Read Babcock & Wilcox Co. v. Kansas City S. Ry. Co., 08-1080

In an action under the Carmack Amendment to the Interstate Commerce Act (ICA) against defendants-railroads to recover damages to plaintiff's boiler, denial of defendants' motion to dismiss and summary judgment for plaintiff are vacated and remanded with instructions where: 1) The legislative history of 49 U.S.C. section 10709, the history of the corresponding federal regulations, and recent Surface Transportation Board proceedings, indicate that a contract need not reference section 10709 in order to be section 10709 contract; 2) the terms of the contract at issue, which deviate in numerous respects from the common carrier obligations imposed by the ICA, evince the intent of the parties to enter into a section 10709 contract; and 3) thus, dismissal for lack of subject matter jurisdiction was proper.

Appellate Information

• Decided 02/18/2009
• Published 02/18/2009

Judges

• Before:  BARRY and CHAGARES, Circuit Judges, and RESTANI, Judge.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Rodney B. Griffith, Charles L. Howard, Paul D. Keenan (Argued), Chad D. Mountain, Keenan Cohen & Howard, Jenkintown, PA, for Appellants.


• For Appellees:
  
• Andrew R. Brown (Argued), Hill Rivkins & Hayden, New York, NY, James A. Saville, Jr., Hill Rivkins & Hayden, South Amboy, NJ, for Appellee.