*2
“[Ujndеr
law,
BIGGS, VAN
federal
in an
Before
DUSEN
action
Judges.
damage
ALDISERT,
from a
recover
Circuit
opinion
reported
point
1. The district court’s
State
.
.
.
to a
in another
(E.D.Pa.1971).
,
any
carrier,
at 329
State
.
.
.
or
common
railroad,
transportation company
or
deliv-
property
20(11) provides
ering
in relevant
said
so received and trans-
§
U.S.C.
ported
part as
shall be liable
the lawful holder
follows:
“Any
carrier, railroad,
receipt
lading
any
or trans-
or bill
or
common
said
portation
subject
provi-
party
company
thereon,
entitled
recover
whether
chapter
receiving property
receipt
bill
such
or
has been is-
sions of this
point
not,
loss,
transportation from
in one
sued or
age,
for the full actual
dam-
injury
point
property
or
.
.
in another
to such
caused
State
State
by any
receipt
carrier,
bill of
or
such common
rail-
shall issue a
or
transportation company
lading therefor,
road or
to which
and shall be liable to
may
any loss,
property
dam-
such
be delivered or over
lawful holder thereof for
property may
injury
property
age,
line or
to such
caused
whose
lines such
or
pass
by any
carrier,
railroad,
or
within the United
common
States
transported
through
company
transportation
when
which such
on a
bill of
or
lading, notwithstanding any
property may
be delivered or over whose
limitation
liability
may pass
property
or limitation of the amount
line
lines
or
such
recovery
representatiоn
agreement
. when
or
or
within the United
transported
States
any
receipt
through
lading,
to value
lading,
such
or bill of
bill
any contract,
regulation,
regulation,
rule,
contract, receipt, rule,
inor
and no
any
any
or
tariff
with the Inter-
what-
or other limitation of
character
any
Commission;
exempt
state Commerce
common car-
soever shall
such
limitation,
respect
transportation
compa-
rier,
railroad,
such
without
or
sought
liability
ny
imposed;
it is
manner or form in which
from the
cаrrier,
be unlawful and
made is declared to
railroad or trans-
such common
company
receiving property
portation
void:....”
so
transportation
in one
from a
delivered
his
of the hams when
establishes
shipment, the
Three of
four
de-
carrier.
shows
to the initial
he
when
the hams
condition,
indicated
livery
arrival
bills of
pursuant
“Plan
condition,
damaged
amount
were
2-Y^”;
of
of
did not indicate
damages.
the fourth
Thereupon, the burden
routing plan.7
proof
upon
show both
the carriеr to
negligence and
free from
that it was
Pennsylvania Rail-
In Tuschman v.
damage
cargo
due
that the
road,
*3
F.2d 787
relieving
excepted
causes
to one of
in
representation
a bill
that
court held
liability.”
of
377 U.S.
the carrier
goods
lading
received
of
were
(Emphasis
138,
at 1145.
84 S.Ct.
prima
good
apparent
establishes
order”
added.)
good
order with
of
in
facie case
goods
parties
disagreement
respect
aspects
all
which
to
of
between the
The
visible,
apрeal
open
inspection
but
around
revolves
instant
were
may
prima facie case
that the al-
requirement
the carrier
show
first
for a
damage
leged
in
in
or
Stahl,
whole
supra,
was caused
set
in Elmore
forth
good
ap-
by
is,
part
con-
not
hams
in
was
condition which
whether
shipper
goods:
parent
delivered from the
when
received the
dition when
to the initial carrier.'
acknowledgment by
the bill
“The
good
lading
apparent
of the
testi-
crane’s
Blue Bird introduced no direct
that,
prima
mony
evidence
court that
order was
facie
before the district
parts
in-
de-
as to all
spection
hams
suits were
involved
these
visible,
good
crane was
livered to the carrier in
condition.
the
point
satisfy
origin.
good
Instead,
proposed
Bird
order at
Blue
by
preclude
in-
requirement
did not
the railroad from
the introduction
This
showing
alleged damage
lading
of the bill
for each
evidence
part proceeded
shipments.
fol-
or
from some
four ham
The
whоle
existed,
lowing language appeared in
of the
cause
but
each
or causes which
lading:
apparent
re-
when it
four bills
which were not
791.
