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August 10, 1976

MERCHANT SHIPPERS, Defendant and Third-Party Plaintiff, v. BREMAN'S EXPRESS, INC., et al., Third-Party Defendants

The opinion of the court was delivered by: WEBER

Plaintiff, a manufacturer of storm windows in Indiana, Pennsylvania, agreed with a contractor to furnish storm windows to be installed at Eielson Air Force Base, Fairbanks, Alaska. Plaintiff made arrangement with the defendant, Merchant Shippers, a freight forwarder, for shipment of said windows. The function of a freight forwarder is to arrange for the shipment of goods by various common carriers from the point of origin to the point of destination.

 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:

 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 ...

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