UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-2383



ALSTOM   POWER,     INCORPORATED,    a   Delaware
corporation,

                                                Plaintiff - Appellee,

           versus


NORFOLK SOUTHERN RAILWAY COMPANY, an entity
operating in Maryland,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CA-01-622-1-BEL)


Argued:   September 20, 2005             Decided:    November 17, 2005


Before WIDENER and TRAXLER, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Paul D. Keenan, Jonathan F. Ball, JANSSEN, KEENAN & CIARDI,
P.C., Philadelphia, Pennsylvania, for Appellant.      Karyn Alicia
Booth, THOMPSON HINE, L.L.P., Washington, D.C., for Appellee. ON
BRIEF: Scott A. Harvey, THOMPSON HINE, L.L.P., Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     Norfolk Southern Railway Company (“Norfolk Southern”) appeals

various findings of fact and conclusions of law entered by the

district court following a bench trial in an action brought by

Alstom Power, Inc. (“Alstom”) under the Carmack Amendment to the

Interstate Commerce Act.     See 49 U.S.C.A. § 11706 (West 1997).        For

the reasons that follow, we affirm.



                                    I.

     Alstom designs, fabricates and supplies components for heat

recovery steam generators (“HRS generators”) used in electric power

plants.   In July 1998, Alstom entered into a five-year contract to

supply HRS generators to Duke/Fluor Daniel, Inc. (“DFD”), the

general contractor for the construction of power plants in Hidalgo,

Texas, and Veazie, Maine.      The contract imposed various delivery

deadlines for the HRS generator components to arrive at the DFD

construction sites.      The contract included a liquidated damages

provision that was triggered by a missed delivery date. The amount

of   liquidated    damages   due    under    this     provision   increased

proportionally with the length of the delay.

     Alstom fabricates the components for its HRS generators--steel

modules   and   steam   drums—-at   plants   in     Kings   Mountain,   North

Carolina, and Chattanooga, Tennessee. The tremendous weight of the

                                     3
components generally requires Alstom to ship them by rail.               In the

fall of 1998, Alstom’s Manager of Transportation, Gregory Gowans,

arranged for the shipment of the HRS generator components to DFD’s

construction site at Veazie with Norfolk Southern, the only rail

carrier that serviced Alstom’s North Carolina and Tennessee plants.

In explaining Alstom’s shipping requirements for the DFD contract,

Gowans    informed   Norfolk     Southern    that     Alstom’s   planning   was

predicated upon an expected transit time of seven to fourteen days,

and that the final deadline for the delivery of the modules to

Veazie was June 30, 1999, pursuant to Alstom’s contract with DFD.

Gowans also informed upper-level managers from Norfolk Southern

that late delivery would give DFD the right to seek liquidated

damages from Alstom.

     In May 1999, Alstom began delivering modules to Norfolk

Southern for shipment.      Each module was shipped under a separate

Uniform Bill of Lading requiring Norfolk Southern to transport the

shipments with “reasonable dispatch.”           The “reasonable dispatch”

period was not defined. Ultimately, twenty-six out of thirty steel

modules being shipped to Veazie arrived after the June 30 deadline.

Both parties contributed to the delays:             Norfolk Southern’s actual

transit   time   ranged   from    29-62     days,    and   Alstom   experienced

manufacturing problems that contributed to the delay of certain

shipments.    At some point during the summer of 1999, when it was

                                      4
apparent that Alstom would have difficulty meeting the delivery

deadlines, Gowans secured premium transportation services for some

of the shipments, including special trains to transport only

Alstom’s modules and weekend inspections at transfer points.

        In September 1999, Alstom and DFD began negotiating DFD’s

claim   for   damages   as    a    result    of   the   untimely   deliveries.

Initially, DFD sought liquidated damages under the contract of more

than ten million dollars--$5.08 million attributable to the late

deliveries    to   Veazie    and   the   remainder      attributable   to   late

deliveries to DFD’s Hidalgo, Texas, construction site. Eventually,

however, DFD relented on its demand for liquidated damages and

indicated that it would settle for actual damages caused by the

delayed deliveries, provided that a settlement could be reached

quickly and without haggling.

