[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR TH E ELEV ENTH C IRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 19, 2003
No. 02-11570 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-02026-CV-FAM
A.I.G . URU GUA Y CO MPA NIA DE S EGU ROS , S.A.,
as subro gee,
Plaintiff- Appe llee,
versus
AAA COO PER TRA NSP ORT ATIO N,
an Alab ama Co rporatio n,
Defen dant-A ppellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 19, 2003)
Before BIRCH, CARNES and BRUNETTI*, Circuit Judges.
BIRCH, Circuit Judge:
*
Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
AAA C ooper Transportation accepted for shipment three shrink-wrapped
pallets fro m Mo torola, eac h contain ing a nu mber o f cellular p hones. T hese palle ts
disappeared before delivery, and A.I.G. Uruguay Compania de Seguros, S.A., sues
under th e Carm ack Am endme nt to the In terstate Co mmerc e Act, 49 U.S.C . §
14706 , for resu lting dam ages. In th is appeal, w e clarify the evidentia ry predic ate
necessary to prove the contents of a sealed container under the Carmack
Amen dment. W e AFF IRM the district c ourt.
I. BACKGROUND
The relevant facts in this case are undisputed, and we accept the district
court’s d etermina tion of th em at trial, su mmariz ed for o ur purp oses as fo llows.
Abiatar , S.A. (“A biatar”), an Urug uayan ele ctronics c ompan y, contrac ted with
Motorola, Inc., for the sale of 400 cellular telephones at $315 per phone, for a total
of $126,0 00. Mo torola packag ed the phon es at its factory and in formed A biatar’s
chosen freight forwarder, Miami International Forwarders (“MIF”), that the phones
were ready to be shipped. MIF employed AAA Cooper Transportation
(“Cooper”), a common carrier based in Dothan, Alabama, to transport the phones
by grou nd from Motorola’s facto ry in Illino is to Mia mi, Flor ida, wh ere they w ould
be shipped onward to Uruguay by MIF.
2
Cooper received the shipment at Motorola’s factory on 24 August 1999,
loaded it onto an truck, and drove it to Miami, where it arrived on 26 August. The
shipment was unloaded at the Cooper Miami terminal and, on 27 August, loaded
onto a local delivery truck. The driver of this truck attempted delivery to MIF that
same da y, but w as turned away fr om M IF’s term inal. The truck retu rned to
Cooper’s terminal, where the shipment was unloaded from the truck and loaded
into a stor age trailer f or the w eekend . On the following Monday, 30 August, the
shipment was again loaded onto a local delivery truck, but when the truck later
arrived at MIF for delivery, it was discovered that the Motorola shipment was not
among the truck ’s conten ts. To da te, the disap pearanc e of the sh ipment is
unexplained.
Abiatar insured this shipment through A.I.G. Uruguay Compania de
Seguros, S.A. (“AIG”), who paid Abiatar’s claim for loss of the phones. AIG, as
subrogee of Abiatar, sued Cooper for its apparent negligence, and, following a
bench trial, the district court entered judgment for AIG in the amount of $126,000,
the full va lue of the lost shipm ent.
II. DISCUSSION
On appeal following a bench trial, a district court’s conclusions of law are
reviewed de novo, and its fin dings o f fact are re viewed for clear e rror. MiTek
3
Holdings, Inc. v. Arce Eng’g Co., 89 F.3 d 1548 , 1554 ( 11th C ir. 1996 ). The
Carmack Amendment to the Interstate Commerce Act makes common carriers
liable for actual loss of or damage to shipments in interstate commerce. 49 U.S.C.
§ 14706(a)(1). A prima facie case is established under the Carmack Amendment
upon p roof by a prepo nderan ce of the e vidence that (1) th e good s were d elivered to
the carrier in good condition, (2) the goods arrived at the destination in damaged
conditio n, and (3 ) a specifie d amou nt of dam ages resu lted. Fine F oliage of Fla.,
Inc. v. Bowman Transp., Inc., 901 F .2d 103 4, 1037 (11th C ir. 1990 ).
Once a prima fa cie case is es tablished , the burd en shifts to the carrier to
prove ( 1) that it w as free fro m neglig ence, and (2) that the damage to the cargo was
caused b y one of the five ex cusable f actors: “(a) the act of G od; (b) th e public
enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent
vice or nature of the goods.” Id. at 1039 (quoting Missouri Pacific R. Co. v.
