IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
Nov. 2, 2009
THOMAS K. KAHN
D. C. Docket No. 07-00155-CV-4
NORFOLK SOUTHERN RAILWAY COMPANY,
d.b.a. Savannah Re-Load,
SAVANNAH RE-LOAD, et al.,
BRAMPTON ENTERPRISES, LLC,
d.b.a. Savannah Re-Load,
Appeal from the United States District Court for the Southern District of Georgia
(November 2, 2009)
Before CARNES, FAY and ALARC√"N,* Circuit Judges.
FAY, Circuit Judge:
This appeal arises from a dispute between a rail carrier and a warehouseman
regarding liability for demurrage, i.e., penalties assessed for the undue detention of
rail cars. Norfolk Southern Railway Company sued Brampton Enterprises, LLC
d/b/a Savannah Re-Load for demurrage accrued over the six month period from
March to August 2007. Savannah Re-Load denied liability for the demurrage
charges and, despite being named as consignee on the bills of lading, maintained it
was not a party to the shipping contracts. Norfolk Southern asserts that as the
named consignee Savannah Re-Load became a party to the contracts by accepting
the shipments. The district court granted summary judgment in favor of Savannah
holding that a freight re-loader cannot, without notice, be made a consignee by the
unilateral action of a third party. We affirm.
Brampton Enterprises operates a warehouse business under the trade name
Savannah Re-Load (?Savannah?). As a warehouseman, Savannah receives freight
at its facility, unloads it from the containers in which it arrives, reloads it into
Honorable Arthur L. Alarc√≥n, United States Circuit Judge for the Ninth Circuit, sitting
[End Page 2]
appropriate containers for export, and forwards it to various ports according to
instructions received from the freight forwarder. Savannah has no ownership
interest in the freight it handles and is not a party to the transportation contracts.
The freight forwarding companies make transportation arrangements without input
from or notice to Savannah.
In late 2006 Galaxy Forwarding (?Galaxy?) began sending freight to
Savannah's facility via railcar delivered by Norfolk Southern Railway Company
(?Norfolk?). According to Savannah owner William ?Billy? Groves, Galaxy was
aware of Savannah's operational capacity and controlled the amount of freight it
received. Galaxy merely informed Savannah when shipments were en route and
provided it with instructions regarding the export of the shipment. Galaxy was the
only freight forwarder to send Savannah freight via rail and arranged transportation
for all the freight shipments at issue. These freight shipments originated from
various domestic shippers and were being exported to overseas recipients by
Galaxy. Savannah had no knowledge of the origins or final destinations of the
freight it handled.
[End Page 3]
Norfolk transported the rail freight to Savannah pursuant to bills of lading 1
received from Galaxy. Before rail cars were delivered, Norfolk would notify
Savannah that rail cars from certain shippers had arrived and were ready for
delivery. Once Savannah approved the delivery, Norfolk would perform a
?switch? by removing any empty rail cars and replacing them with new rail cars to
unload. Norfolk would perform only one ?switch? per day delivering as many as
five cars at a time.
Beginning in March 2007, Galaxy began sending rail freight to Savannah at
such a volume that demurrage began to accrue. Pursuant to Norfolk's tariff, a
customer is allowed two days to unload freight without incurring demurrage. At
the end of each month, a customer's total demurrage days are netted against total
credits. Credits are calculated by multiplying the number of rail cars delivered
during a particular month by two, which accounts for the two ?free? days all
customers are given to unload delivered rail cars. If total demurrage exceeds total
credits, those days are charged at the daily rate published in Norfolk's tariff.
The right to assess detention or demurrage charges against parties to a
transportation contract for delay in releasing transportation equipment is well
A bill of lading is ?the basic transportation contract between the shipper-consignor and
the carrier; its terms and conditions bind the shipper and all connecting carriers.? Southern Pac.
Transp. Co. v. Commercial Metals Co., 456 U.S. 336
, 342, 102 S. Ct. 1815
, 1820 (1982).
[End Page 4]
established at common law. Motor carriers term such a delay as detention while
rail carriers refer to it as demurrage. Prior to rail transport, demurrage was
recognized in maritime law as the amount to be paid for delay in loading,
unloading, or sailing beyond the time specified. Unlike maritime law, a railroad
carrier can collect demurrage even if the shipping contract contains no provision to
that effect. In the railroad setting, demurrage charges serve a twofold purpose:
?One is to secure compensation for the use of the car and of the track which it
occupies. The other is to promote car efficiency by providing a deterrent against
undue detention.? Turner, Dennis & Lowry Lumber Co. v. Chicago, Milwaukee &
St. Paul Ry. Co., 271 U.S. 259
, 262, 46 S. Ct. 530
, 531 (1926). As such,
demurrage charges are properly assessed even if the cause for the delay is beyond
the party's control, unless the carrier itself is responsible for the delay.
