FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC INDEMNITY COMPANY,
Plaintiff-Appellee,
v.
ATLAS VAN LINES, INC.,
Defendant-cross-defendant- No. 09-17824
Appellee, D.C. No.
v. 2:08-cv-00466-FJM
PICKENS KANE MOVING & STORAGE
COMPANY, a corporation,
Defendant-cross-claimant-
Appellant.
PACIFIC INDEMNITY COMPANY,
Plaintiff-Appellee,
ATLAS VAN LINES, INC.,
Defendant-cross-defendant- No. 10-16260
Appellant, D.C. No.
v. 2:08-cv-00466-FJM
PICKENS KANE MOVING & STORAGE OPINION
COMPANY, a corporation,
Defendant-cross-claimant-
Appellee.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
5229
5230 PACIFIC INDEMNITY v. PICKENS KANE MOVING
Submitted March 17, 2011*
San Francisco, California
Filed April 20, 2011
Before: Thomas M. Reavley, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.**
Opinion by Judge Reavley
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.
5232 PACIFIC INDEMNITY v. PICKENS KANE MOVING
COUNSEL
John T. Schriver, Duane Morris LLP, Chicago, Illinois, for
Pickens Kane Moving & Storage.
Jeffrey R. Simmons, Ryley Carlock & Applewhite, Phoenix,
Arizona, for Atlas Van Lines.
OPINION
REAVLEY, Circuit Judge:
Pacific Indemnity Co. (“Pacific”) brought suit for carrier
liability pursuant to 49 U.S.C. § 14706, the Carmack Amend-
ment, against Atlas Van Lines, Inc. (“Atlas”) and Pickens
Kane Moving & Storage Co. (“Pickens”) to recover $1 mil-
lion in damages Pacific paid to its insureds, Ina and Murray
Manaster, (the “Manasters”) when the Manasters’ shipment of
household goods was destroyed by a fire while in transit from
Chicago to Phoenix. Pickens was the receiving carrier, and
the goods were destroyed in the custody of Atlas. Atlas and
Pickens filed cross-claims against each other, also for carrier
PACIFIC INDEMNITY v. PICKENS KANE MOVING 5233
liability. On summary judgment, the district court held that
Atlas was liable to both Pacific and Pickens for $52,500.00 or
$5.00 per pound and that Pickens was liable to Pacific for $1
million. Additionally, the district court held that as to the
cross-claims between Atlas and Pickens, Pickens was the pre-
vailing party and, therefore, entitled to an award of the
entirety of its expenses. Pickens appeals the district court’s
judgment that Atlas is responsible for anything less than the
full replacement value of the goods. Atlas appeals the district
court’s judgment awarding costs to Pickens. We affirm.
Background
The facts of this case are relatively straight-forward and not
in dispute. The Manasters desired to move their household
goods, consisting mainly of fine arts and antiques, from Chi-
cago to Phoenix. They requested a quote from Pickens. Pick-
ens, in turn, requested a quote from nonparty TCI—a freight
broker. TCI then requested a quote from Atlas. Atlas provided
TCI with a quote based on the minimum tariff of $.60 per
pound. TCI then submitted the quote to Pickens with the nota-
tion that the quote did not include insurance. Pickens submit-
ted a quote to the Manasters. The Manasters requested $1
million in insurance coverage and the rate was adjusted
accordingly. Pickens contracted with TCI, who contracted
with Atlas for the shipment at the per pound rate, but Pickens
never informed TCI or Atlas of the $1 million valuation.
On November 2, 2006, Atlas picked up the Manasters’
household goods from the Pickens warehouse. The Atlas bill
of lading was signed by Pickens’ representative as shipper
and by Atlas’ driver as carrier, and it listed the Manasters as
the consignee. The bill of lading had a valuation section on its
first page as follows:
VALUATION: The released rates1 for shipments
1
“Released rates” are rates approved by the Surface Transportation
Board which a carrier may use to limit its liability through the written dec-
5234 PACIFIC INDEMNITY v. PICKENS KANE MOVING
moving under this bill of lading vary with the ser-
vices provided under the tariff and Carrier’s tariff is
incorporated into this bill of lading for determination
of which released rate applies. Shipper has released
the entire shipment to a value not exceeding:
(TO BE COMPLETED BY THE SHIPPER SIGN-
ING BELOW)
t The maximum released rate set forth in the tariff
for shipments on which specified services are being
provided, which may be either $.60 per pound per
article or $5.00 per pound. (This is not insurance but
a limit on Carrier’s Liability.)
t The declared value for the property of
$___________________. If this amount exceeds the
maximum released rate in the tariff, Carrier shall
obtain insurance in the amount on Shipper’s behalf
for the charges set forth in the tariff.
