Duck Head Footwear v. Mason & Dixon Lines (4th Cir. 2002)

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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DUCK HEAD FOOTWEAR,
Plaintiff-Appellee,

THE MASON AND DIXON LINES,
INCORPORATED,
Defendant-Appellant,
No. 01-1670
and

CAPITAL CORPORATION,
Defendant,

M/V ZIM SAO PAULO, her engines,
boilers, appurtenances, etc., in rem;
DSR SENATOR LINES,
Defendants.
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Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-00-211)

Argued: June 3, 2002

Decided: July 29, 2002

Before WILKINSON, Chief Judge, and NIEMEYER and
WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Herbert Alan Dubin, WIESENFELD & DUBIN, P.C.,
Rockville, Maryland, for Appellant. James Dygert Skeen, WRIGHT,
CONSTABLE & SKEEN, L.L.P., Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Mason & Dixon Lines, Inc. (M & D) appeals from the district
court's order granting summary judgment to Duck Head Footwear
(Duck Head), on Duck Head's claim for damages resulting from the
loss of several thousand pairs of shoes that Duck Head had hired M
& D to ship from Norfolk, Virginia to Lynchburg, Virginia. The dis-
trict court found that M & D was liable to Duck Head under the Car-
mack Amendment, 49 U.S.C.A. S 14706(a)(1) (West 1997), which
creates presumptions relating to carrier liability for goods damaged or
lost during interstate shipment. Finding no reversible error, we affirm.

This appeal concerns a container of shoes that Duck Head arranged
to have shipped from Santos, Brazil, to Norfolk, Virginia in January
of 1999. Duck Head, a footwear distributor, purchased 644 cartons,
containing 7,773 pairs of shoes, from suppliers in Brazil and had them
collected by Capital Corporation1 at Capital's warehouse in Brazil.
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1 Duck Head hired Capital to collect the shoes in Brazil, load them into
a container, and transport them to the United States. Duck Head named
Capital as a defendant in this action below, but the district court granted
Capital's motion for summary judgment, and Duck Head has not
appealed that portion of the district court's order.

Capital placed the shoes in a shipping container, which it then
inspected and weighed, determining that its total loaded weight was
12,928 kg. The shoes and cartons weighed 9,128 kg and the container
itself 3,800 kg. Capital then sealed the container with two seals bear-
ing individualized numbers.2 The container was shipped by truck
from Capital's warehouse to Santos, Brazil, where it was loaded onto
a ship, the M/V ZIM SAO PAULO (the Zim Sao Paulo ), for transport
to the United States. (J.A. at 137.)

Brazilian customs officials inspected the container when it was
loaded onto the ship. They found that the seals were intact and con-
firmed that the container weighed 12,928 kg. Capital issued a series
of bills of lading3 on January 4, 1999, indicating the weight of the
shipment and its contents.

The Zim Sao Paulo, operated by DSR Senator Lines (DSR), arrived
in Norfolk, Virginia, on February 1, 1999. M & D, the trucking com-
pany hired to transport the shoes from the port in Norfolk to Duck
Head's warehouse in Lynchburg, Virginia, picked up the shoes on
that date, issuing a bill of lading. This bill of lading noted the weight
of the container's contents (the shoes) as 20,124 pounds,4 but M & D
did not actually weigh the container or the shoes to arrive at this fig-
ure. An M & D driver picked up the shipment in Norfolk on February
1 and drove it to an M & D storage facility for the night. This driver
noted that the container still had two intact seals.

The next day, a second M & D driver picked up the container for
transport to Lynchburg, Virginia. The second driver delivered the
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2 One of these seals is described by the parties as bearing a bar code.

3 A bill of lading is a "[d]ocument evidencing receipt of goods for ship-
ment issued by person engaged in business of transporting or forwarding
goods . . . ." Black's Law Dictionary at 168 (6th ed. 1990). It is further
defined as "[a]n instrument in writing, signed by a carrier or his agent,
describing the freight so as to identify it, stating the name of the con-
signor, the terms of the contract for carriage, and agreeing or directing
that the freight be delivered to the order or assigns of a specified person
at a specified place." Id.