While demurrage remains a matter of contract, railroads are now required by
federal statute to assess demurrage charges subject to oversight by the Surface
Transportation Board. Norfolk seeks demurrage charges against Savannah
pursuant to the Interstate Commerce Commission Termination Act (ICCTA),
requiring rail carriers to ?compute demurrage charges, and establish rules related to
those charges . . .? 49 U.S.C. ¬§ 10746 (1995). Norfolk publishes the applicable
demurrage rules and charges in Freight Tariff NS 6004-B, which states in relevant
[End Page 5]
part that ?[d]emurrage charges will be assessed against the consignor2 at origin or
consignee3 at destination who will be responsible for payment.? Tariff NS 6004-B,
Item 850(5) (2000) (footnotes added). Thus, Norfolk is required by the ICCTA
and the terms of its own tariff to assess demurrage charges against the shipment?s
consignee for any delay in unloading the rail cars at their destination.
Savannah was a named consignee on the bills of lading for the freight
shipments at issue. However, many of these bills of lading also named an ultimate
consignee and printed copies of the electronic bill of lading data submitted by
Norfolk did not actually contain the word consignee. Savannah maintains that it
did not consent to being named on the bills of lading and was never informed that
any bill of lading identified it as a consignee. The record indicates that neither
Galaxy, Norfolk, nor any other entity provided Savannah with the bills of lading
for the freight it handled. Thus, Savannah was a named consignee on the bills of
lading without notice of, or consent to, such designation.
A consignor is ?[o]ne who dispatches goods to another on consignment.? BLACK?S LAW
DICTIONARY 327 (8th ed. 2004). A consignment is ?[a] quantity of goods delivered by this act,
esp. in a single shipment.? BLACK?S LAW DICTIONARY 327 (8th ed. 2004).
A consignee is ?[o]ne to whom goods are consigned.? BLACK?S LAW DICTIONARY 327
(8th ed. 2004). The Federal Bills of Lading Act and Norfolk's Tariff define consignee in a
consistent manner. See 49 U.S.C. ¬§ 80101(1) (1994) (??consignee? means the person named in a
bill of lading as the person to whom the goods are to be delivered?); Tariff NS 6004-B, Item
200(6) (2000) (?The party to whom a shipment is consigned or the party entitled to receive the shipment?).
[End Page 6]
In addition to the freight at issue in this appeal, Norfolk routinely delivered
freight to Savannah's facility pursuant to bills of lading where Savannah was not
the named consignee. The instant dispute arose when Norfolk began invoicing
Savannah for demurrage on all shipments delivered to Savannah's facility
irrespective of whether Savannah was the named consignee. Savannah refused to
pay and in late 2007 Norfolk sued for demurrage on all shipments, without regard
for who was named as consignee. After Savannah moved for summary judgment,
Norfolk amended its complaint, to exclude demurrage for freight shipments where
Savannah was not named as consignee. This amendment had the effect of reducing
Norfolk's demand from $133,080.00 to $70,680.00.
In early 2008 Savannah moved for summary judgment on all claims arguing
that it was not liable for demurrage because Norfolk could ?only recover
demurrage against a consignee or a party to the transportation contract.? Savannah
stated that ?the issue before the Court is whether another's unilateral act of
identifying ?Savannah Re-Load? as the consignee without [its] knowledge or
permission is sufficient to make it a consignee and therefore liable for demurrage.?
Norfolk moved for partial summary judgment as to the issue of Savannah?s
liability for demurrage. Norfolk argued that Savannah was liable for demurrage
because Savannah was identified as consignee on the bills of lading at issue,
[End Page 7]
Savannah accepted delivery of the rail cars and the freight, and Savannah did not
notify Norfolk of its agent status.
The district court granted Savannah's motion for summary judgment and
denied Norfolk's motion for partial summary judgment, holding that Savannah was
not liable for demurrage. The court stated that a bill of lading is essentially a
contract and Savannah could not be made a party to that contract without its
knowledge or consent. In sum, the court held that Savannah ?cannot be made a
consignee by the unilateral action of a third party, particularly where Savannah Re-
Load was not given notice of the unilateral designation in the bills of lading.?
