OPINION

ALICE M. BATCHELDER, Chief Judge.

At its core, this appears to be a simple case: Corning hired Hyundai to transport cargo overseas, Hyundai's subcontractors accidentally destroyed the cargo during transit, and nobody wants to pay for it. After some significant legal decisions and a jury trial, the district court found Hyundai and the subcontractors liable to CNA for the loss, though it refused CNA's request for prejudgment interest. Both sides appeal and, as one might expect, this is not nearly as simple as it would seem. Based on the reasoning that follows, we AFFIRM in part, REVERSE in part, and REMAND for reconsideration consistent with this opinion.

I.

The Corning facility in Harrodsburg, Kentucky, makes 4-foot by 4-foot sheets of very thin fusion-drawn flat-glass for use in LCD flat-screen televisions and computer monitors.1 Corning packs these sheets into custom-made wooden crates, each holding approximately 500 sheets. These crates are sized so that exactly 12 (three across and four deep) fit into a standard 20-foot steel intermodal shipping container leaving only negligible space (less than four inches). This is called "cubing out" the shipping container and eliminates the need for additional packing or securing.

Corning ships its glass, in these containers, to Corning Display Technologies in Tainan, Taiwan (an entirely separate company), which buys all the glass that Corning can produce and also buys more from other vendors. Consequently, Corning ships as many containers per day as it can fill, usually several, and has been doing so for years. Despite the expected fragility of such thin glass and the high volume of shipments, Corning has had virtually no problems with shipping by rail and the damage rate has been extremely low (estimated at one or two sheets for every few crates).

As of 2006, Corning and Hyundai Merchant Marine had for several years been parties to a Service Contract in which Corning agreed to ship and Hyundai agreed to carry Corning's cargo from certain locations in the United States to certain locations in Asia: specifically, as relevant here, from Harrodsburg to Tainan for the shipment of the aforementioned glass (and the return shipment of the empty crates).2 Corning dealt exclusively with Hyundai as the sole carrier for a through shipment; Corning had no role in selecting or contracting with any other carriers in the chain; and Corning made a single payment to only Hyundai. The Service Contract contained other pertinent provisions:

The Hyundai Regular Form Bill of Lading3 contains certain pertinent provisions as well:

It is undisputed that this Service Contract governs the claims in this case.

Based on this Service Contract — which anticipated the shipment of multiple 20-foot-standard shipping containers, every weekday, from the Corning facility in Harrodsburg, Kentucky, to Corning Display Technologies in Tainan, Taiwan — Hyundai coordinated or performed each of the six (6) legs of this journey, as an intermodal shipment via a single through bill of lading.

Hyundai subcontracted with a motor carrier (DHL) to pick up the containers at Corning's facility in Harrodsburg and drive them to the railhead in Louisville. A single truck would carry a single container, and Corning would provide the driver with a "straight" bill of lading for the journey to Louisville, as verification that the cargo in the sealed container departed in good condition. The truck driver did not issue a bill of lading to Corning, in its own right or on behalf of Hyundai.

Hyundai subcontracted with a rail carrier (Norfolk Southern Railway Co., pursuant to an "Intermodal Transportation Agreement," which incorporates Norfolk Southern's Rules, including an option to select Carmack-based liability5 at a higher price, which Hyundai did not select6) to unload the containers from the truck at the Louisville railhead, load them onto a flatcar, and carry the containers by train to Chicago. It is noteworthy that standard flatcar loading for such containers provides for three (3) containers per flatcar: two (2) 20-foot containers placed on the flatcar with their "noses" (closed ends) touching in the middle so that their doors are exposed at either end, and a 40-foot container placed on top of the two 20-foot containers. All containers remain sealed. Norfolk Southern did not issue any bill of lading, either in its own right or on behalf of Hyundai.

Hyundai subcontracted with another rail carrier (Burlington Northern Santa Fe Railway Co., "BNSF," pursuant to an "International Transportation Agreement," which incorporates BNSF's Rules and also offers the option to select Carmack liability at a higher price, which Hyundai did not select) to take possession of the flatcar in Chicago and carry the containers by train to the railhead in Tacoma, Washington. The containers were not removed from the flatcar; the entire flatcar was transferred into BNSF's custody (a "steel wheel" interchange). It is noteworthy that both Norfolk Southern and BNSF maintain detailed records, via computer, of the handling of the trains and railcars, including movement on the line and at the terminal, coupling and decoupling, and any rough handling. BNSF did not issue any bill of lading, either in its own right or on behalf of Hyundai.

Hyundai had a third rail carrier (Tacoma Municipal Beltline Railway, "TMBR," apparently a wholly-owned subsidiary of Hyundai) take possession of the flatcar at the railhead in Tacoma and carry the containers by train to the Washington United Terminal (WUT) seaport. Because TMBR operates over two hundred miles of rail in and around the Tacoma railhead and seaport, it appears that this was necessary carriage and not merely a switching service. TMBR did not issue any bill of lading, either in its own right or on behalf of Hyundai.

Hyundai, an ocean carrier, would unload the containers from the railcars at the WUT seaport and load them onto a ship for sea carriage to the seaport in Kaohsiung, Taiwan. It is at this point that Hyundai would issue a bill of lading specific to the cargo at hand. This was an "ocean" bill.

Hyundai subcontracted with a motor carrier (not named in the record, and terms unknown) to pick up the containers at the Kaohsiung seaport and carry them by truck to Corning Display Technologies in Tainan, Taiwan.7 Nothing in the record suggests that this motor carrier issued any bill of lading, either in its own right or on behalf of Hyundai. To summarize the six legs of the journey:

This journey would take weeks to complete, door-to-door from Harrodsburg to Tainan.

On February 21, 2006, Corning shipped several standard 20-foot containers, as it had done every weekday for years, but unlike those thousands of other shipments, two of these containers (identified as HMDU2347259 and HMDU2262167) were damaged on the way to Tainan.

As was usual, Corning prepared its own straight bill of lading for each container. Each truck driver signed the Corning straight bill upon accepting the container, thus acknowledging that he had received the container from Corning in good condition. Neither truck driver issued Corning a bill of lading; in fact, no carrier ever issued a bill of lading for any cargo at any point during this shipment. Correspondingly, Corning never declared a value for this cargo prior to shipment.

The truck drivers transferred the containers to Norfolk Southern in Louisville on that same day, February 21, 2006. Norfolk Southern placed both containers on the same flatcar, presumably — because the record contains no evidence to the contrary — with noses touching in the middle and a 40-foot container set on top. Norfolk Southern did not record or report any damage to either container at that point. Norfolk Southern transferred the flatcar to BNSF in Chicago on February 26, 2006. BNSF did not record or report any damage to either container at that point. BNSF transferred the flatcar to TMBR in Tacoma on March 4, 2006. TMBR did not record or report any damage to either container at that point. These containers were intended to be loaded onto the Hyundai vessel "Hyundai Duke" for overseas shipment to Taiwan.

On March 5, 2006, Hyundai unloaded the containers from the flatcar onto the dock. Sometime thereafter, a WUT employee observed that the two containers were visibly damaged; the front (nose) end of each container was "bulging," or buckled outward. When the containers were opened for inspection, it was discovered that some of the wooden crates were visibly damaged and some of the glass within had broken. There was no report of any damage to any other container on any other car from this train (including the 40-foot container presumably set atop these two).

On March 7, 2006, Marc Cash, the "Assistant Manager for Outbound Trouble Shooting" for Hyundai, sent an email to Corning, to inform Corning of the situation:

Hyundai contracted Craig Burgess of Cullen Maritime Services, Inc. (Seattle, Washington), to perform an on-site survey of the damage. Burgess confirmed that both containers and four (4) of the crates within were visibly damaged and speculated that the damage was due to aggressive "humping" during the rail carriage. Humping is a means of moving and connecting rail cars during transfer or interchange in which the cars come to a sudden stop. Burgess also opined that the loading and packing of the crates within the containers, by Corning in Harrodsburg, appeared to have been satisfactory. The record does not contain a written report by Burgess or Cullen Maritime.

On March 10, 2006, Marc Cash sent a follow-up email to John Wagner of Corning to report on the information obtained from Burgess:

Apparently, Cash sent photos of the damage (both containers and crates) to Wagner sometime thereafter and, on March 14, 2006, Wagner responded to Cash via email:

Marc:

Note that, at this point, both Cash (Hyundai) and Wagner (Corning) had accepted that a rail carrier's humping of the flatcars caused the damage. But later (much later, it turns out), Norfolk Southern and BNSF disproved this assumption by producing logs to show that no humping or rough handling had occurred during the carriage of these two containers. Cash replied to Wagner that same day:

Hyundai unloaded the 24 crates from the damaged containers, loaded them into two different containers, and shipped them back to Harrodsburg, via the same route by which they had arrived. Meanwhile, Corning filed an insurance claim with its insurer, CNA. When the cargo arrived back in Harrodsburg, CNA scheduled its own survey of the crates to fully assess the damage.

