Carmack Act Apportionment Provision Was At Issue.
Here is one that involves two carriers being sued and then battling it out for apportionment of responsibility and costs. The Carmack Act, 49 U.S.C. § 14706(b), has a specific provision allowing for apportionment of costs between carriers, including reasonable expenses incurred in defending an action against the property owner (or insurer of property owner), with a carrier held initially liable being able to recover from the carrier in control of the damaged/lost shipment. Section 14706(b) was squarely at issue in the next case we look at, Pacific Indemnity Co. v. Atlas Van Lines, Inc., et al., Case Nos. 09-17824/10-16260 (9th Cir. Apr. 20, 2011) (for publication).
There, in a subrogation action, an insurer for a property owner having household goods destroyed by a fire during transit recovered over $1 million in damages from two common carriers. One of the carriers not in control of shipment cross-complained against the other carrier, winning and recovering costs of $74,402.35 under section 14706(b).
Losing carrier appealed the costs award, but was unsuccessful.
Section 14706(b) allowed winning carrier to recover costs against losing carrier, especially since that carrier was the one in control of the shipment leading to the recoverable loss. The Ninth Circuit rejected the argument that a “prevailing party” analysis applied, because the statute did not contain this language--bolstered by the fact that Congress knew when to engraft a “prevailing party” analysis by using those words in a nearby Carmack Act fee-shifting provision (49 U.S.C. § 14708(d)). Simply put, winning carrier was entitled to its costs under the specific apportionment statute.