Elmore & Stahl, 377 U .S. 134 , 137, 84 S.Ct. 11 42, 114 4 (196 4)).
If the carrier cannot meet this burden, then liability is established. The
inquiry then becomes the amount of damages and, usually, whether the carrier
legitimately limited its liab ility for the s hipmen t to a specif ied value or amo unt. A
carrier subject to the Carmack Amendment may only limit its liability under the
released v alue pro vision o f 49 U .S.C. § 1 4706( c)(1), w hich states :
4
a carrier providing transportation or service . . . may . . . establish rates
for the transportation of property (other than household goods
described in section 13102(10)(A)) under which the liability of the
carrier for such property is limited 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.
Coop er argue s that the d istrict cour t improp erly applie d this fram ework in
two w ays: first, tha t the district c ourt erre d in allow ing AI G to pr ove its pr ima facie
case with circums tantial evid ence, and , second , that the dis trict court e rred in
finding that Cooper did no t validly limit its liability on the shipment. We discuss
each of these arguments in turn.
A. Proof of Delivery in Good Condition
One of the elements in a Carmack Amendment case is proof that the goods
were d elivered to the carrier in good conditio n. Fine Foliage, 901 F.2d at 1037.
When the shipment at issue is not a sealed container, then the “carrier has the
initial burden of informing itself of the condition of the goods received.” Offshore
Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1014 (11th Cir. 1987) (per
curiam) . Becaus e the carrie r has the a bility befo re and d uring sh ipment to
ascertain for itself the nature and condition of the shipment, we do not require
heightened proof. In these cases, a recitation of good condition and contents on the
5
bill of ladin g may su ffice. See Spartus Corp. v. S/S Yafo, 590 F.2d 1310, 1319
(5th Cir. 1979).
When the shipment at issue is a sealed container, then the carrier has no
indepen dent ability to ascertain the conte nts of the shipme nt, and th e shippe r is
held to a higher standard of proof. The bill of lading, by itself, is never sufficient
to establish a prima f acie case. Offshore Aviation, 831 F.2d at 1014-15. “Where
goods are shipped under seal, the condition of the goods cannot be within the
carrier’s knowledge. A bill of lading accordingly can attest only to apparent or
external good condition, and . . . the shipper may reasonably be required to present
some additional evidence of the condition of the goods at the time of delivery.”
Pillsbury Co. v. Illinois Cent. Gulf R.R., 687 F.2d 241, 244 (8th Cir. 1982). “The
carrier . . . should not have the (initial) burden of separating damages arising from
causes prior to shipment from damages due to negligent stowage.” Id. (internal
quotatio ns omitte d).
Our precedent in the Eleventh Circuit indicates that the type of proof
necessary to meet this heightened standard depends on whether the shipment at
issue was damaged or destroyed.1 When the sealed shipment was damaged en
route, an d, conse quently, th e questio n is only th e origina l condition of the
1
We know of no other Circuit that has made this particular distinction, yet it is apparent
in our prior cases on the subject that this is the line we have drawn.
6
shipme nt, then re liable, sub stantial circu mstantial e vidence of cond ition will
suffice to prove a prima fa cie case. See Fine Foliage, 901 F.2d at 1038 (ferns
damag ed); Frosty Land Foods Int’l, Inc. v. Refrigerated Transp. Co., 613 F.2d
1344, 1 347 (5 th Cir. 19 80) (sh ipment o f meat da maged ); see also Allied Tube &
Conduit Corp. v. Southern Pac. Transp. Co., 211 F.3d 367, 371 (7th Cir. 2000)
(pipes d amaged ); Pharma Bio, Inc. v. TNT Holland Motor Ex press, Inc., 102 F.3d
914, 917 (7th Cir. 1996) (blood cells damaged by non-refrigeration). The bill of
lading, by itself, is not sufficient circumstantial evidence to show good condition at
delivery to the carrier . Reider v. Thompson, 197 F .2d 158 , 161 (5 th Cir. 19 52).
But a case may be made by a bill of lading that recites receipt of the sealed
packages in good external condition, when coupled with damage “of a kind which
could not in the nature of things have occurred before the shipment.” McNeely &
Price Co. v. The Exchequer, 100 F . Supp . 343, 34 4 (E.D . Pa. 195 1); see also
Reider, 197 F .2d at 16 1.
