Summary
In Tel. Co. v. Way, 83 Ala. 547, it is held that statements of an agent of a telegraph company are not competent as against the company to prove that a message was not transmitted, when not made in performance of any duty relating to its transmission.
Summary of this case from Hamrick v. Telegraph Co.Opinion
No. C-95-1472 BZ TEH
January 17, 1996, Dated . January 17, 1996, FILED. January 18, 1996, ENTERED
For AMERICAN TELEPHONE AND TELEGRAPH INC, Plaintiff: George W. Nowell, George W. Nowell Law Offices, San Francisco, CA.
For CON-WAY SOUTHERN EXPRESS, INC., defendant: William A. Hickey, Hanson Bridgett Marcus Vlahos & Rudy, San Francisco, CA.
For BENTON EXPRESS, INC., Third-party Defendant: John M. Daley, John M. Daley Law Offices, San Francisco, CA.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter was tried by the Court on Friday, December 22, 1995. Plaintiff American Telegraph and Telephone ("AT&T") sued under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. section 11707. AT&T alleged that on October 12, 1992, at AT&T's Martinsburg, West Virginia facility, defendants Con-Way Southern Express, Inc., Consolidated Freightways Corporation of Delaware and CF Motorfreight ("Con-Way") picked up fifteen cartons of circuit packs on a clean bill of lading, destined for United Telephone Company of Florida ("United") in Fort Meyers Florida, and that Con-Way failed to deliver them.
The Carmack Amendment subjects a carrier transporting cargo in interstate commerce to absolute liability for loss or damage to shipped property. Hughes Aircraft v. North American Van Lines, 970 F.2d 609, 611 (9th Cir. 1992). It provides in pertinent part that the
carrier or freight forwarder and any other common carrier that delivers the property and is providing transportation or service . . . 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 . . . the receiving carrier . . ..
49 U.S.C. § 11707(a)(1). In an action under the Carmack Amendment to recover for lost goods, the shipper must show the following to establish a prima facie case for recovery: (1) delivery of goods to the carrier, (2) failure of the goods to arrive at their destination, and (3) the amount of damages. Continental Grain Co. v. Frank Seitzinger Storage, 837 F.2d 836, 839 (8th Cir. 1988). Once the shipper proves its prima facie case, the burden shifts to the carrier, who can avoid liability by showing that it was not negligent and that the shipper's loss was caused by an act of God, the shipper, the public enemy, public authority, or the nature of the goods. Hughes Aircraft, 970 F.2d at 612.
After considering the evidence and parties' arguments presented at trial, the Court enters the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. On October 12, 1992, at Martinsburg, West Virginia, Con-Way accepted a shipment from AT&T on a clean bill of lading, listing among other things a pallet weighing 230 pounds that contained electric resistor parts. The bill of lading was signed by an agent of Con-Way, who attached a sticker to the bill of lading indicating Con-Way's acceptance of the pallet for shipment.
2. AT&T prepared a packing list for that shipment, dated October 12, 1992, which further identifies the 230 pound load of electric resistor parts as 284 circuit packs bearing AT&T's product identification number CP-AUA58B 51.
3. The 284 circuit packs were shipped in 15 boxes. Each box was labeled with the product identification number, CP-AUA58B 51. This information was placed on the box by the manufacturer of the circuit packs. When Con-Way's driver picked up the pallet of circuit packs at AT&T's Martinsburg facility, the product identification number was visible on the boxes of circuit packs through transparent shrink wrap packaging that covered the entire pallet. The product identification number was also visible on the packing list. Both the packing list and the labeled boxes were available for the driver's inspection when he picked up the load for shipment.
4. Con-Way did not deliver any of the circuit packs to United.
5. United had agreed to pay AT&T $ 110 for each circuit pack, for a total of $ 31,240.00. AT&T's cost to replace the lost circuit packs was $ 92.69 per unit, for a total of $ 26,323.96
6. AT&T's shipping costs were $ 93.72.
7. The parties have stipulated to an interest rate of six percent simple interest per annum on the amount of loss from October 12, 1992.
CONCLUSIONS OF LAW
1. The Court has jurisdiction under 28 U.S.C. sections 1331 and 1337. The matter arises under the Carmack Amendment. and the amount in controversy exceeds $ 10,000, excluding costs and interest.
2. AT&T established a prima facie case under the Carmack Amendment for recovery of damages for the 284 circuit packs received by Con-Way and not delivered to United.
3. Con-Way introduced no evidence that it did not pick-up the circuit packs from AT&T, or that it delivered the circuit packs to United.
4. AT&T having established its prima facie case, the burden then shifted to Con-Way to show that it was not negligent and that the loss was caused by an act of God, the shipper, the public enemy, public authority, or the nature of the goods. Con-Way presented no evidence at trial on any of these points, and failed to meet its burden. Accordingly, Con-Way is liable to AT&T for the loss of the 284 circuit packs.
5. AT&T seeks to recover as damages the $ 110 per unit sale price to United. Under the Carmack Amendment, a shipper may recover only for "actual loss" due to the carrier's misdelivery. Where the shipper has not lost a sale, its actual loss is its cost of replacing the goods. Illinois Cent. R. Co. v. Crail, 281 U.S. 57, 63-64, 74 L. Ed. 699, 50 S. Ct. 180 (1930); Oak Hall Cap and Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 296 (4th Cir. 1990). AT&T was able to replace the lost circuit packs at $ 92.69 per unit and complete the sale to United. AT&T does not allege that it lost any sale as a result of the misdelivery. Its replacement cost of $ 26,323.96 is the appropriate measure of damages. Recovering the sale price of $ 110 per unit would represent a double profit for AT&T.
6. The only incidental damages alleged and proved by AT&T consist of $ 93.72 in shipping costs.
7. AT&T proved actual damages of $ 26,323.96 (the replacement cost of the 284 circuit packs) and incidental damages of $ 93.72 (shipping costs), for total damages of $ 26,417.68.
CONCLUSION
Based upon these findings of fact and conclusions of law, it is hereby ORDERED that JUDGEMENT BE ENTERED against Con-Way and in favor of AT&T in the amount of $ 26,417.68 plus six percent per anum simple interest from October 12, 1992 and for AT&T's costs of action.
Dated: January 17, 1996
Bernard Zimmerman
United States Magistrate Judge
JUDGMENT
This action came on for trial before the Court, the Honorable Bernard Zimmerman, Magistrate Judge, presiding. The issues having been duly tried and a decision having been duly rendered, IT IS ORDERED AND ADJUDGED that the plaintiff, American Telegraph and Telephone, Inc., recover from the defendants, Con-Way Southern Express, Inc., Consolidated Freightways Corporation of Delaware, and CF Motorfreight, the sum of $ 26,417.68, with simple interest at the rate of six percent per anum, from October 12, 1992, and its costs of action.
Dated: January 17, 1996
Bernard Zimmerman
United States Magistrate Judge