Legal Lookout     May-August 2008 Editions

Kirby’s wake?

How the calm waters of ocean transportation intermediary and subcontractor liability suddenly became unpredictable
(A 4-Part Article Submitted to the 2008 Pacific Admiralty Seminar)

Steven W. Block

Uniformity and predictability are the premises and primary goals of U.S. maritime law.  Federal admiralty jurisdiction definitionally obtains under Article III, § 2 of the U.S. Constitution, which grants judicial power to the federal courts to try “all Cases of Admiralty and Maritime Jurisdiction.”  Volumes have been litigated, legislated and academically examined about cognizability under this unique sub-arm of federal jurisdiction.  Summarily, it may be said that admiralty jurisdiction lies for matters which satisfy the Supreme Court’s “location and connection” test, which analyzes a cause of action’s locale, “general features,” whether it has “a potentially disruptive impact on maritime commerce,” and whether it has a “substantial relationship to traditional maritime activity.”[1]

Courts and the legislature[2] have expanded the scope of these concepts so that admiralty jurisdiction encompasses matters that have almost any possibility of impacting interstate or international maritime commerce, however remote.[3]  But the general character of an incident, i.e., its traditional maritime characteristics, is the foundation of the jurisdictional analysis.  By providing industry and state governments a uniform body of law, inherently transient maritime commerce benefits tremendously from a stable legal environment.  The rules and regulations remain static for shippers, carriers and other industry participants despite passage through numerous local jurisdictions which might otherwise impose divergent legal considerations on those traveling on their waters.  This program allows the U.S. government to develop a single maritime policy that comports with national policy and the country’s place in the international community.

The development of shipping technology, the advent of containerization and intermodalization, the greater role of ocean freight forwarders and non-vessel operating common carriers, modern shipping volumes and other factors has necessitated change in this primordial field of law.  No longer can ocean shipping be viewed in a saltwater vacuum.  No wonder that altering the course of a legal vessel accustomed to changing tack with extreme infrequency has proved confusing and uncertain.  But no matter how stormy the dissent or how great the odds of collision with other legal concepts, the guiding precepts of admiralty law – uniformity and predictability – must remain paramount if U.S. law hopes to preserve its place as an effective foundation of our country’s shipping industry.

This paper addresses recent U.S. case law which adjudicated admiralty jurisdiction – directly and indirectly – in the context of intermodal liability.  It begins with a nostalgic glimpse of the jurisdictional seascape through the early 2000s, and then explains how the U.S. Supreme Court’s 2004 landmark decision in Norfolk Southern Railway Co. v. Kirby[4] (“Kirby”) was hailed as a much-needed rescue from the uncertainty of prevailing law governing liability of surface carriers which operate pursuant to through ocean bills of lading.  The paper then analyzes how Kirby unexpectedly was distorted by subsequent case law, most notably Sompo Japan Ins. Co. v. Norfolk Southern Ry. Co.[5] (“Sompo Japan”).  This includes a statement of Sompo Japan’s current status and potential eventualities, and is followed by an explanation of the predicament recent case law has created.

The evolution of ocean shipping and law governing it: Kirby’s course is charted

There can be little debate that the worldwide shipping industry’s adoption of containerization as a fundamental operational technique has been successful.  In addition to the safety and expedience of cargo transportation on ocean-going vessels, containerized freight is more easily booked, tracked, transshipped, and conveyed to surface carriers than was the case some forty years ago.  Industry, consumers and safety have all benefited tremendously.

Multimodal transportation documented by through bills of lading[6] is now the norm.  Transportation intermediaries of every mode facilitate the process, offering their shipper customers their expertise, contacts and carrier contracts to expedite the process.  It is difficult to conceive how modern shipping volumes could be processed without a standardized system of transportation packaging.

However, distinct bodies of law had developed for surface and ocean carriage.  Jurisdiction over ocean claims was subject to admiralty jurisdiction, with cargo liability governed by the U.S. Carriage of Goods by Sea Act[7] (“COGSA”).  The liability of railroads and motor carriers, which developed as industries millennia after vessel operation, were subject to the Carmack Amendment to the Interstate Commerce Act (“Carmack”).[8]  While COGSA liability concepts are founded in negligence, and Carmack imposes more of a strict liability burden on carriers, the two liability regimes’ principles and considerations are largely similar.  COGSA was designed to accommodate ocean carriage “tackle to tackle,”[9] and some of its statutorily prescribed defenses are exclusively pertinent to water carriage (such as “dangers of the sea,” and “saving or attempting to save life or property at sea. . .”).  However, most could be applied to circumstances of losses occurring on land if broadly interpreted.  Conversely, most Carmack defenses – which are fewer in number – could be applied to losses at sea.

