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INDEPENDENT MACH. v. KUEHNE & NAGEL

November 3, 1994

INDEPENDENT MACHINERY, INC., Plaintiff,
v.
KUEHNE & NAGEL, INC., et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Independent Machinery, Inc. ("Independent") has sued Kuehne & Nagel, Inc. ("K&N"), Container Port Group ("Container") and Midwest Service Warehouse ("Midwest") for losses allegedly occasioned by defendants' mishandling of industrial machinery being transported from England to Ohio. Independent's claim against K&N is brought under the Carmack Amendment to the Interstate Commerce Act ("Act"), 49 U.S.C. § 11707, *fn1" and common law breach of contract, while the claims against both Container and Midwest sound in common law negligence. *fn2"

 Summary Judgment Principles

 Familiar Rule 56 principles impose on the movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to the nonmovant ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). Where as here cross-motions are involved, that principle thus demands a dual perspective--one that this Court has often described as Janus-like--that sometimes involves the denial of both motions (see Camelot Care Centers, Inc. v. Planters Lifesavers Co., 836 F. Supp. 545 (N.D. Ill. 1993)). Fortunately that proves not to be the case here.

 This District Court's General Rule ("GR") 12(m) and 12(n) respectively require the submission of factual statements in support of and in opposition to Rule 56 motions. Because the summary judgment motions in this case were filed consecutively, K&N has complied with those rules by filing both a GR 12(m) statement (cited "D. 12(m) P --") and a GR 12(n) statement (cited "D. 12(n) P --"). In response to K&N's motion and in support of its own motion for summary judgment, Independent has filed a single statement under GR 12(n) (cited "P. 12(n)(1) P --" or P. 12(n) (2) P --," depending on whether the paragraph is responsive to K&N's statement or supports Independent's motion). Facts claimed and adequately supported by either movant will be credited unless controverted by its opponent ( Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993)). *fn3"

 Facts

 Independent is a corporation engaged in the purchase, refurbishing and sale of equipment and machinery (D. 12(m) P 2). About October 1991 Independent communicated with K&N's Chicago Branch in Bensenville, Illinois to arrange for the importation of a Bobst SP 1260-E (the "Machine") from Liverpool, England to Williamsburg, Ohio (D. 12(m) P 7). K&N is a forwarding agent whose business is to arrange the international transport of cargos on behalf of shippers and consignees (D. 12(m) P 4). K&N also facilitates the transport of those cargos through customs and arranges for the placing of cargo insurance if requested to do so by the shipper or consignee (id.).

 Independent ultimately accepted K&N's quote for transporting the Machine to Ohio (D. 12(m) P 8). Although the specific conditions of K&N's undertaking appeared on the reverse side of invoices sent to Independent (D. 12(m) P 10), Independent received those invoices only after the shipment on December 31, 1991 (P. 12(n)(2) P 11). K&N's involvement in arranging transport of the Machine was limited to written and telephone communications on behalf of Independent (D. 12(m) P 11) to retain the services of various carriers to transport the Machine to Ohio (P. 12(n)(2) P 5). Specifically, K&N itself never picked up, loaded or unloaded, consolidated or physically handled the Machine during its movement from England to its final destination in the United States (D. 12(m) P 12).

 K&N never issued a bill of lading for any portion of the Machine's transport (D. 12(m) P 12). Instead the record contains a November 22, 1991 Blue Anchor Line bill of lading number 1430-4262-111028-00, listing K&N as a "delivery agent" for the Machine's transport on the M/V CANMAR AMBASSADOR from England to Ohio (D. 12(m) P 13).

 On December 17, 1991 Independent again wrote K&N, this time to request that the Machine be stored temporarily because Independent's customer was unable to take immediate delivery (D. 12(m) P 18 and P. 12(n)(1) P 18; P. 12(n)(2) P 8). K&N then located storage space at Midwest in Lawrenceberg, Indiana (D. 12(m) P 19) and directed Container to transport the Machine (which had been in Container's possession since December 6) to Midwest (D. 12(m) P 20).