Norfolk appeals the district court's denial of its motion for partial summary
judgment and grant of summary judgment to Savannah.
We review a district court's grant or denial of summary judgment de novo,
considering all the facts and reasonable inferences in the light most favorable to the
nonmoving party. See Owner-Operator Indep. Drivers Ass'n, Inc. v. Landstar Sys.
Inc., 541 F.3d 1278
, 1287 (11th Cir. 2008). Under Fed. R. Civ. P. 56(c), summary
judgment is proper ?if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
[End Page 8]
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.? Celotex Corp. v. Catrett, 477 U.S. 317
, 322, 106 S.
Ct. 2548, 2552 (1986). ?[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.? Id. at 323, 106 S. Ct.
at 2553 (internal quotations omitted). If the movant succeeds in demonstrating the
absence of a material issue of fact, the burden shifts to the non-movant to show the
existence of a genuine issue of fact. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112
1116 (11th Cir. 1993).
A. Demurrage liability
We begin our analysis by examining the basis for the district court?s
decision, and in doing so, review several fundamental principles of law that define
demurrage liability. First, demurrage is considered part of the transportation
charge and under the tariff system is imposed as a matter of law. However,
?[b]efore such transportation-related assessments such as detention charges can be
imposed on a party . . . there must be some legal foundation for such liability
[End Page 9]
outside the mere fact of handling the goods shipped.? Middle Atl. Conference v.
United States, 353 F. Supp. 1109
, 1118 (D.D.C. 1972) (three-judge panel).4 In
Evans Prods. Co. v. Interstate Commerce Comm?n, the Seventh Circuit held that
?[l]iability for freight charges may be imposed only against a consignor, consignee,
or owner of the property, or others by statute, contract, or prevailing custom.? 729 F.2d 1107
, 1113 (7th Cir. 1984) (citations omitted); see also S. Pac. Transp. Co. v.
Matson Navigation Co., 383 F. Supp. 154
, 156 (N.D. Cal. 1974) (?The obligation
to pay demurrage arises either out of contract, statute or prevailing custom?);
Middle Atl., 353 F. Supp. at 1118 (liability for demurrage ?must be founded either
on contract, statute or prevailing custom?). Norfolk has not offered any evidence
of prevailing industry custom or applicable statute that would hold non-parties to a
shipping contract liable for demurrage. Furthermore, it is undisputed that
Savannah is neither consignor nor owner of the freight. Thus, Savannah is liable
for demurrage only if it were the consignee or contractually assumed responsibility
for the charges.
A freight handler such as Savannah is free to contractually assume liability
for demurrage charges and ?this is sometimes done through average demurrage
We note that research has disclosed very few opinions by federal circuit courts dealing
with the narrow issue presented in this case. Thus, we have cited those authorities that are
[End Page 10]
agreements to promote their own business and in some instances to obtain the
benefits of lower detention costs for the benefit of their customers.? Middle Atl.,
353 F. Supp. at 1122. However, in the instant case, there is no evidence to suggest
that Savannah independently contracted with either Norfolk or Galaxy regarding
demurrage charges. This leaves us only with the question of Savannah's consignee
status to determine demurrage liability.
As mentioned previously, the bill of lading is the basic transportation
contract between the shipper-consignor and the carrier. Thus, as an original party
to the shipping contract, a consignor is clearly liable for demurrage. However, ?a
consignee's liability is quasi-contractual, and arises by operation of law when the
consignee accepts delivery of the goods . . .? Consol. Rail Corp. v. Com., Pa.
Liquor Control Bd., 496 A.2d 422, 424 (Pa. Cmwlth. 1985). See also Pittsburgh v.
Fink, 250 U.S. 577
, 581, 40 S. Ct. 27
(1919) (?The weight of authority seems to be
that the consignee is prima facie liable for the payment of the freight charges when
he accepts the goods from the carrier?). By accepting delivery of a shipment, the
consignee's conduct assumes a quasi-contractual significance by virtue of the
transportation contract, which identifies the parties and assigns responsibility for
particular charges. The contract implied from the acceptance of a shipment
extends no further than the conditions upon which its delivery is made dependant. [End Page 11]
Unless the bill of lading provides to the contrary, the consignor remains primarily
liable for the freight charges and pursuant to the carrier's tariff, the consignee
becomes liable for demurrage charges at the freight's destination. Thus, only an
original party to the rail transportation contract, or a consignee by virtue of
acceptance of the goods, may be liable for demurrage. As a district court in our
circuit put it, ?all the reported opinions agree that only a party to the rail
transportation contract may be liable for demurrage.? CSX Transp., Inc. v. City of
Pensacola, Fla., 936 F. Supp. 880
, 884 (N.D. Fla. 1995); see also Union Pac. R.R.
