REVISED July 20, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30667

_____________________

TEX MORRIS; CINDY SAGRERA MORRIS,

Plaintiffs-Appellants,

versus

COVAN WORLD WIDE MOVING, INCORPORATED;

COLEMAN AMERICAN MOVING SERVICES,

INCORPORATED,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

_________________________________________________________________ July 8, 1998

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Moving from Virginia to Louisiana, Tex and Cindy Morris lost

most of their furniture and belongings when a fire destroyed the

truck transporting their property. The Morrises sued the moving

company, seeking a greater recovery than statutory law--the Carmack

Amendment to the Interstate Commerce Act--allows them. Thus, the

primary issue in this case is whether federal common law remedies

are available in actions against common carriers for the loss of

goods shipped under a receipt or bill of lading within the scope of

the Carmack Amendment. The case further presents the question

whether summary judgment was inappropriate because there existed a1 The Morrises further chose as part of the protection plan to

make an “Extraordinary (Unusual) Value Article Declaration,” which,

according to the plan, entitled them to declare the values of

certain higher priced items. Although the plan states that a

special inventory form would be used fo r such declarations, none

appears in the record.

2 genuine issue of material fact as to the value of the plaintiffs’

goods lost while in the carri er’s custody. We hold that federal

common law remedies are preempted by the Carmack Amendment. We

also hold, however, that fact issues remain as to the value of lost

goods. We therefore affirm in part, reverse in part, and remand.

I

On January 9, 1995, the Morrises entered into a contract with

Covan Worldwide Moving, Inc. and Coleman American Moving Services,

Inc. (collectively, “Covan”) to transport their household goods

from Dale City, Virginia, to Baton Rouge, Louisiana. In the

process, the Morrises completed an “Estimate and Order for Service”

form in which they provided Covan with estimates as to what

property would be shipped and its value. The Morrises also filled

out a “Shipment Protection Plan” in which Covan offered three

levels of coverage. The Morrises requested the maximum, “full

value” coverage for their property. 1 Finally, the Morrises signed

a bill of lading in which they declared the total value o f their

shipped property to be $29,000.00. The total weight listed on the

bill of lading was 7,860 pounds.

On January 10, 1995, the Morrises’ prop erty was loaded for

shipment to Baton Rouge. During the trip, the tractor-trailer3

caught fire. The blaze destroyed nearly everything. Covan

nevertheless delivered so me of the property and charged the

Morrises for 4429 pounds of freight. The Morrises disputed the

charge, contending that all of the property delivered was

effective ly destroyed by the fire and attending smoke and water.

Covan adjusted its figures to reflect a delivery of 2658 pounds of

freight and ultimately paid the Morrises $26,498.38 of the declared

value of $29,000.00.

The Morrises were dissatisfied with the settlement offer and

brought this action in the district court. They alleged that the

actual value of their property was $54,312.00 and that they had

suffered an additional $60,000.00 in punitive damages, lost wages,

and mental anguish resulting from t he destruction of their

belongings. In all, the Morrises sought $87,813.62 in damages, the

difference betwee n their actual losses and the amount Covan had

already paid them, as well as attorney’s fees.

The Morris es submitted timely discovery requests to Covan

seeking, among other things, a copy of the tariff under which Covan

was operating. Before any responses were received, however, Covan

moved for partial summary judgment. Covan argued that the action

fell within the scope of the Carmack Amendment and that the

Amendment limited the Morrises’ recovery to the value of property

declared in the bill of lading--$29,000.00.

The district court granted Covan’s motion and then dismissed

the entire lawsuit. Based on the bill of lading and Covan’s tariff4

(which had been attached to Covan’s summary judgment reply brief,

but not provided to the Morrises in response to their discovery

requests), the court determined that the action was governed by the

Carmack Amendment and, thus, that Covan was entitled to limit its

liability to the declared value of the property. Accordingly, the

court dismissed all claims based on state or federal common law.

Also, because the alleged loss occurred before the effective date

of the recently added provisions permitting recovery of attorney’s

fees under the Carmack Amendment, the court held that the Morrises

were not entitled to attorney’s fees. Finally, and without

expressly addressing the Morrises’ cla im that they were

nevertheless entitled to the unp aid balance on their $29,000.00

declaration (amounting to $2501.6 2), the court dismissed the

remainder of the case. The Morrises appealed.

II

We review the district court’s grant of summary judgment d e

novo

. Exxon Corp. v. Baton Rouge Oil , 77 F.3d 850, 853 (5th Cir.

1996). The court will not weigh the evidence or evaluate the

credibility of witnesses; further, all justifiable inferences will

be made in the nonmoving party’s favor. A nderson v. Liberty Lobby,

Inc. , 477 U.S. 242, 255 (1986). If, as here, the nonmoving party

bears the burden of proof at trial, the moving party may

demonstrate that it is entitled to summary judgment by submitting

affidavits or other similar evidence negating the nonmoving party’s

claim, or by pointing out to the district court the absen ce of5

eviden ce necessary to support the nonmoving party’s case.