 On December 20, 1991 Container hauled the Machine from Cincinnati, Ohio to Midwest (D. 12(m) P 22). There a Midwest warehouse representative instructed the Container driver to back the truck into Midwest's warehouse (D. 12(m) P 23). After maneuvering the trailer into the warehouse, the driver asked whether Midwest wanted boards placed under the trailer's landing gear (D. 12(m) P 24). Midwest's representative replied in the negative, adding that Midwest had stored loaded trucks in that warehouse before (id.). Container's driver then lowered the trailer's landing gear, unhooked the trailer from the truck cab and pulled out of the warehouse, leaving the trailer and container within (D. 12(m) P 25).

 Container's driver presented the bill of lading to the Midwest representative, who signed without noting any discrepancy (D. 12(m) P 26). Shortly thereafter the trailer's legs punched through the concrete floor of the warehouse as Midwest employees were closing the warehouse doors (D. 12(m) P 27), causing the trailer (and the Machine sitting upon it) to sink, fall off balance and finally fall over on its side (id.). Independent first learned of the damage on or about December 23, 1991, and it instructed K&N not to reload the Machine (P. 12(n)(2) P 9). As a result of the accident Independent incurred repair costs and other expenses (P. 12(n)(2) P 12).

 As the ensuing discussion reflects, Independent's Carmack Amendment claim fails because K&N does not qualify as a freight forwarder under the Carmack Amendment. Independent's breach of contract claim is unsuccessful because nothing in the dealing between the parties stated or implied an obligation on K&N's part to protect Independent against losses in shipment and, moreover, because K&N effectively limited its liability so as to foreclose such a claim.

 Inapplicability of the Carmack Amendment

 In 1906 Congress codified common law principles relating to liability of interstate carriers in the Carmack Amendment to the Act. *fn4" Though Congress has since recodified the original provisions of the Carmack Amendment (which then appeared at 49 U.S.C. § 20(11)) into Sections 11707, 10730 and 10103, the current sections are still commonly referred to by the earlier name ( Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1412 n. 6 (7th Cir. 1987)). Under Section 11707(a)(1) the carrier is generally held liable for actual loss or injury to property. But the same section allows a shipper to recover from the delivering carrier, the receiving carrier or any other carrier over whose line or route the property is transported. That statutory structure was devised "to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods" ( Reider v. Thompson, 339 U.S. 113, 119, 94 L. Ed. 698, 70 S. Ct. 499 (1950)).

 To establish a prima facie case under the Carmack Amendment for damage to cargo, a shipper must prove (1) delivery in good condition, (2) arrival in damaged condition and (3) the amount of damages ( Missouri P. R.R. v. Elmore & Stahl, 377 U.S. 134, 138, 12 L. Ed. 2d 194, 84 S. Ct. 1142 (1964); Jos. Schlitz Brewing Co. v. Transcon Lines, 757 F.2d 171, 173 (7th Cir. 1985)). That shifts the burden to the defendant to show that it was free from negligence and that the damage was caused by one of the several excepted causes that relieve carriers (or in this instance freight forwarders) of liability (id. (both cases)). But before a shipper may claim the benefit of the Carmack Amendment's strict liability provisions, it must establish that the Amendment applies in the first instance (see 1 Saul Sorkin, Goods in Transit § 1.19, at 1-95 to 1-96 (1990)).

 K&N is right in claiming that it does not fall within the scope of the Carmack Amendment. Section 11707(a)(1) makes the Carmack Amendment applicable to "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." Independent does not claim that K&N is a common carrier, so the sole issue is whether K&N qualifies as a "freight forwarder."

 As an initial matter, K&N contends correctly that merely labeling an entity as a "freight forwarder" will not subject that entity to the provisions of the Act. Chicago M., St. P. & P. R.R. v. Acme Fast Freight, Inc., 336 U.S. 465, 484, 93 L. Ed. 817, 69 S. ...


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