New Carmack Case from Second Circuit - Mitsui Sumitomo Ins. Co. v. Evergreen Marine Corp.

An admiralty case about a train wreck. 

Following the Kawasaki case from the last term of the Supreme Court, the court of appeals are cleaning up cases on their dockets with a common fact pattern:  cargo damage during a rail portion of an intermodal transport of cargo under a bill of lading.

This Second Circuit case is Mitsui Sumitomo Ins. Co. v. Evergreen Marine Corp., 2010 U.S. App. LEXIS 19634 and can be found here.

Per the Second Circuit, the Kawasaki test to determine if the Carmack amendment applies is:

First,the rail carrier must ‘provid[e] transportation or service subject to the jurisdiction of the [Surface Transportation Board (“STB”)].’ Second, that carrier must ‘receiv[e]’ the property ‘for transportation under this part,’ where ‘this part’ is the STB’s jurisdiction over domestic rail transport.” Id. (quoting 49 U.S.C. § 11706) (alterations in original).

The court rejected attempts to distinguish the case from Kawasaki factually, that Kawasaki relied on an oral argument concession, that there was a separate bill of lading for the rail portion of the transport, that the absence of a federal district court impacted Kawasaki, and that the decision should not act retroactively.