Union Pacific Railroad Company v. Greentree Transportation Trucking Co.

PRECEDENTIAL
Filed May 16, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 00-3326
UNION PACIFIC RAILROAD COMPANY
v.
GREENTREE TRANSPORTATION TRUCKING CO.;
DAVE SAUNDERS TRUCKING
GREENTREE TRANSPORTATION TRUCKING COMPANY,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 98-cv-01906)
District Judge: Honorable Donald J. Lee
Submitted Under Third Circuit LAR 34.1(a)
BEFORE: SCIRICA and AMBRO, Circuit Judges
and POLLAK, District Judge*
(Filed: May 16, 2002)
_________________________________________________________________
* Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
POLLAK, District Judge:
This case involves a shipment of cigarettes, a train
derailment, and a stolen trailer. The issues before this
court are whether the Carmack Amendment to the
Interstate Commerce Act applies to the case at hand and,
if so, whether the District Court properly entered summary
judgment in favor of the plaintiff railroad.
I. Background
A large quantity of cigarettes was to be sent--first by
train and then by ship--from Atlanta to Tokyo. The Atlanta
shipper of the cigarettes was Brown & Williamson Tobacco
Co., the Tokyo consignee was Sumitomo Corp., and the
intended final carrier by water, culminating in delivery to
the consignee, was American President Lines, which issued
a bill of lading covering the shipment.1 The Norfolk &
Southern picked the shipment up in Atlanta on November
11, 1996, and transported it by rail to New Orleans, where
the shipment was transferred to the Southern Pacific.

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(Union Pacific, the plaintiff in the District Court and
appellee here, is the successor in interest of Southern
Pacific.) If the delivery had proceeded according to plan,
Southern Pacific would have delivered the shipment of
cigarettes to San Pedro, California, at which point the
American President Lines vessel APL Wisdom would have
transported the cigarettes to Tokyo.
All did not go according to plan. The Southern Pacific
train that was carrying the shipment of cigarettes, along
with other shipments, derailed in Painted Rock, Arizona, on
November 16, 1996. After the cigarettes were taken from
the derailment site to the Southern Pacific yard in Phoenix,
Ronald Appelt, a Southern Pacific field manager, discussed
the transportation of two trailers to California with Dave
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1. While the bill of lading seems not to have been included in the record
on appeal, appellant’s recital of the participants to the bill of lading is
not contested by appellee.
2
Saunders, an independent trucking contractor. Saunders,
who had entered into a trip lease with Greentree
Transportation Company (a defendant in the District Court
and appellant here), represented that Greentree would
charge Southern Pacific $2904 to deliver the two trailers to
California.2
Trailer number REAZ610430, bound for Desert Empire
Storage in San Bernadino, was to be driven by Saunders.
Trailer number XTRZ230873, bound for a dock in San
Pedro, was to be driven first by Gary O’Donnell, another
independent Greentree driver, and then by Saunders. This
latter trailer contained the cigarette shipment. The
arrangement that Appelt and Saunders agreed on was that
O’Donnell would transport his portion of the shipment--the
San Pedro-bound trailer--to the Beacon Truck Stop in San
Bernadino and would then leave the shipment unattended
until Saunders could take over the shipment. Upon arrival
at a dock in San Pedro, this trailer was to be loaded onto
the American President Lines vessel APL Wisdom , which
would transport the cigarettes to their final destination in
Tokyo.
The first part of this arrangement proceeded smoothly.
When Saunders arrived at the Beacon Truck Stop in San
Bernadino, he acknowledged receipt of the San Pedro-
bound trailer from O’Donnell in good condition. Saunders
then delivered the San Bernadino-bound trailer to its
destination, at Desert Empire Storage in San Bernadino. At
this point, the operation ceased to proceed smoothly. When
Saunders returned to the Beacon Truck Stop, the location
where the San Pedro-bound trailer had been left, he
discovered that the trailer -- including, of course, the
shipment of cigarettes inside the trailer -- was missing. It
was determined that the trailer and the shipment of
cigarettes had been stolen.

