NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-3768

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TRYG INSURANCE, a/s/o Toms Confectionery Group;

TOMS CONFECTIONERY GROUP

v.

C.H. ROBINSON WORLDWIDE, INC.;

NATIONAL REFRIGERATED TRUCKING, LLC;

C.H. Robinson Worldwide, Inc., 

 Appellant

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On Appeal from the United States District Court

for the District of New Jersey

(D. C. Civil Action No. 3-15-cv-05343)

District Judge: Honorable Michael A. Shipp

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Submitted under Third Circuit LAR 34.1(a)

on October 5, 2018

Before: SHWARTZ, SCIRICA and ROTH, Circuit Judges

(Opinion filed: April 19, 2019)

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OPINION∗

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 ∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

ROTH, Circuit Judge

Toms Confectionary Group, a Danish chocolate company, and Tryg Insurance, its 

insurer, brought suit against transportation company C.H. Robinson Worldwide (CHRW) 

after a shipment of Toms’ miniature chocolate liqueur bottles was damaged in transit. 

The central question in this case is whether CHRW is a carrier or a broker. Under the 

Carmack Amendment to the Interstate Commerce Act of 1887, a carrier is liable for 

damages incurred during a shipment of goods, whereas a broker—someone who merely 

arranges for transportation—is not liable.1

 Following a bench trial on the issue of 

liability, the District Court ruled that CHRW was a carrier rather than a broker and 

therefore liable for the damages caused to the miniature chocolate liqueur bottles. 

CHRW urges us to hold that it is instead a broker. Because we find no error in the 

District Court’s determination that CHRW held itself out as a carrier and thus qualified as 

such under the Carmack Amendment, we will affirm. 

I

Toms hired CHRW in July 2013 to transport a shipment of miniature chocolate 

liquor bottles from Levittown, Pennsylvania, to Cranbury, New Jersey. Unbeknownst to 

Toms, CHRW subcontracted with National Refrigerated Trucking, LLC, (NRT) to 

transport the chocolate; the agreement between CHRW and NRT contained a 

confidentiality clause. Due to a malfunction of NRT’s truck’s refrigeration system, the 

 1 49 U.S.C. § 14706.
3

chocolate melted and was destroyed. Non-party Coregistics, the recipient of the damaged 

chocolate, completed a non-conformance report on the day of delivery, July 16, 2013, 

and Toms submitted a claim to CHRW shortly thereafter. CHRW did not accept the 

claim or pay the loss. Tryg later paid Toms the value of the cargo less Toms’ deductible 

under its insurance policy. 

Tryg and Toms brought suit against CHRW for breach of contract of motor 

carriage.2

 In the course of pre-trial proceedings, the parties stipulated that the amount of 

damages was $124,034.31. The parties also agreed that CHRW could only be held liable 

if it were a “carrier” as opposed to a “broker.” The court held a bench trial on the issue 

of liability on May 4, 2017. At trial, Toms called its Customer Service Representative, 

Michael Bastholm, and CHRW called its Risk Manager for the North American Surface 

Transportation Division, Christopher McLoughlin. The parties also entered into evidence 

deposition testimony from an Account Executive at CHRW, Janet Hays, who was 

Bastholm’s point of contact. The District Court found that CHRW possessed a broker’s 

license and not a motor carrier’s license, and did not own trucks or other equipment to 

transport cargo. Nevertheless, based on the testimony and the shipment documents, the 

court held that CHRW had held itself out as a carrier and was therefore liable for the 

damages. CHRW now appeals. 

 2 Plaintiffs also named NRT as codefendants, but NRT failed to appear. The District 

Court entered a default judgment against NRT and found NRT and CHRW jointly and 

severally liable. Only CHRW appealed, and so our decision here pertains only to 

CHRW. 
4

II3

The statutory text makes clear that being a carrier entails more than just physically 

picking up shipments and transferring them to a different location. The definition of 

“carrier” includes “motor carriers,” which are defined as “person[s] providing motor 

vehicle transportation for compensation.”4

 The term “transportation” is then defined to 

include “services related to” (including “arranging for”) the movement of property.5

 

Thus, the definition of “carrier” encompasses entities that perform services other than 

physical transportation. 

As the District Court correctly stated, in determining whether a party is a carrier or 

a broker, the crucial question is whether the party has legally bound itself to transport 

goods by accepting responsibility for ensuring the delivery of the goods.6

 If an entity 

accepts responsibility for ensuring the delivery of goods, then that entity qualifies as a 

carrier regardless of whether it conducted the physical transportation. Conversely, if an 

entity merely agrees to locate and hire a third party to transport the goods, then it is acting 

 3 On appeal from a bench trial, we review the District Court’s findings of fact for clear 

error and review its conclusions of law de novo. VICI Racing, LLC v. T-Mobile USA, 

Inc., 763 F.3d 273, 282-83 (3d Cir. 2014). 

