This is an action by a shipper against a carrier to recover $2,359.95 damages for goods lost in transit between Seattle and Oakridge. The complaint includеd a claim for attorney fees under ORS 20.080, which, at the time when this an action was brought, provided for reasonable attorney fees in action for damages for “injury or wrong to the person or property, or both, of another where the amount pleaded is $3,000 or less * * *.’’
The Supreme Court considered a similar issue in Richardson v. Railway Exp. Agency,
No citation is necessary for the proposition that the federal govеrnment has extensive authority over interstate commerce. However, it is also true that state and federal laws coexist in this area. The general rulе is:,
“Congress, in enacting legislation within its constitutional authority over interstate commerce, will not be deemed tohave intended to strike down a state statute designed to protect the health and safety of the public unless its purpose to do so is clearly manifested, or unless the state law, in terms or in its praсtical administration, conflicts with the Act of Congress, or plainly and palpably infringes its policy.” Southern Pacific Co. v. Arizona, 325 US 761 , 766,65 S Ct 1515 ,89 L Ed 1915 (1944). (Citations omitted.)
The Carmack Amendment to the Interstate Commerce Act, еnacted in 1906, governs the liability of a common carrier for property damage or loss but does not provide for costs or attorney fees. Pub. L. 59-337, 34 Stat 585, 593; 49 USC § 20(H).
The statute is similar to the one considered in Missouri, Kansas & Texas Ry v. Harris,
The Harris Court found significant the state statute’s broad sweep, which only incidentally included claims arising out of interstate commerce. The Court held that the statute did not enlarge or limit the responsibility оf the carrier for losses and only incidentally affected the remedy for enforcing that responsibility.
The purpose of the Oregon statute is
“to coerce tortfeasors and their insurance companies into settling small, legitimate claims where it is impraсticable for the offended party to employ an attorney to prosecute his claim. We believe it was the legislature’s intention, whenever a dеfendant has notice that a claim will be $1,000 or less, to require him to evaluate the case and to make an offer at the risk of having to pay attornеy fees if the offer is inadequate.” Landers v. E. Texas Motor Frt. Lines,266 Or 473 , 476,513 P2d 1151 (1973). (Citations omitted.)4
The statute furthers the goal enunciated in Harris, the prompt settlement of small but well-founded claims, and similarly “is not inconsistent with the provisions of the Commerce Act and its amendments.” Missouri, Kansas & Texas Ry. v. Harris, supra,
Petitioners argue that the 1916 Cummins Amendment to the Interstate Commerce Act, which further clarified the proper measure of carrier liability, filled the gap in the statute present at the time of the Harris decision, so that state attorney fees provisions are now preempted. We disagree. The Harris Court rеferred to the attorney fees statute as “a question of costs, respecting which Congress has not spoken.”
Other states have grappled with this issue but have not all come to the same conclusion. Texas
However, one additional argument propounded by defendant and relied upon, generally, by preemption advocates merits discussion. Citing Chicago & c. Ry. Co. v. McCaull-Dinsmore Co.,
Affirmed.
Notes
The parties make no issue of whether ORS 20.080 applies. Accordingly, we assume, for the purpose of this case, that it does.
The parties refer only to 49 USC § 20(11). We note that this state was repealed in 1978 and recodified at 49 USC § 11707. There is no substantive difference between the statutes on the issues befоre us in this case.
Defendant voiced concern in oral argument that, because there is no maximum attorney fee, a claimant could be awarded a fee far in excess of the judgment. In response, we note that in allowing a $10 fee for a $3.50 judgment, the Supreme Court in Harris approved an award almost three times the judgment. The statute in Harris also apparently required that the plaintiff recover the full amount claimed in order to be eligible for a fee. We decline to distinguish Harris on this point. That requirement apparently is a safeguard against a plaintiff, in the hope of recovering attorney fees, requesting an unfоunded amount of damages, in order to force the other party to trial. ORS 20.080 has a similar safeguard in that no attorney fees may be awarded if, before commencement of the action, the defendant tenders an amount equal to or greater than the damages awarded.
In any event, the point defеndant made at oral argument seems to pertain to whether the hypothetical state provisions would be an unconstitutional burden on interstate cоmmerce. We do not understand defendant to have raised a burden on commerce constitutional issue otherwise, as distinct from its preemption argument.
The maximum claim was later raised to $3,000.
Thompson v. H. Rouw Co.,
Humphrey Feed & Grain, Inc. v. Union P. R.R. Co., 199 Neb 189,
Rungee v. Allied Van Lines, Inc.,
Pacific Intermountain v. Leonard E. Conrad, 88 Nev 569,
Allied Van Lines Inc. v. Brewer, 258 So 2d 496 (Fla Dist Ct App 1972). Defendant, along with several courts and at least one commentator, misreads Allied Van Lines, asserting that it supports the preemption view. It does not. See U.S. Steel Supply v. Bill Rivers Corp., 381 So 2d 268 (Fla Dist Ct App 1980).