450 F.2d 1223
FEDERATED DEPARTMENT STORES, INC., d/b/a Burdines, Plaintiff-Appellee,
Norman C. BRINKE, Defendant-Appellant,
Florida East Coast Railway Co., etc., Defendant.
No. 71-1605 Summary Calendar.
United States Court of Appeals,
Sept. 20, 1971.
Richard B. Austin, Miami, Fla., for defendant-appellant.
Jerome H. Shevin, Bernard C. Pestcoe, Pozen Pestcoe Gold & Gold, and Shevin & Shevin, Miami, Fla., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges.
JOHN R. BROWN, Chief Judge:
The sole issue in this case is whether the notation "shipper's load and count" (SLC) on a uniform straight bill of lading vitiates Carmack Amendment liability and exculpates the carrier from his negligence in providing an inadequate trailer for transporting a shipment in interstate commerce. Finding that no such result was intended or follows from the SLC provisions of the Bills of Lading Act we affirm the judgment of the District Court, 316 F.Supp. 1402.
Brinke had acted as a freight forwarder for Frigid for some time. Accordingly, sometime in June of 1968, Frigid requested that Brinke supply a trailer for the shipment of electric fans and stands from Frigid's Brooklyn warehouse to Consignee Burdine's Miami, Florida location. Although in the past it had always provided an enclosed van for such shipments, Brinke had no such trailer available on this occasion, and therefore delivered an open or "rag top" van to Frigid's dock. Frigid's traffic manager was apprehensive (if not upset) about the kind of trailer which had been provided, and he therefore telephoned Brinke's terminal manager to protest. The terminal manager assured the traffic manager that the canvas top trailer would be completely adequate and that the fans would arrive in Miami in good condition. To further secure the safe passage of the goods, Terminal Manager promised to place a polyethylene lining under the canvas top after the truck was loaded.
Although this added precaution was timely taken, Traffic Manager's initial anxiety turned out to be well founded and Terminal Manager's confidence in the sufficiency of the rag top van proved unfortunately misplaced. The van arrived in Miami water-logged and its contents were irreparably damaged. Understandably, everybody is looking for some other party on whom to put the loss.
Under the Carmack Amendment, which the parties have stipulated controls the liability in this case, the rule is very simple. The initial and delivering carrier is liable to the holder of a bill of lading, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively shows that the damage was occasioned by the shipper, act of God, the public enemy, public authority or the inherent vice or nature of the commodity. And if goods leave the shipper's hands in good condition and arrive at their destination damaged, it is presumed that the carrier was negligent and responsible.
The presumption of liability is, of course, subject to limitation and exception. One of these relied on by Brinke is the shipper's weight, load and count exemption provided by 49 U.S.C.A. Sec. 101.
Brinke's argument is simply this-the bill of lading carried the notation "shipper's load and count," the shipper's loading of the fans onto the now-admittedly inadequate canvas top trailer was improper if not negligent, and therefore, under 49 U.S.C.A. Sec. 101, it is not liable for the damages.
This you-should-have-known-better-than-to-rely-on-me argument completely misconstrues both the meaning and the purpose of the SLC section of the Bills of Lading Act. In the first place, Brinke's theory that placing the goods on a trailer so obviously vulnerable to water damage constituted "improper loading" requires a strained, at best, and we think unreasonable interpretation of that term. It disregards the fact that Frigid's Traffic Manager seriously questioned the propriety of using a rag top van and agreed to do so only upon receiving assurances from Brinke that it was safe and secure. And it disregards the carrier's duty to furnish suitable equipment. The carrier cannot palm off deficiencies in equipment onto the shipper. We cannot say the loading was "improper" under these circumstances. Moreover, even if Frigid was somehow negligent in acquiescing to Brinke's suggestion that the van was safe for shipping the fans-and we doubt that very much-that would have been negligence in accepting the trailer, not in the manner of loading it, as the term "loading" is contemplated by the statute. Thus, there can be no amelioration of liability on account of the SLC notation because damage did not come from loading-either "proper" or "improper." It came directly from inadequate equipment known specifically to the carrier to be deficient.
If anything further was needed to tie down an inescapable carrier liability, it came from the District Court's finding that the damage to the cargo was caused-in part at least-by the presence of holes in the inner plastic lining provided by Brinke, in accordance with their promise to Frigid, after the trailer had been moved to Brinke's warehouse in Jersey City. The supplying of a defective polyethylene lining constituted an independent act of negligence on the part of the carrier which contributed to causing damage to the shipment. See Minneapolis, St. Paul & Sault St. Marie Railroad Co. v. Metal-Matic, Inc., 8 Cir., 1963, 323 F.2d 903, 906; United States v. Marshall, 9 Cir., 1956, 230 F.2d 183, 188-193.
Of course, the SLC provision has to be applied in light of the well-settled principle of law that a common carrier cannot by agreement relieve itself of liability for its own negligence. The Trial Court found, on evidence amply provided by the record, that Brinke was negligent in (i) providing a canvas top van which was inadequate for the type goods being shipped (and Brinke knew full well the contents and requirements of the shipment) and (ii) in using a defective inner plastic lining to secure the shipment. Even giving full effect to the SLC condition could not exculpate Brinke and relieve it from responsibility for these failures to exercise reasonable care, under the circumstances.