     The parties ultimately reached a settlement based on DFD’s

unilateral calculation of actual damages. Mike Stark, a former DFD

employee who negotiated the settlement terms with Alstom, testified

that on November 15, 1999, DFD presented its calculation of actual

damages to Alstom and explained the general basis for the claim.

However, in light of DFD’s right to pursue liquidated damages under

the contract, DFD “made it quite clear . . . that [DFD] had no

contractual obligation to give [Alstom] . . . information” about




                                         5
how DFD arrived at an actual damages figure or to “prove that this

was right or wrong.”     J.A. 1638.

     Concluding   that    DFD’s   calculations   were   accurate    and

reasonable under the circumstances—-indeed, they were much less

than the liquidated damages originally sought by DFD--Alstom’s

negotiators accepted DFD’s settlement offer without requiring an

accounting or itemization of the alleged actual damages. The final

settlement figure was $3.6 million, covering damages incurred by

DFD at both the Veazie and Hidalgo sites.    The $3.6 million amount

consisted of $1.8 million in cash and $1.8 million in extended

warranties.

     On December 22, 1999, the parties confirmed the essential

terms of the settlement agreement in a two-page document (the “Term

Sheet”).   The Term Sheet purported to “serve as the basis for a

negotiated settlement agreement between [DFD] and [Alstom] for

Liquidated Damages arising from delayed deliveries for the Maine

Independence Project . . . and for Hidalgo Energy Project.”        J.A.

2906.   The Term Sheet set forth the amount of the cash payment,

explained Alstom’s extended warranty obligations, and indicated

that the settlement covered all past and present claims relating to

delays at the Veazie and Hidalgo construction sites.         The Term

Sheet, however, did not apportion settlement between the Veazie and

Hidalgo sites, and it did not distinguish between damages resulting

                                      6
from Alstom’s own manufacturing delays and those caused by Norfolk

Southern’s transit issues.         The Term Sheet also reflected the

parties’ agreement “to reduce these terms to a settlement agreement

for signature as soon as possible after the holidays.”              J.A. 2907.

There is no evidence, however, that the parties subsequently

executed    a    formal   settlement     agreement.        According    to   John

Stratton, an Alstom employee who participated in the negotiation

process, the parties honored the Term Sheet even though no formal

agreement was prepared or signed after the holidays.

     On March 6, 2000, Alstom’s attorney submitted an eleven-page

letter to Norfolk Southern asserting a claim under the Carmack

Amendment for damages caused by the late deliveries to the Veazie

site.      Neither this letter nor the subsequent lawsuit sought

indemnification for damages paid by Alstom in connection with the

Hidalgo site.       Although the letter incorrectly indicated that,

pursuant    to   its   contract   with     DFD,   Alstom    had   already    paid

$1,695,000 in liquidated damages, it acknowledged that Alstom’s

production problems contributed to the delays and thus demanded

reimbursement from Norfolk Southern in the amount of $930,000—-less

than the full amount.        Alstom’s claim also included $203,276 in

premium freight charges that Alstom paid for substitute rail

service incurred “[a]s a direct result of [Norfolk Southern’s]

failure to provide timely service to Veazie.”              J.A. 2916.    In the

                                       7
claim letter, Alstom offered to disclose to Norfolk Southern

“confidential contract provisions” and other relevant documents

upon the execution of a confidentiality agreement.                   J.A. 2908.

Norfolk Southern, which was undergoing a merger with another rail

carrier, indicated it would respond to the claim as soon as

possible.     Although Alstom sent additional letters in April and

September 2000, Norfolk Southern failed to respond.

      On March 2, 2001, Alstom filed this action, seeking to recover

damages   for   the   late    deliveries     to   Veazie   under    the   Carmack

Amendment.1     Following the completion of discovery, Alstom moved

for   partial   summary      judgment,   seeking    a   ruling     that   Norfolk

Southern, as a matter of law, “violated its statutory obligation

under the Carmack Amendment to transport Alstom’s modules with

reasonable dispatch.” J.A. 848. The parties agreed that, in order

to rule on this issue, the district court would first need to

determine the reasonable dispatch period for these shipments, the

point at which the reasonable dispatch period begins to run, and

the actual delivery time.           Even accepting Norfolk Southern’s

evidence as true, the court determined that thirty-one of thirty-

two modules were not delivered with reasonable dispatch.                     The

      1
      Alstom also included claims for (1) breach of the bills of
lading, (2) breach of the duty of good faith and fair dealing, and
(3) breach of contract. The district court dismissed the first two
claims and Norfolk Southern was awarded summary judgment on the
third.

