Divided Fourth Circuit Panel Rules No Carmack Amendment Limitation for Damaged Shipment

A divided panel of the U.S. Court of Appeals for the Fourth Circuit, ruled today that a rail carrier was responsible for all damage caused during shipment to a $1.3 million electrical transformer. The Opinion in ABB Inc. v. CSX Transportation, Inc. is attached here. The majority of the three-judge panel held that the railroad had not limited its liability under the Carmack Amendment (49 U.S.C. sec. 11706). Holding that in order to overcome the default posture of the Carmack Amendment, which imposes all liability for losses in shipment on the carrier, the Court explained "the carrier and the shipper must have a written agreement that is sufficiently specific to manifest that the shipper in fact agreed to a limitation of liability." The Court's decision turned largely on the absence of a specific reference to the carrier's rate terms on the Bill of Lading issued by the shipper. The shipper-issued bill of lading did not reference the carrier's price publication, and the shipper acknowledged its own computer program prevented it from inserting the price code referencing the carrier's terms. However, the bill of lading did state that the shipper was aware of all carrier terms covering the shipment. Therefore, even though bill of lading generated by the shipper stated it was bound to the carrier terms covering the movement, because there was no actual reference the carrier's price terms, the Court found the parties did not actually agree in writing to limit the carrier's liability. One interesting portion of the majority opinion is the discounting of the word "tariff" as an out dated term no longer operative in a de-regulated rail industry. Noting that prior to de-regulation, shippers were held to have constructive knowledge of published rail tariffs, the Court distinguished the current practice where rail tariffs are no longer required to be published with the government, but rather are available from carriers by request. Terming the phrase "tariff" as used in the shipper's own bill of lading as "generic and outdated" the majority simply did not consider the limitation of liability specific enough. In a strongly-worded dissent, Circuit Judge Agee pointed out that the shipper was essentially seeking relief from the contract it drafted, i.e. the bill of lading, which incorporated by reference the carrier rate rules which limited liability. Taking issue with the majority's view that "tariff" terms are generic and outdated, and referring to the shipper-generated bill of lading referencing agreement to the carrier's terms, the dissent stated, "Nothing in the Carmack Amendment requires the carrier to hold the shipper harmless from the shipper's negligence, particularly where the carrier has every reason to take the shipper at its word."

Cruise Ship Disaster Leads to Speculation about Passenger Remedies

It was not long after the news of the Italian cruise ship broke, with details of passengers missing and deaths, that speculation about the potential remedies of the passengers began in earnest.

Since the details of the accident, particularly the course deviation by the captain, and his less-than-heroic response to the accident, a prevalent topic has been whether American passengers could sue in the United States for death or injuries. This speculation, no doubt, has been highlighted by the missing American couple from Minnesota, whose story has been well publicized.

Most commentators agree that legal options for American passengers for a mishap in Italian waters, are limited by the ticket-contract for the voyage, which contains a forum selection clause, reported to be Genoa, Italy, and the lack of a port call in a U.S. port. Federal courts in the U.S. have generally upheld ticket contracts with choice of venue provisions, despite the inconvenience and expense of an American attempting to litigate in a foreign Country. For example, the U.S. Court of Appeals for the 11th Circuit, based in Miami, upheld forum selection clause (in favor of litigating in Paris) for claim made by an American injured during a cruise in French Polynesia. That unpublished Opinion is attached here.

Another issue is the applicability of the "Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea," also known as the "Athens Convention." This international agreement limits recovery for death or personal injuries to approximately $80,000.00 per person. This convention is likely to apply wherever a claim is made, even in the U.S. However, the carrier can lose the right to limit liability "if it is proved that the damage resulted form an act or omission of the carrier done with intent to cause such damage, or recklessly and with with knowledge that such damage would probably result."

Given the reported behavior of the Master and some crew members, reckless behavior seems to be demonstrated by: the course deviation, the reported failure to advise authorities of the true nature of the ship's distress, and the reported failure to assist in the abandonment/evacuation of the ship. If what has been reported in the press is accurate, claimants stand a reasonable chance to pierce the limit of the Athens Convention.

Another avenue is subsidiary liability, since Costa Cruises, is a subsidiary of Miami-based Carnival Corporation & PLC. It is almost certain that the Costa Concordia's Master deviated from company policies in steering close the island and off the planned course. It will be a stretch to claim the parent Corporation in Miami is liable for the Master's apparent negligence, though I think it is likely that someone will try. Somewhat related to the issue of control of subsidiaries, which is an issue in subsidiary-liability cases, is this recent announcement by the parent corporation that it will audit and review Safety and Emergency Response Procedures in its nine different cruise lines. Part of the review is to include officer and crew training and evaluation.

Given the high-profile of this accident, and the growing awareness of the limited remedies available to U.S. passengers, I will not be surprised if there are challenges to both the ticket-contract venue provisions and the limitation of liability, even if potential success is questionable.