When the shipm ent was lost, destro yed, or d amaged to such e xtent that it is
imposs ible to tell w hat was containe d in the sh ipment, th en the qu estion is n ot only
the original condition of the shipment, but also the contents of the shipment. When
a sealed shipment disappears or is destroyed, we cannot tell by looking at the
remains of the shipment, if any, what it originally contained. Therefore, we have
7
said in these circumstances that we require “direct” evidence of the original
contents and con dition of the shipm ent to pro ve a prim a facie case . “It is well
settled that d ocume ntary evid ence alon e, such as a bill of lad ing, is insu fficient to
establish proof of delivery of the contents of a sealed container.” Highlands Ins.
Co. v. Strachan Shipping Co., 772 F .2d 152 0, 1521 (11th C ir. 1985 ).
“[D]ocuments cannot suffice for prima facie proof of contents in sealed
containers.” Offshore Aviation, 831 F .2d at 10 15. “[T]h e establish ed rule
requir[es] the plaintiff to supplement documentary evidence with some form of
direct evidence of the contents of a sealed container.” Highlands, 772 F.2d at
1522. “Direct evidence, such as the testimony of an eyewitness to the loading of
the container, is necessary to confirm the contents.” Id. at 1521 ; see also
Continental Grain Co. v. Burlington N. Ry. Co., 837 F.2d 836, 840 (8th Cir. 1988)
(quantity of grain lost). “A prima facie case should not rest on mere possibility.”
Offshore Aviation, 831 F.2d at 1015.2
2
The First Circuit’s decision in Camar Corp. v. Preston Trucking Co., 221 F.3d 271 (1st
Cir. 2000), is not inconsistent with this paradigm. In Camar, a shipment of used marine
equipment was lost by the carrier, and the district court reasoned that a prima facie case under
the Carmack Amendment was presented by the mere fact of disappearance en route:
[T]he parties do not dispute that a change in the condition of the equipment
occurred while [the carrier] had custody of it: the equipment existed at the point
of origin . . . and then vanished in transit. In other words, the condition of the
equipment was relatively good at the point of origin and relatively bad
(nonexistent) at the point of arrival.
8
In Highlands, a case concerning the loss of a shipment of televisions, we
found that the district court did not clearly err by refusing to accept documentary
evidence of an “unbroken chain of custody” as the necessary showing to prove the
contents of a sealed container. 772 F.2d at 1521-22. In Offshore Aviation, a case
in which a shipment of airplane parts was substantially destroyed in a fire, we
declared that a simila r “series of docum ents tracin g the go ods fro m their . . .
beginnings to their arrival [at the carrier]” could not suffice for proof, and relied
instead on a letter from an actual employee involved in the shipment in finding a
question of material fact that precluded summary judgment. 831 F.2d at 1015-16.
221 F.3d at 275. Though cited by AIG as a case in which circumstantial evidence is found
sufficient to prove the contents of a lost shipment, the Camar case did not involve a sealed
container, as far as we can tell from the written opinion. In that circumstance, though we differ
on the analysis, we would agree with the First Circuit that a heightened form of proof is not
required to present a prima facie Carmack Amendment case.
Nor is the Third Circuit’s decision in Beta Spawn, Inc. v. FFE Transportation Services,
Inc., 250 F.3d 218 (3d Cir. 2001), inconsistent. In that case, a sealed shipment of mushroom
spawn was damaged when it was not refrigerated during transport. If such a case were to be
heard in this Circuit, we would require substantial, reliable circumstantial evidence to prove the
original condition of the mushrooms. The Third Circuit, albeit through a more complex analysis,
required a similar showing. In Beta Spawn, the Third Circuit looked to its precedent and found a
case which had been cited for the proposition that “direct evidence” was required for proof in all
sealed container cases. 250 F.3d at 224. However, the court in Beta Spawn recognized that the
“direct evidence” language was drawn from the district court’s opinion on review in that
previous case, and proceeded to reject the “direct evidence” requirement as improvident. Id.
Instead, the Beta Spawn court read its precedent to hold only that “shippers [must] produce
evidence, other than a clean bill of lading, to establish the condition of goods which were not
open and visible for the carrier’s inspection.” Id. It rejected “the view that [their precedent]
renders all circumstantial evidence irrelevant,” and, just as we would in the Eleventh Circuit for
a sealed container case involving damage to the shipment, accepted circumstantial evidence for
the requisite proof. Id. at 225.
