On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 96-00745)
Before: Sloviter, Greenberg, and Gibson,* Circuit Judges
The opinion of the court was delivered by: Greenberg, Circuit Judge.
This matter comes on before the court on defendant- appellant Preston Trucking Company Inc.'s appeal from an order of May 22, 1997, denying reconsideration of an order for summary judgment entered in this matter on March 25, 1997, in favor of plaintiff-appellee, Robert Burton Associates Inc. Burton, a shipper, brought this action against Preston, a carrier, under the Carmack Amendment for loss of merchandise in transit.1 Preston concedes that it is liable to Burton and thus only damages are in dispute.
The district court set forth the facts and the legal issue involved in its amended letter opinion of March 18, 1997, as follows:
The basic facts in this matter are not in dispute. Preston picked up eighty-one cases of cigarette papers from Burton's warehouse in West Caldwell, New Jersey, on or about December 28, 1994. Those eighty-one cases were not delivered to Burton's customer, Anpesil Distributors, Inc., ("Anpesil") in Jersey City, New Jersey. Neither Burton nor Preston can account for the whereabouts of the shipment. A replacement shipment of eighty-one cases of cigarette papers was delivered to Anpesil and Burton received payment in full.
Preston concedes that it failed to deliver the goods.
Therefore, the only dispute is whether Burton's damages in this case should be the market value of the goods or the replacement cost of the goods.
Preston points out, in harmony with the district court's findings, that Anpesil paid an invoice price for the replacement goods which was for "the same exact price that Burton intended to charge for the earlier shipment." Br. at 4. Moreover, the "replacement shipment included identical products in the identical quantities to the products that were contained in the lost shipment" and Burton's cost to "purchase, procure, warehouse, ship and generally in an all-encompassing manner service the needs of Anpesil on [the replacement] invoice . . . was 17,591.41."2 Br. at 4-5 (internal quotation marks omitted). Finally, Preston asserts that Burton had a sufficient quantity of replacement goods on hand both to replace the lost goods and to fill all its orders from all its customers.
Burton's entire statement of facts in its brief is the following:
Appellee, Robert Burton, is a distributor of cigarette papers. Defendant, Preston Trucking is a motor common carrier. Appellee, Robert Burton, Inc., had sold 81 cases of cigarette papers to one of its customers, Anpesil Distributors, who tendered the goods to Preston for delivery to the customer and Preston lost and failed to deliver the goods. As a result, the customer did not pay for the goods. Plaintiff sued under the `Carmack Amendment' 49 U.S.C. § 11707, now 49 U.S.C. § 14706, for breach of contract of carriage and the District Court properly awarded damages in the amount of the invoice price. The damages awarded is in the amount of $55,928.99.
Br. at 1-2.3 Thus, Burton does not deny that Preston has stated the facts accurately.
The district court in its letter opinion noted that Preston argued that Burton's replacement cost is the appropriate measure of damages. The court, however, rejected this measure of damages as it regarded it as being "more suitable when a consignee sustains the loss and is forced to go into the open market at destination to procure a replacement for the lost or damaged property," citing ...