IF NO DECLARATION IS MADE, THE SHIP-
MENT SHALL BE DEEMED RELEASED TO
THE VALUE SET FORTH IN THE TARIFF.
Pickens’ representative signed the bill of lading but did not
choose either option and did not indicate a declared value for
the property.
Pickens also had a bill of lading for warehouse labor. In the
signature block of the bill of lading, Pickens’ representative
signed as the carrier and Atlas’ driver signed as the shipper.
The valuation section of the bill of lading read:
laration of the shipper. 49 U.S.C. § 14706(f)(1); Released Rates of Motor
Common Carriers of Household Goods, Amendment No. 5 to Released
Rates Decision No. MC-999, 2007 WL 1696990 (S.T.B. June 11, 2007).
PACIFIC INDEMNITY v. PICKENS KANE MOVING 5235
SHIPPER MUST COMPLETE THIS VALUATION
DESIGNATION
Unless the shipper expressly releases the shipment to
a value of $.30 per pound per article, the mover’s
maximum liability for loss of or damage to the ship-
ment shall be an amount equal to $2.00 for each
pound of weight in the shipment or the lump sum
value declared by the shipper on this form, which-
ever is greater, subject to the valuation charges in the
applicable tariff on file with the Illinois Commerce
Commission.
If the shipper wishes to avoid these additional
charges, the shipper must agree that if any articles
are lost or damaged, the mover’s liability will not
exceed 30 cents per pound for the actual weight for
any lost or damaged article or articles in the ship-
ment.
The shipment shall move subject to the rules and
conditions of the mover’s tariff. Shipper hereby
releases the entire shipment to a value not exceeding:
$____________________________.
Again, the valuation section of the bill of lading was left
blank.
The Manasters’ property was destroyed by fire during
transport while in the custody of Atlas. Pacific paid the
Manasters’ claim in full for $1 million and was subrogated to
their interests. Pacific then filed suit in the District Court of
Arizona for carrier liability under the Carmack Amendment
against both Pickens and Atlas. Pickens and Atlas cross-
claimed against each other also for carrier liability.2 Pacific
2
Pacific also amended its suit to add common law negligence claims.
Those claims were dismissed as preempted by the Carmack Amendment.
Pacific does not appeal the judgment of the district court.
5236 PACIFIC INDEMNITY v. PICKENS KANE MOVING
moved for summary judgment against Pickens and Atlas.
Pickens moved for summary judgment against Atlas. Atlas
moved for partial summary judgment against Pacific and
Pickens to limit its liability.
The district court held that Atlas was liable to both Pacific
and Pickens for $52,500.00 or $5.00 per pound, and that Pick-
ens was liable to Pacific for $1 million. Pickens moved for
reconsideration, which the district court denied. Pickens also
moved for reasonable expenses from Atlas. The district court
granted that motion, holding that Pickens, as the prevailing
party, was entitled to recover the entirety of its expenses from
Atlas. Pickens appealed from the judgment, specifically the
apportionment of damages. Atlas separately appealed the
judgment, specifically the award of costs to Pickens. The
appeals were consolidated and are now before the court.
Analysis
The Carmack Amendment is a part of the Interstate Com-
merce Act, which “provides the exclusive cause of action for
interstate shipping contract claims.” White v. Mayflower
Transit, L.L.C., 543 F.3d 581, 584 (9th Cir. 2008). Two sec-
tions of the Carmack Amendment are at issue in this case. The
first is § 14706(f), entitled “Limiting liability of household
goods carriers to declared value.” The section reads:
(1) In general. — A carrier or group of carriers sub-
ject to jurisdiction under subchapter I or III of chap-
ter 135 may petition the Board to modify, eliminate,
or establish rates for the transportation of household
goods under which the liability of the carrier for that
property is limited to a value established by written
declaration of the shipper or by a written agreement.
(2) Full value protection obligation. — Unless the
carrier receives a waiver in writing under paragraph
(3), a carrier’s maximum liability for household
PACIFIC INDEMNITY v. PICKENS KANE MOVING 5237
goods that are lost, damaged, destroyed, or otherwise
not delivered to the final destination is an amount
equal to the replacement value of such goods, sub-
ject to a maximum amount equal to the declared
value of the shipment and to rules issued by the Sur-
face Transportation Board and applicable tariffs.