9
The Eighth Circuit in Contin ental Gr ain, a case concerning the disappearance of a
quantity o f grain in transit, req uired “dir ect and af firmative proof o f the qua ntity
delivered” to the carrier and accepted “deposition testimony concerning the
weigh ing of th e grain” f or this pr oof. 83 7 F.2d at 840.
Here, the district court found that the shipment did not constitute a sealed
containe r, stating th at “the [Co oper] dr iver . . . pick ed up th ree pallets p ackaged in
clear wrapping, and the [Cooper] driver could have counted 80 containers in total
on the th ree pallets. S ignifican tly, [Coo per] doe s not claim the [Co oper] dr iver did
not pick up three pallets at the Motorola facility.” R3-94 at 5. We find that the
district cou rt erred in this determ ination. T he three p allets shipp ed by M otorola
were shrink-wrapped in clear material. Each pallet contained either 16 or 32
cartons, each of which in turn contained five smaller boxes, each of which
allegedly c ontained a Moto rola cellula r phon e. A shipment is considered to be a
“sealed container” if its contents are not “visible and open to inspection” at the
time of d elivery to th e carrier. Spartus Corp., 590 F.2d at 1319. Here, the pallet
could n ot have b een “ope ned” by the carrier for insp ection in a significan t way.
The transparency of the outer layer of tape does not negate the fact that the actual
phone s were in side two more layers of bo xes. Th e carrier m ay have b een able to
peer through the shrink-wrap and count 13 to 16 cartons, but there was no way for
10
the carrier to independently ascertain the contents and condition of the actual goods
to be shipped. The heightened proof required of shippers for sealed containers
turns on whether the carrier can reasonably be expected to determine the nature of
the shipm ent throu gh inde penden t confirm ation. W here, as h ere, the co ntainer is
packaged in such a way as to thwart independent confirmation, we require
heighten ed proo f from th e shippe r of the se aled con tainer’s co ntents.
Cooper argues that the district court also erred by reasoning that the
shipment was not a sealed container because it was not transported by ship on the
open seas. According to Cooper, the district court distinguished Highlands and
Offshore Aviation as cases in volving sealed, ocean-going containers, and declined
to apply th ose cases on that b asis. We are not su re that the d istrict cour t actually
relied on that specific distinction, but we agree with Cooper that the sealed
container doctrine is not restricted to shipments traversing the seas. We have not
been presented with any argument from the parties as to why sealed ocean-going
containers should be treated differently from other sealed containers, and we have
never made such a distinction explicit in any of the relevant cases. All sealed
containers, whether shipped by land or sea, present the same problem fo r carriers:
the contents and good condition of the contents cannot be confirmed by practical
11
visual analysis. Thus, we require heightened evidence to prove these attributes for
all sealed containers, not just those transported on ships.
In any event, the district court decided that the Fine Foliage line of cases,
which req uire only circum stantial evidence, co ntrolled. Ther efore, it found AIG’s
evidence sufficient to establish a prima facie case. As we have discussed, the Fine
Foliage cases are qualitatively different from the Offshore Aviation/Highlands line
of cases. T he two lines of ca ses are dis tinct and d istinguish able. We ex plicitly
pointed out the nature of the dichotomy in our consideration of Fine Foliage. In
that case, a shipment of ferns was damaged during transit, and we held that
circumstantial evidence of the ferns’ original condition was sufficient to meet the
shipper’s prima facie burden. 901 F.2d at 1038-39. We distinguished the
Highlands line of cas es, whic h requir e direct ev idence, b y saying th at:
Highlands involved a situation in which there was no proof, other than
a bill of lading, that TV sets, reported stolen, had actually been placed
in a sealed seagoing container. It stands only for the proposition that
evidence “such as the testimony of an eyewitness to the loading of the
container is necessary to confirm the contents.” Here, there is no
dispute that the ferns were loaded into the container.
901 F.2d at 1038 (internal citation omitted). When original condition of the
contents is at issue, as in the Fine Foliage case, reliable and substantial
circums tantial evid ence w ill suffice, b ut whe n the con tents them selves are in
question, as in Highlands and Offshore Aviation, direct evidence must be
12
presented. In this case, Motorola shipped three sealed containers. The sealed
containers and their contents vanished. Therefore, AIG was required to present
direct evidence of the contents, and the district court erred in concluding otherwise.