Mark Ohlson of Riverlands Marine Surveyors and Consultants, Inc. (Louisville, Kentucky), conducted a survey on March 31 and April 6, 2006, and prepared a written report dated April 19, 2006 (Riverlands Report), for CNA. In the Riverlands Report, Ohlson noted that Robert Craig, a Marine Surveyor representing Hyundai, was also present. When Corning opened the containers and removed the crates, Ohlson found that all but four (4) of the 24 crates exhibited visible damage to the crate itself or the glass inside. When they opened two (2) of the apparently undamaged crates for inspection, both revealed damaged glass. Ohlson attributed the damage to the likelihood of "humping" during the rail transport, but this was almost certainly based not on any evidence but on Burgess's speculation during the initial on-site survey in Tacoma and Cash's adoption and repetition of that assertion in his email to Corning. Ohlson also opined that Corning's method of stowing and packing had been suitable for the shipping.9 Finally, Ohlson declared the shipment a total loss and recommended that the glass be disposed of and the crates returned to their manufacturer for refurbishment.

CNA paid Corning $664,679.88 on the claim and was subrogated to Corning's right to sue for recovery. On September 27, 2006, CNA filed suit in the Southern District of New York, naming three defendants: Hyundai, Norfolk Southern, and BNSF (hereinafter "the Carriers"). CNA claimed breach of the Service Contract, liability for bailment, and negligence. CNA cited the Carmack Amendment, 49 U.S.C. § 11706, in the opening paragraph (jurisdiction section) of its complaint.

The Carriers moved to transfer venue to the Eastern District of Kentucky, arguing that it would have been an appropriate venue originally and would be more convenient for the parties and any witnesses, given that the carriage began at the Corning facility in Harrodsburg, in the Eastern District of Kentucky. CNA opposed the transfer and moved, in the alternative, for a transfer to the Western District of Washington, where the damage was discovered. The animosity between the attorneys, if not the parties, became clear immediately. The court "granted" the Carriers' motion and transferred the case, not to the Eastern District as requested, but to the Western District of Kentucky, specifically Louisville. While this appears to have been a mistake, the parties proceeded in the Western District of Kentucky, and any objection or error has long since been waived.

The Carriers moved for summary judgment on three bases: (1) that CNA had not pled Carmack claims, so the absence of contractual privity prevented CNA from suing the rail carriers; (2) that the Service Contract's10 Subcontracting Clause prohibited CNA from suing the rail carriers; and (3) that the Carriers were entitled to enforcement of the $500-per-package COGSA limitation of liability, arguing for a limit of $12,000 for the 24 crates.11 The district court rejected the Carriers' argument that CNA had not pled Carmack claims, found that CNA had done so, and held that the case would proceed solely under Carmack, apparently on the basis that the damage had undisputedly occurred while the cargo was in the possession of a rail carrier.12 The court next explained that the Subcontracting Clause did not make the rail carriers "immune from suit"; instead, it merely "obligate[ed] Corning to indemnify Hyundai for any resultant claims by any Subcontractor against Hyundai arising out of these same facts." Finally, the court explained that because the Clause Paramount, as it is written in the Service Contract, does not expressly extend COGSA's $500-per-package limit of liability to the subcontractor rail carriers, it does not apply to them; and because it applies only to damage occurring to inland cargo while that cargo is in Hyundai's custody, it does not apply to Hyundai in these circumstances. Consequently, the court denied the Carriers' attempts to limit their liability.

CNA had also moved for summary judgment, seeking to strike the Carriers' limitation-of-liability defenses on two theories: (1) that the Indemnification Clause in the Service Contract provided for full remuneration for the loss of the cargo; and (2) that the Carmack Amendment barred the rail carriers from any attempted limitation of liability.13 The court rejected CNA's first theory, explaining that the Indemnification Clause obligates Hyundai to indemnify Corning against third-party claims, but "has no bearing on Hyundai's liability to Corning for the loss of the Cargo." The court did not specifically decide the Carmack argument, but instead granted the motion based on its finding that the Service Contract's limitations of liability did not apply to any of the Carriers.

The case proceeded to a jury trial under a single Carmack cause of action.14 CNA proved its Carmack prima facie case (i.e., the cargo was tendered in good condition, it arrived in damaged condition, and actual damages were quantified), so the burden shifted to the Carriers' to demonstrate one of the five excepted causes.15 The Carriers attempted to prove that the damage was due to Corning's "improper" stowing and packing, inasmuch as it had left three inches of space (in the 20-foot container) between the crates and the end wall. CNA easily rebutted this contention. The real mystery was how the damage actually occurred — the railroads demonstrated that there had been no "humping," as had been speculated, nor was that even a plausible cause given that the containers had likely been positioned on the flatcar nose-to-nose. Also, the railroads demonstrated that no other containers on that train had been damaged. It appears likely that the containers were damaged after being removed from the flatcar, but the case was neither presented nor defended that way.

The jury found for CNA, holding the Carriers jointly and severally liable for $498,509.91 (which is exactly 75% of the $664,679.88 claim, to the penny). Notably, there is no provision under Carmack for contributory negligence or a partial award, and the court did not instruct the jury that it could issue a partial award, so this appears to have been improper. But CNA did not protest the verdict to the district court or appeal it here. CNA did move for pre-judgment interest under New York law (9%) or, alternatively, federal law, but the district court denied that motion.

Meanwhile, the Carriers moved for judgment as a matter of law, arguing (1) that Carmack did not apply to Hyundai because it is not a rail carrier; (2) that the Surface Transportation Board had exempted intermodal rail transportation from Carmack unless the shipper selects it and pays extra for it, which Corning did not do; and (3) that Carmack does not permit lawsuits by Corning, the shipper, against Norfolk Southern or BNSF, because they are mere connecting carriers under Carmack. Because the district court had already considered and rejected these arguments in its summary judgment decisions, the Carriers relied on an intervening Supreme Court decision to raise these issues anew, namely Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 130 S.Ct. 2433, 177 L.Ed.2d 424 (2010). The district court denied the motions, explaining:

The Carriers appealed. CNA cross-appealed, contesting the court's denial of prejudgment interest.

II.

The preliminary and overriding question in this appeal concerns the meaning and application of the Carmack Amendment. That is, we must determine whether Carmack actually applies here.

A.

The Carmack Amendment to the Interstate Commerce Act, originally enacted in 1906 and currently codified at 49 U.S.C. § 11706, states in pertinent part:

49 U.S.C. § 11706 (certain paragraph breaks added). These provisions also apply to motor carriers, see 49 U.S.C. § 14706(a)(1) (virtually identical for motor carriers), and freight forwarders.16 See Royal & Sun Alliance Ins. v. Ocean World Lines, Inc., 612 F.3d 138, 145 (2d Cir. 2010).

Though it might not be obvious from the text, "Carmack's original premise is that the [initial] receiving carrier is liable for damage caused by the other [subsequent] carriers in the delivery chain," Kawasaki, 130 S.Ct. at 2446. The current version of Carmack makes the final, or "delivering," carrier liable to the shipper as well. So, the aggrieved shipper need only sue the initial ("receiving") or final ("delivering") carrier and need not seek out the carrier actually at fault, nor must the plaintiff-shipper determine the circumstances by which the loss or damage actually occurred.

In a Carmack claim, the Supreme Court has set out a burden-shifting framework, in which the shipper may establish a prima facie case with a showing of three basic elements:

Thereupon, the burden shifts to the defendant-carrier to show both that it was not negligent and that the damage was instead due to one of five excepted causes: (1) an act of God; (2) an act of terrorism or war; (3) an act of the shipper itself; (4) an act of public authority; or (5) the inherent vice or nature of the goods. Missouri Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 137-38, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964).

If the defendant-carrier meets this burden, it wins. If not, then the shipper prevails based on its establishing the — very low threshold — prima facie case. Recall that this named defendant-carrier (either the receiving or delivering carrier, or both) may attempt to recover any judgment from the intermediate carrier that was actually at fault for the loss or damage. 49 U.S.C. § 11706(b).

B.

"Common carrier liability" at common law was "of an extraordinary character, and cover[ed] every risk that the property c[ould] be subject to, except a loss by the act of God or by an unavoidable accident, [or] by the public enemy." St. Louis, I.M. & S. R.R. v. Knight, 122 U.S. 79, 88, 7 S.Ct. 1132, 30 L.Ed. 1077 (1887). The carrier's alternative was to limit its liability by contract with the shipper, which, due to the "extraordinary liability which the law impose[d]," almost every carrier chose to do. See id. As a result, there was no uniform law for carrier liability, but instead, every case was dependent on the contract between the carrier and the shipper, typically embodied in a bill of lading.