F.2d at
ceived
crane.” 230
“RECEIVED, subject
classi-
Woodruff,
66 U.S.
fications and tariffs in effect on
also Nelson
See
(1861).
Bill of Lad-
L.Ed. 97
date of the issue of this
Black
ing,
property
described
forth
Tusch-
This
rule set
language
apparent
order, except
below,
good
man is
con-
consistent with
lading,
(contents
as
in the bill
since this
noted
and condition
tained
unknown)
goods
packages
language
only
represents
contents
(Emphasis
shipper
“ap-
added.)
.”
were received from the
good
parent”
order; any
defects
those
“property”
lan
to in this
referred
goods
parts
not
of the
which were
guage
variously
in the
described
presum-
visible would
body
lading
each
“4 LONG
bill
ably
“apparent”
not
to the carrier
weighing
HOOKS
RACKS”
40046 and
within
thus would not be included
weigh
pounds,3
pea
“2527
Fresh Meats”
representation.
the carrier’s
ing
pounds,4
“1
MT
LOT GRN
weighing
however,
рounds,5
PK
The district
con
CUTS”
good
picnics” weighing
pork
“apparent
“loose fresh
cluded
representation
pounds.6
of lad
None
the bill
of the bills
not
re-
exception
“apparent
create
facie
listed an
routing-
7. Exhibit P-1 at
no
3.
31a contains
Exhibit P-2 at 32a.
plan. However,
appears
Bird
Blue
4. Exhibit P-3 at 33a.
have conceded
trailerload was
5. Exhibit P-4 at 34a.
under Plan
N.T.
also
2-1/4.
6. Exhibit P-1 at 31a.
damage to the
shipments
spect
involved
sues
carrier
four ham
goods
judice.
his
for this
cannot establish
sub
The basis
in the ease
“apparent
or-
of the
judgment
case means
the district court
representation
in the bill of
implicit
eases
der”
that in
four
evi-
instead
direct
shipper
in a trailer
but must
“establish
the hams
loaded
delivered
provided
“seal-
dence that
and then
delivering
order.” 329
the carrier
it back
ed” the
trailer
at 1118.
to the con-
carrier
signee.8 The district
determined
argument
After
the initial
is delivered to
that when merchandise
filing majority and
case and the
in a “sealеd”
dissenting opinions,
vacated
which were
visible,”9
following
panel
held
consideration
Rehearing,
pre-hearing
consignee
Petition for
these circumstances
who
During
trial,
par
Whether
this determination was intend-
tlie course
legal
stipulated
ed to be a
of fact or a
con-
ties
monly
that Plan
is a “com
*4
2-1/4
entirely
plan
clusion is not
clear. No mention
shipper
known”
the
which
of whether
the
of the
belonging
contents
each
trailer
initial
loads a
“open
carrier;
picks
trailers was
and visible”
made
up
was
that
the carrier
then
presentation
initial
origin,
in the district court’s
the loaded trailer at the
facts,
after
the district court
transports
country
which
the trailer
to its
across
that
these facts are
ramp
Philadelphia
“[s]ince
observed
then
and that
con
dispute
solely
presented
picks
there is
is-
signee
up
ramp.”
such trailer at the
plaintiff
sue of law as to whether
the
Nothing
N.T.
stipulation
in this
316-17.
was said
provided
proof
estab-
has
sufficient
to
respecting
sealing
the
of the
good
that
condition
lish
the hams were
pre-hearing
trailer. At a
conference held
they
time
were turned over to the
September 1972,
at the
counsel for defendant
carrier.”
at 1118. The dis-
specif
conceded that “the record does not
ically
trict court then declared:
indicate that
impelled
that a
(p. 4)
“We are
to conclude
specific
sealed”
and “there is no
be drawn between those
distinction must
witness
who
said that
in thеse
cases
shipped
which the merchandise
origin
four cases the trailer was sealed at
open
by
and
shipper.”
to
the
See Glick v. White Mo
Pennsylvania
Company,
(3d
visible.
Tuschman
Co.,
v.
tor
458 F.2d
supra,
1972) ; see, also,
a situation
example,
Railroad
and
Chwa
is
Revenue,
a
and sealed trailer
wherein
loaded
low v. Commissioner of Internal
Farm
a carrier. Lincoln
delivered to
470 F.2d
ing
show
Corp.