4 49 U.S.C. § 13102(3), (14). In 1995, Congress passed the Interstate Commerce 

Commission Termination Act, Pub. L. No. 104–88, 109 Stat. 803, which merged the 

formerly separate classifications of common and contract carriers into one classification 

of motor carriers. M. Fortunoff of Westbury Corp. v. Peerless Ins. Co., 432 F.3d 127, 

132 (2d Cir. 2005).

5 49 U.S.C. § 13102(23). 

6 Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1301 (11th Cir. 2018). 
5

as a broker.7

 This distinction “tracks longstanding common-law rules” and derives from 

the “commonsense proposition that when a party holds itself out as the party responsible 

for the care and delivery of another’s property, it cannot outsource its contractual 

responsibility by outsourcing the care and delivery it agreed to provide.”8

 The 

Department of Transportation, which is responsible for interpreting the Interstate 

Commerce Act (of which the Carmack Amendment is a part), has similarly instructed 

that motor carriers are not brokers just because they “arrange or offer to arrange the 

transportation of shipments which they are authorized to transport and which they have 

accepted and legally bound themselves to transport.”9

 In sum, if a party has accepted 

responsibility for transporting a shipment, it is a carrier.

The District Court did not clearly err in determining, based on the testimony 

presented at trial, that CHRW held itself out as a carrier.10 As Toms and CHRW had no 

standing contract, the court assessed their relationship using the parties’ course of dealing 

and communications, in particular between Bastholm and Hays.11 Hays, the CHRW 

 7 See, e.g., id. at 1301-02; Nipponkoa Ins. Co. v. C.H. Robinson Worldwide, Inc., 2011 

WL 671747, at *7 (S.D.N.Y. Feb. 18, 2011); CGU Int’l Ins., PLC v. Keystone Lines 

Corp., C-02-3751, 2004 WL 1047982, at *2 (N.D. Cal. May 5, 2004). 

8 Essex Ins. Co., 885 F.3d at 1301; see also id. (finding nothing in either “the Carmack 

Amendment’s language nor its legislative history [to] indicate[] that Congress intended 

this principle to operate differently in the interstate-transportation context”). 

9 49 C.F.R. § 371.2(a). 

10 The testimony and documentary evidence distinguish this case from cases like 

Travelers Indemnity Co. v. SS “HANJIN KWANGYANG”, 92 Civ. 5763, 1995 WL 

539635 (S.D.N.Y. Sept. 8, 1995), where the only pieces of evidence that an entity acted 

as a carrier instead of a broker were the complaint and the listing of the entity as a carrier 

on the bill of lading. Id. at *3. 

11 McLoughlin, CHRW’s Risk Manager, testified that he never had any contact with

anyone at Toms. 
6

Account Executive, indicated to Bastholm, the Toms employee, that CHRW could 

arrange to ship Toms’ goods and “ma[d]e it sound like it[ was] seamless.” Bastholm 

communicated with Hays to schedule shipments and request shipment quotes, and at no 

point did CHRW make clear that it was acting only as a broker. Bastholm’s 

understanding, based on his course of dealing with Hays, was that CHRW took 

responsibility for the goods and arranged for their transportation. The parties had an 

agreement for CHRW to transport the goods, and that is what Toms paid CHRW to do. 

The documents submitted into evidence at trial provide further support for the 

District Court’s holding. The Bill of Lading and the packing list, both prepared by nonparty Assured Packing Inc., identified CHRW as “carrier,” a designation to which 

CHRW did not object.12 CHRW’s invoice to Toms contained line items for “line haul” 

and a “fuel surcharge” for 30 miles, the distance between Levittown and Cranbury, 

consistent with an entity acting as a carrier. The invoice did not refer to brokerage 

commissions or NRT’s role in the transportation. Moreover, despite CHRW’s testimony 

that it had done business with Toms for several years, CHRW could produce no 

document or communication in which it identified itself to Toms as a broker. In fact, 

CHRW did not claim it was a broker instead of a carrier until after the start of this 

 12 While NRT also appears on this document, that does not negate CHRW’s role as a 

carrier.
7

litigation.13 While CHRW’s Terms and Conditions suggest that CHRW is a non-asset 

based transportation provider, they do not make clear that CHRW is only a broker, and in 

any event the Terms and Conditions are only referred to, not included, on the invoice. 

CHRW argues that (1) it did not give its consent to be listed as a carrier on the bill 

of lading, (2) it never took physical possession of the cargo, (3) it entered into an 

independent contractor relationship with NRT, and (4) Toms’ failure to investigate 

CHRW’s services was inexcusable. None of these arguments will suffice to call into 

question the District Court’s fact-intensive inquiry into the parties’ course of conduct and 

communications or overturn the court’s conclusion that CHRW held itself out as a carrier 

and should be held liable. We therefore will affirm the judgment of the District Court.

 13 The International Surveyors & Adjusters (USA) report on the incident, dated 

December 4, 2013, does include the information that CHRW “appointed” NRT to 

conduct the physical transportation, but this knowledge reached Toms long after the 

incident and does not affect the question of whether CHRW held itself out to Toms as a 

carrier. A337.