It also bears mention that, pre-Carmack, there were hundreds of rail carriers operating their own rail lines as part of a massive, interconnected, nationwide system. So a shipment from Harrodsburg, Kentucky, to Tacoma, Washington, might pass through a half-dozen or more carriers, each of whom would operate under the contract (bill of lading) that the shipper had formed with the initial carrier, even though the shipper, and possibly even the initial carrier, had no knowledge of who these subsequent carriers might be. This made it very difficult, if not impossible, for the shipper to locate the carrier actually responsible for loss or damage to the cargo during transit.

As enacted in 1906, the Carmack Amendment partially codified the common law by adopting a form of common-carrier liability, and restricted the carrier's right to limit that liability by contract. In Atlantic Coast Line R.R. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167 (1911), the Supreme Court considered an early challenge to Carmack and clarified that the Amendment placed full liability on the initial "receiving" carrier and prohibited any attempt to contractually limit that liability:

Id. at 205, 31 S.Ct. 164. The Court portrayed this as an agency construct: "The liability of the [initial] receiving carrier which results in such a case is that of a principal for the negligence of his own agents [i.e., the subsequent connecting or delivering carriers]." Id. at 206, 31 S.Ct. 164. Otherwise stated:

Id. at 206-07, 31 S.Ct. 164. The Court rejected statutory and constitutional challenges. The Court's underlying, though unstated, premise is that there is a single contract for the shipment of the goods — either an actual contract, such as in a bill of lading, or a constructive contract based on Carmack's governing regulation — and that contract is between the shipper and only the initial (receiving) carrier.

Two years later, in Adams Express Co. v. Croninger, 226 U.S. 491, 505-06, 33 S.Ct. 148, 57 L.Ed. 314 (1913), the Court explained that Congress had, with the Carmack Amendment, fully preempted state law concerning the liability of interstate rail and road carriers. The Court also restated and clarified:

Id. at 504, 33 S.Ct. 148 (quotation marks omitted); see also Norfolk & W. R.R. v. Dixie Tobacco Co., 228 U.S. 593, 594-95, 33 S.Ct. 609, 57 L.Ed. 980 (1913) (explaining that Carmack "requires any common carrier receiving property for transportation from a point in one state to a point in another to issue a receipt or bill of lading for the same; makes the [initial] receiving carrier liable for loss caused by any common carrier in transitu; and provides that no contract shall exempt it from the liability thus imposed").

Note that an actual or tangible bill of lading is not necessary to impose liability on the initial carrier under Carmack's plain terms, 49 U.S.C. § 11706(a) ("Failure to issue a receipt or bill of lading does not affect the liability of a rail carrier."), or Atlantic Coast Line's constructive-contract premise, 219 U.S. at 206, 31 S.Ct. 164 ("If you receive articles for transportation..., you must do so under a contract to transport to the place designated."), and that Adams Express, 226 U.S. at 504, 33 S.Ct. 148, treats "contract, receipt, rule, or regulation" as equally powerless to limit the carrier's liability. Thus, Carmack's requirement that the initial carrier issue the shipper a bill of lading is not a requirement to form an actual contract, though that is certainly acceptable and typically anticipated; it is a requirement that the initial carrier issue the shipper a receipt for the cargo as acknowledgment of the constructive contract making that carrier solely liable to the shipper for the entire carriage.

Because the shipper's contract (actual or constructive), as embodied in or symbolized by the initial carrier's bill of lading to the shipper, is the sole agreement governing the duration of the carriage and is between the shipper and only the initial carrier, making subsequent carriers mere agents of the initial carrier, any overlapping bill(s) of lading issued by any subsequent carriers are void. Missouri, K. & T. R.R. v. Ward, 244 U.S. 383, 387, 37 S.Ct. 617, 61 L.Ed. 1213 (1917). That is:

Id. at 387-88, 37 S.Ct. 617. Thus, in Missouri, K. & T, the Court upheld the shipper's suit against two subsequent rail carriers under the terms of the initial shipper's bill of lading (contract) and voided a subsequent, overlapping bill of lading. See also Texas & Pac. R.R. v. Leatherwood, 250 U.S. 478, 481, 39 S.Ct. 517, 63 L.Ed. 1096 (1919).

Note that the Missouri, K. & T. Court allowed the shipper to sue and recover from subsequent rail carriers, despite the absence of contractual privity between the shipper and those carriers:

Missouri, K. & T, 244 U.S. at 387, 37 S.Ct. 617. This is an expansion of Carmack beyond its terms: here, the subsequent carriers are not acting as agents for the initial carrier to complete the carriage; rather the initial carrier is made the agent for the subsequent carriers to bind them to a contract with the shipper.

Ten years later, in Missouri Pacific R.R. v. Porter, 273 U.S. 341, 47 S.Ct. 383, 71 L.Ed. 672 (1927), the Court considered an overseas export of goods shipped under a single through bill of lading (albeit separated into two sub-parts: one for rail transport from Arkansas to Georgia and another for sea transport from Georgia to England). The emphasis in Porter was the Court's holding that Congress had occupied the entire field regulating interstate bills of lading, thereby invalidating any coincident state laws.17 In its analysis, however, the Court opined (perhaps in dicta) that the Carmack Amendment would not apply to the domestic overland part of an international, overseas shipment under a through bill of lading:

Id. at 345, 47 S.Ct. 383; see also Reider v. Thompson, 339 U.S. 113, 120, 70 S.Ct. 499, 94 L.Ed. 698 (1950) (Frankfurter, J., dissenting) (asserting that "[t]he conclusion of the Porter case" was "that the Carmack Amendment does not apply to an unbroken transaction of commerce with a nonadjacent foreign country"). Ultimately, the Court held that the situation presented was governed by the general statute concerning bills of lading and the federal courts' interpretation and application of that statute (i.e., federal common law).

If this passage were a legal holding, then Carmack plainly would not apply to the domestic portion of an overseas export under a through bill of lading, even if the initial receiving carrier otherwise fell within Carmack's coverage. But the Court has, since then, expressly limited this as a holding and has treated this issue as an open question, so it is likely dicta.

In Mexican Light & Power Co. v. Texas Mexican R.R., 331 U.S. 731, 67 S.Ct. 1440, 91 L.Ed. 1779 (1947), the Court considered a shipment of cargo under two overlapping bills of lading, as in Missouri, K. & T., and again found the second bill void. The first bill (from the initial carrier, Pennsylvania R.R.) covered carriage from Pennsylvania to Laredo, Texas, for export to El Oro, Mexico, with a caveat that the purchaser's agent would meet the shipment in Laredo, presumably to arrange for border crossing. Id. at 732-33, 67 S.Ct. 1440. More importantly, the shipper had paid Pennsylvania R.R. for shipment all the way to the Mexican border; i.e., through Laredo, but not actually out of the country (so not technically an export). When the subsequent ("connecting") carrier (Texas Mexican R.R.) stopped in Laredo, it issued another bill of lading, for the trip from Laredo to El Oro. But because Pennsylvania R.R. had paid Texas Mexican R.R. to deliver the shipment all the way to the border, Texas Mexican did not receive any further payment for the second bill of lading. At the border, the shipment was transferred to the National Railway of Mexico, in whose custody it was later damaged. The shipper sued Texas Mexican R.R. under Carmack, as the putative initial (receiving) carrier on the second bill of lading. The Court rejected Carmack liability for Texas Mexican, explaining:

Id. at 734-35, 67 S.Ct. 1440. Note that this exclusion of Texas Mexican R.R. because it was merely a subsequent connecting carrier is a reversal from Missouri, K. & T, 244 U.S. at 387, 37 S.Ct. 617, in which the Court permitted the shipper to sue two subsequent rail carriers. This is peculiar because the Court cited to, quoted from, and relied on Missouri, K & T in holding that the subsequent bill of lading was void.

In Reider v. Thompson, 339 U.S. 113, 70 S.Ct. 499, 94 L.Ed. 698 (1950), the Court considered an overseas import of goods shipped under two non-overlapping bills of lading; one for the sea transport from Buenos Aires to New Orleans and another for the rail transport from New Orleans to Boston. The Court held that the absence of a through bill meant that the trip comprised two separate journeys, each covered by its own separate bill of lading, the second of which (the overland, rail portion) fell under Carmack, even though the first (overseas) part would not. The Court explained:

Id. at 117, 70 S.Ct. 499 (citations omitted). Because there were two independent contracts, the Court put the first (oversea) contract aside and considered only the second (entirely domestic, overland) contract individually. In this light, the Court was not considering "an unbroken transaction of commerce with a nonadjacent foreign country," id. at 120, 70 S.Ct. 499 (Frankfurter, J., dissenting), and it distinguished Missouri Pacific R.R. v. Porter, 273 U.S. at 345, 47 S.Ct. 383 (which had stated that Carmack would not apply to the "inland route to a seaport" as part of an overseas shipment in foreign commerce):

Reider, 339 U.S. at 116 n. 1, 70 S.Ct. 499.

