This case involved international carriage of an industrial machine and parts from the United States to Austria. EMCO Corp (EMCO) hired Miller Transfer & Rigging Co (Miller) to pick up the shipment from Ohio, provide 'seaworthy packaging' for it, and transport it to the Port of Baltimore, from where it would be shipped via EMCO's nominated ocean carrier to the Port of Bremerhaven, Germany, and then taken by EMCO's nominated inland carrier to the final destination in Hallein, Austria. Upon its arrival in Hallein, Austria, the shipment was discovered to be extensively damaged by corrosion.

On 16 October 2019, EMCO sued Miller for breach of a contract of motor carriage under the Carmack Amendment, 49 USC § 14706(d), due to Miller's alleged 'fail[ure] to adequately package the Cargo, which resulted in the Cargo being delivered in damaged condition'. In October 2018, EMCO sold the damaged shipment in 'as is' condition to an entity in Germany.

Miller argued that the Carmack Amendment did not apply, due to the overseas component of the relevant shipment. Instead, because the entire shipment was covered by a 'through bill of lading', the shipment was governed by the US Carriage of Goods by Sea Act (COGSA), 46 USC § 30701. As a consequence, EMCO's claim was barred by COGSA's one-year statute of limitations for cargo claims, which 'begins to run after the goods have been delivered, or on the date the goods should have been delivered': Dimond Rigging Co LLC v BDP Intl Inc 914 F 3d 435, 440 (6th Cir 2019) (CMI583). In the alternative, Miller argued that, even if the Carmack Amendment applied, EMCO was unable to establish a prima facie case, or it had a viable statutory defence.

Held: Miller is entitled to summary judgment in its favour on EMCO's claim under the Carmack Amendment.

The Carmack Amendment, enacted in 1906 as an amendment to the Interstate Commerce Act, 24 Stat 379, created a national scheme of carrier liability for loss of or damage to goods transported in interstate commerce. While the Carmack Amendment applies to cargo shipped within the United States, it does not apply to international shipments. '[S]hipments from United States ports to ports of foreign countries and vice versa' are governed by COGSA: Kawasaki Kisen Kaisha Ltd v Regal-Beloit Corp 561 US 89, 96, 130 S Ct 2433, 177 L Ed 2d 424 (2010) (CMI1455).

In recent years, courts have considered which law is applicable when shipments contain both domestic and international segments. In Kawasaki (93), the Supreme Court considered cases involving 'through bills of lading covering cargo for the entire course of shipment, beginning in a foreign, overseas country and continuing to a final, inland destination in the United States'. The Court held (100) that the Carmack Amendment does not apply to the inland segments of a shipment originating overseas and moving on a single through bill of lading; rather 'the terms of the bill govern the parties’ rights'. The Court expressly noted (103) that it 'need not address the instance where goods are received at a point in the United States for export'.

In CNA Ins Co v Hyundai Merchant Marine Co Ltd 747 F 3d 339, 353 (6th Cir 2014), the Sixth Circuit closely examined the reasoning in Kawasaki and found no basis for limiting its holding to import shipments. Therefore, the Sixth Circuit held (366) that 'the rule of Kawasaki appears to be that Carmack does not apply to the overseas shipment of goods - import or export - shipped under a single through bill of lading'.

Here, there are separate bills of lading to cover each leg of the overall trip: Cuyahoga Falls, Ohio to Dover, Ohio; Dover to Baltimore, Maryland; and Baltimore to Europe. 'A bill of lading records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage': Norfolk S Ry Co v Kirby 543 US 14, 18-19, 125 S Ct 385, 160 L Ed 2d 283 (2004) (CMI1454). Miller relies solely upon the ocean bill of lading under which the cargo was shipped from Baltimore to Europe. EMCO argues that it was not a through bill because the face of the bill covers only transport from the Port of Baltimore to EMCO Austria, and does not include any of the transport prior to the Port of Baltimore. EMCO is correct. The ocean bill of lading relied upon by Miller to attempt to avoid Carmack Amendment application is not a through bill. There is nothing in that bill of lading that even hints at the original pick-up point(s) for the cargo, ie Cuyahoga Falls, Ohio and/or Dover, Ohio. Therefore, this case is governed by the Carmack Amendment.

But determining that the Carmack Amendment applies does not end the analysis. In order to establish Miller's liability under the Carmack Amendment, EMCO must show delivery in good condition, arrival in damaged condition, and the amount of damages. But arrival where in damaged condition - in Baltimore or in Austria? EMCO says Austria, despite its insistence on applying the Carmack Amendment - a statute establishing carrier liability for loss or damage to goods transported in interstate commerce.

Here, EMCO, as the shipper, chose to structure the journey in two separate parts. Miller was involved only in the first segment, which ended in Baltimore. Therefore, the 'arrival in damaged condition' referred to in the case law necessarily means, in this case, arrival in Baltimore in damaged condition. From Miller's perspective, Baltimore was the final destination, since that is where Miller delivered the cargo to a third party hired by EMCO.

EMCO cannot have it both ways. If, as EMCO correctly argues, the Carmack Amendment applies, because there is no through bill of lading from Cuyahoga Falls (or Dover), Ohio to Hallein, Austria, Miller's liability needed to be established by proof of damage to the cargo at the time of delivery in Baltimore, Maryland or, at the very least, before the cargo was loaded on to the ocean-going vessel. That did not happen here, and EMCO does not even allege that it did. There is a brief suggestion in EMCO's expert's report that damage may have occurred from condensation while the cargo was waiting in Baltimore to be loaded on to the ship. The report concludes that the water damage eventually found on the cargo was caused by fresh, not sea, water. This conclusion is almost exclusively based on the fact that the insurance surveyor's photographs of the cargo in Austria did not show white deposits that would have been left by drying seawater. However, the insurance surveyor did not perform any chemical analysis on the water observed inside both crates. Thus, there is no admissible evidence (beyond what amounts to little more than a 'hunch') to establish that the cargo was already damaged by the time it was loaded onto the ship in Baltimore. Even if there were such evidence, that damage allegedly would have occurred after Miller's delivery in Baltimore. Even more importantly, EMCO itself makes no argument that the damage occurred in Baltimore, asserting only that 'Miller failed to adequately package [the Cargo] in a manner sufficient to withstand the rigors of its intended voyage', suggesting that any damage occurred during the ocean voyage.

Therefore, EMCO has failed to establish the elements of a prima facie case against Miller under the Carmack Amendment.