4 20,124 pounds is approximately equal to 9,128 kilograms, the weight
of the shoes as determined by Capital and Brazilian customs officials.

container to Duck Head's Lynchburg facility on February 2. Upon its
arrival in Lynchburg, a Duck Head employee, Tyrone Morton, opened
the container, breaking both seals (which, the parties agree, appeared
intact). According to his signed affidavit, Morton noticed immediately
upon opening the container that three cartons of shoes were damaged,
and noted that fact on the bill of lading when accepting delivery. Mor-
ton stated in his affidavit that he did not, however, inspect the con-
tainer's entire contents until after accepting delivery. Morton further
stated that upon completing an inspection of the container's contents,
he found that 264 cartons, containing 3,180 pairs of shoes, or nearly
half the total of pairs of shoes that were supposed to be in the con-
tainer, were missing.5

Duck Head instituted this lawsuit on January 21, 2000, seeking
$93,000 in damages as compensation for the lost shoes. Duck Head
initially sued Capital, DSR, and M & D. DSR was dismissed from the
suit. Thereafter, all three remaining parties moved for summary judg-
ment. The district court granted summary judgment to Duck Head
against M & D and to Capital against Duck Head, and denied M &
D's motion for summary judgment. M & D noted this appeal.

II.

We review the district court's entry of summary judgment in favor
of Duck Head de novo, reviewing the facts in the light most favorable
to M & D, the non-moving party. See American Legion Post 7 of Dur-
ham, N.C. v. City of Durham, 239 F.3d 601, 605 (4th Cir. 2001).
Summary judgment is appropriate only "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In deciding whether there is a genuine issue of mate-
rial fact, the evidence of the non-moving party is to be believed and
all justifiable inferences must be drawn in its favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A mere scintilla of
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5 It is not clear from the parties' arguments whether either of them has
a theory as to the actual fate of the missing shoes. M & D did suggest
at oral argument that Morton or some other Duck Head employee might
have absconded with the shoes but offered no basis for that theory.

proof is not sufficient to prevent summary judgment, however; the
question is "not whether there is literally no evidence, but whether
there is any upon which a jury could properly proceed to find a ver-
dict for the party" resisting summary judgment. Id. at 251. M & D
advances two principal arguments before us, which we address in turn.6

First, M & D argues that the district court erred in applying the
Carmack Amendment to Duck Head's motion for summary judgment.
The Carmack Amendment states in relevant part that

A carrier providing transportation or service subject to juris-
diction under subchapter I or III of chapter 135 shall issue
a receipt or bill of lading for property it receives for trans-
portation under this part. That carrier and any other carrier
that delivers the property and is providing transportation or
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6 Duck Head argues that this appeal should be dismissed as interlocu-
tory because at the time M & D filed its notice of appeal, no damages
had been assessed. M & D responds that appellate jurisdiction is proper
under 28 U.S.C.A. S 1292(a)(3), which authorizes the courts of appeals
to hear "[i]nterlocutory decrees of such district courts or the judges
thereof determining the rights and liabilities of the parties to admiralty
cases in which appeals from final decrees are allowed." Duck Head
argues essentially that this is no longer an admiralty case because,
although it sued Capital and DSR pursuant to admiralty jurisdiction, such
jurisdiction does not extend to M & D, the only remaining defendant on
appeal, following the dismissal of DSR and grant of summary judgment
to Capital.