Nonetheless, the Reider Court's reasoning implied that the use of a through bill (from Buenos Aires to Boston) would have altered the outcome, suggesting that its outcome could have been consistent with Porter, or at least not inconsistent with it. That is, had the shipper and ocean carrier entered a single through contract, from Buenos Aires to Boston, with the rail carrier at New Orleans a mere subcontractor to the ocean carrier, then the "obligation of the carrier as receiving carrier" vis-a-vis the shipper would have originated with the ocean carrier in Buenos Aires, and that carrier would not be subject to Carmack. Thus the shipper would have no grounds to invoke Carmack, either against the ocean carrier as the "receiving" carrier or against the rail carrier, a mere "connecting" carrier under the single through contract.

One lingering question would be whether Carmack applied separately to the rail component of the journey; that is, whether the rail carrier in New Orleans would have been a Carmack "receiving carrier" vis-a-vis the ocean-carrier-as-shipper, under the view that its obligation began in New Orleans.18 Likely not. In Reider, 339 U.S. at 118, 70 S.Ct. 499, the Court found it important that, because "the shipment in this case could not have moved an inch beyond New Orleans under the ocean bill[,] the Carmack Amendment required [the rail carrier] to issue a ... bill of lading for the carriage from New Orleans to Boston." Applying that reasoning the other way, under a through bill the shipment would certainly continue through New Orleans under the ocean bill, so the rail carrier would not have needed to issue a bill of lading to continue the carriage to Boston. Moreover, because the rail carrier would receive no additional consideration for the second bill of lading beyond that already paid by the ocean carrier under the through bill, that second bill would have been void under the Carmack analysis in Mexican Light & Power, 331 U.S. at 734, 67 S.Ct. 1440. Regardless, the Court has since rejected this ocean-carrier-as-shipper argument expressly. See Kawasaki, 130 S.Ct. at 2445 ("A carrier does not become a [Carmack] receiving carrier simply by accepting goods for further transport from another carrier in the middle of an international shipment under a through bill.").

Thus, though far from definitive, a composite of the Court's Carmack case law as of Reider reasonably appeared to hold that Carmack: (1) fully preempted state law as to an interstate rail carrier's liability; (2) mandated a single contract for carriage (i.e., the receiving carrier's bill of lading), such that any subsequent and overlapping contract would be void; (3) either allowed or disallowed a shipper's lawsuit against a "connecting" carrier, without clear explanation; and (4) would likely not apply to an overseas through contract, i.e., "an unbroken transaction of commerce with a nonadjacent foreign country." Unfortunately, the Court's ensuing cases concerning the Carmack Amendment confused as much as, or more than, they clarified.

In Norfolk Southern R.R. v. Kirby, 543 U.S. 14, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004), the Court did not discuss or even mention the Carmack Amendment, but its analysis affects our Carmack analysis nonetheless. Kirby involved two overlapping bills of lading (i.e., contracts), both of which were through bills for an import of goods from Australia to Alabama via the port at Savannah, Georgia. The shipper (Kirby) hired an intermediary (ICC) to arrange the carriage; ICC hired an ocean carrier (Hamburg Sud) to perform the through carriage; and Hamburg Sud hired a rail carrier (Norfolk Southern) to complete the overland portion. ICC issued a bill of lading directly to Kirby; Hamburg Sud issued a second bill to ICC, without Kirby's knowledge. Each bill contained a Clause Paramount, extending COGSA's terms to cover the overland portions of the carriage, and a Himalaya Clause, extending the bills' limitations of liability to the subcontractors. Norfolk Southern operated under these two bills and did not issue any bill of its own. When the train derailed, Kirby sued Norfolk Southern for breach of contract and negligence. Norfolk Southern invoked the limitations of liability in the bills of lading. The Eleventh Circuit held that neither bill limited Norfolk Southern's liability to Kirby: the Hamburg Sud bill did not bind Kirby, and the ICC bill did not reach Norfolk Southern. But the Supreme Court disagreed and — interpreting the bills (contracts) under federal maritime law — reversed, holding that both bills limited Norfolk Southern's liability to Kirby. Id. at 36, 125 S.Ct. 385.

For our purposes, the most critical aspect of the opinion is the Court's complete omission of any reference to Carmack, which is particularly odd given that (1) it is a rail-carrier-liability case concerning the defendant rail carrier's attempt to limit its liability to the shipper, i.e., at the very core of Carmack; (2) the Court framed its first issue as a conflict between federal and state law, id. at 22, 125 S.Ct. 385,19 even though Carmack fully preempts state law concerning rail carrier liability,20 (3) at least one amicus brief — the United States, acting on the Court's invitation — expressly brought the potential Carmack applicability to the Court's attention;21 and (4) Carmack came up again at oral argument, albeit as merely a passing reference.22 There can be little doubt that if Carmack applied it would significantly alter the analysis and outcome (e.g., prohibiting Norfolk Southern from limiting its liability by contract, voiding the overlapping Hamburg Sud bill of lading, and applying its burden-shifting framework to resolve Kirby's merits analysis). Consequently, the most reasonable explanation for the Court's omission is that it determined, sub silentio, that Carmack did not apply.

Instead, the Court applied COGSA in assessing the rail carrier's liability. The Court acknowledged that COGSA would not apply to the rail carrier "by its terms," unless the parties extended it by contract, and explained that the parties had done just that in the bills of lading:

Id. at 29, 125 S.Ct. 385 (citations and certain quotation marks omitted). That is, to the extent that Carmack would have applied to the rail carriage in this case, the two "extension" clauses in the bills of lading — the Clause Paramount (contractually extending COGSA to the overland portions of the carriage) and the Himalaya Clauses (contractually extending COGSA to the rail carrier subcontractor) — trumped Carmack, rendered it wholly inapplicable (to the point of omission), and replaced it with COGSA.

Put another way, parties to a maritime contract for intermodal through carriage (i.e., ocean carriage containing a rail leg) can contract for COGSA coverage throughout, and exclude Carmack entirely, with a properly written Clause Paramount and Himalaya Clause. This premise begets three questions, which — not coincidentally — are the three questions the Court answered in Kirby: (1) what is a maritime contract; (2) what is a sufficient Himalaya Clause; and (3) can an intermediary really limit the subcontractor's liability to the shipper without the shipper's knowledge or consent.

The Court emphasized its "conceptual approach" to identifying maritime contracts: "so long as a bill of lading requires substantial carriage of goods by sea ... it is a maritime contract [but] ... [i]f a bill's sea components are insubstantial, then the bill is not a maritime contract." Id. at 27, 125 S.Ct. 385 (emphasis added). Most pertinent for our purposes here, this test draws no distinction between imports and exports, and actually rejects "a rule ... that depends solely on geography." Id. As written, even if the Kirby shipment had left Alabama bound for Australia via the port at Savannah, one would expect the Court to have employed the same test and reached the same result.

Next, the Court held that Himalaya Clauses that are written broadly (i.e., covering "any" servant or contractor) must also be read broadly, to include any foreseeable subcontractors as intended beneficiaries, thus rejecting a rule of "linguistic specificity or privity." Id. at 31, 125 S.Ct. 385. That is, despite the parties' failure to specifically include a rail carrier in the Himalaya Clause, the term "any" and the necessity of rail carriage to complete the journey established the rail carrier's inclusion:

Id. at 32, 125 S.Ct. 385. This was a direct reversal of the Eleventh Circuit's rule.

Finally, the Court held that the intermediary can act as the shipper's agent for the single, limited purpose of binding the shipper "to the liability limitations it negotiates with downstream carriers." Id. at 34, 125 S.Ct. 385. The shipper is not without recourse, however, as the shipper may sue the intermediary for any loss that exceeds the limit to which the intermediary bound the shipper. Id. at 35, 125 S.Ct. 385.

So Kirby appears to contain two of our recurring, underlying, but often unstated premises. The first would be that Carmack does not apply to an unbroken transaction of commerce with an overseas foreign country. The other is that a shipper may sue a subsequent carrier under a through contract (here a subcontractor's subcontractor), despite the absence of express contractual privity between the shipper and that carrier. See Kawasaki, 130 S.Ct. at 2456 n. 8 (Sotomayor, J., dissenting) ("In Kirby, ... we took as a given that the shipper could sue the inland rail carrier, even though the shipper was not a party to the rail carrier's bill of lading with an intermediary.").