Both statutes contain limitation of liability provisions, allowing carriers to limit their exposure for lost or damaged freight.  COGSA specifies a minimum liability of $500/package, defined as a “customary freight unit.”[10]  Carmack allows surface carriers to limit their liability to a “reasonable” extent, an ill-defined but largely unproblematic concept that may result in pennies-per-pound of freight recoveries against carriers.[11]  Both statutes (and their interpretational case law) require demonstration that the shipper be afforded a reasonable opportunity to declare the full value of its freight, and obtain full carrier liability (typically for a higher freight charge).

With industry’s development and the rise of intermodalism, collision between Carmack and COGSA was inevitable.  “Himalaya clauses” had become standard terms in ocean bills of lading since the 1955 English case in which they were first recognized.[12]  They extend the statutory and contractual of rights the issuing ocean carrier enjoys to the carrier’s subcontractors, usually consisting of stevedores, warehousemen and other dockside service providers.  The Himalaya clause at issue in Kirby, which is typical, provided as follows:  “These conditions apply whenever claims relating to the performance of the contract evidenced by this are made against any servant, agent or other person (including any independent contractor) whose services have been used in order to perform the contract.”[13]

In other words, if a longshoreman engaged by the ocean carrier of record damaged a cargo, his/her employer’s liability would be limited to $500.00/package just as the carrier’s would be.  This system generally worked well until steamship lines undertook the lucrative practice of offering intermodal door-to-door service.  Ocean carriers began issuing through bills of lading for transportation that inherently required one or two (i.e., rail and/or motor carrier) surface transits to destination.  Their position was that a connecting surface carrier was a “servant, agent or other person (including any independent contractor) whose services have been used in order to perform the contract,” and was entitled to COGSA’s limitation of liability.  This raised the question of whether COGSA or Carmack governed a claim for lost/damaged freight occasioned by the surface carrier.

The confusion in courts addressing this issue stemmed from whether cargo damage suffered while freight was on a railroad track could be subject to COGSA, and therefore admiralty law.  Surely such circumstances failed admiralty jurisdiction’s locale and traditional maritime activity tests.[14]  Thus, admiralty jurisdiction in the modern age became the stage for a dispute over whether ocean carriers could extend maritime law – by way of Himalaya clauses – to railroads and motor carriers.

Kirby modernizes the law[15]

“This is a maritime case about a train wreck,”[16] begins the U.S. Supreme Court’s landmark decision in Kirby.  Two thirds of the opinion addresses the High Court’s sua sponte attention to admiralty (the parties declared only diversity jurisdiction).  The case’s immediate impact, especially for its parties, was its holding that an ocean carrier’s $500/package limitation of liability applies to a connecting railroad.  However, Kirby’s jurisprudential significance is far broader.

Kirby’s fact pattern is simple, and one wonders why decades were required for its issues to come to bear.  Shipper Kirby engaged Australian freight forwarder International Cargo Control (“ICC”) to arrange transit of freight from Australia to Alabama.  ICC issued a through bill of lading naming itself as carrier and Kirby as shipper, and limiting ICC’s liability for lost or damaged freight.  The bill of lading contained a standard Himalaya Clause extending its terms to “any servant, agent or other person (including any independent contractor) whose services have been used in order to perform the contract [i.e., the bill of lading].”[17]

ICC[18] engaged ocean carrier Hamburg Süd for the ocean transit.  Hamburg Süd issued its own through bill of lading to ICC, naming ICC as its shipper.  Kirby was not a party to the Hamburg Süd/ICC bill of lading.  The Hamburg Süd bill of lading also contained a Himalaya Clause and limitation of liability provision.

