How Swiftly the Carmack Amendment is Washed Away (Or Why Jutice Sotomayor was Right in Kawasaki Kisen Kaisha Ltd. v. Regal Beloit Corp, 130 S.Ct. 2433 (2010))

摘要

Carmack, as it has evolved through changes in the shipping industry, including a history of interpretation that began with Woodbury v. Galveston and including also early statutory changes, in its plain language today, should apply to intermodal shipments imported into the U.S. This is so, whenever the imports are intended simply as continuations of foreign commerce, which is usually the case. This should not change according to whether a bill of lading is a "through bill of lading," a combined transport bill of lading, or is issued in any other way. This comports better with a varying system of liability recognized in the rest of the global shipping industry. I agree Carmack should not apply to ocean carriers (an exception being the rare case when it actually is also a railroad or trucker-not in this case). I also do not see an enormous problem with extending COGSA inland to ocean carriers; but to strip Carmack away from inland rail and motor carriers operating on U.S. soil, so they can obtain the ocean carrier's benefits under a Himalaya clause, is simply untenable and unjustifiable, in my view.