                                         8
district court concluded that it would be for the finder of fact at

trial to decide whether the remaining module was delivered with

reasonable dispatch.

       Norfolk Southern filed a cross-motion for summary judgment,

contending that Alstom offered insufficient evidence that Norfolk

Southern,    regardless     of    whether     it    delivered   with    reasonable

dispatch,     caused   any       of   the     damages      claimed     by   Alstom.

Specifically, Norfolk Southern argued that because the modules at

the time of delivery were missing parts due to manufacturing

problems, Norfolk Southern’s failure to deliver with reasonable

dispatch did not cause Alstom to violate its delivery deadlines.

Norfolk Southern also argued that it was not liable for any portion

of the unallocated settlement because the apportionment of damages

rested on speculation. Finally, Norfolk Southern contended that it

was not liable for the premium rail services procured by Alstom.

The district court concluded that a triable issue of fact existed

as to all three issues and denied the motion.

       In November 2003, the district court conducted a four-day

bench trial and reached the following conclusions.                      First, the

court rejected Norfolk Southern’s argument that Alstom failed to

file   a   valid   notice   of    claim     under    the   Carmack   Amendment—-a

prerequisite for imposing liability upon a rail carrier-—because

Alstom’s March 6, 2000, letter did not claim a “specified or

                                          9
determinable amount of money.”             49 C.F.R. 1005.2(b).     The district

court concluded that the letter satisfied the claim requirement.

The   court    reasoned     that    “[a]   Carmack    Amendment    claim   is    not

intended to serve as an itemized statement of account that the

carrier is expected to pay by return mail.                    Instead, the claim

triggers the carrier’s obligation to investigate it promptly upon

receipt.”      J.A. 3214.

      Next, the district court considered whether Norfolk Southern

delivered with reasonable dispatch the remaining module, an issue

left for trial following the court’s summary judgment ruling.                    The

court found that the reasonable dispatch period for regular train

service in this case was fourteen days, a factual determination

that fell comfortably between the range of reasonableness suggested

by the parties’ witnesses-—Alstom took the position that the

reasonable transit time was between seven and fourteen days, and

Norfolk Southern estimated between sixteen and twenty days.                     With

respect to special trains that charge a premium rate, the court

found   that    a    reasonable     dispatch     period   of    seven   days     was

appropriate.        The district court also determined, contrary to the

position taken by Norfolk Southern, that the reasonable dispatch

period should be measured from the time that a rail carrier issues

a   waybill    signifying     the    shipment   has    been    inspected   and    is

approved for transit, not the time that the carrier actually begins

                                           10
“pulling” the shipment.          Finally, applying these findings, the

court   concluded   that   the    last   of   the   thirty-two   modules   was

delivered beyond the reasonable dispatch period in violation of the

Carmack Amendment.

     As for causation, the district court concluded that Norfolk

Southern’s late deliveries caused actual harm even though many of

the modules arrived at Veazie without pressure nozzles because of

production problems at the Alstom plants. The court found that the

missing nozzles did not impede the construction schedule because

the nozzles were not needed until shortly before the power plant

began operating.

     The district court rejected Norfolk Southern’s argument that

it was not liable for the premium freight charges paid by Alstom

because Alstom’s manufacturing problems would have required the

hiring of these special trains in any event.             The court reasoned

that Gowan’s decision to secure an alternate carrier—-before there

was any indication of a manufacturing problem--was a reasonable

response to the fact that there were transit delays for even the

earliest shipments.        The district court found, therefore, that

“Gowans would have engaged these services regardless of Alstom’s

manufacturing problems.”      J.A. 3226.