Lavespere v. Niagare Mach. & Tool Works, Inc. , 910 F.2d 167, 178

(5th Cir. 1990).

Once the moving party presents the di strict court with a

properly supported summary judgment motion, the burden shifts to

the nonmoving party to show that summary judgment is inappropriate.

Id. In doing so, the nonmoving party may not rest upon the mere

allegation s or denials of its pleadings, and unsubstantiated or

conclusory assertions tha t a fact issue exists will not suffice.

Anderson , 477 U.S. at 256. Rather, the nonmoving party must set

forth specific facts showing the existence of a “genuine” issue

concerning every essential component of its case. T homas v. Price

,

975 F.2d 231, 235 (5th Cir. 1992). That is, the nonmoving party

must adduce evidenc e sufficient to support a jury verdict.

Anderson , 477 U.S. at 248. With these standards in mind, we turn

to the merits.2 Effective January 1, 1996, the entire Carmack Amendment was

recodified at 49 U.S.C. § 14706 et seq

. This recodification has no

bearing on the issues presented in this appeal.

6 III

A

The first issue we addr ess, whether federal common law

remedies are available in actions aga inst common carriers within

the scope of the Carmack Amendment, is purely a question of law.

The Amendment provides, in relevant part:

A common carrier providing transportation or service

subject to the jurisdiction o f the Interstate Commerce

Commission

. . . shall issue a receipt or bill of lading

for property it recei ves for transportation under this

subtitle. That carrier . . . and any other common

carrier that delivers the property and is subject to the

jurisdiction of the Commission

. . . are liable to the

person entitled to recover under the receipt or bill of

l ading. The liability imposed under this paragraph is

for actual loss or injury to the property caused by (1)

the receiving carrier [or] (2) the delivering

carrier . . . .

49 U.S.C. § 11707(a)(1) (1995). 2

The Morrise s contend that the purpose of the Amendment was

simply to establish uniform rules governing the interstate shipment

of goods by common carriers. Furthermore, federal common law

remedies are not explicitly precluded by the text of the Amendment,

and applying those remedies here will not frustrate the Amendment’s

purpose. Covan, on the other hand, maintains that section 11707

expressly limits the carrier’s liability to the actual damages

caused to the property up to the amount declared in the bill of

lading.7

In support of their argument, the Morrises also point out that

the Carmack Amendment contains a “savings clause,” which provides

that “except as otherwise provided in this subtitle, the remedies

provided under this subtitle are in addition to remedies existing

under another law or at common law.” 49 U.S.C. § 10103 (1995).

Our reading of this language leads us to conclude initially that

two aspects of this clause are of particular relevance here.

First, remedies provided by the Carmack Amendment are “in addition

to” other remedies. Second, such other remedies include those

available under “comm on law.” Based on a plain reading of this

language, we would think that the Morrises’ claim for punitive

damages, if supported by federal common law, has a firm statutory

basis as an additional remedy under the Carmack Amendment. We are

not, however, writing on a clean slate and must therefore consider

how the Carmack Amendment and its savings clause have already been

interpreted.

B

Our analysis must begin with the Supreme Court’s decision in

Adams Express Co. v. Croninger

, 226 U.S. 491 (1913). In A dams

, the

plaintiff hired the defendant, a common carrier, to ship a package

containing a diamond ring from Ohio to Georgia. The package never

arrived. The bill of lading stated that charges for delivering the

package were based on the value of the shipment, that the value was

to be declared by t he shipper, and that failure to declare the

value would resul t in a rate based on a value of $50. The8

plaintiff had not declared a value. Nevertheless, he brought suit

against the defendant in Kentucky state court for the full market

value of the ring. Under Kentucky law, the contract to limit the

plaintiff’s recovery to an agreed or declared value was invalid,

and the plaintiff was generally entitled to recover the actual

value of the ring. The plaintiff prevailed, and the case

eventually went to the Supreme Court.

The primary issue before the Court was whether a contract for

an interstate shipment, as evidenced by a bill of lading, was

governed by “the local law of the state, or by the acts of Congress

regulating interstate commerce.” A dams

, 226 U.S. at 499-500. The

Court noted that before the Carm ack Amendment, the liability of

common carriers for an interstate shipment of property was governed

by either “the general common law”--as pronounced by the state and

federal courts--or the statutory laws of the states. Id. at 504.

