Law Offices of Leslie G. McMurray

NOTABLE CIVIL DECISIONS AND ORDERS:

Bay State Shippers v. Atchison, Topeka & Santa Fe Railway Company, (CV 95-5586-WMB), 1995 U.S. Dist. LEXIS 20154 (C.D. CA 1995)(Finding for the rail carrier although the case was filed in the wrong district under the contractual forum selection clause, dismissal was in order as time barred in any event, under the contractual time limit within which suit may be filed.)

Burlington Northern Railroad Company v. Hyundai Merchant Marine Co., (CV 96-9123-MMM), 1999 U.S. Dist. LEXIS 23186, 1999 WL 1122998, 1995 WL 865481 (C.D.Cal.)(C.D. Cal. 1999)(Summary judgment granted to railroad in cargo damage since a notation of a 12-inch tarpaulin tear prior to loading at the dock in Seattle was not significantly probative evidence of the railroad’s purported negligence, or of the fact that cargo damage occurred while in the carrier's possession.)

Intercargo Ins. Co. v. Burlington Northern & Santa Fe Railway Company., (ED CV 98-0220 RT) 1999 U.S. Dist. LEXIS 22302, (C.D. CA. 1999)(Motion to transfer venue granted.)

Intercargo Ins. Co. v. Burlington Northern & Santa Fe Railway Company., (CV-99-2372 FMC), 185 F. Supp. 2d 1103 (C.D. Cal. 2001); 2001 U.S. Dist. LEXIS 23574 (Railroad’s motion for summary judgment to be dismissed from the case granted based on the fact it made delivery of the cargo prior to a subsequent theft and its delivery absolutely discontinued the carrier’s duties towards the cargo.)

M.R. Swanson, Inc. v. Burlington Northern & Santa Fe Railway Company, (CV F 99 5496 AWI),  2001 U.S. Dist. LEXIS 25463 (E.D. CA 2001)(Granting the railroad’s partial motion for summary judgment regarding the applicable burden of proof and holding that when a shipper elects to ship its cargo under the terms of a contract of carriage, the Carmack Amendment no longer applies, and the plaintiff suing the carrier for cargo loss or damage bears the burden to prove that the carrier breached a term of the agreement as with any standard breach of contract case).

NYK Line (N. Am.) v. Burlington Northern & Santa Fe Railway Company
, (CV-02-1081-R ) 222 F. Supp. 2d 1176 (C.D.Cal. 2002); 2002 U.S. Dist. LEXIS 19069 (All of the plaintiffs state law claims against the railroad were preempted by Carmack and the railroad could not be liable for cargo loss or damage after it had already made delivery of the cargo at its point of delivery. Held: the railroad was entitled to summary judgment.)

Federal Insurance Company v. Burlington Northern & Santa Fe Ry. Co
., (EDCV 02-1353-VAP), 270 F. Supp. 2d 1183 (C.D. CA. 2003); 2003 U.S. Dist. LEXIS 16669 (Summary judgment granted to the railroad dismissing the action involving a ballast undercutter damaged in a derailment. The complaint alleged the railroad was negligent but the maintenance, repair, and inspection of track conditions was directly and comprehensively covered by the Federal Railroad Safety Act which preempted the plaintiff’s claim. Even in the absence of preemption, plaintiff could not proffer any admissible evidence of railroad negligence. Finally, because the railroad's liability was premised on whether or not it was solely negligent, a breach of contract claim would have been related to the negligence claim and would similarly have been preempted; thus granting the plaintiff leave to amend would be futile.)

Clarke Logistics v. Burlington Northern & Santa Fe Railway Co., (04CV0734 J), 347 F. Supp. 2d 891 (S.D. Cal. 2004); 2004 U.S. Dist. LEXIS 23838. (Summary judgment granted for the railroad. The plaintiff’s action was contractually time barred as no timely claim was filed and a letter of intent to file a claim was held not to be sufficient to fulfill the contractual claim filing condition precedent to maintaining an action against the carrier.)

Nippon Yusen Kaisha v. Union Pacific Railroad Company
, (CV 04-8861-GAF), 2005 U.S. Dist. LEXIS 9718 (C.D.Cal. 2005). (In a case for cargo damage brought against the railroad that simply owned the track, as opposed to the carrier, the court granted summary judgment for the track owner due to the fact that the sole remedy for cargo loss or damage is a suit against the carrier under Carmack and there is no private right of action under the Federal Railway Safety Act against the railroad over whose tracks the carrier was operating at the time of the derailment.)

Nippon Yusen Kaisha v. Burlington & N. Santa Fe Ry. Co., (CV 03-6523 GAF), 367 F. Supp. 2d 1292 (C.D.Cal. 2005) 2005 U.S. Dist. LEXIS 7203; 2005 AMC 1711. (In a Carmack case in which the shipper had not elected Carmack coverage, the contract terms governed. As the contract employed a negligence standard, the railroad’s conduct was measured against the standards set forth in the Federal Railroad Safety Act. The railroad’s compliance with the federal safety provisions was determinative of its lack of negligence as to any such compliant conduct.)