How ever, w e canno t fault the re sult. The evidenc e presen ted by A IG is
sufficiently direct evidence of the contents of the shipment. When the particular
phones to be packaged to fill the order are selected, their serial numbers are
scanned into the M otorola s ystem, an d that reco rd follow s the ord er from station to
station as it p roceeds toward shipme nt. Thes e serial nu mbers a ppear au tomatically
on the in voice ge nerated b efore the shipme nt leaves th e facility. Th is record is
made contemporaneously with the “sealing” of the phones inside the cartons that
directly and without inference identifies the contents of that carton, even though
we have no testimony of the individual responsible for scanning the phones or the
supervisor, if any, with responsibility over the process by which the phones are
scanned. However, we would expect their testimony to be general: that this is the
process that occu rs every d ay at the fac ility, and tha t they do n ot remem ber this
particular shipme nt.
It would be easy to strain our precedent and reject this evidence as
insufficiently circumstantial or documentary evidence, but doing so disregards the
practicalities of largely automated modern industry. Large production quantities
13
and speedy production times are the hallmark of the efficiency sought by our
nation’s corporations, and it is unrealistic to require eyewitness testimony to prove
that a particular shipment was shipped correctly when hundreds or thousands of
similar shipments may have left the factory in the interim.3 It is also un realistic to
expect that there is an actual eyewitness to the entire process. Because of
production-line specialization, no worker and no manager in modern industry
could precisely describe and guarantee the contents of any particular shipment
from th eir factory withou t referenc e to the typ e of doc umenta tion pres ented in th is
case. Th at docum entation c an be m ore reliab le than eye witness testimon y, and it is
an unfa ir and im practical b urden to require a Carma ck Am endme nt plaintiff to
obtain eyewitness testimony to the contents of a particular shipment as a condition
of bringing suit when su ch testimony will rarely, if ever, be available in these
situations.
We have never said that eyewitness testimony is the only direct evidence
that will suffice, but we have said repeatedly that documentary evidence must be
supplemented by other direct evidence. However, what we mean to prevent by
3
Jesse Garcia, a worker in Motorola’s shipping department, said as much in his
deposition: “Q: Do you recall this specific shipment? A: No. Without looking at documents
and looking at the process flow, it’s been so long since this shipment was shipped out, I don’t
remember that exact day and that exact bill of lading and shipment that day.” R3-86, Deposition
of Jesse Garcia, at 25.
14
requiring this additional “direct” evidence is having the contents of a sealed
container proved solely by after-the-fact documentation. When business records
are routinely and systematically made contemporaneously with the packing and
packaging of a particular shipment, and these documents clearly identify the
specific contents of those shipments, then we perceive no problem in accepting that
proof as the type able to meet the shipper’s burden.4 It is especially so where, as
here, there is no incentive for the shipper to falsify the packing lists. Accordingly,
we find that the packing lists, which incorporate pre-loaded serial numbers scanned
during the process by which the Abiatar order was filled, are sufficient direct
evidenc e of the co ntents of the shipm ents to su stain AI G’s prim a facie bu rden.
This cas e involv es proo f that is qu alitatively dif ferent tha n that pre sented in
Highlands or Offshore Aviation, where documentation was rejected as too
circumstantial to support a prima facie case. In Highlands, the proffered evidence
that the televisions at issue were ever loaded into the sealed container that
disappeared was a “shipper’s commercial invoice,” that, according to the plaintiff,
“shows that the television sets were loaded in trailer REAZ-600373, sealed and
4
An analogue to our acceptance of this type of record as “direct” evidence of the
contents of a particular sealed shipment is the law of evidence’s acceptance of properly
authenticated business records as an exception to the hearsay rule. See Fed. R. Evid. 803(6). A
contemporaneous record made in the normal course of business has particular guarantees of
trustworthiness that persuade us to accept that record as relevant to the matter at issue.
Likewise, a contemporaneous record made in the normal course of business is sufficiently
trustworthy for us to accept that record as proof in the Carmack Amendment context.
