Merchant Shippers secured the use of five "piggy back" trailers from the Baltimore & Ohio Railroad and two "piggy back" trailers from Penn Central Railroad and directed Breman's Express, a common carrier by motor truck, to deliver the trailers from the respective railroad yards to plaintiff's plant in Indiana, Pennsylvania, for loading by plaintiff, and subsequent transport by Breman to the terminal of the defendant Merchant Shippers in Pittsburgh, and thence to the Pittsburgh terminals of the aforesaid railroads. On picking up the loaded trailers at plaintiff's plant in Indiana, Pennsylvania, Breman's issued a bill of lading for the goods with a destination point of Fairbanks, Alaska.
The trailers were received under seal by the Baltimore and Ohio Railroad and the Penn Central Railroad at their terminals in Pittsburgh and were transported on flat cars to Chicago where they were picked up by the Burlington Northern Railroad. The Burlington Northern Railroad transported them to Seattle, Washington, where the Burlington Northern Railroad delivered them to a terminal of defendant Merchant Shippers. Defendant Merchant Shippers proceeded to break the seals on the trailers, unload each trailer and load the merchandise into boxcars. The boxcars were then switched by the Burlington Northern Railroad to the dockside of Puget Sound Tug & Barge Company where they were loaded on barges for shipment to Alaska. In Seattle at the time of unloading the trailers, substantial damage to the storm windows was discovered.
The boxcars were transported by Seattle Tug and Barge Company by water to Whittier, Alaska, where they were delivered to the Alaska Railroad Company and transported to Fairbanks, Alaska. At their destination, the boxcars were unloaded by representatives of the plaintiff, Season-All, and the damage observed. The cars were returned to the Seattle terminal of Merchant Shippers.
The trailers were shipped under seal from Indiana, Pennsylvania, to Seattle, where they were opened and reloaded into boxcars. The boxcars were again placed under seal at the Merchant Shippers terminal in Seattle and remained under seal until their arrival at the destination in Alaska.
Although an original bill of lading had been given to plaintiff Season-All at Indiana, Pennsylvania, by a representative of Breman's Express acting on behalf of Merchant Shippers, Merchant Shippers also received bills of lading from the connecting carriers. For the carriage from Seattle to the destination a new bill of lading was issued designating the point of origin as Seattle, the destination as Fairbanks, Alaska, and the route via Puget Sound Tug & Barge (Alaska Hydro-Train) and Alaska Railroad Company.
The plaintiff Season-All brought suit against Merchant Shippers, the freight forwarder, for the damage to the goods. Merchant Shippers has joined as third party defendants all of the common carriers involved in the transportation of the goods. Three of these, Breman's Express, Inc., Burlington Northern, Inc. and Alaska Railroad Company have moved for summary judgment. All motions for Summary Judgment are based in part on the effect of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11). The Carmack Amendment imposes liability on an initial carrier or a delivering carrier for damage done in the course of an interstate shipment, where goods move in interstate commerce on a through bill of lading. Merchant Shippers, as a freight forwarder, is required to issue its own bill of lading to its customer, Season-All, 49 U.S.C. § 1013. In turn, a common carrier gives a freight forwarder a bill of lading which governs the rights of the freight forwarder with respect to the particular carrier. We will consider each of the summary motions individually.
We conclude that Summary Judgment must be granted for third party defendant Alaska Railroad Company because:
1. There is no evidence that any damage to the goods occurred on its own line. It was the terminal carrier on a through shipment originating in Seattle from Merchant Shippers, via Puget Sound Tug and Barge Co. and Alaska Railroad. It has produced evidence that substantial damage to the goods were discovered in Seattle prior to the reshipment to Alaska.
Merchant Shippers does not deny this but merely responds that Plaintiff asserted that the goods were in good condition when they reached Seattle and, therefore, if plaintiff should establish this fact despite overwhelming evidence to the contrary, this would establish delivery in good condition to the initial carrier (Puget Sound) and establish the presumption.