     Finally, the district court concluded that, before it could

determine the damages owed by Norfolk Southern for its untimely

                                     11
deliveries,    it   was    required   to    identify    the   portion     of   the

settlement between Alstom and DFD that was attributable to delays

at Veazie, not Hidalgo; to identify the portion of the settlement

paid for the late delivery of modules, as opposed to other parts

arriving    late;   to    determine   a    dollar   value    for   the   extended

warranties portion of the settlement; and to “determine the share

attributable to Norfolk [Southern]’s transit delays (rather than

Alstom’s manufacturing delays).”           J.A. 3226.

      Based on the testimony of Mike Stark, a former DFD employee

who participated in negotiating the settlement, the district court

concluded that sixty-three percent of the settlement amount was

attributable to delays at Veazie. The court further found that the

entire settlement amount was based on the late delivery of modules

as opposed to other parts and equipment. Furthermore, the district

court credited the testimony of John Stratton, Alstom’s project

director for generators, that it would cost Alstom $700,000 to

honor the extended warranty portion of the settlement.                   Finally,

the district court recognized that Norfolk Southern was not solely

at fault for the late deliveries, given that Alstom failed to have

some of the modules ready for shipping until after the June 30

deadline.    Accordingly, the court arrived at the following formula

for   calculating    damages:      “$1.575     million      multiplied    by   the




                                      12
percentage of total delay attributable to Norfolk [Southern], plus

the cost of premium transportation services.”        J.A. 3255.

     The district court invited Alstom to submit a proposed final

damages figure using this formula and to brief the court on the

propriety of pre-judgment interest.      The district court likewise

invited a response from Norfolk Southern. Alstom submitted a final

figure of $1,459,485, including interest.      The court reduced the

interest   claimed   by   Alstom   but   otherwise   adopted   Alstom’s

calculation and entered judgment in the amount of $1,230,871.2



                                   II.

                                   A.

     Norfolk Southern argues that Alstom failed to file a proper

written notice of claim and was therefore precluded from bringing

suit on its delay claim under the Carmack Amendment.           Like the

district court, we reject this claim.

     The Carmack Amendment to the Interstate Commerce Act imposes

liability upon a rail carrier “for the actual loss or injury to the

property” it transports under a bill of lading.          49 U.S.C.A. §

11706(a); see Siemens Power Transmission & Distrib., Inc. v.

Norfolk Southern Ry. Co., 

, 1248 (11th Cir. 2005).       A

bill of lading is essentially “a transportation contract between a
     2
      On appeal, Norfolk Southern does not specifically challenge
the award of prejudgment interest.

                                   13
shipper/consignor (i.e., a seller of goods) and a carrier.”                     Paper

Magic Group, Inc. v. J.B. Hunt Transport, Inc., 

, 461

(3d Cir. 2003).   Although the statute refers to “loss or injury” to

the property being shipped, the Carmack Amendment allows a shipper

to recover damages caused by the carrier’s unreasonable delay in

transporting the shipment.          See New York, Philadelphia & Norfolk

R.R. Co. v. Peninsula Produce Exch. of Md., 

, 38-39

(1916); Hector Martinez & Co. v. Southern Pac. Transp. Co., 

, 108 (5th Cir. 1979).

     The    uniform   bill    of    lading   issued    by   all   rail    carriers

obligates    carriers    to     transport     shipments        with     “reasonable

dispatch.”    49 C.F.R. 1035, App. B, § 2(a) (2004).                  The terms of

the uniform bill of lading also require that, “[a]s a condition

precedent to recovery, claims must be filed in writing with the

receiving or delivering carrier, or carrier issuing this bill of

lading, or carrier on whose line the loss, damage, injury or delay

occurred, within nine months after delivery of the property.”                     49

C.F.R. 1035, App. B, § 2(b).             This language comports with the

statutory directive that shippers be afforded no less than nine

months to file a claim with the carrier and no less than two years

to file a civil action.        See 49 U.S.C.A. § 11706(e).

     The    Department   of     Transportation        has   prescribed        various

baseline    requirements      for   a   shipper’s     claim.      See    49    C.F.R.

                                        14
1005.2(b).   The claim must be in writing, it must be submitted

within the time limits set by the bill of lading, and it must: “(1)

[c]ontain[] facts sufficient to identify the . . . shipment . . .

, (2) assert[] liability for alleged loss, damage, injury, or

delay, and (3) mak[e] claim for the payment of a specified or

determinable amount of money.”      Id.

