On March 24, 2010, the Supreme Court heard oral argument in the case of Kawasaki Kisen Kaisha v. Regal Beloit Corporation and Union Pacific Railroad Company v. Regal-Beloit Corporation. The oral argument transcript can be downloaded here. My earlier post with briefs and decision below here.
This issue is which liability framework applies to cargo that is transported under a bill of lading but has some damage while on U.S. railways. COGSA and the bill of lading is one framework. The Carmack Amendment which governs rail carrier liability is another.
While the issue is a bit for the admiralty/interstate commerce wonks among us, the transcript yielded some gems:
Best "Canons of Statutory Interpretation in a Nutshell" Quote:
MR. BALLENGER: Well, Your Honor, we don't think that it is necessary for this Court to read the statute in a countertextual way. You just have to do what this Court has always done and read the statute as a whole, including giving some weight to that provision which is in the text of the statute and reading the rest of the statute in light of it.
Best "Random Thoughts of the Chief Justice" Quote:
CHIEF JUSTICE ROBERTS: This may not have anything to do with anything. Is there a reason the STB doesn't appear on your brief?
Best "Those Darn Publishers of the U.S. Code" Quote:
JUSTICE SCALIA: Okay. Wait a minute now.
MR. YANG: I'm sorry -
JUSTICE SCALIA: The paragraphing you say is wrong?
MR. YANG: From 5a to 6a, you will see 5a is the 1978 version of Carmack that was enacted in the 1978 codification.
JUSTICE SCALIA: Right. MR. YANG: The current version is reflected on the facing page. There was no paragraph indentation in 1978. And in 1995 when Congress changed the text, it did include a paragraph indentation, but the committee report -- the conference report is very clear that Carmack was not changed. Also -
JUSTICE SCALIA: So all -- you are saying that -- I think what you are saying is that all we have to use the statutory statement that "nothing was meant to be changed or" is to say, well, that paragraphing in 3 is just wrong, right?
MR. YANG: Well, I don't know -- you mean the indentation?
JUSTICE SCALIA: The indentation.
MR. YANG: The indentation was inadvertent. And I would actually direct the Court to 73a, which is the other part of Carmack that now exists for motor transportation and freight forwarders. There is no indentation. The current version of the other half of Carmack does not provide the indentation. The indentation is inadvertent. And in '95 -- the '95, which -
JUSTICE SCALIA: I'm losing you. 73a?
Best "Foreign Law-Phobes Watch Out! I see a Cite to Europe Law Coming" Quote:
JUSTICE SOTOMAYOR: I think Justice Breyer asked you why it made sense that there would be two rules in effect for what happens on the ocean and what happens on land; and if we had it, wouldn't it create great difficulty. I think -- you may correct me.
JUSTICE BREYER: Your point was -
MR. FREDERICK: That's how the world -
JUSTICE BREYER: -- if it creates such difficulty, why were the railroads in favor of it before?
MR. FREDERICK: Correct. And that's how -that's how Europe operates. Europe has separate conventions for rail and road that apply to damage that occur on land and the European nations have acceded to the various versions of Hague rules -
JUSTICE BREYER: Anything here that says on land? Anything in Carmack that says on land?
Best "I hope Chief Justice Roberts Nodded at Justice Sotomayor" Quote:
CHIEF JUSTICE ROBERTS: And that's a different question with respect to liability and claims than with respect to venue.
MR. FREDERICK: Correct. And let me address that if I might.
JUSTICE SOTOMAYOR: Could I just -- just briefly before you answer the Justice -- the Chief.
MR. FREDERICK: Sure.
[The Chief Justice reminded counsel of his question later on.]
Best "Don't Show Me No Stinkin' Letter Briefs" Quote:
JUSTICE SCALIA: Wait. You say we have to defer to a letter brief in another case?
MR. FREDERICK: No -
JUSTICE SCALIA: I think most of my colleagues would not defer to a letter brief in this case. And you are saying that we owe deference to a letter brief in another case?
MR. FREDERICK: That is what this Court held -
JUSTICE SCALIA: Which I didn't agree with, it seems to me.
Best "What Does "In" Mean" or "How Do You Politely Read a Statute to a Justice" Quote:
JUSTICE BREYER: Can we go back one more second? Can you just give me the citation in Carmack -not COGSA, but Carmack -- that would get our intermodal shipment out of the board's jurisdiction? Because what I'm thinking about is the intermodal shipment and the boat sinks near Hawaii. Okay? Now, on your reading of Carmack, not COGSA, what gets that shipment sunk in Hawaii -- or Midway or Guam or someplace -- what gets them out of Carmack? Which words?
MR. FREDERICK: Well, the -- on 62A, the petition appendix defines the general jurisdiction.
JUSTICE BREYER: And it includes transport just as you defined it between the United States and another place -- United States and a place in a foreign country.
MR. FREDERICK: Yes.
JUSTICE BREYER: So that's what this is. This is a shipment between Shanghai and San Francisco.
MR. FREDERICK: And at (a)(2) -- will you look at (a)(2), please? (A)(2) says jurisdiction under paragraph 1 applies only to transportation in the United States.
JUSTICE BREYER: Oh, sorry, between a place in -- oh, transportation in the United States.
MR. FREDERICK: In the United States.
JUSTICE BREYER: Between a place in.
MR. FREDERICK: Exactly.
JUSTICE BREYER: Thank you.
MR. FREDERICK: Yes, thank you.
(Laughter. )
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