Co. v. Ametek, Inc., 104 F.3d 558
(3d Cir. 1997) (holding demurrage could not be
assessed against a warehouse that was not a consignee or other party to the
transportation contract); Matson, 383 F. Supp. at 156 (the obligation to pay
demurrage ?arises out of the contractual relationship and may only be imputed to
parties to the contract?); Middle Atl., 353 F. Supp. 1109
(finding a carrier?s
proposed tariff unlawful to the extent that it attempted to impose liability for
demurrage charges on non-parties to the transportation contract); Missouri, K. & T.
Ry. Co. of Texas v. Capital Compress Co., 110 S.W. 1014, 1016 (Tex. Civ. App.
1908) (holding a cotton compress company not liable to carrier for demurrage
because ?[t]he findings of fact fail to show any contractual relation between them
in reference to the shipment of the cotton?). [End Page 12]
There are exceptions to a consignee's demurrage liability. A consignee may
avoid demurrage liability by notifying the carrier of its agency status prior to
accepting delivery of the shipment. ?The law is well settled that an agent for a
disclosed principal is not liable to a third person for acts within the scope of
agency.? Middle Atl., 353 F. Supp. at 1120-21; See also Whitney v. Wyman, 101 U.S. 392
, 396 (1879) (?Where the principal is disclosed, and the agent is known to
be acting as such, the latter cannot be made personally liable unless he agreed to be
so?). The ICCTA recognizes the common law rule of agency and provides in
When the shipper or consignor instructs the rail carrier
transporting the property to deliver it to a consignee that
is an agent only, not having beneficial title to the
property, the consignee is liable for rates billed at the
time of delivery for which the consignee is otherwise
liable, but not for additional rates that may be found to be
due after delivery if the consignee gives written notice to
the delivering carrier before delivery of the property--
(A) of the agency and absence of beneficial title;
(B) of the name and address of the beneficial
owner of the property if it is reconsigned or
diverted to a place other than the place specified in
the original bill of lading.
49 U.S.C. ¬§ 10743(a)(1) (1995). Thus, an agent-consignee can avoid demurrage
liability by notifying the carrier of its agency status and providing the carrier with
[End Page 13]
the name and address of the shipment's beneficial owner prior to accepting
Thus far our analysis has surveyed the undisputed aspects of demurrage
liability. The parties agree that an entity must be a party to the transportation
contract to be liable for demurrage charges, that a consignee becomes a party to the
transportation contract upon accepting the freight consigned to it, and that a
consignee may avoid demurrage liability by disclosing its agency status prior to
accepting delivery of the shipment. We now turn to the key question of whether
Savannah was a consignee in the context of this case.
B. A consignee by any other name . . .
The issue before the court is whether Savannah was a consignee of the
freight delivered by Norfolk. Norfolk contends that Savannah was a consignee
because it was identified as such on the bills of lading and accepted delivery of the
shipments. Savannah argues that it cannot be made a consignee merely because a
third party unilaterally listed it as such without its knowledge or consent. Both the
Seventh and Third Circuits have addressed this issue in cases involving similar fact
patterns. See Illinois Cent. R.R. Co. v. South Tec Dev. Warehouse, Inc., 337 F.3d 813
(7th Cir. 2003); CSX Transp. Co. v. Novolog Bucks County, 502 F.3d 247
[End Page 14]
Cir. 2007), cert denied, 128 S. Ct. 1240
(2008). The Seventh and Third Circuits
reached differing conclusions on this issue resulting in a conflict of authority
among the two circuits. See South Tec, 337 F.3d at 821; Novolog, 502 F.3d at 262.
In South Tec, the Seventh Circuit reasoned that the preliminary issue was
whether the defendant warehouseman was a consignee. Although the case was
remanded to the district court for determination of the warehouseman's status, the
Seventh Circuit stated that ?being listed by third parties as a consignee on some
bills of lading is not alone enough to make [a warehouseman] a legal consignee
liable for demurrage charges . . . .? South Tec, 337 F.3d at 821.
