609 F. App'x 662
2d Cir.2015Background
- 2006: A train operated by BNSF derailed in California, damaging cargo shipped from Ohio/Indiana to Australia under a single through bill of lading issued by Maersk.
- Maersk was the ocean carrier that contracted for the entire multimodal carriage; BNSF was a rail subcontractor for the inland leg.
- American Home, insurer of the cargo, sued to recover loss caused by the derailment.
- District court proceedings determined the Carmack Amendment governs the inland leg of a through bill of lading shipment originating in the U.S.; American Home previously argued Carmack applies at district court.
- Judge Gardephe granted summary judgment for Maersk, holding Maersk is not subject to Carmack liability and did not contract into such liability; American Home appealed.
- On appeal the court held American Home waived its new contract-based theory and that Carmack preempts contract/state-law claims for loss during shipment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of the Carmack Amendment to the inland leg and whole through bill of lading | Carmack should not govern Maersk’s liability; Maersk contracted to assume liability for whole shipment | Carmack governs inland carriage under through bill of lading and preempts other claims | Carmack governs; American Home previously argued Carmack at district court and waived contrary theory on appeal |
| Whether Maersk is subject to Carmack liability (as a rail carrier or freight forwarder) | Maersk effectively stepped into BNSF’s shoes and should bear the same liability | Maersk is an ocean carrier, not a rail carrier or freight forwarder under Carmack; did not agree to Carmack liability | Maersk is neither a rail carrier nor freight forwarder under Carmack and did not contract into Carmack liability |
| Contract claim imposing rail-carrier liability on Maersk | Maersk assumed full responsibility by issuing the through bill of lading, so Maersk should be liable under the same scheme as BNSF | The Carmack regime controls and preempts state-law/contract claims that seek to impose different liability | Contract-based claim preempted by Carmack and waived on appeal; cannot avoid district court ruling |
| Waiver of legal theories on appeal | American Home can advance its contract theory now to impose greater liability | American Home previously argued that Carmack governed, so it waived the new theory | American Home waived the contract argument by having previously litigated and prevailed on Carmack applicability; waiver bars the new theory on appeal |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (1993) (defines waiver as intentional relinquishment of a known right)
- Wood v. Milyard, 132 S. Ct. 1826 (2012) (waiver requires a knowing and intelligent relinquishment)
- Puckett v. United States, 556 U.S. 129 (2009) (when a right is waived there is no plain-error review)
- Project Hope v. M/V IBN SINA, 250 F.3d 67 (2d Cir. 2001) (Carmack Amendment preempts shipper’s state and common law claims for loss during shipment)
- Am. Home Assurance Co. v. A.P. Moller-Maersk, 13 F. Supp. 3d 277 (S.D.N.Y. 2014) (district court decision concluding Maersk not subject to Carmack liability; affirmed on appeal)