In its most recent case, Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 130 S.Ct. 2433, 2438-39, 177 L.Ed.2d 424 (2010), the Court considered this same scenario again — an overseas import of goods shipped under a through bill of lading — but this time addressed the Carmack issue. This case involved an import from China to Oklahoma via the port at Long Beach, California.23 The shipper (Regal-Beloit) hired an ocean carrier (Kawasaki Kisen, a.k.a. K-Line) to perform the through carriage, and K-Line hired a rail carrier (Union Pacific R.R.) to complete the overland portion. K-Line issued a through bill of lading to Regal-Beloit; Union Pacific did not issue any bill of lading. The K-Line bill of lading contained five pertinent provisions: (1) a Himalaya Clause, extending limitations of liability to K-Line's subcontractors (e.g., Union Pacific); (2) a Subcontracting Clause, authorizing K-Line to subcontract at its discretion; (3) a Clause Paramount, extending COGSA's terms to cover the entire journey, including the overland portions; (4) a Choice of Law Clause, designating Japanese law; and (5) a Forum Selection Clause, designating the Tokyo District Court.

When the train derailed in Oklahoma, Regal-Beloit sued K-Line and Union Pacific in California state court, and the case was removed immediately to federal district court. After the district court dismissed based on the Tokyo Forum Selection Clause (premised on its underlying holding that the Clause Paramount extended the COGSA bill of lading to the rail portion of the journey and the Himalaya Clause extended it to cover Union Pacific), the Ninth Circuit reversed, holding that "the Carmack Amendment ... trumped the [COGSA-based contract, and its] forum-selection clause." Id. at 2440. On certiorari, the Court said "[t]he forum selection provision ... gives rise to the dispute here," but framed the issue far more broadly as "whether Carmack applies to the inland segment of an overseas import shipment under a through bill of lading." Id. And:

Id. at 2439. The Court chose not to explain why this question was left unaddressed in Kirby, despite expressly acknowledging the similarity of the fact patterns, id. at 2438, and asserting that "[m]uch of what the Court said in Kirby applies to the present case[]," id. at 2442. Moreover, the Court did not pick up or begin where Kirby left off, with the preeminence of maritime contracts.

The Court began by deconstructing the text of the Carmack statute, saying: "Carmack divides the realm of rail carriers into three parts: (1) receiving rail carriers; (2) delivering rail carriers; and (3) connecting rail carriers." Id. at 2442. A "receiving rail carrier" is the initial carrier to receive the cargo from the shipper "at the journey's point of origin" and the only carrier that must issue a bill of lading pursuant to Carmack's requirements; a "delivering rail carrier" is the last carrier to deliver the cargo; and a "connecting carrier" is any and every carrier in between. Id. at 2443. The Court emphasized that the term "receiving rail carrier" is a statutory term of art, as defined above, not just "any rail carrier that in the colloquial sense `received' the property from another carrier." Id.

The Court then pivoted on the "receiving rail carrier" term, explaining that this term not only categorizes a particular carrier under Carmack (for purposes of identifying the liable carrier and the carrier responsible for the bill of lading), but also determines whether Carmack even applies to a shipment. The Court held that Carmack applies only to shipments for which there is a receiving carrier required to issue a Carmack bill of lading — meaning, a road or rail carrier that is both subject to STB jurisdiction and receiving cargo from the shipper at the journey's point of origin. Id. at 2443. No "receiving carrier" means no Carmack bill of lading, which means no Carmack applicability (despite the involvement of carriers that would qualify as "connecting" or "delivering" rail carriers). Id.; see also id. at 2449 (concluding that "[b]ecause the journey included no receiving rail carrier that had to issue bills of lading under Carmack, Carmack does not apply"). This was a novel approach in that no court had previously assessed Carmack's applicability quite this way.24

So Carmack's threshold question is whether the carriage begins with an as-defined "receiving rail carrier"; i.e., as the Court put it, "ascertaining the shipment's point of origin is critical to deciding whether the shipment includes a receiving rail carrier," id. at 2443. The analysis, to which we have added some bracketed explanatory language, follows:

Id. at 2444-45 (quotation marks and citations omitted; paragraph break and emphasis added).26

Despite the included reference to "essentially maritime contracts" and the associated allusion to Kirby, this Carmack-focused analysis is clearly different from Kirby's "conceptual approach" to maritime-contract-applicability analysis, see Kirby, 543 U.S. at 27, 125 S.Ct. 385. Under Kirby's "conceptual approach," one would consider the entire journey described in the through bill as a single journey and decide whether that journey contained "substantial" sea carriage, thereby making the through bill a "maritime contract" and invoking the predominant interest in the uniform application of maritime law over conflicting interests (or laws). Id. at 28-29, 125 S.Ct. 385. Reciprocally, if the journey contained only "insubstantial" sea carriage, the through bill would be some other type of contract, see id. at 27, 125 S.Ct. 385 ("If a bill's sea components are insubstantial, then the bill is not a maritime contract."), perhaps a railroad contract if rail carriage were the predominant portion of the journey. But under the analysis from the forgoing passage from Kawasaki, 130 S.Ct. at 2444-45, Carmack can never apply to a through carriage originating overseas, no matter how "insubstantial" the sea portion of the carriage might be or how overwhelming the rail portion of the carriage might be,27 because carriage originating overseas could not satisfy Kawasaki's requirement for a receiving rail carrier.

At this point in its opinion, the Court had answered the question before it (as the Court had framed it), holding that Carmack does not apply to the inland segment of an overseas import shipped under a through bill of lading because there is no "receiving carrier." And the Court announced that it "need not address the instance where goods are received at a point in the United States for export." Id. at 2444. The Court, however, continued:

Id. at 2445. So, although expressly declining to decide whether Carmack applies to overseas exports that begin with a rail carrier (i.e., a Carmack receiving rail carrier), the Court nonetheless offered this bit of reasoning, which is as applicable here to exports as it is to imports.

Further, the Court declared that "the interpretation of Carmack the Court now adopts attains the most consistency between Carmack and COGSA." Id. at 2447. The Court's discussion is confined to imports, but it is difficult if not impossible to distinguish an export situation when viewed in light of these policy arguments. Consider this part of the discussion, which includes bracketed language relative to exports:

Id. at 2447-49 (paragraph break inserted; editorial marks, quotation marks, and citations omitted) (language relative to "exports" added in brackets). Clearly, the validity of these points does not turn on whether the shipment was an import or an export.

Thus, in light of the foregoing, the rule of Kawasaki appears to be that Carmack does not apply to the overseas shipment of goods — import or export — shipped under a single through bill of lading. This is consistent with the Court's prior dicta and outcomes. See Missouri Pacific R.R. v. Porter, 273 U.S. at 345, 47 S.Ct. 383; Reider, 339 U.S. at 117, 70 S.Ct. 499; id. at 120, 70 S.Ct. 499 (Frankfurter, J., dissenting) ("the Carmack Amendment does not apply to an unbroken transaction of commerce with a nonadjacent foreign country"); Kirby, 543 U.S. at 29, 125 S.Ct. 385. And lower courts are coming to that same view.

C.

The courts that have considered whether Carmack applies to the inland segment of an overseas export have come down on both sides of the question; some initially applying Carmack based on the existence of the receiving carrier (i.e., a rail carrier that is both subject to STB jurisdiction and receiving cargo from the shipper at the journey's point of origin), but more recently rejecting it based on the arguments and rationale favoring COGSA and maritime contracts.

In the only Sixth Circuit case of significance on this issue, American Road Service Company v. Consolidated Rail Corporation, 348 F.3d 565, 568 (6th Cir.2003), we held that Carmack "does not extend to a shipment under a through bill of lading unless a domestic segment of the shipment is covered by a separate domestic bill of lading." Because this opinion concerned an import, predated Kirby and Kawasaki, and included reasoning that has since been rejected, it is of limited value for our present purposes, even though it is generally consistent with Kirby and Kawasaki.

