") This Court finds a third option, however, which precedes the last resort of federal common law: liability based on the violation of the Congressional statute authorizing the ICC to create exemptions (49 U.S.C. § 10505) and the ICC regulation granting the exemption (46 Fed. Reg. 14348, see 49 C.F.R. § 1090.2).
Common carrier status places API under the jurisdiction of the ICC; that very premise relieves it of common law liability under the preemption doctrine. The Court holds that API, like the other defendants, is amenable to suit under ICC regulations which require it to offer full liability terms to shippers and, if the shipper selects a released value rate instead, to reduce to writing the agreement for limited liability. In other words, it is required by the ICC to provide for contractual liability "consistent with" the Carmack Amendment terms, although the parties may agree in writing to reduced liability based on a reduced carriage rate. Because the Court finds that API is subject to ICC jurisdiction, the common law alternative claims against it are dismissed as preempted by federal regulation.
Defendant API argues that venue is not proper in this court under 49 U.S.C. § 11707. Section 11707(d)(2)(A)(i) states that a civil action "against the originating rail carrier" may only be brought "in the judicial district in which the point of origin is located." API maintains that because it has been designated by the plaintiffs as the "initial receiving carrier", it follows that this action must be brought in the federal district court for the state of Washington, where the shipment at issue originated.
The plaintiffs, however, point out that an action "against the carrier alleged to have caused the loss or damage" of the goods may be filed "in the judicial district in which such loss or damage is alleged to have occurred." 49 U.S.C. § 11707(d)(2)(A)(iii). In Counts I and II, the plaintiffs allege that API caused the loss or damage of the missing Panasonic goods and that the loss occurred in this district. Therefore, the plaintiffs are entitled to bring this suit against API in this Court. In addition, judicial efficiency is best served if the action against API is brought in the same forum in which the action against the other named defendants is scheduled to proceed.
The current Carmack Amendment count, Count I, is dismissed. The Court will, however, allow repleading of the federal liability claim consistent with the dictates of this opinion.
Count II and Count III are dismissed with prejudice.