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2. Greentree was not informed of the contract that Saunders entered into
on its behalf until the delivery to California went awry. In its
memorandum contesting Union Pacific’s motion for summary judgment,
Greentree suggested that Saunders did not have authority to bind
Greentree in this contract. The District Court, however, found that
Saunders did have the authority to bind Greentree, Mem. Op. at 7 (W.D.
Pa. Feb. 29, 2000), and this finding has not been challenged on appeal.
3
Notwithstanding the theft of one of the two trailers,
Greentree billed Southern Pacific $2904, the rate originally
quoted by Saunders in his discussions with Appelt for the
transportation of the two trailers. Southern Pacific paid the
entire $2904 to Greentree, and also paid the full value of
the stolen freight--$160,977.58--to what Union Pacific
refers to in its pleadings as "its Customer." 3 Southern
Pacific demanded reimbursement in this amount
($160,977.58) from Greentree. While Greentree’s insurance
carrier ultimately paid $10,000 to Union Pacific, as
successor in interest to Southern Pacific, the remaining
$150,977.58 has not been paid by Greentree or its
insurance carrier.
Union Pacific filed a complaint in the District Court for
the Western District of Pennsylvania on November 16,
1998, seeking money damages from Greentree in the
amount of $150,977.58. Union Pacific filed its complaint
pursuant to the Carmack Amendment to the Interstate
Commerce Act. 49 U.S.C. S 14706(a)(1) (1997). 4 After
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3. While Union Pacific does not make clear whether "its Customer" was
Brown & Williamson or Sumitomo or some other entity, the identity of
the "Customer" does not matter for the purposes of this appeal.
4. (a) General Liability.--
(1) Motor carriers and freight forwarders.--A carrier providing
transportation or service subject to jurisdiction under subchapter I
or III of chapter 135 shall issue a receipt or bill of lading for
property it receives for transportation under this part. That carrier
and any other carrier that delivers the property and is providing
transportation or service subject to jurisdiction under subchapter I
or III of chapter 135 or chapter 105 are liable to the person entitled
to recover under the receipt or bill of lading. The liability imposed
under this paragraph is for the actual loss or injury to the property
caused by (A) the receiving carrier, (B) the delivering carrier, or (C)
another carrier over whose line or route the property is transported
. . . .
. . . .
(b) Apportionment.--The carrier issuing the receipt or bill of lading
under subsection (a) of this section or delivering the property for
which the receipt or bill of lading was issued is entitled to recover
from the carrier over whose line or route the loss or injury occurred
the amount required to be paid to the owners of the property . . . .

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49 U.S.C. S 14706 (1997).
4
Greentree filed an answer, Union Pacific moved for
summary judgment. On February 29, 2000, the District
Court granted Union Pacific’s motion for summary
judgment and awarded damages in the amount of
$150,977.58. On March 10, 2000, Greentree filed (1) a
motion pursuant to Federal Rule of Civil Procedure 59(e) to
alter or amend the grant of summary judgment in favor of
Union Pacific, and (2) a motion for summary judgment in
Greentree’s favor. On March 29, 2000, before the District
Court had ruled on either of Greentree’s two motions,
Greentree filed a notice of appeal in this court, appealing
the "Final Judgment entered in this action on the 29th day
of February, 2000." On April 18, 2000, this court entered
an order staying the appeal pending disposition by the
District Court of Greentree’s Rule 59(e) motion and
summary judgment motion. The order staying the appeal is
construed to constitute a remand of the case to the District
Court for the limited purpose of authorizing the District
Court to act on Greentree’s pending motions. On April 24,
2000, the District Court entered an order denying both of
Greentree’s motions. Greentree’s appeal then proceeded in
this court, without any amendment of the notice of appeal.
II. Applicability of the Carmack Amendment to the
Case at Bar
Greentree contends that (1) under the Carmack
Amendment, only a shipper or other "person entitled to
recover under the receipt or bill of lading," 49 U.S.C.
S 14706(a)(1), is a proper plaintiff, and (2) Union Pacific is
not a shipper or other "person entitled to recover under the
receipt or bill of lading" but an intermediate carrier, and
therefore the District Court lacked authority to entertain
Union Pacific’s suit against Greentree.5 The Supreme Court
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5. Greentree argues that this issue goes to the subject matter jurisdiction
of the District Court; Union Pacific maintains that Greentree did not
raise a jurisdictional argument before the District Court entered
summary judgment in Union Pacific’s favor, thereby making it
inappropriate for this court to entertain Greentree’s "jurisdictional"
contention. However, the District Court, at page 9 of its April 24, 2000
denial of Greentree’s 59(e) and summary judgment motions, stated that,
in granting Union Pacific’s summary judgment motion on February 29,
5
has held that the Carmack Amendment was enacted"to
relieve shippers of the burden of searching out a particular
negligent carrier from among the often numerous carriers
handling an interstate shipment of goods," Reider v.
Thompson, 339 U.S. 113, 119 (1950), by permitting a
shipper to hold either the initiating carrier or delivering