Since Kawasaki, the Southern District of New York has issued conflicting opinions on Carmack's applicability to the rail leg of an overseas export under a through bill. In American Home Assurance Co. v. Panalpina, Inc., No. 07-cv-10947, 2011 WL 666388 (S.D.N.Y. Feb. 6, 2011), the court considered an export of forklifts, from Illinois to Australia via a California port, under a single through bill (containing a Himalaya Clause, a Clause Paramount, and COGSA coverage). When the train derailed, the shipper sued the rail carrier (BNSF) and the court relied on Kawasaki's "receiving rail carrier" analysis, holding that "Carmack applies when the first rail carrier in the chain of transportation accept[s] the cargo at the shipment's point of origin" and that "Carmack provides the default legal regime governing the inland leg of a multimodal shipment originating within the United States and traveling on a through bill of lading." Id. at *4. This was not appealed. In Hartford Fire Insurance Co. v. Expeditors International, No. 10-cv-5643, 2012 WL 2861433 (S.D.N.Y. July 9, 2012), the court considered an export of solar panels, from Massachusetts to France via a New York port, under a single through bill, and granted summary judgment to a connecting carrier based on Kawasaki's receiving-carrier analysis. The court added some reasons for rejecting Carmack:

Id. at *6 (quotation marks and citations omitted). This was not appealed. Finally, in Royal & Sun Alliance Insurance v. Service Transfer, Inc., No. 12-cv-97, 2012 WL 6028991 (S.D.N.Y. Dec. 4, 2012), the court considered the export of human plasma, from Kentucky to Austria via a Virginia port, under a single through bill, and rejected Carmack applicability even though the initial carrier (a truck, not a train) was subject to STB jurisdiction and putatively subject to Carmack, explaining:

Id. at *4 (footnote and certain quotation marks omitted) (citing Missouri K. & T. v. Ward, 244 U.S. at 388, 37 S.Ct. 617, and Mexican Light & Power, 331 U.S. at 734, 67 S.Ct. 1440). While this proposition is somewhat difficult to reconcile with Kawasaki, the court did rely on Kawasaki for a follow-up (broader) proposition:

Id. This case was not appealed. Based on these cases, the Southern District of New York seems to have done a turnabout on this, from applying Carmack originally to now rejecting it outright.

In Norfolk Southern Railway v. Sun Chemical, 318 Ga.App. 893, 735 S.E.2d 19 (2012), the Georgia Court of Appeals considered an export of ink from Kentucky to Brazil via a port in Savannah, Georgia, under a through bill issued by the ocean carrier (subcontracting the rail carrier, Norfolk Southern). When the train derailed, Sun Chemical sued Norfolk Southern under Carmack. The Georgia court relied on Kirby to construe the bill of lading as a maritime contract, thereby precluding Carmack. Id. at 27. The court also opined that while Kawasaki had expressly excluded the export scenario from its decision, it had nonetheless "also answered the broader question" and rejected Carmack applicability "in a case involving a through bill of lading for land and sea transit of goods, [in which] a domestic rail carrier not in privity with the owner of the goods ... ha[d] made alternate contractual arrangements with the owner's agent." Id. at 25. Finally, the court discussed in some detail the aforementioned cases from the Southern District of New York, concluding:

Id. at 27. The end result, then, was the denial of Carmack applicability in this export case.

D.

This brings our attention back to the predominant question in the present case. Does Carmack apply to the road and rail legs of an overseas export shipped under a single through bill? Although the Supreme Court left this question unanswered, it nonetheless provided guidance for future decisions, from which the prevailing trend is that Carmack does not apply to this situation.

Under the Kirby "conceptual approach," 543 U.S. at 27-29, 125 S.Ct. 385, we must first determine whether the shipping contract (bill of lading) at issue is a maritime contract28 and, if so, enforce that contract under maritime law,29 over any conflicting interests or laws. Here, the Service Contract governs the carriage from Harrodsburg to Tainan, a journey which contains substantial sea carriage,30 making the Service Contract a "maritime contract." See id. As a maritime contract, it would effectively preempt any Carmack applicability and instead govern by its own terms. Id. There can be little doubt that this theory comports with Kirby's grand view, in general, of maritime contracts.

Any doubt would come from Kawasaki, particularly if we invert Kawasaki's holding mechanistically to fit it to our facts, fail to follow it all the way through, and perhaps add language that is not actually there. This presents a beguiling conclusion to which at least one court appears to have leapt, while overlooking the logical chasm beneath. See Panalpina, 2011 WL 666388 at *4.

Under the Kawasaki "receiving-carrier approach," 130 S.Ct. at 2442-45, we determine whether the carriage begins with a Carmack-defined "receiving carrier"31 and, if not, then disregard Carmack and enforce the contract on its terms. See also id. at 2449 ("Because the journey included no receiving rail carrier that had to issue bills of lading under Carmack, Carmack does not apply."). But what of our present facts — when the carriage does begin with a Carmack-defined receiving carrier? It is tempting simply to say that Kawasaki requires the result that Carmack does apply when carriage does begin with a Carmack-defined receiving carrier. But Kawasaki does not hold that, expressly or otherwise. In fact, Kawasaki expressly declined to so hold. Id. at 2444 ("Today's decision need not address the instance where goods are received at a point in the United States for export."). The opinion does state that "for Carmack's provisions to apply the journey must begin with a receiving rail carrier," id., but even that is actually a limitation on Carmack, not an assertion of Carmack applicability. Following the Kawasaki opinion all the way through — including the discussion of Kirby and COGSA — the inverse of the holding is almost as clear as the holding, albeit not as easily stated as a bright-line rule: when the journey does begin with a Carmack-defined receiving carrier, Carmack may still not apply to a multimodal through bill with a substantial sea component, for all the reasons set out in Kirby, such as the practical benefits of through shipments under a single bill of lading, the nuisance or dilemma that a disputed question of fact (i.e., the actual location of the loss or damage) could dictate the determination of the governing law concerning liability or venue, the inefficiencies of encouraging carriers to open the containers at transfer, and the power of congressional intent in drafting COGSA. Id. at 2447-49.

Here, the Service Contract governs the carriage from Harrodsburg to Tainan, a journey which does begin with a Carmack-defined receiving road carrier, but which also implicates all of the Kirby-based concerns articulated in Kawasaki. Because this is a through carriage under a single contract, applying Carmack to the road and rail portions32 would cut the through bill into separate components (land and sea), effectively "outlawing" the use of the through bill. See Kawasaki, 130 S.Ct. at 2445. In this case, the containers never made it on to the ship, so the court was not presented with a contested question of fact concerning the location of the damage (land or sea) as a predicate to its foremost legal decision, but this would have been a significant issue if a Kaohsiung port employee had discovered the damage rather than the Tacoma employee. Even under the present facts, the Carriers dwelled on CNA's inability to prove where the damage actually occurred.33 And, just as Kirby and Kawasaki portend, under a scheme in which venue, choice of law, liability, etc., depend on the particular location of the loss or damage, the carriers proceeding with this on-going Service Contract would be well advised to open the sealed containers at transfer to protect their individual interests. Consequently, applying Carmack to the road and rail portions of this single, intermodal journey would undermine the benefits that Congress sought under COGSA and the parties sought in the Service Contract. See id. at 2449 ("Congress has decided to allow parties engaged in international maritime commerce to structure their contracts, to a large extent, as they see fit.").

As a result, based on the foregoing analysis, considered in light of the aggregation of Supreme Court case law, particularly Kirby and Kawasaki, as well as our general agreement with the post-Kawasaki federal and state court decisions, we hold that the Carmack Amendment does not apply to the road or rail leg of an intermodal overseas export shipped under a single through bill of lading.34 Therefore, the district court erred by applying Carmack in this case as it did.

We also recognize, however, that the district court's initial decision in March 2009 was prior to Kawasaki, and its post-Kawasaki decision in September 2012 was without the benefit of the developing decisions from other courts.35 While we must nonetheless conclude that the district court's decision was in error, we will also consider, based on the peculiar facts and circumstances of this case, whether some portion of that error was ultimately harmless. That is, whether it would be prudent to affirm some portion of the judgment in the context of a proper analysis.

III.

In its complaint, CNA asserted three causes of action, purportedly arising under Carmack: breach of contract, bailment, and negligence. In ruling on the summary judgment motions, the district court held that because Carmack applied, it encompassed and preempted these separate causes of action and the case would proceed as a single Carmack cause of action.36 As explained in the foregoing section, this was in error; Carmack did not apply by its own terms. Instead, the district court should have disregarded Carmack and enforced the Service Contract on its terms.37

Meanwhile, because it had applied Carmack and preempted the individual causes of action, the district court did not address the Carriers' motions for summary judgment on CNA's tort-based causes of action, bailment and negligence. The Carriers had argued that CNA could not maintain causes of action in tort because their duties arose solely by contract and, therefore, inasmuch as the Service Contract controlled the case, the only viable claim was for breach of that contract.

Under either federal maritime law or New York law,38 a plaintiff cannot maintain a tort cause of action based on a defendant's breach of duties that arose solely out of their contract. Int'l Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1283 (2d Cir.1994) (citing East River S.S. Corp. v. Transam. Delaval Inc., 476 U.S. 858, 872-73, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (federal maritime), and Clark-Fitzpatrick, Inc. v. Long Island R.R., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987) (New York)); see also Fireman's Fund Ins. Co. v. Orient Overseas Container Line Ltd., 196 Misc.2d 11, 763 N.Y.S.2d 427, 432 (N.Y.Civ.Ct.2003). The plaintiff's cause of action against such defendant lies in breach of contract.