(3) Application of rates.—The released rates estab-
lished by the Board under paragraph (1) (commonly
known as “released rates”) shall not apply to the
transportation of household goods by a carrier unless
the liability of the carrier for the full value of such
household goods under paragraph (2) is waived, in
writing, by the shipper.
49 U.S.C. § 14706(f). In 2005, Congress added subsections
(2) and (3), which form the basis of Pickens’ argument. The
interpretation of these subsections is a matter of first impres-
sion.3
The second provision of the Carmack Amendment at issue
here is the cost apportionment provision which reads:
The carrier issuing the receipt or bill of lading under
subsection (a) of this section or delivering the prop-
erty for which the receipt or bill of lading was issued
is entitled to recover from the carrier over whose line
or route the loss or injury occurred the amount
required to be paid to the owners of the property, as
evidenced by a receipt, judgment, or transcript, and
the amount of its expenses reasonably incurred in
defending a civil action brought by that person.
3
Aside from the district court in this case, the only other court to address
these subsections is the United States District Court for the Eastern Dis-
trict of Virginia in an unpublished opinion. Boles v. Destination Movers,
Inc., No. 1:09-cv-19, 2009 WL 1974459 (E.D.Va. Jul. 6, 2009).
5238 PACIFIC INDEMNITY v. PICKENS KANE MOVING
49 U.S.C. § 14706(b). We have not addressed the possible
apportionment of costs among carriers. It is also a matter of
first impression.
1. Replacement Value of Household Goods
On summary judgment, the district court held that Atlas
was liable to both Pacific and Pickens for $52,500.00 or $5.00
per pound, and that Pickens was liable to Pacific for $1 mil-
lion. Pickens does not appeal the assessment of liability itself,
rather it argues that the apportionment of the damages was in
error. “We review the grant of summary judgment de novo.”
Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 305 F.3d
913, 916 (9th Cir. 2002). The district court’s interpretation of
49 U.S.C. § 14706 is a question of law, which we review de
novo. Id. One reason that the district court apportioned the
damages as it did was that it construed 49 U.S.C.
§§ 14706(f)(2) and (3) to limit Atlas’ liability to the tariff
amount of $5.00 per pound in the absence of a declared value.
We agree.
[1] The Carmack Amendment allows carriers to limit their
liability for shipments of household goods under certain cir-
cumstances. In particular, “[u]nless the carrier receives a
waiver in writing under paragraph (3), a carrier’s maximum
liability for household goods that are lost, damaged,
destroyed, or otherwise not delivered to the final destination
is an amount equal to the replacement value of such goods[.]”
49 U.S.C. § 14706(f)(2). However, that subsection goes on to
say that “the replacement value of such goods [is] subject to
a maximum amount equal to the declared value of the ship-
ment and to rules issued by the Surface Transportation Board
and applicable tariffs.” Id.
Here, Pickens failed to declare a value for the shipment. It
argues that, in the absence of a written waiver, the failure
entitles Pickens to the full replacement value of the shipment.
And, it urges that the full replacement value in this case is $1
PACIFIC INDEMNITY v. PICKENS KANE MOVING 5239
million. Pickens is partially correct; it is entitled to the
replacement value, but that value is $52,500.00. Subsection
(f)(2) states that the replacement value of the household goods
is subject to or conditioned upon several possible factors. The
first is the declared value of the property. Since there is no
declared value in this case, that condition is not implicated.
[2] Replacement value is also conditioned on the rule
issued by the Surface Transportation Board (the “Board”).
The Board has determined that “when a shipper elects the
[full value protection] option but neglects to write a valuation
figure on the bill of lading or contract” the carrier is liable for
an assumed valuation “set at $5,000 or $4.004 times the actual
total weight in pounds of the shipment, whichever is greater.”
Released Rates of Motor Common Carriers of Household
Goods, Amendment No. 5 to Released Rates Decision No.
MC-999, 2007 WL 1696990 (S.T.B. June 11, 2007) (“S.T.B.
Amendment 5”). In other words, when a shipper does not a
declare a value for a shipment, the replacement value is
deemed to be $4.00 per pound or a minimum of $5,000.00. Id.
Congress gave the Board primary authority for enforcement
of the Interstate Commerce Act. Fulfillment Servs., Inc. v.