Railroad
given
Products
Company
Central
that
this court has
effect
Jersey,
N.J.Super.
by
of Nеw
statements
counsel
the facts
200, supra.
ap
A.2d
documents filed in this court after
peal. However,
Roeder,
“It
that when the con-
seems
us
Mr.
a witness for
O,
tents of a
are
and visi-
B & testified :
inspection,
“apparent
Now,
ble to
the
“Q
what
is
seal on
trailer?
notation establishes a
“A The seal is a
metal band
fixed
persuaded
Generally
are not
this
the rear door.
case. We
the seal has
applicable
to the circumstances
numbers on it.
rule
you
prevail
seal,
“Q Who
here. Where merchandise
affixes that
if
trailer,
sealed in a
and the contents
know?
plan
plaintiff
visible,
quarter,
“A In a
two and a
are not
and
the
the
shipper
by
would affix the
must establish
direct evidence that
seal to the rear
door,
trailer
the
would be received at
the
wore delivered to
ramp,
or the trailer
received under
order.”
(Emphasis supplied.)
assume,
purposes
seal.”
of this deci-
We
testimony
sion,
The above
does not
made a
establish a
the district cоurt has
form,
custom and is too indefinite to
of fact
the contents of the
visible,”
of a
sealed
trailers were not
and
but
light
52(a)
requires
paragraph
these trailers
6 of
note that
F.R.Civ.P.
Stipulation
16, 1972,
spe-
filed October
trial
find the facts
court “shall
describing
cially
separately
Plan
in detail without
and state
its conclu-
2-1/4
sealing
Pepi,
reference to the
of the trail-
thereon.”
Inc.
sions of law
pages 106, 107, including
Corp.,
(3d Cir.,
ers. See
fóot-
v. Helcar
conference was held in comments therеafter, stipula- and, supplemental September pre-hearing at counsel (see above) tion filed direction of conference note 8 at Stipulation (see 10(e)) amplifying thereafter F.R.A.P. statements agree description 2-14,11 had make Plan which clear that there is no con record ment between the facts been contained in the trial court counsel on cerning stipulation (see these a one-sentence note trailers above). or existence “cus- nonexistence panel pre-hear- incomplete ambiguous order at the Due to (pp. 39-40), describing conference at the Plan contains 2-14 language: and the condition of the trailers when de- possibility carriers, livered “6. Under Plan the railroad 11-14 loading stipula- supplies consignor’s supplementing through a trailer record point. (1) The trailer is then loaded tion or otherwise with com- more consignor, picked up plete description plan, the railroad con- which transported ramp, carried stituted a “tariff” referred in the bill consignee, lading, (2) ramp the railroad nearest the of the con- statement pick of the and removed from the flatcar up dition trailer door seals and ramp by visibility the con- trailer contents at railroad signee. transported recog- is then time of the carrier consignee ramp paragraph from the railroad nized ing order direct- C consignee’s appeals unloaded door and is be resubmitted to consignee panel. provided: paragraph then returned This C empty pre-hearing to the railroad. “C. A will be conference provisions early Septem- items set forth at a date to “The held be set plan generally applicable known order dis- ber later of the court for *5 28046-0, legal at the issues as Plan page are items cussion of factual and 11-% Supplement 42 tariff the 103 of of relevant to determination of action, including following: 450-D, supplemеnt and item 3208-E of court the pro- any part of 42 to tariff 450-D. Item 28046-0 “1. Was the contents of consignor ‘open vides, alia, will in view of inter the the trailer and visible’ cargo loading perform into the the the of the of Mr. Boeder easily opened origin. the trailer at the The other door to could be trailer of applicable provisions are in If to Plan and other the record? evidence 11-14 open part .” the item some contents was set forth 3208-E. parties damage alleged visible, hams the Blue the the Since concede (note result, part, shipped pursuant Plan whole or from to Bird were 214 “subject apparent above), language the to have been the cause which would 7 the the con- in effect on a reasonable tariffs from classifications Lading” light makes in which of the manner issue of this Bill tents date of See, applicable. the terms of tariff the contents loaded? the Ry. repre- Georgia g., v. the Co. “2. Is the bound e. Central of carrier Ga.App. 705, Rustin, the in the bill of 127 sentation ‘property 33 & Griner Appeals (Court 878, recieved described below’ was 880-881 S.E. 1925). apparent Georgia no state- ‘in order’ when placed bill that the on such ment was following paragraph not sub- 8 of the trailer were contents 12. Pursuant (see ject inspection? Stipulation in this court of the ‘package’ above), plaintiff-appellant within and de- Is the “3. note ‘(contents phrase meaning fendant-appellee filed a STATE- each unknown)’ pаckages 16, 1972: and condition in this court on October MENT lading? parties the bill of whether as to differ “8. ‘subject phrase 450-D in tariff “4. Does other items certain supplements are relevant in effect on thereto classifications and tariffs Court, subject Bill of the date of issue of matter before may present party agreed Lading’ affect the that each bill of it is Stipula- duty Court, in- to make carrier addition setting spection tion, those trailers?” forth of the contents a statement supple- and its in tariff 450-D items Stipulation party Paragraph should filed in feels 11. ments which 1972, pursuant 16, the Court.” the attention of this court on October called
JQ7
by Judge
industry
party
speaking
Aldisert,
load-
tom in
for the
stated
ing
Dinan,
into the trailer
Krasnov v.