Like South Tec, the defendant in Novolog, who was named as consignee
without its authorization, argued that ?the shipper's or carrier's unilateral decision
to designate [it] as the consignee, without [it]'s permission and where [it] is not the
ultimate consignee of the freight, cannot establish its status as a consignee for
purposes of demurrage liability under the statute or otherwise.? Novolog, 502 F.3d
at 257. The Third Circuit disagreed for three reasons. See id. First, because
?nothing in the statutory language [of section 10743(a)(1)] suggests that it intends
to restrict the term ?consignee? to the ultimate consignee of the freight or use it to
mean anything other than the person to whom the bill of lading authorized delivery
and who accepts that delivery.? Id. Second, because ?to hold that the documented
[End Page 15]
designation of an entity as a consignee and that entity's acceptance of the freight is
insufficient to hold it presumptively liable for demurrage charges would frustrate
the plain intent of the statute, which is to establish clear, easily enforceable rules
for liability.? Id. Third, because it would be equitable to treat the named
consignee as presumptively liable, as under the statutory scheme ?the named
consignee can avoid liability in two ways: first, by refusing the freight . . . and
second, by providing the carrier timely written notice of agency under Section
10743(a)(1), if appropriate.? Id. at 259.
The Novolog court declined to follow the Seventh Circuit's conclusion in
South Tec and held that ?an entity named on a bill of lading as the sole consignee,
without any designations clearly indicating any other role, is presumptively liable
for demurrage fees on the shipment to which that bill of lading refers. Id. at 262.
A party may rebut that presumption by showing that it never accepted delivery of
the shipment, or that it was acting as an agent and followed the notification
provisions of 49 U.S.C. ¬§ 10743(a)(1). See id. at 250, 59. Ultimately, the Novolog
court remanded the case because ?the factual record was not sufficiently developed
. . . [t]o determine what the bills of lading showed.? Id. at 250.
Norfolk relies almost exclusively on the Third Circuit's decision in Novolog
and argues that as the named consignee on the bills of lading, Savannah was
[End Page 16]
required to either refuse delivery of the shipments or comply with the agency
notification requirements of the ICCTA to avoid demurrage liability. However,
Norfolk incorrectly assumes that Savannah is the consignee for the shipments at
issue simply because it is listed as such on the bills of lading. Norfolk has made no
effort to establish Savannah's status as a consignee through either interrogatories
or deposition testimony. In fact, Savannah's status as a consignee was neither
alleged nor admitted in the pleadings.
Norfolk further argues that section 10743(a)(1) establishes a presumption of
liability for demurrage charges. However, section 10743(a)(1) ?applies only to
agents who are also consignees, and not to agents who are not consignees.? South
Tec, 337 F.3d at 817. Furthermore, that section ?speaks only to the ?nonliability?
in certain narrow situations . . . but in no way can be read to impose liability on an
agent not a party to the contract.? Middle Atl., 353 F. Supp. at 1120. If we were to
accept Norfolk's assertion that section 10743(a)(1) establishes a presumption of
liability, then we would also have to accept that merely naming an entity as
consignee on a bill of lading creates a presumption of that status. We are unwilling
to accept either proposition and agree with the district court that ?the Novolog rule
of presumptive liability cannot function in a situation where the receiver of freight
is not given notice that it has been listed as a consignee by third parties.?
[End Page 17]
Norfolk maintains that Savannah had either actual or constructive
knowledge of its designation as consignee on the bills of lading. Yet, Norfolk has
failed to present any evidence that Savannah was informed of its consignee
designation prior to delivery. Thus, no evidence of actual knowledge exists in the
record. Norfolk asks: ?if Savannah is neither the consignee nor a disclosed agent
of a consignee, how or why is Savannah accepting delivery of the freight?? This
question implies that Savannah should have known it was the named consignee
because freight shipments may only be delivered to and accepted by the consignee.
However, we find this argument inconsistent with the record, which indicates that
Norfolk made numerous deliveries to Savannah where it was not the named
consignee. Norfolk later amended its complaint to exclude these shipments from
its claim for demurrage charges. Savannah cannot be expected to either refuse
delivery or notify Norfolk of its agency status when it has no knowledge of which
shipments, if any, it has been designated as consignee.
