FILED
NOT FOR PUBLICATION SEP 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CERTAIN LLOYDS No. 12-55166
UNDERWRITERS SUBSCRIBING TO
POLICY NUMBER MC-13159, D.C. No. 2:11-cv-03625-ODW-FMO
Plaintiff - Appellee,
MEMORANDUM*
v.
BALDWIN DISTRIBUTION
SERVICES, LTD., a corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Submitted August 8, 2013**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
-2-
Before: SILVERMAN and WARDLAW, Circuit Judges, and GEORGE, Senior
District Judge.***
Fed-Ex subcontracted with Baldwin Distribution Services, Ltd. (“Baldwin”)
to transport cargo shipped by Netgear. Baldwin received the cargo but its truck
overturned during transport, resulting in a total loss of the cargo. Certain Lloyds
Underwriters Subscribing to Policy Number MC-13159 (“Lloyds”), who insured
Netgear and became subrogated to its rights, brought this action against Baldwin
pursuant to the Carmack Amendment, 49 U.S.C. §14706 et seq. The parties filed
cross-motions on the amount of Baldwin’s liability.1 To limit expenses, the parties
stipulated to have their cross-motions heard exclusively on seventeen stipulated
facts and two documents. The district court ruled in favor of Lloyds, and Baldwin
appeals. We affirm.
We have jurisdiction pursuant to 28 U.S.C. § 2107(a). We review the grant
of summary judgment de novo. Hughes Aircraft Co. v. North American Van Lines,
Inc., 970 F.2d 609, 611 (9th Cir. 1992).
***
The Honorable Lloyd D. George, Senior District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
1
Baldwin does not dispute that it is liable for the loss of Netgear’s
cargo.
-3-
The Carmack Amendment subjects a motor carrier transporting cargo in
interstate commerce to absolute liability to the shipper for “actual loss or injury to
property.” 49 U.S.C § 14706(a)(1). However, a carrier may limit its liability “to a
value established by written or electronic declaration of the shipper or by written
agreement between the carrier and shipper if that value would be reasonable under
the circumstances surrounding the transportation.” 49 U.S.C. §14706(c)(1)(A). To
effectively limit its liability, a carrier must: (1) at the shipper's request, provide the
shipper with a written or electronic copy of applicable rates, (2) give the shipper a
reasonable opportunity to choose between two or more levels of liability, (3) obtain
the shipper’s written agreement as to his choice of the carrier’s liability limit, and
(4) issue a bill of lading that reflects such agreement prior to moving the shipment.
Hughes Aircraft, 970 F.2d at 611-12; OneBeacon Ins. Co. v. Haas Industries, Co.,
634 F.3d 1092, 1100 (9th Cir. 2011) (revising the first requirement established in
Hughes to reflect a statutory change).
The extremely limited evidentiary record to which Baldwin stipulated
precludes a finding as to any of these elements. Not one of the stipulated facts
concerns whether the carrier would have provided Netgear with a copy of
applicable rates if Netgear had so requested. None of the stipulated facts allow a
conclusion that Netgear entered into a written agreement limiting carrier liability.
-4-
Hughes Aircraft, 970 F.2d at 612 n.3 (“This agreement must be in writing and must
contain an ‘inadvertence clause,’ which specifies the ‘released rate’ and states that
such a rate will apply unless the shipper expressly declares otherwise”). While
Stipulated Fact No. 5 permits the conclusion that Netgear agreed to limit carrier
liability pursuant to the Bill of Lading, the stipulation does not establish that such
agreement was written. The Bill of Lading lacks any plain language suggesting
that it: (a) is the written agreement limiting carrier liability, (b) states the terms of
any such agreement, or (c) otherwise reflects any such agreement.
AFFIRMED.
FILED
Certain Lloyds Underwriters v. Baldwin Distribution Services, Ltd., 12-55166 10 2013
SEP
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SILVERMAN, Circuit Judge, dissenting:
I respectfully dissent.
Under the Carmack Amendment, the liability provisions of a bill of lading
cover “(A) the receiving carrier, (B) the delivering carrier, or (C) another carrier
over whose line or route the property is transported.” 49 U.S.C. § 14706. “[T]he
liability of such participating carrier is fixed by the applicable valid terms of the
original bill of lading.” Missouri, K. & T. Ry. Co. of Texas v. Ward, 244 U.S. 383,
387 (1917).
The parties stipulated that the bill of lading limited the carrier’s liability to
the shipper to $5 per pound. That stipulation is dispositive and forecloses further
debate about the bill of lading’s liability limit. Because Baldwin operated under
the bill of lading, its liability to the shipper – Netgear – was governed by the bill of
lading. The separate Master Agreement between Baldwin and FedEx defined the
liability of Baldwin to FedEx, not Baldwin to Netgear. I would reverse.