United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
1906, Congress enacted a uniform set of rules governing
interstate shipments referred to as the Carmack Amendment.
These rules, among other things, govern liability when cargo
is damaged. They also preempt most state law claims arising
from damages. Here, Re-Borne, Inc.'s claims include those
made pursuant to state law. Since their claims are preempted,
Panther II Transportation, Inc.'s Motion to Dismiss [R.
5] is GRANTED.
Panther operates as an interstate motor carrier. In 2016, it
transported Whole Bovine Colustrum for Re-Borne from
Simpsonville, Kentucky, to Libertyville, Illinois. [R. 5 at
1.] Re-Borne asserts that its product is unique because it is
never heated, but remains frozen before, during, and after a
sterilization process. [R. 7 at 4.] Re-Borne alleges that
Panther did not follow its detailed instructions on how to
maintain the Colostrum during transport and the Colostrum was
ruined. [R. 7 at 6.] Without knowing the Colostrum had been
ruined, Re-Borne sold the Colostrum to its customers, which
resulted in loss of “significant sales, as well as
goodwill and customers.” [R. 7 at 6.]
was apparently no bill of lading signed between the parties,
but only a Handling Contract, which detailed how the
Colostrum should be handled, with very detailed instructions
regarding the required temperatures and expected timeframes
for delivery. [R 7 at 9; R. 1-1 at 19.] It appears to be
initialed by the driver for Panther. [R. 1-1 at 19.]
brings four causes of action [see id.] and seeks
damages due to the “total loss of its colostrum product
it entrusted to Panther, and  also lost goodwill and
expected future profits from its customers.”
[Id. at 4.] Plaintiff originally filed this suit in
Jefferson Circuit Court and Defendants removed. [R. 1.]
Carmack Amendment, enacted in 1906 as an amendment to the
Interstate Commerce Act, 24 Stat. 379, created a national
scheme of carrier liability for loss or damages to goods
transported in interstate commerce.” Exel, Inc. v.
S. Refrigerated Transp., Inc., 807 F.3d 140, 148 (6th
Cir. 2015). “The Amendment restricts carriers'
ability to limit their liability for cargo damage [and] makes
a motor carrier fully liable for damage, ” but provides
mitigation for carriers by preempting state and common law
claims so they may adequately determine the amount of
potential liability they are incurring. Exel, Inc.,
807 F.3d at 148. The Carmack Amendment does not impose
absolute liability, but only liability caused by the carrier.
See Adams Express Co. v. Croninger, 226 U.S. 491,
506 (1913). There is no dispute that common and state law
claims are preempted by the Carmack Amendment. See Adams
Express, 226 U.S. at 505 (“there can be no
rational doubt but that Congress intended to take possession
of the subject, and supersede all state regulation with
reference to it”); see also New York, N. H. &
H. R. Co. v. Nothnagle, 346 U.S. 128, 131, 73 S.Ct. 986,
988, 97 L.Ed. 1500 (1953) (“With the enactment in 1906
of the Carmack Amendment, Congress superseded diverse state
laws with a nationally uniform policy governing interstate
carriers' liability for property loss.”).
determine whether or not an item was moved in interstate
commerce for purposes of this act, “[t]he actual facts
govern. . . [T]he destination intended by the passenger when
he begins his journey and known to the carrier, determines
the character of the commerce.” New York, N. H.
& H. R. Co. v. Nothnagle, 346 U.S. 128, 130 (1953).
Though the Amendment requires the “initial carrier to
issue a receipt or bill of lading . . . when it receives
property for transportation from a point in one state to a
point in another, ” Adams Express, 226 U.S. at
504, the “[f]ailure to issue a receipt or bill of
lading does not affect the liability of a carrier.” 49
U.S.C.A. § 14706 (West); see also CNA Ins. Co. v.
Hyundai Merch. Marine Co., 747 F.3d 339, 355 (6th Cir.
2014) (“an actual or tangible bill of lading is not
necessary to impose liability on the initial carrier under
Carmack's plain terms”). There are few exceptions
to state law preemption under the Carmack Amendment. See
Exel, Inc., 807 F.3d at 148 (holding, in part, that a
third-party broker does not have a right to sue under the
Carmack Amendment). None are applicable here.
both parties agree that the Carmack Amendment applies in this
case of “carrier liability for loss or damages to goods
transported in interstate commerce.” Exel,
Inc., 807 F.3d at 148. Panther was transporting the
Re-Borne product from Kentucky to Illinois and back again. As
part of that transport, Panther agreed in the Handling
Contract that it would deliver the Colostrum to a third party
vendor and wait for the Colostrum to be processed by that
third party vendor, put it back in their truck and transport
it back to Re-Borne to be distributed. [R. 1-1.] Re-Borne
alleges that Panther did not follow the Handling Contract and
left the Colostrum on a loading dock in very hot weather. [R.
1-1 at 12.] Though there is no bill of lading, the Handling
Contract is adequately detailed for this Court to determine
that the alleged damage to the Colostrum occurred while the
item was in transit between states and, thus, this action
falls squarely under the Carmack Amendment. See New York,
N. H. & H. R. Co. v. Nothnagle, 346 U.S. 128, 130
(1953). This alleged action, leaving the Colostrum on the
loading dock, has led to all of Plaintiff's causes of
action. Plaintiff alleges the Colostrum was damaged by being
left on the loading dock, during interstate transport and,
therefore, the causes of action for breach of contract,
breach of implied duty of good faith and fair dealing, and
negligence are preempted.
rely in part on Gordon v. United Van Lines, Inc.,
130 F.3d 282 (7th Cir. 1997), which does not support their
case. In Gordon, the Seventh Circuit found that
“the Carmack Amendment does not preempt those state law
claims that allege liability on a ground that is separate and
distinct from the loss of, or the damage to, the goods that
were shipped in interstate commerce.” Id. at
289. In Gordon, the Seventh Circuit held that a
claim for intentional infliction of emotional distress was
entirely distinct from the Plaintiff's loss of goods and,
thus, not preempted. Id. at 289. However, they
simultaneously held that claims for breach of contract,
willful and wanton misconduct, and violation of a state fraud
statute were all preempted. Id. at 289. Here, this
is no such claim that is entirely separate from the loss of
goods. Each and every paragraph of Plaintiff's complaint
is tied to the damage of Colostrum during interstate
transport and their prayer of relief, for compensatory
damages for past and future lost profits, all point to the
damaged Colostrum. There is no cause of action that is that
is “separate and distinct from the loss of, or the
damage to, the goods that were shipped in interstate
commerce.” Id. at 289.
Rule of Civil Procedure 12(b)(6) allows a defendant to seek
dismissal of a complaint which fails to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6).
Plaintiffs state law claims are preempted, no relief can be
granted and those motions are ...