United Parcel Serv., Inc., 528 F.3d 614, 616-17 (9th Cir.
2008). “Where there is a challenge to the agency’s interpreta-
tion of the statute that it administers, we apply the analytical
framework set forth in Chevron[.]” DHX, Inc. v. Surface
Transp. Bd., 501 F.3d 1080, 1086 (9th Cir. 2007) (internal
citation omitted). “ ‘If the intent of Congress is clear . . . [we]
must give effect to the unambiguously expressed intent of
Congress.’ ” Id. (quoting Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104
S. Ct. 2778, 2781-82 (1984)). “If however, the meaning of the
statute is ambiguous, ‘the question for the court is whether the
4
Atlas adjusted this amount to $5.00 per pound in its Exceptions to
[Household Goods] Tariff 400 Series. Carriers are allowed to adjust the
tariffs upwards in their exceptions.
5240 PACIFIC INDEMNITY v. PICKENS KANE MOVING
agency’s answer is based on a permissible construction of the
statute.’ ” Id. (quoting Chevron, 467 U.S. at 843, 104 S. Ct.
at 2782). “ ‘[T]he court does not simply impose its own con-
struction on the statute . . . .’ ” Id. (quoting Chevron, 467 U.S.
at 843, 104 S. Ct. at 2782). Since the statute itself is arguably
ambiguous regarding shipments with no declared value, we
must ask whether the Board’s order was permissible. See id.
[3] Reviewing § 14706 as a whole, it is evident that the
Board’s order regarding undeclared value is permissible. Sub-
section (f) is entitled “Limiting liability of household goods
carriers to declared value.” § 14706(f) (emphasis added). The
Board’s rule does just that. S.T.B. Amendment 5. It prevents
carriers from being subjected to unlimited liability when
cargo of undeclared value is destroyed. And, it also protects
an unwary shipper from unscrupulous carriers by setting the
replacement value at the higher tariff amount of $4.00 per
pound,5 instead of the released rate of $.60 per pound. We
presume that Congress was aware of the Board’s interpreta-
tion of the valuation of shipments with an undeclared value
when it amended the Carmack Amendment in 2005. Traynor
v. Turnage, 485 U.S. 535, 546, 108 S. Ct. 1372, 1380 (1988).
Congress made no express provision for replacement values
of undeclared shipments but instead chose to condition the
replacement value on the Board’s rules. § 14706(f)(2). The
Board’s rule is based on a permissible interpretation of sub-
sections (f)(2) and (f)(3). Therefore, it must be accorded def-
erence. DHX, 501 F.3d at 1086.
Last, the replacement value is conditioned on “applicable
tariffs.” § 14706(f)(2). The $4.00 per pound tariff was
approved by the Board after full notice and comment rule-
making. Released Rates of Motor Common Carriers of
5
In 2001 the Board found that the average value for a shipment of
household goods was $4.50 per pound. Released Rates of Motor Common
Carriers of Household Goods, Amendment No. 4 to Released Rates Deci-
sion No. MC-999, 2001 WL 1637941, at *3 (S.T.B. Dec. 21, 2001).
PACIFIC INDEMNITY v. PICKENS KANE MOVING 5241
Household Goods, Amendment No. 4 to Released Rates Deci-
sion No. MC-999, 2001 WL 1637941 (S.T.B. Dec. 21, 2001).
Atlas adjusts this tariff to $5.00 per pound in its exceptions to
tariffs. The fact that this tariff was applicable to shipments
with undeclared values was based on the Board’s rule dis-
cussed above. The plain language of the statute and the
Board’s interpretation of the statute operate to limit Atlas’ lia-
bility to the tariff amount on these facts.
[4] Pickens argues that the published tariff of $4.00 per
pound cannot apply here because subsection (f)(3) states that
“[t]he released rates . . . shall not apply to the transportation
of household goods by a carrier unless the liability of the car-
rier for the full value of such household goods under para-
graph (2) is waived, in writing, by the shipper.” § 14706(f)(3).
But again, without a declared value for the goods, the replace-
ment value is deemed to be the tariff of $4.00 per pound as
described above. While Pickens did not waive its entitlement
to the “full value of such household goods under paragraph
(2),” because it failed to declare a value for the shipment, the
full value is deemed to be the tariff of $4.00 per pound pursu-
ant to paragraph (2) as described above. The district court cor-
rectly interpreted these subsections.
