A federal court has found a motor carrier liable for a load of frozen salmon that disappeared from a terminal in Baltimore. And it found a driver and truck owner owes indemnity to the motor carrier. (Merchants Terminal Corp. v. L & O Transport, Inc. D. Maryland. No. SAG–09–cv–2065. April 20)
(We reported on motions for summary judgment of this case in the February issue, page 60.)
In October 2008, the public cold storage warehouse Merchants hired Charles Elmore to drive a truckload of frozen salmon from its warehouse in Delaware to its Baltimore facility.
Elmore dropped the fish at Merchants’ Baltimore warehouse in the middle of the night, but by the morning the container containing 2,200 cartons of frozen salmon had disappeared, despite a locked gate and the use of a kingpin lock.
Merchants sued Elmore for negligence and L&O Transport Inc., the transportation company under whose authority Elmore operated, pursuant to the Carmack amendment to the Interstate Commerce Act.
The court dismissed Elmore as a defendant, but he remained in the case because L&O filed a cross-claim against him for indemnification.
The court said Merchants asserted that L&O is liable for damages because Carmack “imposes something akin to strict liability upon carriers operating in interstate commerce.”
After a bench trial, the court found L&O liable under the Carmack amendment and awarded Merchants $57,559 plus prejudgment interest. The court further found that Elmore owes indemnity to L&O.
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“L&O qualifies as a carrier under the Carmack amendment, and has failed to rebut the statutory presumption of carrier liability,” the court said. “The amendment provides shippers with the right to sue carriers for damage or diminishment to goods during transport.”
It said Merchants proved its prima facie case under the amendment, because the salmon was given to L&O in good condition, delivery was not completed, and Merchants demonstrated damages because while the salmon was recovered several weeks later, it was sold at a much lower salvage price.
L&O was unable to prove non-delivery resulted from one of five statutory exceptions to Carmack liability: an act of God, the public enemy, the act of the shipper himself, public authority, or the inherent vice or nature of the goods.
It also ruled Elmore owed indemnity to L&O under the owner-operator lease agreement, saying his duty of indemnity was not limited to situations in which he or his employees acted negligently, but applied for all claims of loss or damage arising from his work as a contractor with L&O.