Rule 56 requires that when faced with evidentiary support, an opposing party may not rely on mere averments of its pleading, but must come forward with evidence to show the existence of a genuine issue of material fact. We believe that this applies similarly to reliance on some other party's assertion. We believe that Rule 56 requires that Merchant Shippers now come forward with some evidence that the goods were delivered in Seattle to Puget Sound in good condition. This it has not done, and probably, in the face of the "overwhelming weight of the evidence that the damage had occurred prior to reaching Seattle" (Merchant Shipper's Brief p. 10), it cannot be done.
" . . . an issue of fact raised by a pleading is a phantom issue when it is clearly established what the material facts are and that there is no genuine issue as to them." 6 Moore's Federal Practice P 56.15(2) at p. 463.
The evidence produced by Alaska Railroad both rebuts the common law presumption that goods are injured on the line of the last carrier by showing that goods were injured elsewhere than on its own line, and also establishes that the goods were not delivered to an initial carrier in Seattle in good condition.
2. If the Carmack Amendment applies to the Alaska Railroad there must be evidence of an interstate shipment on a through bill of lading. Chicago & N. W. Ry. Co. v. Whitnack Co., 258 U.S. 369, 371-72, 42 S. Ct. 328, 66 L. Ed. 665 (1921).
The bill of lading for the carriage performed by Alaska Railroad, was the bill of lading given by Puget Sound Tug & Barge to Merchant Shippers upon receipt of the goods at Seattle for shipment to Fairbanks, Alaska. In all events, the act of Merchant Shippers in taking the goods out of their shipment from Pennsylvania to Alaska by unloading the cargo from trailers to box cars in Seattle breaks the continuous shipment under any bill of lading issued in Pennsylvania and constitutes a new shipment beginning in Seattle.
3. Merchant Shippers, as a shipper, to recover from Alaska Railroad, must show (a) delivery in good condition to the initial carrier (Puget Sound); (b) arrival in a damaged condition from the terminal carrier (Alaska Railroad); and the fact of damage during carriage. This is so both under common law and Carmack Amendment liability. Missouri Pac. R. Co. v. Elmore & Stahl, 337 U.S. 134, 137, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964).
The evidence produced by Alaska Railroad shows that it is impossible for Merchant Shippers to show what damage, if any, occurred during the carriage from Seattle to Fairbanks, because it cannot establish the extent of damage which had already resulted prior to the delivery to the initial carrier in Seattle. From the evidence produced we cannot find that Merchant Shippers is able to show that any damage to the goods occurred between Seattle and Fairbanks.
Even though not essential to our foregoing conclusions we find that the Alaska Railroad Company is not subject to the Interstate Commerce Act and in particular to the Carmack Amendment to that Act. Nor do we find that the Alaska Railroad Company has waived its right to move for summary judgment on this defense by reason of any failure to plead the defense affirmatively in its answer. There was no allegation of liability under the Carmack Amendment made against it in the Third Party Complaint, and its general denial was a sufficient answer. But we find that this objection is not a proper one in a response to a motion for summary judgment. 6 Moore's Federal Practice P 56.17(14) holds this objection
"not tenable in view of the general purposes of the Rules that decision should go on the merits and not on pleading technicalities, and for the further reason that the Rules prescribe most liberally for the amendment of pleadings."
BURLINGTON NORTHERN, INC.
Burlington Northern is either an intermediate connecting carrier under a through bill of lading issued by Breman's Express in Indiana, Pa. or was a single carrier under a rail bill of lading from Chicago to Seattle.
As an intermediate connecting carrier under the through bill of lading, Burlington Northern cannot be liable to Merchant Shippers under the Carmack Amendment. Litvak Meat Co. v. Baker, 446 F.2d 329, 335 (10th Cir. 1971).
With respect to Merchant Shippers' claim against Burlington Northern based on the rail bill of lading issued by Burlington Northern upon receipt of the goods at Chicago, Merchant Shippers must show certain facts to support its claim of common law liability against Burlington Northern as an intermediate carrier:
(1) Merchant Shippers must prove that the trailers were open for inspection by Burlington Northern.