      The primary purpose of the pre-suit claim requirement is to

“secur[e] reasonable notice for the carrier so that it can conduct

an independent investigation.”       Siemens Power, 420 F.3d at 1251.

The purpose of the regulation is “not to permit the carrier to

escape   liability   but   to   insure   that   the    carrier   has   enough

information to begin processing the claim.”           Id. at 1252 (internal

quotation marks omitted). Thus, a specific amount is not required;

the claim must communicate the intent to hold the carrier liable

and provide sufficient information for the carrier to investigate

the claim.   See id.

     Based on these general principles, Norfolk Southern argues

that “where a carrier denies a proper timely filed freight claim,

any subsequent suit against the carrier essentially asks the courts

to review the propriety of the carrier’s denial.”                  Brief of

Appellant at 19.       Thus, Norfolk Southern argues that the court

should decide only whether the carrier should have paid the precise

claim presented to it.      Norfolk Southern contends that Alstom’s

                                    15
letter of March 6, 2000, sets forth a different claim than the one

that actually went to trial and, therefore, failed to satisfy the

“specific or determinable amount of money” requirement prescribed

by regulation.   Alstom’s claim incorrectly asserted that it had

already paid liquidated damages of $1,695,000.    Acknowledging that

production problems contributed to the delays, Alstom made a demand

for $930,000, in addition to $203,276 for the premium rail services

that it secured to mitigate the delays.     The total amount of the

delay claim was just over $1.1 million.     Norfolk Southern points

out, however, that Alstom increased the amount of its claim after

suit was filed and changed the basis for its claim from liquidated

to actual damages.

     We agree with the district court that the March 6, 2000,

letter gave plenty of information to permit Norfolk Southern to

begin its investigation.   The fact that the letter misstated the

basis for determining the amount of its claim-–the liquidated

damages clause as opposed to the negotiated settlement of DFD’s

actual damages—-did not prevent it from satisfying the claim

requirement.   As the district court observed, the regulations do

not require “an itemized statement of account that the carrier is

expected to pay by return mail.”     J.A. 3214.

     Norfolk Southern’s complaint boils down to its belief that

Alstom’s claim for damages presented in the March 6 letter morphed

                                16
into something different at trial.        Norfolk Southern cannot win

this argument, however, by hyper-technical reliance on regulations

designed to afford it an opportunity to investigate the claim when

Norfolk Southern in fact conducted absolutely no investigation of

the claim and made no decision on the claim before this action was

filed.    See 49 C.F.R. § 1005.4 (2004) (requiring carriers to

investigate claims promptly); 49 C.F.R. § 1005.5 (2004) (directing

carriers to “pay, decline, or make a firm compromise settlement

offer” within 120 days after receiving the claim). Accordingly, we

reject this argument.3



                                   B.

         Norfolk Southern next argues that the district court’s

allocation of the settlement between Veazie and Hidalgo cannot be

affirmed because it was based on speculative and inadmissible

evidence. First, Norfolk Southern contends that the district court

should   not   have   permitted   any   testimony   regarding   how   the

settlement was allocated in light of Alstom’s failure to produce a
     3
      We likewise reject Norfolk Southern’s argument that the
judgment should be vacated because the district court quashed the
trial subpoena issued to the attorney who drafted the November 6
claim letter that wrongly indicated Alstom paid liquidated damages.
Even assuming such testimony would not have divulged privileged
information, we fail to see the relevance of testimony regarding
how the statement about liquidated damages “came to be made.”
Brief of Appellant at 48. It is undisputed that this assertion was
false, and that Alstom and DFD did not reach a settlement using
liquidated damages.

                                   17
formal settlement agreement between Alstom and DFD.                       According to

Norfolk Southern, any testimony about how the settlement was

allocated was barred by the best evidence rule.                     Norfolk Southern

also argues that Alstom’s failure to produce a formal settlement

document suggests spoliation of the evidence.

      The district court found that “[o]n December 22, 1999, Alstom

and DFD memorialized the main points of the settlement in . . .