In our view, this argument is foreclosed by Federal Rule of Civil Pro-
cedure 9(h), which states that "a case that includes an admiralty or mari-
time claim . . . is an admiralty case within 28 U.S.C.A. S 1292(a)(3)."
The Advisory Committee's Notes make clear that an order disposing of
a nonadmiralty claim in an admiralty case is appealable regardless of
whether the admiralty claim is disposed of by that order: "so long as the
case involves an admiralty claim and an order otherwise meets statutory
requirements, the opportunity to appeal should not turn on the circum-
stance that the order does -- or does not -- dispose of an admiralty
claim." Fed. R. Civ. P. 9(h) advisory committee's note. Thus, we con-
clude, appellate jurisdiction is proper here.

service subject to jurisdiction under subchapter I or III of
chapter 135 or chapter 105 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 (A) the receiving carrier, (B) the
delivering carrier, or (C) another carrier over whose line or
route the property is transported in the United States or from
a place in the United States to a place in an adjacent foreign
country when transported under a through bill of lading . . . .
Failure to issue a receipt or bill of lading does not affect the
liability of a carrier. A delivering carrier is deemed to be the
carrier performing the line-haul transportation nearest the
destination but does not include a carrier providing only a
switching service at the destination.

49 U.S.C.A. S 14706(a)(1). This section "makes a carrier liable for the
actual loss or injury to the property it transports." Ward v. Allied Van
Lines, Inc., 231 F.3d 135, 138 (4th Cir. 2000) (internal quotation
marks omitted). The Amendment preempts a shipper's state and com-
mon law claims against a carrier for loss or damage to goods during
shipment. See id. at 705.

The Carmack Amendment states that it governs transactions cov-
ered by "subchapter I or III of chapter 135" of Title 49. Section 13501
of Title 49, which appears in subchapter I, covers "transportation by
motor carrier . . . between a place in . . . the United States and a place
in a foreign country to the extent the transportation is in the United
States." 49 U.S.C.A. S 13501(1)(E) (West 1997). Where a separate
bill of lading is issued to cover the domestic leg of a shipment of for-
eign goods to a place in the United States, the Amendment covers that
domestic leg. Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799
F.2d 697, 701 (11th Cir. 1986) ("when a shipment of foreign goods
is sent to the United States with the intention that it come to final rest
at a specific destination beyond its port of discharge, then the domes-
tic leg of the journey (from the port of discharge to the intended desti-
nation) will be subject to the Carmack Amendment as long as the
domestic leg is covered by separate bill or bills of lading"); see also
Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 703-04 (4th Cir.
1993) (noting that applicability of the Carmack Amendment could not
be determined because "[n]o evidence appear [ed] in the record to

show whether any domestic bill of lading was issued to cover the
domestic segment of the shipment" from Taiwan to Baltimore).

M & D concedes that the relevant transportation of the shoes was
between Brazil and Virginia. (Appellant's Br. at 5 (stating that "truck
transportation [of the shoes by M & D] was the transportation of a
shipment in foreign commerce not intrastate commerce because truck-
ing was an integral part of a shipment from Santos, Brazil to Lynch-
burg, Virginia")); see also Project Hope v. M/V IBN SINA, 250 F.3d
67, 74 (2d Cir. 2001) (stating that "whether . . . S 13501(1)(A) or (E)
is satisfied to trigger application of the Carmack Amendment is deter-
mined by reference to the intended final destination of the shipment
as that intent existed when the shipment commenced" and that "[t]his
intent fixes the character of the shipment for all the legs of the trans-
port within the United States"). M & D further concedes that it issued
a separate bill of lading covering the domestic leg of this shipment.
Thus, we conclude that M & D's transportation of the container from
Norfolk to Lynchburg was within the scope of the Carmack Amend-
ment, and the district court did not err in applying the Amendment to
Duck Head's claim against M & D.

M & D also asserts that the district court should have applied a pro-
vision of the Pomerene Bills of Lading Act, specifically 49 U.S.C.A.
S 80113(b) (West 1997),7 which, it contends, would afford M & D
protection from liability in these circumstances.8 M & D argues that
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7 This statute is actually a recodification of the old Pomerene Act,
which formerly appeared at 49 U.S.C.A. SS 81-124. See Underwood Cot-
ton Co. v. Hyundai Merchant Marine, Inc., 288 F.3d 405, 406 (9th Cir.
2002). It will be referred to here as the Pomerene Act for ease of refer-
ence.