Norfolk emphasizes that it is ?well-established and oft-repeated? that a
?consignee becomes a party to the contract, and is therefore bound by it, upon
accepting the freight . . . .? Novolog, 503 F.3d at 254. However, this does not
answer the key question: how does an entity become a consignee in the first place?
[End Page 18]
As previously defined, a consignee is the party designated to receive a
shipment of goods. But, consignee status is more than a mere designation. The
term takes on a legal significance due to the quasi-contractual relationship that
arises between the consignee and the carrier. ?Although a consignee's liability
may rest upon quasi-contract, a party's status as consignee is a matter of contract
and must be established as such.? Consol. Rail Corp. v. Com., Pa. Liquor Control
Bd., 496 A.2d 422, 424 (Pa. Cmwlth. 1985). Like any contractual relationship,
there must be a meeting of the minds between the parties. This Circuit has
previously recognized that ?it is a fundamental principle of contracts that in order
for a contract to be binding and enforceable, there must be a meeting of the minds
on all essential terms and obligations of the contract.? Browning v. Peyton, 918 F.2d 1516
, 1521 (11th Cir. 1990); see also, e.g., R EST (S ECOND) OF C ONTRACTS ¬§
17(1) (1981) (?the formation of a contract requires a bargain in which there is a
manifestation of mutual assent to the exchange and a consideration?).
Furthermore, it is a tenent of contract law that ?a third-party cannot be bound by a
contract to which it was not a party.? Miles v. Naval Aviation Museum Found.,
Inc., 289 F.3d 715
, 720 (11th Cir. 2002); see also E.E.O.C. v. Waffle House, Inc.,
534 U.S. 279
, 294 (2002) (?It goes without saying that a contract cannot bind a
nonparty.?); Union Pac. R.R. Co. v. Carry Transit, Inc., No. 3:04-CV-1095B, 2005
[End Page 19]
U.S. Dist. LEXIS 45568, at *13 (N.D. Tex. Oct. 27, 2005) (?It is a fundamental
tenent of contract law that parties to a contract cannot bind a non-party.?). Thus, a
party must assent to being named as a consignee on the bill of lading to be held
liable as such, or at the least, be given notice that it is being named as a consignee
in order that it might object or act accordingly.
Given these legal principles, we agree with the district court's holding that
Savannah was not a consignee, and thus not liable for demurrage charges.
Savannah did not agree to be named as consignee on the bills of lading between
Norfolk and the various shippers, and was not aware of its designation as such.
Savannah cannot be made a party to shipping contracts without its consent or
notice of such, and thus cannot be liable to Norfolk for demurrage.
Not only is this approach in keeping with the legal principles outlined above,
it also has the greatest support in the case law. See Matson, 383 F. Supp. at 157
(reserving the question of whether a consignee who has played an active role in the
railroad transportation contract or has an interest in or control over the goods may
be liable for the demurrage, but stating: ?[W]here, as here, a connecting
carrier-consignee is merely named in the railroad bill of lading without either more
involvement on its part, or some culpability for the delay, it cannot be held liable to
the railroad for demurrage. To hold otherwise on these facts would be to place a
[End Page 20]
connecting carrier's liability totally within the shipper's control, a result the Court
cannot sanction.?); W. Maryland Ry. Co. v. S. African Marine Corp., No. 86 CIV
2059, 1987 WL 16153, at *4 (S.D.N.Y. Aug. 13, 1987) (?[W]e decline to hold, as
plaintiff urges, that a connecting ocean carrier is liable for rail demurrage charges
as a matter of law merely by virtue of being named by the shipper as the consignee
in the rail bills of lading.?); Carry Transit, Inc., 2005 U.S. Dist. LEXIS 45568, at
*14 (shipper's unilateral decision to list defendant as consignee on bills of lading
without its consent did not transform defendant into an actual consignee liable for
demurrage); Capital Compress Co., 110 S.W. at 1016 (entity not liable for
demurrage where mistakenly listed as consignee on bill of lading, because there
was no contractual relationship between that entity and the carrier); CSX Transp. v.
Pensacola, 936 F. Supp. at 844 (stating in dicta that ?[t]he unilateral action of one
party in labeling an intermediary as a consignee does not render the putative
consignee liable for demurrage? and indicating that an agreement to be
contractually bound is key to demurrage liability); Evans Prods., 729 F.2d at 1113
(?No liability [for freight charges] exists merely on account of being named in the
bill of lading . . . .?).
[End Page 21]
For the foregoing reasons, the summary judgment of the district court is,
[End Page 22]