It is undisputed here that the Carriers' duties arose out of the Service Contract; this case contains no duty (nor breach of any duty) that was not anticipated by and included in the Service Contract. Consequently, we conclude as a matter of law that CNA cannot maintain any actions in bailment or negligence against the Carriers; its cause of action is limited to breach of the Service Contract. Therefore, the district court's denial of these tort causes of action — effectively dismissing them — was ultimately correct and we can affirm this part of the judgment. See Schlaud v. Snyder, 717 F.3d 451, 459 n. 6 (6th Cir.2013) (noting that we may affirm on any basis supported by the record).

CNA's sole colorable cause of action is for breach of the Service Contract. Had the district court denied Carmack applicability and dismissed the tort claims, it would have been left with CNA's breach of contract claim and the Carriers' defenses thereto. It is noteworthy that the only two parties to the Service Contract are CNA39 as the shipper and Hyundai as the carrier. The rail carriers are unnamed "subcontractors" who neither negotiated nor signed the Service Contract. Due to their differing circumstances, we analyze the breach of contract claims against each differently.40

A.

The rail carriers, Norfolk Southern and BNSF, are Hyundai's "subcontractors"; they are not parties to the Service Contract and, therefore, not in privity with CNA. But, as explained in Kirby, 543 U.S. at 32, 125 S.Ct. 385, because the journey contained substantial overland carriage, CNA and Hyundai "must have anticipated that a land carrier's services would be necessary for the contract's performance," thereby making Norfolk Southern and BNSF "intended beneficiaries."

"[T]o the extent a third-party qualifies as an intended beneficiary, it may enforce contract terms in its favor." In re M/V Rickmers Genoa Litig., 622 F.Supp.2d 56, 72 (S.D.N.Y.2009) (citing Restatement 2nd of Contracts § 304) (footnote omitted). Thus, in Kirby, the rail carrier's status as an intended beneficiary (along with the "broadly written Himalaya Clause" in that case) allowed that rail carrier to invoke that contracts' limitation of liability clauses. Kirby, 543 U.S. at 32, 125 S.Ct. 385.

But, more to the point here, "qualifying as an intended beneficiary in no way creates contractual obligations on the part of the intended beneficiary." In re M/V Rickmers, 622 F.Supp.2d at 72 (emphasis in original) (citing Stein Hall & Co. v. S.S. Concordia Viking, 494 F.2d 287, 291 (2d Cir.1974) ("While the carrier and the shipper can extend certain contractual protections, such as the limitation on damages, to... third-party beneficiaries, they cannot contract to bind an unconsenting third party.")). The "methods for actually binding an intended beneficiary to a bill of lading are [1] showing that the third party exhibited acceptance to be so bound and [2] through an agency relationship with one of the contracting parties. Absent such a showing, contractual obligations cannot be imposed on an intended beneficiary." Id. (internal citation omitted).

Neither Norfolk Southern nor BNSF exhibited any agreement to be bound by the Service Contract (or the Hyundai Regular Form Bill of Lading incorporated therein). To the contrary, each contracted with Hyundai independently, under its own standard transportation agreement. Moreover, the Service Contract, § 4.A, expressly disclaims an agency relationship that would allow Hyundai to act as an agent on behalf of CNA, asserting instead that "[Hyundai] shall be deemed an independent contractor with respect to [CNA]."41 To be sure, Kirby, 543 U.S. at 33-34, 125 S.Ct. 385, holds that an intermediary (such as Hyundai) necessarily acts as an agent for the shipper (here, CNA) in relation to the subcontractors (here, Norfolk Southern and BNSF), but not "in the classic sense." Rather, the intermediary acts as the shipper's "agent for a single, limited purpose: when [the intermediary] contracts with subsequent carriers for limitation on liability." Id. at 34, 125 S.Ct. 385 (emphasis in original). That is, Hyundai was not CNA's agent for purposes of binding Norfolk Southern or BNSF.42

More importantly, Kirby, 543 U.S. at 31, 125 S.Ct. 385, held that "contracts for carriage of goods by sea must be construed like any other contracts: by their terms and consistent with the intent of the parties." Here, the Service Contract evinces the parties' clear intent not to bind subcontractors (such as Norfolk Southern and BNSF) to CNA, nor to hold them directly liable to CNA for damage to the cargo. As just mentioned, the Service Contract deems Hyundai an independent contractor, and reiterates that "nothing herein contained shall be construed to be inconsistent with that relationship or status." This intent to bind only Hyundai is also evident in the Form Bill of Lading. Section 4(B) allows Hyundai to subcontract at its complete discretion. In Section 4(C), "[Corning] warrants that no claim shall be made against any of [Hyundai]'s Subcontractors or any Subcontractor's Subcontractor." And Section 5(B)(2) specifically provides for Hyundai's liability for damage to the cargo by a subcontractor. Considering these terms in this Service Contract as being indicative of the intent of the parties, we find that these subcontractors are not directly liable to CNA.

We conclude as a matter of law that CNA cannot maintain a breach of contract action against the rail carrier defendants, Norfolk Southern and BNSF, in this case. The district court erred by denying their motion for summary judgment on this ground. We reverse the district court's decision and vacate the ensuing judgments against these two defendants, Norfolk Southern and BNSF.

B.

Hyundai is a party to the Service Contract and is in privity with CNA.43 This is a straight forward breach-of-contract action in which we analyze the Service Contract, pursuant to federal maritime law, to determine the parties' agreed-upon liability scheme as applied to the present circumstances. For example, the contracts at issue in Kirby contained "broadly written" Clauses Paramount and Himalaya Clauses (as specifically worded in those contracts) that excluded Carmack, extended COGSA throughout the carriage, and even extended the contracts' provisions to the subcontractor's subcontractor despite the absence of contractual privity. Correspondingly, we must consider the specific clauses as written in the Service Contract and apply them appropriately.

We consider first the Clause Paramount, Form Bill of Lading § 2(B), which extends COGSA inland (beyond the tackles) "when the goods are in the custody of [Hyundai]." The district court held that because the cargo was in the custody of a rail carrier subcontractor when damaged, the Clause Paramount did not apply, inasmuch as, by its terms, it applies only to damage occurring to cargo in Hyundai's custody.44 The district court was correct in this interpretation.

We are further persuaded that this is correct upon consideration of the next provision at issue, which provides for Hyundai's liability when the goods are in the custody of a subcontractor:

Form Bill of Lading § 5(B)(2). That is, Hyundai proposed (in its Regular Form Bill of Lading), and the parties agreed to, a separate scheme to govern Hyundai's liability for damage to the cargo under circumstances in which a subcontractor, such as a road or rail carrier, damaged the goods.45

So pursuant to this provision, Hyundai is liable "to the extent to which [a road or rail carrier] would have been liable to [the shipper] if it had made a direct and separate contract with [the shipper]" for that carrier's portion of the journey. Of course, if a road or rail carrier made a separate contract with the shipper for carriage, it would be subject to Carmack. See, e.g., Reider, 339 U.S. at 117, 70 S.Ct. 499. Under Carmack, it would be unable to limit its liability by contract.46 49 U.S.C. § 11706(c)(1); Adams Express, 226 U.S. at 504, 33 S.Ct. 148. And the court would ultimately determine the liability pursuant to Carmack's burden-shifting framework. See Missouri Pac. R.R., 377 U.S. at 137-38, 84 S.Ct. 1142.

Based on the foregoing, we conclude as a matter of law and pursuant to the terms of the Service Contract, that CNA's claim for breach of contract by Hyundai for "damage caused during the handling, storage, or carriage of the Goods by [Hyundai]'s Subcontractor" — be it DHL, Norfolk Southern, BNSF, or TMBR — must be resolved under Carmack. Because the district court proceeded on the theory, which the jury later confirmed by its verdict, that the damage occurred while the cargo was in the custody of either Norfolk Southern or BNSF, the court was ultimately correct in its application of Carmack to determine Hyundai's liability and we can affirm this portion of the decision. See Schlaud, 717 F.3d at 459 n. 6 (we may affirm on any basis supported by the record).

While the district court erred by applying Carmack to this case as a general principle, that error was ultimately harmless because the court would have properly applied Carmack under a straight forward breach-of-contract action. See Fed. R.Civ.P. 61 (instructing that "[a]t every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights"); 28 U.S.C. § 2111 ("On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties."); see also Rosencrantz v. Lafler, 568 F.3d 577, 588-92 (6th Cir.2009) (discussing harmless error). We affirm the district court's judgment against Hyundai, in favor of CNA, on the jury award of $498,509.91 in damages.

IV.

