The Carmack Amendment: What is it? Why does it Matter to Me?
Today’s contribution is authored by Ms. Michelle Gerred, Esq., NCS Construction Services
Do you ship goods to your debtor? Are you a material supplier shipping materials to a jobsite? If you answered “yes” to either of these questions, then you may want to take a moment to learn more about the Carmack Amendment.
A Little History
The Carmack Amendment (not to be confused with Carmex, the lip balm) was enacted in 1906 after congress enacted the Interstate Commerce Act in 1887. Essentially the Interstate Commerce Act was an attempt to regulate interstate transportation and its subsequent amendment, Carmack, was the adoption of uniform guidelines used to determine who is liable for goods that are damaged during transit.
Why it Matters
The Carmack Amendment only covers actual damage to the shipped goods and does not provide protection against “consequential damages” or “liquidated damages” caused by the carrier.
What are consequential damages? They are damages that are the consequence of the issue, such as delay.
If the carrier damages your goods, which requires new goods to be manufactured or shipped, and the goods don’t make it to their destination on time, the carrier won’t be at fault – even though the carrier essentially triggered a domino effect when it damaged the shipment. Therefore if you are back-charged for the delay or liquidated damages, you will not be able to recover against carrier for those consequential damages, under the Carmack Amendment.
All is not lost
However, some recent cases have offered hope! In Am. Natl Fire Ins. Co. v. Yellow Freight Sys., 325 F.3d 924, 931 (7th Cir. 2003) the court determined some damages, including damages for delay, lost profits, and all reasonably foreseeable consequential damages, could be sought against the carrier. The catch? Only if those damages were foreseeable.
In order to proceed against the carrier for consequential damages, you must show that the carrier had actual notice of the special circumstances that could put them on the hook for those types of damages. (see Contempo Metal Furniture Co of California v East Texas Motor Freight Lines, 661 F.2d at 765) This means you need to include a delay damage clause in your contract with the trucking company.
What if I use a transportation broker, can I then recover from them?
Unfortunately, no. Brokers enjoy the same protection under the amendment. In fact, under the amendment, instead of going against the broker, your only recourse is to go against the transporter for the actual damage done to the product.
But wait there is more
Be careful and ask about rates and limiting liability when contracting.
A carrier can limit its liability for any damages by using an established rate or tariff. When looking at limiting the carrier’s liability the courts look to see if the carrier:
- obtained the shipper’s agreement for his choice of liability,
- gave the shipper a reasonable opportunity to choose between two or more levels of liability, and
- issued a receipt or bill of lading prior to moving the shipment.
Therefore, you must look at your documentation closely when using a carrier; the fact is the carrier could have a clause within the documents alerting you to an established rate limiting the carrier’s liability to a set dollar amount. Remember the document does not necessarily have to say what the limitation is, like an insurance policy does, it just has to say there is a limitation. It is up to the shipper to ask for specifics or to negotiate for a higher rate, especially when the possibility of consequential damages comes into play. Needless to say, liability limited in this way is the most highly litigated issue under the amendment.
As always, when in doubt, seek a legal opinion!