465 F.
place
1298,
upon
trailer,”13
seal
we
2d
Cir.
bearing
equivocal
relationship
last
“no
have concluded that
rational
testimony quot-
supporting
evidentiary
clearly
sentence of Mr. Roeder’s
data”
ed in note 8 above does not
erroneous.14
propеr
constitute
Hence there was no
support
sufficient
basis
the conclusion of the district
part
these trailers
were sealed
no
contents of
resting
visible,”15
view the burden
on the
trailers was
car-
rier
to come
forward with evidence well as the conclusion that
showing
trailers,
of the
mak-
cannot
establish his
facie case
“apparent good
means
rep
condition
of their
non-
contents
lading.16
resentation
in the bill of
apparent when received, under Tusch-
man аbove at
page
4. Since 1966 Mr.
The district court received evidence on
assigned
Philadelphia
Roeder has
many
been
factual
issues which it did not
and the trailers were delivered to the
findings
determine17 because of its
the midwest
in 1968. As
contents
the trailer were not
penultimate
hand,
13.
easily
See
sentence of STATE-
if
removable “metal bands”
MENT BY APPELLEE filed October
were used to seal the trailer or the seals
placed by
carrier,
repre-
such
may
sentation
have been sufficiеnt
Beto,
also Chalk v.
429 F.2d
See,
g.,
make out a
e.
case.
(5th
1970) ; Transport Mfg. &
227
Equip.
Cir.
Texas
Yeckes-Eichenbaum v.
Mexican
Co.,
v. Fruehauf Trailer
Co.
Railway Co.,
206-207
(8th
1961) ; Wright
F.2d
(S.D.Tex.1958),
grounds,
rev’d
other
Procedure,
Miller,
Federal Practice &
(5th
1959).
lоading,
is
there was
merchandise
“[w]here
because
adjacent
would
those doors
the hams
the con
in a trailer
sealed
subject
examination.
F.
have been
visible.”
not
tents are
Supp. 1118.
reasons,
foregoing
dis-
For the
judgment
applica
will
vacated
trict
majority
determine
The
proceed-
clearly
for further
remanded
rule dic
erroneous
tion
opinion.
finding.
ings
this
rejection
consistent
of this critical
tates
panel
appeal
this
before
When
ALDISERT,
Judge (dissent-
majority
сonsideration,
Circuit
original
ing).
“the district court’s
stated
by the
‘sealed’
that
shipper
panel has
This is the second time this
the carrier
before
appeal.
it was
considered
When
by
supported
substantial evidence
us,
majority
first
opinion
majority
clearly
The
is not
erroneous.”
court,
reversing the district
opinion
properly
in their first
observed
charging
making
find-
court with
stipulation
parties
the “later
clearly
I filed
which
erroneous.
not
its terms
Plan
dissenting opinion. Following
peti-
2-¼
negate
Rоeder.”
Mr.
rehearing,
tion for
recon-
there was a
“a
majority
there
not
now hold
The
panel.
ma-
sideration
the same
The
support
sufficient
finding
jority
clearly
now find as
erroneous
were sealed.”
these trailers
they specifically
found
107.).
