On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civil No. 03-cv-00885) District Judge: Hon. Joy F. Conti.
The opinion of the court was delivered by: Cowen, Circuit Judge
BEFORE: SMITH and COWEN, Circuit Judges, and ACKERMAN*fn1, District Judge
Estes Express Lines Corporation ("Estes") appeals the order of the district court granting summary judgment in favor of Emerson Electrical Supply Co. ("Emerson") requiring Estes to pay for the full value of damaged electrical equipment it transported pursuant to the Carmack Amendment, 49 U.S.C. § 14706. The district court held that the recent legislative changes to the Carmack Amendment did not eliminate the requirement that a carrier such as Estes provide a shipper with a fair opportunity to choose between two or more different rates with corresponding levels of liability. The court concluded that Estes could not limit its liability pursuant to its tariff because it failed to provide Emerson two or more different rates. We will affirm.
Emerson is a distributor and seller of electrical equipment produced by various manufacturers, including OEM, Inc. ("OEM"). Electrical Component Sales, Inc. ("ECS") is a distributor for OEM and provides technical and engineering services to Emerson's customers. Estes is a licensed and authorized motor carrier that transports goods in interstate commerce.
Emerson received a purchase order from Sharon Tube Company for electrical equipment manufactured by OEM. The total price of the equipment was $158,360.00. The shipping arrangements were made by Keith Rypczyk, an employee of ECS. Rypcyzk called Estes to request a quotation for transporting the equipment. Rypcyzk informed Estes that the shipment would consist of four pieces of electrical switch gears, and he provided the approximate dimensions and weight of each piece. Estes sent Rypczyk a fax quoting a shipping price of $450. Estes did not inform Rypcyzk of other shipping rates with corresponding levels of liability if the equipment were to be damaged in transit.*fn2
Pursuant to Rypcyk's instructions, Estes picked up the electrical equipment from OEM. The shipment consisted of four uncrated, shrink-wrapped pallets and two packages of lifting angles. OEM produced and signed a bill of lading that stated the shipper agreed to the terms and conditions set forth in the tariff governing the shipment. Pursuant to the bill of lading, the classification of the shipment was class 77.5. The bill of lading contained a declared value section that provided:
NOTE: Where the rate is dependent on value, shippers are required to state specifically in writing the agreed or declared value of the property. The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding $____ per ____.
(A2 173-74 ¶ 12.) OEM left the declared value spaces blank.
After OEM signed the bill of lading, Estes's driver affixed a pro sticker on the bill of lading that stated: "Driver's signature acknowledges receipt of freight only. Terms of EXLA-105 Rules Tariff apply." (A2 173 ¶ 8.) With respect to uncrated, new equipment, Tariff EXLA-105 provided:
If the shipper fails or declines to release the value of the property to a value not exceeding 10 cents per pound, or designates a value exceeding 10 cents per pound, shipment will not be accepted, but if a shipment is inadvertently accepted, it will be considered as being released to a value of 10 cents per pound and the shipment will move subject to such limitations of liability.
(A2 199.) If the goods were crated, the tariff provided that class 77.5 shipments were limited to a maximum value of $7.90 per pound.
The electrical equipment was damaged during shipment. On January 13, 2003, Emerson filed a cargo claim with Estes for $140,000.00. In response to the cargo claim, Estes sent a letter to Emerson stating that its liability was limited to ten cents per pound, or $1,020.00, based on Estes's Tariff EXLA 105-H.
Emerson then commenced an action in the district court to recover the full amount of the damaged shipment pursuant to the Carmack Amendment, 49 U.S.C. § 14706. Estes moved for partial summary judgment to limit its liability to $1,020.00 pursuant to the tariff limitations. Emerson filed a cross motion for summary judgment contending that the equipment was in good condition when the equipment was given to Estes for transport, and Estes did not effectively limit its liability by offering alternative valuations at different rates.
On June 29, 2004, the district court denied Estes's motion for partial summary judgment to limit liability. The district court held that the legislative changes to the Carmack Amendment did not alter the requirement that a carrier offer a shipper two or more levels of liability. It also found that Estes failed to offer Emerson two or more rates with corresponding levels of liability. The district court denied Emerson's motion for summary judgment without prejudice stating that it failed to offer any evidence that the goods were given to Estes in good condition.
On August 26, 2004, Emerson filed a second motion for summary judgment contending that the equipment was in good condition. The district court granted the motion and entered a judgment ...