Hamburg Süd engaged the Norfolk Southern Railroad to transport the freight from the Port of Savannah (where the steamship line discharged it after successful ocean transit) to Huntsville, Alabama.  The freight was damaged during railroad transit as the result of a derailment.[19]

Kirby’s subrogated insurer sued the railroad.  The U.S. District Court for the Northern District of Georgia found the railroad’s liability limited to $500/package per Hamburg Süd’s bill of lading.  The Eleventh Circuit reversed on the ground Kirby and the surface carrier were not in privity of contract.[20]  The Court of Appeals determined that “a special degree of linguistic specificity is required to extend the benefits of a Himalaya Clause to an inland carrier.”[21]  Lastly, the Eleventh Circuit concluded that Hamburg Süd’s limitation of liability provision could apply to Kirby “only if ICC was acting as Kirby’s agent when it received Hamburg Süd’s bill.”[22]  This would hold the railroad fully liable for the cargo loss.

Because various circuits had adopted inconsistent positions, the U.S. Supreme Court granted Norfolk Southern’s petition for certiorari.  At the heart of the court’s jurisdictional analysis was the “spatial versus conceptual” aspect of a maritime contract.[23]  Maritime contracts’ definitional ambiguities, when scrutinized as sources of admiralty jurisdiction, must be considered in the context of transportation’s evolving nature.  The primary objectives of both maritime contracts at issue (i.e., both bills of lading) were “to accomplish the transportation of goods by sea from Australia to the eastern coast of the United States.”[24]  While both contracts contemplated surface transit, the court proclaimed that “under a conceptual rather than spatial approach, this fact does not alter the essentially maritime nature of the contracts.”[25]

Kirby established the principle that maritime contract’s principal objective – ocean carriage – is not materially altered by non-ocean carriage components of through transit.  A single bill of lading is convenient and advantageous to all concerned, including the shipper.  Federal admiralty jurisdiction is designed to formulate and apply a uniform body of law to maritime disputes,[26] and “confusion and inefficiency[27]” will be avoided by a uniform body of law governing interpretation of Himalaya clauses.

Surely Kirby knew and understood that ICC would arrange surface transit for a transport ending in Huntsville, Alabama.  Despite Norfolk Southern not being in contractual privity with Kirby, it enjoys the benefit of both ICC’s and Hamburg Süd’s bills of lading.

From insurers and carrier claims adjusters to lawyers and academics to federal judges, Kirby seemed to have clarified admiralty jurisdiction’s applicability to losses occurring at most any point in an ocean through transit.  It also appeared to unequivocally validate Himalaya clauses as a basis for service providers to extent contractual terms – including limitation of liability – to their subcontractors. 

But what about Carmack?  Could the U.S. Supreme Court have been unaware of or ignored a federal statutory liability regime specifically designed to govern railroad liability?  Does the absence of a Carmack analysis in Kirby demonstrate that the High Court intended Kirby to apply only when a shipper does not specifically invoke Carmack?

Legal Crosscurrents, or Sompo Japan derails Kirby

In March 2006, shipper Kubota Tractor Corporation (“Kubota”) booked with ocean carrier Mitsui OSK Line, Ltd. (“MOL”) through transit of a cargo of tractors from Japan to Suwanee, Georgia via the Port of Long Beach, California.  MOL issued to Kubota through bills of lading, and “subcontracted” surface carriage from Long Beach to Georgia with the Union Pacific Railroad (“the UP”).  The UP, in keeping with industry practice, offered MOL surface transportation pursuant to its electronic waybills.[28]  The UP train derailed in Texas, damaging the subject freight.[29]

The MOL through bills of lading provided for $500/package limited liability as sanctioned by COGSA, and a Himalaya Clause extending this protection to MOL’s agents and subcontractors.  It also provided Kubota an opportunity to opt for full carrier liability, which was declined.  Not surprisingly, MOL’s through ocean bills of lading did not offer the shipper an option of “full Carmack Liability.”  Lastly, the MOL bill of lading included a “clause paramount” and a “period of responsibility clause” which extended COGSA beyond its “tackle to tackle” statutory applicability.[30]

Sompo Japan Insurance Company (“Sompo Japan”) insured the damaged freight, and sued the UP in subrogation in the Southern District of New York.  Sompo Japan also insured a second shipper, Olympus Optical Company (“Olympus”), whose freight was damaged in the same rail accident, after water carriage by Kawasaki Kisen Kaisha.  This produced a rather complex procedural history.  Two separate actions were filed, the first on behalf of Olympus, which became known as “Sompo I.”  The Kubota action was billed “Sompo II.”  Confusion developed as to which decision is Sompo I and which is Sompo II, when presiding judges changed and the Southern District of New York decided the latter-filed action first.  Both are on appeal to the Second Circuit with virtually identical briefing.  References herein to “Sompo Japan” are to Sompo II, which is the Second Circuit’s published opinion.