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carrier liable for damages to its goods in interstate
commerce, Mexican Light & Power Co., Ltd. v. Tex. Mexican
Ry. Co., 331 U.S. 731, 733 (1947), regardless of which
carrier actually caused the damage. An initiating or
delivering carrier liable to a shipper may then recover from
a connecting carrier for damages that occur on the
connecting carrier’s line. Id. See also Commodity Credit
Corp. v. Norton, 167 F.2d 161, 164 (3d Cir. 1948) (quoting
Ga., Fla. & Ala. R.R. Co. v. Blish Milling Co., 241 U.S. 190,
194, 195 (1916)).
Under ordinary circumstances, a through bill of lading is
issued by the initiating carrier and presented to the
shipper. This document "governs the entire transportation,
and thus fixes the obligations of all participating carriers to
the extent that the terms of the bill of lading are applicable
and valid." Commodity Credit Corp., 167 F.2d at 164
(quoting Blish Milling Co., 241 U.S. at 194, 195). The
Supreme Court explained in Mexican Light & Power that a
second bill of lading issued by a connecting carrier does not
alter the terms of the original bill of lading "unless the
connecting carrier has received a consideration for the bill
of lading in addition to that which flowed under the bill of
lading issued by the initiating carrier." 331 U.S. at 734.
In the case at bar, there was uncontroverted evidence
that, subsequent to the issuance by American President
Lines of a bill of lading, Southern Pacific and Greentree
entered into a second contract of carriage: a contract under
which Greentree was to receive--and, in the event, did
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2000, it had found that "Union Pacific had entered into a separate
contract with Greentree after the train derailment and that Union Pacific
was a shipper for purposes of its relationship with Greentree."
Greentree’s re-labeling of its argument as a jurisdictional one neither
strengthens nor weakens it.
6
receive--$2904 to transport two trailers, one of which
contained the shipment of cigarettes, from Phoenix to
California. This contract was separate from the American
President Lines bill of lading, and the consideration paid to
Greentree was--as the Court put it in Mexican Light &
Power--"in addition to that which flowed under the [first]
bill of lading." Id.6 Thus, Union Pacific (in succession to
Southern Pacific), as shipper, properly initiated this suit
against Greentree, as carrier, pursuant to the Carmack
Amendment.7
III. Summary Judgment
Greentree raises two additional issues for review: (1)
whether the District Court erred in not granting summary
judgment to Greentree due to a contractual time bar on
bringing suit; and (2) whether the District Court overlooked
genuine issues of material fact, thereby committing error in
granting summary judgment to Union Pacific.

