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E. W. BOWMAN, INC. v. NORFOLK & W. RY. CO.

February 12, 1980

E. W. BOWMAN, INC., a corporation, Plaintiff,
v.
NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, and Kirby Transfer and Storage Corporation Incorporated, Defendants



The opinion of the court was delivered by: WEBER

MEMORANDUM

E. W. Bowman, Inc. ("Bowman") filed suit against Norfolk and Western Railway ("Norfolk"), a rail common carrier, and Kirby Transfer and Storage Corp., Inc. ("Kirby"), a motor common carrier, to recover for the loss of a lehr belt in transit. The lehr belt is one part of a glass annealing furnace which Bowman undertook to ship from its Uniontown factory to Owens-Illinois, Inc. in City of Industry, California.

 Bowman alleges that pursuant to a bill of lading, Kirby took possession of the furnace at Bowman's Uniontown factory, loaded the property on its trailer, and transported it to Norfolk's Rook Station piggy-back ramp. Norfolk transported the goods on its line to Genex Terminal, Chicago, Illinois. At the Genex Terminal the goods were further consolidated and carried by truck tractor to the Sante Fe Station in Chicago for further shipment to Silver Fleet, Inc., a local Los Angeles trucking firm. Silver Fleet made the final delivery to Owens-Illinois, Inc. in City of Industry, California. The lehr belt was missing upon arrival of the shipment at Owens-Illinois.

 Defendants Norfolk and Kirby have filed separate motions for summary judgment. Norfolk supports its motion by arguing that Kirby issued a through bill of lading and, therefore, Norfolk, as a connecting carrier is not liable to Bowman under the Carmack Amendment. Norfolk also contends that Bowman's lawsuit is time-barred by the limitations of Section 2(b) of the Uniform Domestic Straight Bill of Lading *fn1" since Bowman failed to file suit against Norfolk within 2 years and 1 day of Norfolk's denial of Bowman's claim of loss.

 Defendant Kirby moves on the grounds that it issued a straight bill of lading for goods consigned to Fort Pitt Consolidators in Pittsburgh and no loss occurred during this transport. In the alternative, Kirby argues that the plaintiff is barred for failure to file a claim within the time limitations set forth in the uniform bill of lading.

 The bill of lading issued by Kirby recites:

 
"every service to be performed hereunder shall be subject to all the terms and conditions of the Uniform Domestic Straight Bill of Lading set forth (1) in Official, Southern, Western, and Illinois Freight Classifications in effect on the date hereof, if this is a rail or a rail-water shipment, or (2) in the applicable motor carrier classification or tariff if this is a motor carrier shipment." Plaintiff's Complaint in Assumpsit, Exhibit A

 Bowman and Kirby argue that Kirby accepted the 3 piece annealing furnace for "through transportation", or interstate transportation, and issued a through bill of lading which would control the entire transport or shipment of the goods including carriage over Norfolk's lines. Kirby alleges that it issued a straight bill of lading for carriage of the goods from Uniontown to Pittsburgh. We shall consider this issue now because the controlling nature of the bill of lading issued by Kirby over the entire course of shipment must be decided before we can apply the provisions of Kirby's bill of lading to dealings between Norfolk and Bowman.

 We hold that Kirby issued a through bill of lading providing for the shipment of the glass annealing furnace from Uniontown, Pennsylvania to City of Industry, California through several connecting carriers, including Norfolk. When Kirby took possession of the goods at Bowman's Uniontown factory, the goods had actually "started in the course of transportation to another State." Texas & New Orleans Railroad Co. v. Sabine Tram Co., 227 U.S. 111, 123, 33 S. Ct. 229, 57 L. Ed. 442 (1913); Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 125, 32 S. Ct. 641, 56 L. Ed. 1009 (1912).

 The bill of lading issued by Kirby, which is attached to its motion for summary judgment as Exhibit 1, recites that property described therein was consigned to "Fort Pitt Consolidators, Inc. (For Consolidation). Destination Pittsburgh State PA" "Route" is scratched out and the bill of lading bears the wording "For Further Consolidation by Genex Terminal Co., Chicago, Ill." The bill of lading also carries the notation within the chart for description of property

 City of Industry is noted on the bill as being the final destination of the goods. We believe that the essential character of the commerce here is interstate Pennsylvania to California and that this should control even though "Pittsburgh" is indicated as the "Destination".

 
"It makes no difference . . . that the shipments of the products were not made on through bills of lading . . . ." Southern Pacific Terminal Company v. Interstate Commerce Commission and Young, 219 U.S. 498, 527, 31 S. Ct. 279, 288, 55 L. Ed. 310 (1911).

 Although Kirby's bill of lading is arguably not a "through bill of lading" strictly on its face, we are of the opinion that Kirby received the goods for interstate transportation and the goods ...


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