Regal-Beloit Corp. v. Kawasaki Kisen Kaisha, Ltd., 462 F. Supp. 2d 1098, 2006 U.S. Dist. LEXIS 85993, 2007 A.M.C. 480 (C.D. Cal. 2006)(Case dismissed based on plaintiffs’ failure to comply with contractual forum selection clause.)

Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd., (06-56831), 557 F.3d 985 (9th Cir. 2009); 2009 U.S. App. LEXIS 3597; 2009 AMC 305, June 1, 2008, cert. granted, Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S. Ct. 459, 175 L. Ed. 2d 306, 2009 U.S. LEXIS 7542 (U.S., 2009); Union Pacific Railroad Co. v. Regal-Beloit Corp., 130 S. Ct. 459, 175 L. Ed. 2d 306, 2009 U.S. LEXIS 7584 (U.S., 2009); rev. by, remanded by, Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S. Ct. 2433, 177 L. Ed. 2d 424, 2010 U.S. LEXIS 4982 (U.S., 2010)(The Ninth Circuit reversed the dismissal of the case based on the contractual forum selection clause. The railroad and ocean carrier sought certiorari which was granted.  The Supreme Court held that the Carmack Amendment did not apply to import moves to the U.S. under through bills of lading and that the statute which did apply, COGSA, permitted enforcement of the contractual forum selection clause with the result that the dismissal at the district court level should be affirmed.)

Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd., (No. 06-56831), 620 F.3d 1167; 2010 U.S. App. LEXIS 18166; 2012 AMC 1199, (9th Cir. 2010), (“In light of the Supreme Court's decision in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S. Ct. 2433, 177 L. Ed. 2d 424 (2010), the parties' agreements are governed by the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 30701 note, rather than by the Carmack Amendment, 49 U.S.C. § 11706.... Therefore the parties are bound by the Tokyo forum selection clause contained in the bills of lading. The decision of the district court dismissing the instant case is affirmed.”)

Federal Insurance Company v. Union Pacific Railroad Company, 590 F. Supp. 2d 1292, 2008 U.S. Dist. LEXIS 107599 (C.D. Cal. 2008)(The case was dismissed following the railroad’s motion for summary judgment based on the fact that the shipper had agreed, in contracting with the ocean carrier, that it would not sue any of the ocean carrier’s subcontractors, which included the rail carrier.  The rail carrier’s second basis for summary judgment (a per package limit of liability) was not reached as being moot in light of the dismissal of the entire case.)

Federal Insurance Company v. Union Pacific Railroad Company, (09-55028)  651 F.3d 1175; 2011 U.S. App. LEXIS 14267; 2012 AMC 1303 (9th Cir. 2011)(The appellate court affirmed the grant of the railroad’s motion for summary judgment based on the fact that the shipper had agreed, in contracting with the ocean carrier, that it would not sue any of the ocean carrier’s subcontractors. Such clauses are fully enforceable COGSA or its predecessor, the Harter Act.)

Amlin Corporate Ins. N.V. v. Union Pacific Railroad Company, (8:10CV31) 2011 U.S. Dist. LEXIS 7161 (D.Neb. 2011)(The court granted partial summary judgment to the railroad entitling it to enforce its $25,000 per car limit of liability because the railroad’s contract was wholly intrastate and in any event, the contract offered the shipper an election to ship under alternative Carmack Amendment terms, which the shipper declined to elect or pay for.)

Amlin Corporate Ins. N.V. v. Union Pacific Railroad Company, (8:10CV31), 2011 U.S. Dist. LEXIS 70447 (D.Neb. 2011)(Motion for reconsideration denied.)

Mattel, Inc. v. BNSF Railway Company, (10-0681-R & CV 10-3127-R), 2011 U.S. Dist. LEXIS 495 (C.D.Cal. 2011) (The court granted the railroad’s motion for summary judgment because the shipper had agreed, in contracting with the ocean carrier, that it would not sue any of the ocean carrier’s subcontractors, of which BNSF was one. The covenant not to sue was enforced and the case against BNSF was dismissed with prejudice.)

Navigators Ins. Co. v. Union Pacific Railroad Company, (C 11-2601 CW), 2012 U.S. Dist. LEXIS 12255 (N.D. Cal. 2012)(In a case involving cargo damage, the court granted the railroad’s motion for leave to amend to file a third party complaint against the shipper for breach of contract, breach of express duty to indemnify and declaratory relief as the shipper had a contractual duty to load the cargo properly onto the rail car and to indemnify the railroad for losses stemming from its, or its agents failure to do so.)