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A. Standard of review
On an appeal from an order entering summary judgment,
this court undertakes de novo review, applying the same
standard the District Court should apply. Summary
judgment is appropriate when "there is no genuine issue as
to any material fact and . . . the moving party is entitled to
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6. In Mexican Light & Power, the Court spoke of the first bill of lading as
one "issued by the initiating carrier." 331 U.S. at 734. In the case at bar,
the first bill of lading was issued not by the initiating carrier, Norfolk &
Southern, but by the final carrier, American President Lines. It does not
appear that this factual distinction is of any legal consequence.
7. The point was succinctly made by the District Court at page 6 of its
memorandum opinion of April 24, 2000, denying Greentree’s 59(e)
motion and motion for summary judgment:
On September 1, 1999, Union Pacific moved for summary judgment.
In opposition thereto, Greentree made the very same argument that
it raises again in its Rule 59(e) motion, i.e., Union Pacific’s status as
a shipper. The Court has already addressed this issue and found
that after the unexpected train derailment Union Pacific entered into
a separate contract with Greentree for the transport of the freight
from Arizona to California.
Mem. Op. at 7 (W.D. Pa. Apr. 24, 2000).
7
a judgment as a matter of law." Fed. R. Civ. Pro. 56(c).
While the record on appeal must be viewed in the light
most favorable to the party who lost on summary judgment
in the District Court, United States v. Diebold, Inc., 369
U.S. 654, 655 (1962), an appellate court may only review
the record as it existed at the time summary judgment was
entered. In reviewing a summary judgment order, an
appellate court "can consider only those papers that were
before the trial court. The parties cannot add exhibits,
depositions, or affidavits to support their position. Nor can
they advance new theories or raise new issues in order to
secure a reversal of the lower court’s determination." 10A
Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice and Procedure: Civil 3d S 2716 (1998),
previous edition cited by Drexel v. Union Prescription Ctrs.,
Inc., 582 F.2d 781, 784 n.4 (3d Cir. 1978).
In addition, an appellate court may only review those
District Court orders that were properly appealed. In the
case at bar, only the summary judgment order of February
29, 2000 was properly appealed to this court. Accordingly,
we cannot consider the April 24, 2000 denial of (1)
Greentree’s 59(e) motion or (2) Greentree’s motion for
summary judgment.8
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8. In its reply brief, Greentree represents that it mistakenly believed that

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it did not need to amend its notice of appeal to include the denial of its
59(e) motion and motion for summary judgment. Greentree also points
out that it put both this court and Union Pacific on notice of all the
issues it intended to raise on appeal. Indeed, on April 17, 2000,
Greentree filed a Concise Summary of Case with this court, which
included a list of issues that it intended to raise. Nevertheless, the Rules
of Appellate Procedure clearly mandate an amended notice of appeal:
A party intending to challenge an order disposing of any motion
listed in Rule 4(a)(4)(A) [including a motion"to alter or amend the
judgment under Rule 59" of the Fed. R. Civ. Pro.], or a judgment
altered or amended upon such a motion, must file a notice of
appeal, or an amended notice of appeal--in compliance with Rule
3(c)--within the time prescribed by this Rule measured from the
entry of the order disposing of the last such remaining motion.
R. App. Pro. 4(a)(4)(B)(ii). Because Greentree filed a notice of appeal only
with respect to the February 24, 2000 order entering summary judgment
for Union Pacific, only that order can be considered.
8
B. Contractual Time Bar
Greentree argues that the bill of lading issued by
American President Lines governing the shipment of
cigarettes from Atlanta to Tokyo included a one-year
limitation for suits brought in tort or in contract. Greentree
is barred from raising this issue now. Greentree first raised
this issue in its 59(e) motion; but that motion was filed on
March 10, 2000, ten days after the February 29, 2000
grant of summary judgment in favor of Union Pacific, and
therefore, we are without authority to consider the issue.9
C. Genuine Issues of Material Fact
Greentree contends that two issues of material fact--
whether the Atlanta-to-Tokyo bill of lading issued by
American President Lines was the operative contract and
whether Saunders had authority to leave the trailer
unattended--were presented to, and ignored by, the District
Court. Both of these issues were raised by Greentree before
the District Court entered summary judgment for Union
Pacific and are therefore properly before this court.10
First, Greentree argues that the question whether the
Atlanta-to-Tokyo bill of lading was a through bill of lading
presents a genuine issue of material fact because a finding
that it was a through bill of lading would make Union
Pacific "a carrier and not a shipper." While the existence, or
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9. In its memorandum denying Greentree’s 59(e) motion and motion for
summary judgment, the District Court found that it could not properly
consider Greentree’s new argument that a contractual time limit barred
Union Pacific’s action because the document assertedly evidencing such
time limit--the bill of lading issued by American President Lines--was
not "new evidence." The bill of lading was produced by Union Pacific,
along with other documents, in April 1999, long before the District