The district court found the railroad’s liability limited to $500/package per the extended MOL bill of lading.  It rejected Sompo Japan’s contention that Carmack and the Staggers Rail Act of 1980[31] (the “Staggers Act”) governed the UP’s liability.[32]

The Second Circuit reversed and remanded the Southern District of New York’s decision in a thoughtful analysis of transportation law principles and history.  Its public policy concerns have merit and, at least to a large degree, are justified by statutory language, legislative history and public policy.  The court concludes that COGSA’s contractual extension to connecting rail carriers in intermodal transit cannot dislodge Carmack as the statutorily-intended cargo liability regime for surface transportation.  This is because “COGSA only applies to ‘the period from the time when the goods are loaded on to the time when they are discharged from the ship,’ . . ., [and] courts have consistently held that when COGSA is extended by contract beyond the tackles . . ., the statute does not apply of its own force, or ex proprio vigore, but rather as a contractual term.”[33]  Carmack, on the other hand, does apply ex proprio vigore, and therefore must take precedence.

Railroads indisputably may limit their liability.  “However, the combined effect of § 10502(e) [Staggers] and § 11706(a) [Carmack] is that rail carriers that wish to limit their liability must offer the shipper the option of full Carmack coverage, which includes both the Carmack version of strict liability and full coverage for loss.”[34]  The court, having concluded that Carmack governs the railroad’s liability, reversed and remanded to the district court “one question”:

[W]hen Union Pacific negotiated the applicable terms of carriage of Kubota’s tractors, did it provide the shipper an opportunity, consistent with Staggers . . . to receive full Carmack liability coverage as well as “alternative terms”? If so, then under Carmack and Staggers . . ., such alternative terms would circumscribe Union Pacific’s liability.  If not, and in the absence of any other defense, then Union Pacific, having failed to comply with the Carmack and Staggers requirements, would be liable for the full value of the tractors.[35]

While the UP’s waybills adopted MOL’s bill of lading,[36] and the latter offered Kubota a full opportunity to declare full value, “it does not provide the option of full coverage under Carmack.  . . . [Because] COGSA liability is grounded in negligence while Carmack liability is rooted in strict liability, . . . [the court] cannot assume that the shipper contracting with Union Pacific had the opportunity to choose among several types of liability coverage and opted not to pay a higher freight rate for full coverage under a strict liability rule.”[37]

Despite Sompo Japan’s attempts to distinguish Kirby, the two decisions are fundamentally at odds.  While there are differences between the Kirby and Sompo Japan fact patterns, the policy and precedent both cases pronounce are substantially divergent.  Per Kirby, a uniform policy of federal maritime law governs freight claims if a through ocean bill of lading’s terms are extended to connecting carriers.  The High Court pronounced this as desirable from both industry and legal perspectives, recognizing that parties may retain some element of control if they disfavor the “default rule” it was establishing.  Sompo Japan stands for the principle that ocean carriers may not extend COGSA and the limited liability terms of their through bills of lading to surface carriers, and that the latter must limit their own liability in accordance with Carmack and Staggers.

Sompo Japan seeks to distinguish the Supreme Court’s analysis in Kirby on the ground that the plaintiff subrogated insurer in Kirby “failed to raise the issue of Carmack’s applicability.”[38]  The Second Circuit asserted that Kirby was concerned exclusively with COGSA’s preemption of state law.  In its opinion, the Court of Appeals stated that Allianz Australia Insurance omitted a Carmack argument from its brief.[39]

However, the UP, in the pending appeal of Sompo Japan, points out that “[t]he Carmack Amendment was in fact referenced in no less than five briefs filed with the Supreme Court in Kirby.”[40]  Moreover, it is difficult to conceive that the Supreme Court was unaware of, or disregarded, such a significant component of an analysis that is largely sua sponte in the first instance.

