838 So.2d 590
BRAID SALES & MARKETING, INC., d/b/a Full House Company, Appellant, v. R & L CARRIERS, INC., Appellee.
No. 5D02-1168.
District Court of Appeal of Florida, Fifth District.
January 24, 2003.
Rehearing Denied February 28, 2003.
Allan P. Whitehead of Frese, Nash & Hansen, P.A., Melbourne, for Appellant.
Mark D. Shuman of Gray, Harris & Robinson, P.A., Melbourne, for Appellee.
PALMER, J.
Braid Sales & Marketing, Inc. appeals from a final judgment entered in its favor against R & L Carriers, Inc., which limited its damage claim to $3,612.55. Concluding that the trial court improperly applied the limitations of the Carmack Amendment1 to this case, we reverse the final judgment.
Braid sued R & L, an interstate carrier of goods, seeking compensation in excess of $15,000.00 for damages to machinery shipped via R & L. Count I alleged a claim for negligence, and Count II alleged a claim for breach of an oral contract pursuant to which R & L promised to pay Braid the full cost of repairing the machinery. Prior to trial, the trial court granted R & L's motion to dismiss Count II, holding that the breach of contract claim was preempted by the provisions of the Carmark Amendment. The matter proceeded to trial on Count I before the court sitting without a jury. Upon review of the evidence, the court found that R & L had established its affirmative defense that, pursuant to the Carmack Amendment, Braid was not entitled to recover its full damages on Count I, but instead was limited to recovery of $3,612.55, which represented five times the amount of its shipping costs. We disagree.
R & L had the burden to prove at trial its affirmative defense based upon the Carmack Amendment. One of the requirements for the application of the Carmack Amendment is that the carrier involved maintain a tariff with the Interstate Commerce Commission. See Rohner Gehrig Co. v. Tri-State Motor Transit, 950 F.2d 1079 (5th Cir.1992). While the parties agreed that R & L was the carrier involved in the shipment at issue, the record demonstrates that the tariff introduced into evidence was not applicable to R & L because the participating carriers listed in the tariff did not include R & L. R & L contends that it adequately authenticated the tariff by having its employee testify that this tariff was applicable to R & L. However, since the tariff document unambiguously shows, on its face, that it is not applicable to R & L, that testimony could not alter the terms of the document. Since R & L did not establish that it maintained any tariff with the Interstate Commerce Commission, it failed to meet its burden of proving its affirmative defense. Accordingly, the damages suffered by Braid were not limited by the Carmack Amendment.
The trial court arguably reached the same conclusion in its final judgment, although not explicitly, when it held that "the 1997 tariff introduced into evidence, the controlling tariff in this action, did not list the named defendant, R & L as the carrier, but instead listed Gator Freightways, Inc., as the carrier." However, after reaching that conclusion, the trial court nonetheless found the 1997 tariff applicable by holding that Braid waived any issue as to the applicability of the tariff "by its prior conduct, and by introducing the 1999 amendment to the tariff in Plaintiff's case." We disagree. Although the trial court failed to specify what "prior conduct" constituted waiver, our review of the record shows no prior conduct which would legally constitute a waiver, and R & L does not argue that any such prior conduct existed.
In addition, the trial court's conclusion that Braid waived its argument regarding the applicability of the tariff by introducing the 1999 amendment to the tariff in Braid's case is erroneous. Braid's introduction of that document occurred after the trial court had already overruled its objection to the admissibility and relevancy of the 1977 tariff. Accordingly, its introduction could not legally constitute a waiver of the argument previously made.
R & L further argues that the terms of this tariff were incorporated into the agreement between the parties by the bill of lading. However, that bill of lading merely states that it is subject to "tariffs in effect on the date of issue of the bill of lading". As noted above, R & L failed to prove that any tariff relating to R & L was in effect on the date of the bill of lading.
In summary, the trial court erred in applying the Carmack Amendment to limit Braid's claim to damages for five time the shipping cost. Instead, Braid was entitled to recover whatever damages were proximately caused by the negligence of R & L.
Braid also challenges the trial court's dismissal of Count II of its amended complaint.2 Count II set forth an independent claim for a breach of an oral agreement entered into between R & L and Braid after the shipment was completed. Braid argued that since the claim was based upon conduct occurring after the shipment was completed it was not legally precluded by the Carmack Amendment. R & L responded that dismissal was warranted because the Carmack Amendment provided the sole remedy and preempted all other federal or state claims and remedies relating to the loss or damage to cargo, citing to Rini v. United Van Lines, Inc., 104 F.3d 502 (1st Cir.1997).
Rini inv...