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Court’s February 29, 2000 grant of summary judgment in favor of Union
Pacific. Mem. Op. at 7 (W.D. Pa. Apr. 24, 2000).
10. Union Pacific is mistaken in its contention that the argument relating
to the Atlanta-to-Tokyo bill of lading was first raised in Greentree’s 59(e)
motion. Greentree first raised this issue in its supplemental
memorandum of law in opposition to Union Pacific’s motion for summary
judgment. This supplemental memorandum was submitted to the
District Court almost three months before summary judgment was
entered.
9
non-existence, of a through bill of lading is ordinarily an
issue of fact, see, e.g., Marine Office of America Corp. v.
NYK Lines, 638 F. Supp. 393, 399 (N.D. Ill. 1985), it is
beside the point in this case. Even if the Atlanta-to-Tokyo
bill of lading is deemed a through bill of lading, that
designation would not affect the controversy between Union
Pacific and Greentree. As discussed supra, Union Pacific
entered into a new contract with Greentree--and this new
contract constituted the operative document in the dealings
between Greentree and Union Pacific. Greentree was not a
participant in the Atlanta-to-Tokyo bill of lading and
therefore cannot rely on Union Pacific’s status as an
intermediate carrier under that bill of lading to avoid
liability under the Union Pacific-Greentree contract.
Second, Greentree maintains that there is a material
issue of fact as to whether Greentree, acting through
Saunders, had authority to leave unattended the trailer
that was stolen. Union Pacific did not, however, deny that
Greentree was authorized to leave the trailer unattended; it
was Union Pacific’s position that Greentree did not have
authorization to leave the trailer unsecured. As the District
Court pointed out in its memorandum granting summary
judgment to Union Pacific, "Greentree fails to cite any case
in which a carrier was relieved from Carmack Amendment
liability because a shipper knew that the freight would sit
unattended for a brief period of time." Mem. Op. at 8 (W.D.
Pa. Feb. 29, 2000). In light of the Supreme Court’s
teachings with respect to the Carmack Amendment, it is
not surprising that Greentree was unable to cite any helpful
case law:
It is settled that this statute has two undisputed effects
crucial to the issue in this case: First, the statute
codifies the common-law rule that a carrier, though not
an absolute insurer, is liable for damage to goods
transported by it unless it can show that the damage
was caused by (a) the act of God; (b) the public enemy;
(c) the act of the shipper himself; (d) public authority;
(e) or the inherent vice or nature of the goods. Second,
the statute declares unlawful and void any rule,
regulation, or other limitation of any character
whatsoever purporting to limit this liability.
10

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Accordingly, under federal law, in an action to recover
from a carrier for damage to a shipment, the shipper
establishes his prima facie case when he shows
delivery in good condition, arrival in damaged
condition, and the amount of damages. Thereupon, the
burden of proof is upon the carrier to show both that
it was free from negligence and that the damage to the
cargo was due to one of the excepted causes relieving
the carrier of liability.
Missouri P. R. Co. v. Elmore & Stahl, 377 U.S. 134, 137--38
(1964) (quotations, citations, and footnotes omitted). The
District Court found "that Greentree has failed to present
any evidence that it was free from negligence and that the
loss was due to an exempted defense." Mem. Op. at 8 (W.D.
Pa. Feb. 29, 2000). We agree. Whether Greentree was
authorized to leave the trailer unattended was therefore not
a genuine issue of material fact.
IV. Conclusion
For the foregoing reasons, the judgment of the District
Court will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
11

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