Norton v. Jim Phillips Horse Transportation, Inc.

901 F.2d 821
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 18, 1989
DocketNo. 88-2630
StatusPublished
Cited by5 cases

This text of 901 F.2d 821 (Norton v. Jim Phillips Horse Transportation, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norton v. Jim Phillips Horse Transportation, Inc., 901 F.2d 821 (10th Cir. 1989).

Opinion

STEPHEN H. ANDERSON, Circuit Judge.

Appellants Norton, Heir, Nossem, Fargu-son and Eikleberry (hereinafter referred to as the “Shippers”), each having an ownership interest in one or more of the eleven horses killed or injured when the horse transport van owned and operated by Jim Phillips Horse Transport, Inc. (“Phillips”) overturned, brought this action for damages against Phillips. Phillips asserted its liability was effectively limited because the “released valuation” agreement in the bill of lading expressly limited the liability of Phillips to $200 per horse unless a greater value was declared, and a greater value was not declared. The Shippers allege that Phillips did not effectively limit its liability and is therefore liable for the full value of the horses.1

On November 11, 1987 Phillips filed a Motion for Partial Summary Judgment on the issue of whether the liability of the carrier was properly limited to $200 per horse by the bill of lading. The district court, in its Memorandum Opinion and Order of August 16, 1988, granted Phillips’ motion. Because the district court’s Order was not a final order for purposes of appeal, the parties filed a Stipulated Judgment which was signed and entered by the district court on September 19, 1988. It is from the Stipulated Judgment that the Shippers appeal.

The district court, in granting the Motion for Partial Summary Judgment, held that the bill of lading was in “substantial compliance” with the tariff on file with the Interstate Commerce Commission. See Robinson v. Ralph G. Smith, Inc., 735 F.2d 186, 190 (6th Cir.1984). It also held that both Eikleberry and Blakeney, his groom, were clothed with sufficient authority by the Shippers to contract on their behalf to limit the liability of the carrier for the transport of the horses. And finally, the district court held that the Shippers, through Eikleberry, were given a fair opportunity to choose between two or more different levels of carrier liability. Eikle-berry was a trainer who had abundant experience with shipping horses, and was charged by the district court with notice of the terms, conditions and regulations contained in the tariff schedule on file with the Interstate Commerce Commission. Anton v. Greyhound Van Lines, Inc., 591 F.2d 103, 108 (1st Cir.1978); W.C. Smith, Inc. v. Yellow Freight Sys., Inc., 596 F.Supp. 515, 517 (E.D.Pa.1983) (shippers are charged with knowledge of tariff rates where they entered into a written agreement limiting the carriers’ liability and declined to change the declared value from that referred to in the agreement). Alternatively, the district court, citing Robinson v. Ralph G. Smith, Inc., 735 F.2d at 191, a case similar to this one, held that Eikleberry had an opportunity to choose a liability level through Blake-ney, who signed the bill of lading as sub-agent and failed to declare a higher value for the horses.

On appeal the Shippers allege that the district court erred in granting Phillips’ Motion for Partial Summary Judgment because of the existence of several genuine issues of material fact. First, the Shippers allege that there exists a genuine factual issue as to the adequacy of the bill of lading and whether it substantially complied with Phillips’ tariff filed with the I.C.C. They claim it was neither adequate nor in substantial compliance with the tariff because: (1) it contained pre-printed valuation figures for the horses and did not afford the shippers the opportunity to declare a higher rate of liability, (2) it listed [824]*824two of the eleven horses on the tenth and last line and therefore was ambiguous, and (3) it was misdated by one day. Second, and closely related to the first issue, the Shippers allege that there is a genuine issue as to whether they were afforded an opportunity to choose between two or more levels of liability. Third, the Shippers allege that there remains a genuine issue as to whether the owners of the horses clothed Eikleberry and Blakeney with sufficient authority to limit the liability of Phillips in the transportation of the horses.

The district court, in its comprehensively and ably written Memorandum Opinion and Order, fully restated the facts of this case and extensively reasoned its decision. We see no reason to duplicate the district court’s efforts and therefore affirm its decision, for substantially the same reasons as in the attached Memorandum Opinion and Order which is hereby adopted and incorporated into our decision.

Three additional points of clarification are worth making however. The Shippers argue that they were denied a reasonable opportunity to choose between different levels of liability, in part because of the fact that the value of $200 per horse was pre-printed on the bill of lading by Phillips. They cite Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1422 (7th Cir.1987), cert. denied, 485 U.S. 913, 108 S.Ct. 1068, 99 L.Ed.2d 248 (1988), for the proposition that:

“[T]he significance of the fact that ... the carrier, rather than the shipper, typed in the valuation figure on the bill of lading is ... only significant when the shipper is not adequately advised concerning the shipper's opportunity to declare a value for his or her goods.”

In Hughes, the court did not find it significant that the values were pre-typed by the carrier because the shipper was “clearly informed” of the alternate levels of liability available. Id. at 1422. Although this issue was not expressly addressed by the district court it is clear that the fact that the values were pre-printed in no way alters the outcome of this case. We agree with the court in Flying Tiger Line, Inc. v. Pinto Trucking Serv., 517 F.Supp. 1108, 1114 (E.D.Pa.1981), that “[b]y accepting the bill of lading ... with its clear [and pre-printed] statement of released rate valuation of the goods, and by not declaring a greater value [the Shippers] agreed to the terms contained therein.” See also Robinson v. Ralph G. Smith, Inc., 735 F.2d at 189-91.

Similarly, the Shippers argue that a genuine issue of material fact exists as to whether, under Anton, the Shippers made an “absolute, deliberate, and well informed” choice of liability. Anton v. Greyhound Van Lines, Inc., 591 F.2d at 108 (absence of bill of lading or other evidence of written agreement as to released value precluded fair opportunity to choose liability coverage). The Shippers rely in great part on the following language from Hughes: “[A]ny limitation of liability must be brought to the attention of the shipper before the contract is signed, and the shipper must be given a choice to contract, with or without, the limitation of liability in the movement of his goods.” Hughes v. United Van Lines, Inc., 829 F.2d at 1419-20. They seem to argue that in order for such assent to be valid the shipper or his or her agent must be expressly told orally that the liability would be limited. As discussed by the district court, however, the shipper is charged with knowledge of the terms and conditions of the tariff, particularly if the shipper is experienced, as Eikleberry undisputedly was.2

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Bluebook (online)
901 F.2d 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norton-v-jim-phillips-horse-transportation-inc-ca10-1989.