8 M & D argues in its brief that the "protection of federal law afforded
common carriers from liability for loss or damage in sealed containers
is applicable to [M & D]," (Appellant's Br. at 8), but the brief does not
identify the source of the allegedly applicable federal-law "protection."
M & D clarified at oral argument, however, that it believes this protec-
tion is contained in the Pomerene Act.

Section 80113(b) provides in part that

A common carrier issuing a bill of lading is not liable [for non-
receipt of goods] . . . when the bill . . . is qualified by "contents

this provision protects "common carriers from liability for loss or
damage in sealed containers . . . ." (Appellee's Br. at 8.) Duck Head
argues in response that the Pomerene Act is inapplicable to M & D's
transportation of the shoes, because that transportation was pursuant
to a bill of lading covering only an intrastate segment of the shoes'
transportation.

Section 80102 of Title 49 states that

[t]his chapter [801, of which S 80113 is a part] applies to a
bill of lading when the bill is issued by a common carrier
for the transportation of goods--

(1) between a place in the District of Columbia and
another place in the District of Columbia;

(2) between a place in a territory or possession of the
United States and another place in the same territory
or possession;

(3) between a place in a State and a place in another State;

(4) between a place in a State and a place in the same State
through another State or a foreign country; or

(5) from a place in a State to a place in a foreign country.

49 U.S.C.A. S 80102 (West 1997). Two aspects of this section are
noteworthy here. First, unlike the Carmack Amendment, which
applies to "transportation or service subject to jurisdiction under sub-
chapter I or III of chapter 135 or chapter 105," 49 U.S.C.A.
S 14706(a)(1), the Pomerene Act applies "to a bill of lading." Thus,
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or condition of contents of packages unknown", "said to con-
tain", "shipper's weight, load, and count", or words of the same
meaning; and to the extent the carrier does not know whether
any part of the goods were received or conform to the descrip-
tion.

49 U.S.C.A. S 80113(b) (internal subdivisions omitted).

the bill of lading, rather than the transportation service provided, is
the relevant object of inquiry in determining whether the Act applies.
The bill of lading M & D issued here was for transportation from
Norfolk to Lynchburg -- entirely intrastate -- and thus the Pomerene
Act is not implicated. Second, and equally fatal to M & D's claim that
the Pomerene Act applies, is the use of the words "from" and "to" in
S 80102(5) ("from a place in a State to a place in a foreign country").
The Pomerene Act, then, by its terms, does not apply to shipments
from a place in a foreign country to a place in a state in this country.
Further support is lent to this conclusion by the four subsections that
precede S 80102(5), all of which use the word "between" in describ-
ing the bills of lading to which the Act applies; Congress, we may
presume, did not lightly select the construction "from one place to
another," but instead meant to cover only bills of lading issued for the
transportation of goods from a state to a foreign country, and not the
reverse. In sum, M & D's argument that the district court should have
applied the Pomerene Act is ill-founded.

M & D next asserts that it adduced evidence sufficient to preclude
summary judgment in favor of Duck Head, specifically evidence sug-
gesting that the seals on the container in question were (or appeared)
intact at the time M & D delivered it to Duck Head in Lynchburg and
that M & D "accepted this container as subject to shipper load and
count." (Appellant's Br. at 10.) Neither of these factual "issues" iden-
tified by M & D, however, supports its contention that summary judg-
ment should not have been granted to Duck Head.