CNA contends that the district court erred by denying its motion for prejudgment interest. In its denial, the district court's stated rationale was that "[t]he verdict was rendered in this case on the Carmack Amendment claim only [and] [t]he Carmack Amendment does not specifically provide for the recovery of pre-judgment interest...." As explained in the foregoing sections, the district court erred by applying Carmack to this case as a general principle; this case is properly decided on the Service Contract and the applications of the pertinent provisions therein. Therefore, the decision is not based on "the Carmack Amendment claim only," and this aspect of the district court's rationale for denying prejudgment interest is insupportable. The Service Contract controls.

We are also unpersuaded by the court's additional rationale that "this is not a case in which one party has had the use of the other party's money." By failing to reimburse Corning for the cost of the damaged glass at the time of the accident (and thereby forcing Corning to file a claim with CNA), Hyundai did have the use of Corning's (or CNA's) money during that time. Having said that, the award of prejudgment interest is a matter of discretion, see Werner Enters. v. Westwind Maritime Int'l, 554 F.3d 1319, 1328 (11th Cir.2009), and additional factors may affect the determination.

We necessarily remand this case for reconsideration of the question of prejudgment interest in light of the pertinent provisions of the Service Contract as applied to the present decision. We also direct the court's attention to In re ClassicStar Mare Lease Litigation, 727 F.3d 473, 494-97 (6th Cir.2013), which amplifies our current view of prejudgment interest.

V.

Based on the foregoing, we AFFIRM the judgment against defendant Hyundai, REVERSE and VACATE the judgments against defendants Norfolk Southern and BNSF, and REMAND this case to the district court so that it may reconsider the question of prejudgment interest.

KATHLEEN M. O'MALLEY, Circuit Judge, dissenting in part.

I agree with most of the findings in the thorough and thoughtful majority opinion. Specifically, I agree that the Carmack Amendment does not apply to the road or rail leg of an intermodal overseas export shipped under a single through bill of lading. I also agree that CNA cannot maintain actions in bailment or negligence against the carriers, and that its cause of action is limited to a claim for breach of the Service Contract. Finally, I agree that CNA's breach of contract action is available only against Hyundai, not the rail carrier defendants. And, I agree that Hyundai is liable, by contract, for the subcontractor's conduct. It is the next conclusion — the one set forth in section III.B. of the majority opinion — with which I cannot agree.

I do not believe that Hyundai's contractual liability to Corning (and, hence to CNA) "must be resolved under Carmack" as the majority holds. Instead, because Hyundai was authorized as Corning's agent to limit the subcontractor's liability, and did so by and on behalf of Corning, I believe Hyundai's liability is limited to that same extent. Because I believe the majority misreads Form Bill of Lading § 5(B)(2) and improperly construes the extent of Hyundai's liability, I respectfully dissent from the majority's conclusion that Hyundai is liable to CNA to the full extent of the liability specified in the Carmack Amendment.

Form Bill of Lading § 5(B)(2) states that, "with respect to ... damage caused during the handling, storage, or carriage of the Goods by [Hyundai]'s Subcontractor, such liability shall be to the extent to which such Subcontractor would have been liable to [Corning] if it had made a direct and separate contract with [Corning] in respect of such handling, storage, or carriage."1 Based on this provision, the majority finds Hyundai liable to CNA to the extent of liability imposed by the Carmack Amendment. The majority finds that, if the rail carriers had separately and directly contracted with Corning, those contracts would have been subject to the Carmack Amendment because the subcontractors are domestic rail carriers. Maj. Op. at 374-75. As such, the majority concludes that these rail carriers would have been unable to limit their liability by contract in the absence of an express waiver by Corning, and that Hyundai also may not limit its pass-through liability. Id. The majority reaches this conclusion based on the proposition that "a rail carrier may avoid Carmack liability for container carriage if it offers Carmack coverage to the shipper and the shipper declines." Id. at 374-75 n. 46 (citation omitted). Because it finds that "Hyundai stands in the shoes of the rail carrier here," the majority concludes that Hyundai cannot avoid Carmack liability on this basis because "Hyundai did not offer [Corning] any Carmack coverage option." Id. What the majority fails to recognize, however, is that the rail carriers did offer Carmack coverage to Corning, through its agent, and that Corning affirmatively waived that coverage. While Hyundai must fulfill the carrier's obligations to Corning, it actually stood in Corning's shoes for purposes of defining the scope of that liability.

The Service Contract states that "[p]arties agree to allow [Hyundai] to contract or establish agency as may be necessary to provide inland transportation or door to door services in international commerce if called for in the rates spelled out in Appendix C." Service Contract, RE:78-6, Page ID #496 at ¶ 2(A) (emphasis added). Then, section 4(B) of the Form Bill of Lading provides Hyundai with the authority to "subcontract on any terms the whole or any part of the handling, storage[,] or carriage of the Goods and any duties undertaken by [Hyundai] in relation to the Goods." (emphasis added). Further, Form Bill of Lading § 5(A) states that "[Hyundai], in making arrangements for transportation... or handling before loading or after discharge acts only as [Corning's] agent and assumes no responsibility therefor." These provisions, taken together, allowed Hyundai to establish agency for purposes of entering into agreements with other carriers on any terms. And Hyundai, acting as Corning's agent as outlined in section 5(A), proceeded to subcontract the rail portions of the shipment. Hyundai, fully within its authority, then refused full Carmack liability from the subcontractors, and, accordingly, limited the liability of the subcontractors. Consequently, the analysis should end here, as we know the amount of liability Corning set for the subcontractors through its agent, Hyundai. Although Hyundai is ultimately accountable for that liability, it was also authorized to limit its terms.

While the majority points out that Hyundai is defined at places in the Service Contract as an independent contractor, nothing precluded Hyundai from acting as both an independent contractor and an agent, depending upon the activity in question. "[N]othing about the title independent contractor invariably precludes someone from being an agent under appropriate circumstances." United States v. Hudson, 491 F.3d 590, 595 (6th Cir.2007) (citing Restatement (Second) of Agency § 2(3) ("An independent contractor ... may or may not be an agent.")); Eyerman v. Mary Kay Cosmetics, Inc., 967 F.2d 213, 219 (6th Cir.1992) (noting that "a person may be both an independent contractor and an agent"). Thus, the fact that Hyundai acted as an independent contractor who could not bind the carriers to a direct contract with Corning-pursuant to its express authorization to do so in both the Service Contract and the Form Bill of Lading — does not conflict with Hyundai's ability to act as the agent of Corning for purposes of limiting the scope of the carriers' liability. Hyundai can and did properly limit the subcontractor's liability on behalf of Corning.2

In this regard, I specifically disagree with the majority's conclusion that Form Bill of Lading § 5(B)(2) placed Hyundai in the "shoes" of the rail carriers. Section 5(B)(2) states that Hyundai's "liability shall be to the extent to which the Subcontractor would have been liable to [Corning] if it had made a direct and separate contract with [Corning] in respect of such handling, storage, or carriage." (emphases added). This provision does not actually place Hyundai in the subcontractor's shoes, it only holds Hyundai liable to the extent the subcontractor would have been liable to Corning under such circumstances. As such, the hypothetical analysis called for under § 5(B)(2) should not consider whether Hyundai itself offered Corning any Carmack coverage option; it should look to what the subcontractor offered to Corning through its agent. It appears, moreover, that the purpose of this provision was to assist Hyundai in segmenting liability among the subcontractors in circumstances where the parties could assess the damage to the goods against a particular subcontractor; the majority reads far too much into it.

For these reasons, I believe that Hyundai is contractually liable to CNA to the extent, and only to the extent, acting on behalf of Corning, it held the carriers liable: to the tune of $10,000.00, and no more. See BNSF Rules, RE: 79-12 at Item 64, Page ID #769; NS Rules, RE: 78-14 at Item 8.6.2, Page ID #591. I note, moreover, that, even if we were to assume that Hyundai did not act as Corning's agent when limiting the carriers' liability, we could not, as the majority does, assume that Corning would not have waived Carmack liability if it had contracted directly with the rail carriers. I believe that we would need to remand for a determination of the amount of liability Corning would have contracted for with the subcontractors based upon a consideration of all relevant evidence. On this point, the agreement between Corning and Hyundai is highly relevant. Of particular note, Corning did not request full liability under COGSA by declaring the full value, despite having the option of receiving a greater scope of liability in return for payment of a higher fee. Instead, Corning purchased additional insurance through CNA to cover this difference in liability coverage, opting to pay lower freight costs. Thus, it seems likely Corning would have taken the same approach in a direct and separate contract with the subcontractors vis-à-vis its option for Carmack liability, with its attendant higher cost, by declining full Carmack liability.

For the foregoing reasons, I respectfully dissent from the majority's finding that Hyundai is liable to CNA under the Carmack Amendment; I would limit Hyundai's liability to $10,000.