15
weighed.” 772 F .2d at 1522 (internal quotations omitted). W e noted in that case
that the invoice “itself appears to refer to the sealed container,” that is, that the
invoice wa s not an indep endent, contem poraneou s record of th e container’s
loading , but relied on info rmation obtained after the co ntainer w as sealed. Id. To
accord tr uth to afte r-the-fac t docum entation, a n inferen tial leap is req uired, na mely
that the documentation relied on some form of reliable evidence from someone
who had previously loaded the container. Similarly, a worksheet that recited that
someo ne nam ed “Jim” u nloaded the cargo when it arrived w as not su fficient,
because the notatio n on tha t work sheet that th e cargo w as reload ed failed to
specifically “identify th e numb er of the tr ailer so loa ded or its contents, nor [did ] it
note its sealing.” Id. The notation of reloading did not tie the shipment to the
particular sealed container that was lost, and, thus, we had no “direct” way of
knowing what exactly that container contained.
In Offshore Aviation, the rejected documentary evidence “trac[ed] the goods
from their Singapore beginnings to their arrival in California, at which point [the
carrier] received them for shipping.” 831 F.2d at 1015. The documents “attest[ed]
to the serviceability of the parts being shipped, and show[ed] that the weight of the
cartons in Singapore corresponded to their weight in California.” Id. Again, the
deficiency in this evidence is the absence of any direct evidence dating from when
16
the cartons were sealed as to their specific contents. We accepted in that sam e case
a letter from a Singa pore A irlines em ployee th at “qualifies the equip ment sen t to
Offshore as being in an unserviceable state.” Id. (internal q uotation s omitted ). We
called that letter “the only statement in the record that approaches personal
knowledge of the condition of the shipment.” Id. at 1016 (internal quotations
omitted). The Motorola packing list and scanned serial numbers in our case may
not be knowledge that can be tied to any particular person, but they approach
institutional, or corporate, knowledge of the contents of the container, and we
believe th at it is only p ractical and fair to acce pt such e vidence as similarly
sufficien t.
Therefore, the district court did not err in its result by finding that AIG had
proved its prima facie case, though it did err in its analysis by conflating the Fine
Foliage condition cases and the Highlands content cases. We proceed now to the
limitation of liability question.
C. Limitatio n of Lia bility
The district court concluded that Cooper did not validly limit its liability for
the shipment, and Cooper appeals that determination. A carrier is liable for “the
actual loss or injury to the property” if it loses or damages the shipment, 49 U.S.C.
§ 1470 6(a)(1) , unless th e carrier lim its its liability “to a value established b y . . .
17
written agreement between the carrier and shipper.” § 14706(c)(1)(A). At the time
the pallets were delivered to Cooper for shipment, a bill of lading was executed
between the parties. The bill of lading was drafted by Motorola, was non-
negotiable, and contained no space for a declaration of released value. Therefore,
there was no written agreement between the parties to a released value for the
shipme nt.
Cooper argues that its liability should be limited anyway, arguing that when
the shipper fills out the bill of lading on a sealed container, and the shipper
misdescribes the type of goods being shipped in order to get a lower shipping rate,
the shipper should not be able to benefit even more from that misdescription by
being compensated for the full value of the shipment if it is destroyed. According
to Cooper, by choosing to misdescribe its goods, the shipper should have known
that it was limiting liability. Accordingly, Cooper urges that we reform the bill of
lading to identify the type of goods now claimed to have been lost in the shipment
with a category that will limit Cooper’s liability under the terms of the relevant
tariff.
The National Motor Freight Classification is a table of freight categories that
is used to assign the proper shipping rate for particular cargo. The classification
that appears on the bill of lading for the shipment in this case is NMFC 61700,
18
Class 100, which cov ers “Electrical Appliances or Instruments . . . in inner
containe rs, in cloth bags, or in boxe s.” R3-1 09 at D ef. Exh s. 4, 6. Cooper argues
that the appropriate category for this shipment was actually NMFC 628 50, which
applies to “Radio-teleph ones, cellular (Cellular Teleph ones), . . . in boxes.” R3-
109 at Def. Exh. 6. A ccording to NM FC 62851 , NMFC 62850 applies to those
phones “not specifically released as to value in accordance with the provisions of
item 62820 at time of shipment,” and, because the form bill of lading used by
Motorola in this case had no space for a declaration of released value, it would be
impossible to comply with item 62820, which requires that any released value
“must be entered on shipping o rder and bill of lading in [a specific] form.” Thus,
we agr ee that N MFC 62850 was the approp riate classific ation.