Because of the many varyi ng laws that might apply to a dispute

arising out of any given interstate shipment of goods, it was

impossible for interstate shippers and carriers to determine their

risks and responsibilities with any reasonable certainty. S ee id.

at 505. The Carmack Amendment, the Court held, “made an end to

this dive rsity, for the national law is paramount and supersedes

all state laws as to the rights and liabilities and exemptions

created by such transactions.” I d. ; accord Air Prod. & Chem., Inc.

v. Illinois Cent. Gulf R.R. Co.

, 721 F.2d 483, 486 (5th Cir. 1983),

cert. denied , 469 U.S. 832 (1984).9

The Court rejected the argum ent that the savings clause

preserved the plaintiff’s state law claims. It explained:

It was claimed that [the savings claus e] continued in

force all rights and remed ies under the common law or

other statutes. But . . . it was evidently only intended

to continue in existence such other rights or remedies

for the redress of some specific wrong or injury, whether

given by the interstate commerce act, or by state

statute, or common law, not inconsistent with the rules

and regulations prescribed by the provisions of this

act.

. . . [I]t could not in reason be construed as

continuing in a shipper a commonlaw right the existence

of which would be inconsistent with the provisions of the

act. In other words, the act cannot be said to destroy

itself.

To construe this proviso as preserving to the holder

of any such bill of lading any right or remedy which he

may have had under existing Federal law at the time of

his action gives to it a more r ational interpretation

than one which would preserve rights and remedies under

existing state laws, for the latter view would cause the

proviso to destroy the act itself. . . .

Adams

, 226 U.S. at 507-08. Because the state common law upon which

the plaintiff’s claim relied was inconsistent with the regulatory

scheme established by the Carmack Amendment, the Court held that

the plaintiff’s state common law claim was preempted. I d. at 508-

13.

Recently, two Courts of Appeals have extended the holding in

Adams to conclude that no common law remedies, including those

based on federal common law, are available under the Carmack

Amendment. S ee Gordon v. United Van Lines, Inc.

, 130 F.3d 282 (7th

Cir. 1997); Cleveland v. Beltman N. American Co. , 30 F.3d 373 (2d3 Other circuits have sent somewhat mixed signals on the issue.

The Fourth Circuit has permitted claims for punitive damages based

on federal common law i n addition to other Carmack Amendment

remedies in an action for breach of the duty of nondiscrimination

under 49 U.S.C. § 316(d) (1976). S ee Hubbard v. Allied Van Lines,

Inc. , 540 F.2d 1224 (4th Cir. 1976). The Tenth Circuit initially

interpreted the Carmack Amendment to preclude only state statutory

claims in actions based exclusively on a bill of lading, see Litvak

Meat Co. v. Baker

, 446 F.2d 329 (10th Cir. 1971), but later held

that all state common law remedies were barred under the Carmack

Amendment, see Underwriters at Lloyds of London v. North Am. Van

Lines

, 890 F.2d 1112 (10th Cir. 1989) (en banc) (overruling Litvak

with respect to claims based on state common law). The Tenth

Circuit’s approach to federal common law remedies is unclear.

10 Cir. 1994), cert. denied

, 513 U.S. 1110 (1995). 3 These courts have

construed Adams to have adopted a general rule that the Carmack

A mendment preempts any right or remedy “inconsistent” with those

expressly provided by the Amendment, despite the plain language of

the savings clause. S ee, e.g.

, Cleveland

, 30 F.3d at 379. Federal

common law remedies, these courts have held, are inconsistent with

the Carmack Amendment essentially because their availability would

create an uncertainty in liability that the Amendment was enacted

to eliminate. S ee id. (“the a vailability of punitive damages

[under federal common law] would frustrate the goal of the Carmack

A mendment”); Gordon

, 130 F.3d at 287 (“Even if we assume t hat a

federal common law rule with respect to punitive damages would be

uniform nationally, the punitive damages remedy would displace the

package of remedies that the Interstate Commerce Act contains, and

would allow preci sely the uncertainty the Carmack Amendment was

designed to bar.”).

C11

We find ourselves in substantial agreement with the Second and

Seventh Circuits, although the conclusion reached by those courts

is not as clearly mandated as their decisions might imply. Adams

is somewhat ambiguous as to wheth er it contemplated that its

reasoning would extend to federal common law claims. The Court’s

statement that the savings clause preserved “any right or

remedy

. . . under existing Federal law,” 226 U.S. at 507, could be

construed to permit remedies under federal common law. Ultimately,

however, it is difficult to square this reading of Adams with its

earlier statement that the savings clause pre served only those

“rights or remedies

. . . whether given by the interstate commerce

act, or by state statute, or common law

, not inconsistent with” the

rights and remedies already provided by the Carmack Amendment. I d.

(emphasis added). A dams was decided before Erie R.R. Co. v.