(page
opinion
clearly
their first
er-
“not
again
majority attempt
justify
I
roneous.”
dissent.
time
This
only
ascribing
signifi-
I
dissent not
from
conclusion
some
oscillation
majority
ap-
reached
but also the
certain statements made
cance to
method utilized to reach
pellate counsel,
it.
in the dis-
pre-argu-
trict
but adduced
appeal requires
This
a non-
review of
origi-
hearing
ment
conducted after the
jury
determination that a
failed
*7
court,
nal decision
this
thirteen
ship-
to establish a
facie
the
court
took
months after
district
trial
of hams
ments
were
condition at
disagreement
place.
I am in total
the time of
to a
car-
railroad
approach
judg-
this
and would
the
affirm
trial,
shipper
upon
rier. At
the
reliеd
ment of the district court.
acknowledgment
an
the
railroad’s bill
appar-
court,
the
were
What divides
after recon-
ent
sideration,
basically
order.” The railroad contended
is
the same differ-
acknowledgment
that jurisprudential philosophy
bill of
the
ence
satisfy
upon
fails to
the
it
initial consideration.
divided
phrase
evidence rule
because
refers Ours
a fundamental difference
is
only
shipments
perceive
appropriate
“which
were
what we
to be the
visible,”
reviewing
appellate
Tuschman
role
an
court
Pennsylvania
Co.,
sitting
Railroad
F.2d
facts found
court
trial
with-
(3d
1956),
very
jury. Regretfully,
Cir.
here the
whereas
out a
there is
appellate
an
function
ma-
trailers.” The
approach taken
in the
little
jority
only
record which
generate
is to review
court
even
I
can
with which
court
order
district
was before the
agreement.
a modicum of
court committed
whether that
determine
court observed:
district
The
highly
Thus,
im-
it
error.
I consider
decision are these
our
Critical
appellate
proper
court to consider
for an
furnishes
rail
facts. The
any evidence, stipulation, or statements
shipper, who
piggyback
trailer to
not before the
were
of counsel which
shipment
in a
cools and loads
decision
time the
un-
trial court at the
pre-
required to
he is
trailer which
F.R.A.P. 10.
made.
der
review was
shipper
then seals
cool. The
197, 438 F.2d
Hunt
Board No.
v. Local
then delivered
The trailer is
trailer.
(dissenting
1128, 1146
piggyback train fоr cross coun-
Aldisert, J.,
joined
opinion,
Van
try transit.
Dusen, J.).
1117-1118.
Yet,
precisely
what
ma-
clearly
majority view,
errone
reaching
jority
has done
its conclu-
ous,
finding that
attempt
In an
to fashion some
sion.
important finding,
This was
sealed.
there
basis
the conclusion
that the
district
for was on
sup-
trial “to
insufficient evidence at
court was able to draw
distinction
port
trailers
that these
in which the mer
“between
cases
those
majority
(page 107),
rely on
sealed”
in
chandise
presented
apрellate
to an
matters
spection
Tuschman v. Penn
and visible.
the district court.
which were
before
sylvania
Co.,
Railroad
F.2d
[230
They rely on
counsel” and
“comments of
1956],
and a
wherein
3d
situation
Stipulation
statements
“the
there-
loaded and sealed trailer is delivered
make
there is
clear
[which]
after
Corp.
a carrier. Lincoln Farm Products
agreement
counsel on the
no
between
Jersey
v. Central
Co. of New
Railroad
facts
of these
N.J.Super.
facts of these [*] [*] [*]
Q. you inspect all the loads Do Philadelphia
that comeinto ? No,
A. we don’t.
Q. if notation be would that Where
the seal were broken ?
A. make a We would notation waybill, we would also make
a notation in our seal record book.
Q. you know, If the seals cases?
broken four knowledge. my
A. Not to
(Record 132-133.) sup- (Emphasis
plied.) controlling irrefutable fact is, majority explicitly as the conceded original opinion,
their evidence that no
was introduced to offset
critical evidence that
shipped 2*4, under Rule and Mr. Roed-
er’s that the trailers
under Rule were sealed. 2*4
Accordingly, judg- I would affirm the
ment of the district court. America,
UNITED STATES Appellee,
Billy THOMAS, Appellant. Gene
No. 72-1524.
United Appeals, States Court of
Tenth Circuit.
Argued and Submitted Nov. 1972.
Decided Feb. Denied
Certiorari June S.Ct.