However, the only effect of re-classification to NMFC 62850 wo uld be that
Cooper would have charged more to transport the Motorola shipment. NMFC
62850 , like the m isreprese nted categ ory NM FC 61 700, do es not co ntain w ithin its
terms a limitation of liability. At this point, re-classification to NMFC 62850
would probably only allow Cooper, if it wished, to collect the difference between
the shipping charge, but, as Cooper refunded the entire shipping charge once the
shipme nt was lo st, that aven ue of rec overy ap pears w aived.
19
To obtain limited liability, Cooper argues that the court should classify the
shipment as NM FC 62820 , which covers “Radio, Radio-telephone, or Television
Transmitting or Transmitting and Receiving Sets, or other Radio Impulse or
Wireless Audio (Sound) Impulse Transmitting or Transmitting and Receiving
Sets, separate or combined, in boxes,” as a punitive measure against the shipper for
its misrepresentation. NMFC 628 20 contains several sub-categories that
corresp ond to r anges o f released values fo r the ship ment, an d Coo per urg es this
court to a pply sub category 1 of that c lassification , which applies to shipme nts with
a “[r]eleased value n ot exceed ing $3.0 0 per po und.”
Generally, the federal courts are not here to protect sophisticated business
actors from each other, and in the absence of fraud or other sufficient cause for
doing s o, we w ill not refo rm the co ntract betw een two such pa rties. See Buce v.
Allianz Life Ins. Co., 247 F.3d 1133, 1150 (11th Cir.) (“[T]he parties to a contract
have the right to d efine the te rms of th at contrac t.”), cert. denied, 534 U.S. 1065,
122 S . Ct. 666 (2001 ); FMC Fin. Corp. v. Mu rphree, 632 F.2d 413, 420 (5th Cir.
1980) (recognizing under Illinois law that the courts “are reluctant to re-write the
terms of a negotiated contract between businessmen”). The trial court found that
Cooper “introduced no evidence of fraud,” R3-94 at 10, and though Cooper argues
on appeal that we can infer fraud from the mere fact of misdescription, we have no
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reason to believe th at the misd escription was fra udulen t, rather tha n a mistak e.
Thus, for reasons of evidentiary insufficiency, our powers of contract reformation
do not avail Cooper.
Coop er argue s that if the s hipmen t had bee n appro priately de scribed, it
would have inc reased se curity ov er the ship ment to e nsure its s afe storag e in
Miami. However, there is no evidence that any additional protection would have
been effective in preventing the disappearance of this shipment. Testimony from
various employees of Cooper demonstrates that the pallets of phones were
unloaded Friday afternoon, stored for the weekend, and reloaded onto a local
delivery tr uck the f ollowin g Mo nday. A pparently, at some point after that truck
left the Cooper facility, the packages disappeared. Therefore, any additional
security in place at the Cooper facility would not have p revented the loss.
So the only difference in this case if the shipper had correctly represented
the contents of the shipment is that Cooper may have charged a higher rate for the
transpo rtation of those go ods. Th e good s still wou ld have d isappear ed, AIG would
still have paid the claim for loss to Abiatar, and AIG as subrogee would still sue
Cooper for the full value of the shipment. We find in this circumstance that
preserving the contract-based relationship between carrier and shipper would be
more p rudent th an readin g in a limite d liability pr ovision for pun itive purp oses.
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Therefore, we find that the dis trict court d id not err in determ ining tha t Coop er did
not limit its liability for th e Moto rola ship ment.
III. CONCLUSION
The contents of a sealed container must be proven by direct evidence, and
the district c ourt erre d in find ing that cir cumstan tial eviden ce could be suffic ient.
How ever, dire ct eviden ce of the c ontents o f the now -missing shipme nt appea rs in
the record of this case. In particular, the scanning of the serial numbers of
particular phones at the time of packaging, an established and recurring operation
by the shipper, is sufficient direct evidence of the contents and condition of the
sealed shipment. Therefore, we agree with the district court that AIG presented a
prima facie case under the Carmack Amendment. We also agree that no limitation
of liability ex ists by virtu e of the ag reemen t betwee n the par ties, and th at it wou ld
be improper in this case to impute some degree of limitation based on the
mischar acterization of the go ods. Pe rhaps in a case in w hich a sh ipper fra udulen tly
misrepresented the contents of a shipment, such reformation would be proper, but
there is no evidence of fraud in the record before us. Accordingly, we AFFIRM.
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