(the ‘Term Sheet’)” and that “[t]he parties intended to prepare a

formal settlement agreement after the winter holidays, but never

did so.”    J.A. 3210 (emphasis added).               The court concluded that the

“Term     Sheet    .   .   .   is   the   sole    contemporaneous         writing   that

describes the settlement.”                Id.     Norfolk Southern’s arguments

assume the opposite–-that the parties created a formal, integrated

settlement document. However, Norfolk Southern has not highlighted

any   record      evidence     that   would      convince     us   that    the   factual

findings     of    the     district   court      in    this   regard      were   clearly

erroneous. Accordingly, we reject Norfolk Southern’s argument that

the district court erred in considering testimony regarding the

terms of the settlement.4

      4
      Norfolk Southern also contends that the parol evidence rule
bars testimony regarding the allocation of settlement funds because
“[i]t is also possible that the Settlement Agreement was silent as
to allocation, but contained a merger clause.” Brief of Appellant
at 29. This argument injects speculation into an argument already
based on the unsupported assumption that a formal settlement
document existed. We reject this theory as well.

                                           18
     Next, Norfolk Southern argues that the testimony relied upon

by the district court to support its allocation determination was

too speculative to have been considered.       The primary negotiators

for Alstom and DFD testified at trial about the delay damages

linked to the Veazie site as opposed to the damages attributed to

the Hidalgo site. Norfolk Southern characterizes this testimony as

post hoc allocation of damages, supplying the settlement with terms

the parties never agreed upon or considered.             The witnesses,

however, testified that the allocation of damages between Veazie

and Hidalgo was, in fact, considered at the time of settlement even

though the Term Sheet did not itemize the components of the

settlement.     We conclude that there is sufficient evidence to

support the district court’s finding that the parties allocated

delay damages between the two sites in reaching a settlement.

     Finally,    Norfolk   Southern    contends   that   the   deposition

testimony of witnesses from Alstom and DFD was inconsistent as to

what percentage of the lump sum settlement had been allocated to

the Veazie site, thus demonstrating the unreliable and speculative

nature of the allocation evidence.      Specifically, Thomas DeHart, a

DFD employee involved in the settlement negotiations, indicated

that approximately forty-four percent was apportioned to Veazie,

while Alstom’s Stratton indicated that the settlement was split

evenly between the two sites.     Both of these witnesses, however,

                                  19
were explaining how the settlement was apportioned for accounting

purposes,    not   for    purposes   of   determining    actual     damages.

Ultimately, the district court accepted the trial testimony of Mike

Stark, a former employee with DFD with no ties to Alstom, who

indicated, based on his contemporaneous notes, that sixty-three

percent of the settlement was apportioned for actual damages at

Veazie.     We conclude that this evidence was sufficiently certain

and non-speculative to permit the court to make its findings.5



                                     C.

     Finally, Norfolk Southern argues that the district court

abdicated its role as a fact-finder when it directed Alstom to

submit a proposed final judgment using the liquidated damages

formula that Alstom disavowed earlier in the litigation. We cannot

agree.      Although     Norfolk   Southern   is   correct   that   we   have

“consistently disapproved of the practice of a district court

adopting proposed findings of fact and conclusions of law submitted

by the prevailing party,” District 17, United Mine Workers of

America v. Apogee Coal Co., 

, 137 n.4 (4th Cir. 1993),

this is not such a case.      The district court made its own detailed


     5
      Norfolk Southern also challenges the district court’s finding
that Alstom is entitled to recover the premium transportation costs
it incurred. This argument simply takes issue with the district
court’s view of the evidence. Finding no clear error, we reject
this argument as well.

                                     20
findings of fact, including the formula for determining damages,

and arrived at its own conclusions of law. The district court’s

order merely directed Alstom to perform a calculation based on the

court’s factual determination.    Part of the calculation called for

a determination of the number of “delay days” attributable to

Norfolk Southern, but the court invited both sides to submit briefs

on this narrow issue.   Moreover, the district court did not use the

“contractual liquidated damages” provision, as Norfolk Southern

contends.   Indeed, the district court specifically found that DFD

waived the liquidated damages clause and settled its losses with

Alstom based on actual damages.    The formula devised by the court

did not change this finding.



                                 III.

     For the foregoing reasons, we affirm the district court.



                                                           AFFIRMED




                                  21