Under the Carmack Amendment, a plaintiff must show "delivery
[of the goods] in good condition, arrival in damaged condition, and
the amount of damages." Oak Hall Cap & Gown Co., Inc. v. Old
Dominion Freight Line, Inc., 899 F.2d 291, 294 (4th Cir. 1990). Once
the plaintiff establishes such a prima facie case, the burden shifts to
the carrier to show that one of the following caused the loss: "(a) the
act of God; (b) the public enemy; (c) the act of the shipper himself;
or (d) the inherent vice or nature of the goods". Missouri Pac. Rail-
road v. Elmore & Stahl, 377 U.S. 134, 137-38 (1964).

In support of its prima facie case, Duck Head demonstrated that M
& D took delivery of the container and asserted on its own bill of lad-
ing that its contents weighed 9,128 kg, the asserted weight of the
complete shipment. See Westway Coffee Corp. v. M.V. Netuno, 675
F.2d 30, 32 (2d Cir. 1982) (when a carrier issues a bill of lading
declaring the gross weight of the container, regardless of whether the
carrier actually weighs the container, the carrier is presumed to have
received that gross weight absent an evidentiary showing rebutting
the presumption); see also National Transp., Inc. v. Inn Foods, Inc.,
827 F.2d 351, 354 (8th Cir. 1987) (when a carrier issues a clean bill
of lading for cargo open to inspection, whether or not the carrier does
in fact inspect the cargo, it will be held liable for delivery of the cargo
in good condition) (citations omitted). Duck Head further demon-
strated, and M & D does not dispute, that the container as delivered
to Duck Head was missing a substantial amount of the cargo that
comprised the shipment, and offered proof of the amount of its damages.9
The district court thus did not err in finding that Duck Head had
established a prima facie case under the Carmack Amendment.

Neither of M & D's asserted defenses could relieve it of liability
under the Carmack Amendment. M & D's argument that the seals on
the container were intact would not constitute a defense to Duck
Head's claim against it because such evidence is not directed to any
of the allowable defenses under the Amendment. Likewise, M & D's
argument that it received the goods "subject to shipper load and
count" is unavailing both because M & D's own bill of lading states
that the container contained 9,128 kg of cargo, or exactly the weight
Duck Head contends it shipped, and because M & D's bill of lading
contains no such limitation. See Allied Tube & Conduit Corp. v.
Southern Pac. Transp. Co., 211 F.3d 367, 370 (7th Cir. 2000) (con-
cluding, where the carrier railroad contended that the shipment was
subject to shipper's load and count, that the absence of any such nota-
tion on the carrier's bill of lading rendered the contention meritless).
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9 No damages award had been entered at the time M & D took its
appeal in this case, but we were advised by the parties that the district
court subsequently awarded damages totaling approximately $100,000 to
Duck Head.

We are therefore unable to conclude that the district court erred in

granting summary judgment to Duck Head.10

III.

For the reasons stated above, the judgment of the district court is

AFFIRMED.
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10 In addition to the arguments discussed above, M & D asserts a "pol-
icy" argument -- to wit, that the "container revolution" in shipping --
which it defines as the advent of the use of shipping containers that "per-
mit[ ] individual commodities to be loaded by the consignor at the point
of origin without interim handling again until the container arrives at its
ultimate destination and is unloaded by the consignee," (Appellant's Br.
at 11 (quoting Paul Stephen Dempsey, The Law of Intermodal Transpor-
tation: What It Was, What It Is, What It Should Be, 27 Transp. L.J. 367,
369 (2000)) -- has rendered any requirement that a carrier weigh the
cargo it carries contrary to custom in the industry. Nevertheless, M & D
argues, the district court's holding effectively requires carriers to weigh
the cargo they carry or risk liability. As discussed above, the Carmack
Amendment establishes presumptions that allocate the risk of loss in cir-
cumstances such as those presented in this case. The actions that parties
take to protect against such loss are undertaken against the backdrop of
these presumptions and are entirely of their own choosing. M & D's
argument is essentially an argument that the law is out of step with
industry practices. We express no opinion as to the correctness of that
assertion, noting only that Congress's directives on this subject must
govern.