Tompkins

, 304 U.S. 64 (1938). Thus, the Court’s reference to

“common law” must be construed to include both state and federal

common law, see Adams

, 226 U.S. at 504 (describing “general common

law” to consist of law “declared by this court and enforced in the

Federal courts throughout the United States

. . . or that

determined by the supposed public policy of a particular state”),

and its reference to “F ederal law” to include only federal

statutory law.

We therefore understand Adams to mean that any federal common

law remedies preserved by the savings clause can afford no greater

relief than provided by section 11707. In actions seeking damages12

for the loss of property shipped in interstate commerce by a common

carrier under a receipt or bill of lading, the Carmack Amendment is

the shipper’s sole remedy. That is, the Carmack Amendment preempts

any common law remedy that increases the carrier’s liability beyond

“the ac tual loss or injury to the property,” 49 U.S.C.

§ 11707(a)(1), unless the shipper alleges injuries separate and

apart from those resulting direct ly from the loss of shipped

property. A ccord Gordon

, 130 F.3d at 289; Rini v. U nited Van

Lines, Inc.

, 104 F.3d 502, 506-07 (1st Cir.), cert. denied

, 118

S.Ct. 51 (1997).

The Morri ses’ claims for compensatory and punitive damages

exceed those permitted under section 11707. Both are based

directly on the loss of property shipped in interstate commerce by

a common carrier under a bill of lading. The compensatory damages

are for lost wages and emotional suffering incurred by the Morrises

as a result of the destruction of their household goods. The

punitive damages are to punish Covan for any egregious conduct in

the course of discharging its duties under the shipping contract.

Because the Morrises do not allege any injuries separate from the

loss of their property, their claims based on federal common law

are preempted.

IV

The second and final issue we need to consider today is

whether the district court erred in granting summary judgment on

the Morrises’ Carmack Amendment claim. In addition to their claims13

based on federal common law, the Morrises sought reimbursement for

the full value of their p roperty as declared on the bill of

l ading--$29,000.00. Covan paid them only $26,498.38, contending

that it had delivered the remaining $2501.62 worth of property

undamaged. In its memorandum ruling, the district court dismissed

the Morrises’ claims in excess of $29,000.00, and their federal

common law claims , but then, without further analysis, concluded

that all of the Morrises’ claims were to be dismissed . We agree

with the Morrises that the district court shoul d have addressed

these matters.

The district court had no basis before it for dismissing on

summary judgment the Morrises’ Carmack Amendment claim for damages

up to $29,000.00. As discussed previously, the Carmack Amendment

permits shippers to recover the actual amount of loss to the

property shipped. S ee 49 U.S.C. § 11707(a)(1). And, as here, the

value of that property may be set by the shipper in th e bill of

lading. S ee Adams

, 226 U.S. at 508-12. The Morrises alleged in

their complaint that all of their household goods entrusted to

Covan’s care were destroyed by fire, smoke, or water. Covan

presented no evidence suggesting otherwise. Because a genuine

issue of material fact exists as to whether the goods eventually

delivered by Covan were damaged, and thus whether the Morrises are

entitled to the full $29,000.00 declared in the bill of lading,4 In determining that this case fell within the scope of the

Carmack Amendment, the dist rict court applied the four-part test

adopted by this court in Rohner Gehrig Co. v. Tri-State Motor

T rans.

, 950 F.2d 1079 (5th Cir. 1992) (en banc). The district

court found in accordance with this test that, among other things,

Covan maintained a tariff within the prescribed guidelines of the

Interstate Commerce Commission. The Morrises, however, were never

provided an opportunity to examine or challenge the validity of the

tariff, despite requesting the tariff in discovery. Covan instead

submitted the tariff to the district court as an attachment to its

reply brief in support of its motion fo r summary judgment. On

remand, the district court should provide the Morrises with an

o pportunity to examine and challenge the validity of the tariff.

If the tariff is invalid, of course, the case would not be governed

by the Carmack Amendment.

We also note that the district court erred in dismissing the

Morrises’ claims for attorney’s fees. Current provisions allowing

such fees in cases within the scope of the Carmack Amendment, see

49 U.S.C. § 14708, are merely a recodification (with slight

alteration) of provisions in effect since 1982. S ee 49 U.S.C.

§ 11711 (1995). On remand, the district court should also consider

whether the Morrises are entitled to attorney’s fees under section

11711. See Drucker v. O’Brien’s Moving & Storage, Inc. , 963 F.2d

1171 (9th Cir. 1992).

14 dismissal of this claim must be reversed and remanded for further

development. 4

V

For the foregoing reasons, we affirm the judgment of the

district court that the Carmack Amendment precludes the Morrises’

claims that exceed the value of the destroyed property. We remand

for further proceedings to consider the Morrises’ Carmack Amendment

claim for the full value of their destroyed property, their claim

for attorney’s fees, and their challenge to the validity of Covan’s

tariff.

AFFIRMED in part, REVERSED in part, and

REMANDED with instructions.15