2. Apportionment of Costs
Atlas appeals the district court’s judgment awarding Pick-
ens all of its requested costs under § 14706(b), totaling
$74,402.35. A district court’s award of costs is reviewed for
an abuse of discretion. Miles v. California, 320 F.3d 986, 988
(9th Cir. 2003). “If an exercise of discretion is based on an
erroneous interpretation of the law, the ruling should be over-
turned.” Id.
On appeal, Atlas now makes three arguments. First, Atlas
contends that because the district court held Pickens liable to
Pacific for $1 million, Pickens is not an innocent party and
therefore not entitled to shift its costs to Atlas. Citing no law
5242 PACIFIC INDEMNITY v. PICKENS KANE MOVING
for this proposition, Atlas contends that in order to recover
expenses under § 14706(b), Pickens must be completely
blameless. Although that interpretation could be plausible if
the damage to the shipment occurred while in the custody of
both Atlas and Pickens, on the facts of this case, the argument
fails.
[5] The Carmack Amendment imposes strict liability upon
receiving carriers and delivering carriers in order to “relieve
cargo owners ‘of the burden of searching out a particular neg-
ligent carrier from among the often numerous carriers han-
dling an interstate shipment of goods.’ ” Kawasaki Kisen
Kaisha Ltd. v. Regal-Beloit Corp., 130 S. Ct. 2433, 2441
(2010) (quoting Reider v. Thompson, 339 U.S. 113, 119, 70
S. Ct. 499, 502 (1950)); 49 U.S.C. § 14706(a). Section
14706(b) allows the carrier held initially liable to recover
from the carrier in control of the shipment when it was dam-
aged. § 14706(b); Mason & Dixon Intermodal, Inc. v. Lap-
master Int’l LLC, ___F. 3d ___, 2011 WL 135084, at *5-6
(9th Cir. Jan. 18, 2011) (citing Georgia, Florida, & Atlantic
Ry. v. Blish Milling Co., 241 U.S. 190, 196, 36 S. Ct. 541, 544
(1916)). Atlas does not deny that the shipment was destroyed
while in Atlas’ care. If Pickens had properly declared the
value of the shipment and paid the insurance fees to Atlas,
Atlas would have owed the entire $1 million. Under the plain
language of the statute, Pickens is entitled to its reasonable
fees from the carrier over whose line or route the injury
occurred—here, Atlas. See § 14706(b).
[6] Second, Atlas argues that the district court erred when
it determined that Pickens was the prevailing party. Atlas
argues that because Pickens recovered only $52,500 of the $1
million it sought, Pickens did not prevail. It is inappropriate
to apply the prevailing party analysis here, because this statute
entitling Pickens to recover its costs contains no prevailing
party requirement. § 14706(b). This is unlike the language in
the same statutory scheme awarding attorney’s fees to ship-
pers. Section 14708(d) states that “[i]n any court action to
PACIFIC INDEMNITY v. PICKENS KANE MOVING 5243
resolve a dispute between a shipper of household goods and
a carrier providing transportation or service . . . , the shipper
shall be awarded reasonable attorney’s fees if . . . the shipper
prevails in such court action[.]” § 14708(d)(2). “[W]hen Con-
gress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 452, 122 S. Ct. 941, 951 (2002)
(internal quotations omitted). Therefore, a prevailing party
analysis is not necessary, nor even proper, under § 14706(b).
[7] In its last point, Atlas argues that because the costs are
awarded under a subsection entitled apportionment, Pickens
should be entitled to only 5.25% of its costs, the same per-
centage of the total damages attributed to Atlas. Atlas is really
challenging the reasonableness of the award. The statute pro-
vides a mechanism for unreasonable or disproportionate costs
by allowing recovery of the amount of expenses “reasonably
incurred.” § 14706(b). At the district court level, Atlas did not
contest the reasonableness of the fees, except in relation to the
judgment. It has therefore waived its ability to raise the issue
now. E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 901 (9th
Cir. 1994). However, even if Atlas had not waived the argu-
ment it is unavailing. As discussed above, Pickens was not the
carrier in whose custody the shipment was destroyed and was
therefore not liable for the damage in this case. If the actual
damage had occurred in the custody of several carriers, then
perhaps the costs would be apportioned among them. How-
ever, on the facts of this case, Atlas had custody of the ship-
ment when it was destroyed and is liable to Pickens.
Therefore, Pickens is entitled to its costs under § 14706(b).
The judgment of the district court is AFFIRMED.