Perhaps most importantly, however, is the notion that the Supreme Court’s reasoning, intentions and goals apply whether or not the supplanted law is Carmack or state law.  Sompo Japan asserts that:

In Kirby, the Court was primarily concerned with the lack of uniformity and consistency that would result if state law were applied to contracts extending COGSA’s terms inland.  That is a significant concern, especially for the myriad parties potentially responsible for an inland carrier’s damage to goods who cannot know before the fact which state law might define the contours of their liability.  The Supreme Court’s decision that national law will govern the interpretation of an international bill of lading with a substantial sea component adroitly avoids that problem [emphasis in the original].[41]

However, while it is true that potentially applicable state law from multiple jurisdictions would be undesirable, Kirby quite clearly had far more in mind:

As COGSA permits, Hamburg Süd in its bill of lading chose to extend the default rule to the entire period in which the machinery would be under its responsibility, including the period of the inland transport.  Hamburg Süd would not enjoy the efficiencies of the default rule if the liability limitation it chose did not apply equally to all legs of the journey for which it undertook responsibility.  And the apparent purpose of COGSA, to facilitate efficient contracting in contracts for carriage by sea, would be defeated.[42]

By the Second Circuit’s analysis, the Supreme Court intended to create a default rule creating uniform principles that supplant conflicting state law, but not conflicting federal law.  Were that the case, no true default rule would exist, and the Supreme Court’s analysis would be meaningless as a practical matter.  Significantly, most connecting surface transportation is interstate (including the transit addressed in Kirby).  By the Second Circuit’s analysis, Kirby would apply only to intrastate surface transits which do not implicate Carmack.

In response to the Second Circuit’s remand, the district court found that the UP had not given Kubota an opportunity to opt for “full Carmack liability,” as its waybills were not that specific.  The UP appealed that decision, which is now pending before the Second Circuit.  Concurrently appealed is the Sompo I decision, which is substantially identical.

In its pending appeal to the Second Circuit, the UP reasserts most of the same arguments it submitted in its failed argument as the appellee of Sompo Japan’s earlier appeal, including citation to a number of federal appellate opinions that support Kirby in a manner incompatible with Sompo Japan.[43]  The briefing reads almost like a motion for reconsideration.  As Sompo Japan is quick to point out, the UP concedes that the Court of Appeals “would have to essentially have to [sic] reverse its prior decision in the earlier Sompo appeal in order for UP to succeed in the appeals at issue here.”[44]  While it always is possible the Second Circuit will reverse itself, it is important that the record submitted to the Supreme Court be as thorough as possible.

Aftermath: Results of the uncertain waters Sompo Japan created

Sompo Japan has been cited in no fewer than 22 opinions since it was issued in July 2006, mostly from Second Circuit courts.  Those Second Circuit courts, despite the uproar over the apparent conflict between Kirby-Sompo Japan, have necessarily applied and defended the Sompo Japan doctrine.[45]  Analysis also has been given to whether or how Sompo Japan’s principles might be extended to slightly differing circumstances.[46]  Kirby has been cited in at least 133 decisions throughout the country.

While forum shopping and refusal of surface carriers to operate under through bills of lading in the Northeast are potential complications of Sompo Japan, these are not likely to any significant extent.  Business concerns are more likely to drive geographical selection, and the location of a loss is a controlling factor in the situs of litigation.  International transportation, which is subject to the economic circumstances of supply and demand, contract bargaining power, and world economy, typically addresses legal concerns in the business context.

At a minimum, however, Sompo Japan will produce confusion.  Railroads and truckers, sometimes at the insistence of their insurers, might prefer their own bills of lading or master contracts issued directly to shippers of intermodal freight.  Rather than have a separate documentation procedure for the Northeast, some more liability-conscious carriers might adhere to that practice in any event.

The current predicament is likely to remain in place at least through 2010, which is the soonest the Supreme Court might accept certiorari, hear an appeal of the Second Circuit’s expected affirmation of the district court’s decision regarding offer of full liability, and issue a decision potentially reversing Sompo Japan.  The Second Circuit could reverse itself in the pending appeal, but this seems unlikely.

In any event, the significance of these conflicting precedents may be short lived.  The United Nations Committee on International Trade Law may soon produce a uniform ocean cargo liability regime which would provide for connecting surface carrier limitation of liability.  If the United States signs the expected treaty, the significance of Kirby and Sompo Japan may be diminished considerably.