Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. , 130 S. Ct. 2433 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KAWASAKI KISEN KAISHA LTD. ET AL. v. REGAL-
BELOIT CORP. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 08–1553. Argued March 24, 2010—Decided June 21, 2010*
Respondents (cargo owners) delivered to petitioners in No. 08–1553
(“K” Line) goods for shipping from China to inland United States des
tinations. “K” Line issued them four through bills of lading, i.e., bills
of lading covering both the ocean and inland portions of transport in
a single document. As relevant here, the bills contain a “Himalaya
Clause,” which extends the bills’ defenses and liability limitations to
subcontractors; permit “K” Line to subcontract to complete the jour
ney; provide that the entire journey is governed by the Carriage of
Goods by Sea Act (COGSA), which regulates bills of lading issued by
ocean carriers engaged in foreign trade; and designate a Tokyo court
as the venue for any dispute. “K” Line arranged the journey, subcon
tracting with petitioner in No. 08–1554 (Union Pacific) for rail ship
ment in the United States. The cargo was shipped in “K” Line ves
sels to California and then loaded onto a Union Pacific train. A
derailment along the inland route allegedly destroyed the cargo. Ul
timately, the Federal District Court granted the motion of Union Pa
cific and “K” Line to dismiss the cargo owners’ suits against them
based on the parties’ Tokyo forum-selection clause. The Ninth Cir
cuit reversed, concluding that that clause was trumped by the Car
mack Amendment governing bills of lading issued by domestic rail
carriers, which applied to the inland portion of the shipment.
Held: Because the Carmack Amendment does not apply to a shipment
originating overseas under a single through bill of lading, the parties’
——————
* Together with No. 08–1554, Union Pacific Railroad Co. v. Regal-
Beloit Corp. et al., also on certiorari to the same Court.
2 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Syllabus
agreement to litigate these cases in Tokyo is binding. Pp. 4–21.
(a) COGSA, which “K” Line and Union Pacific contend governs
these cases, requires a carrier to issue to the cargo owner a bill con
taining specified terms. It does not limit the parties’ ability to adopt
forum-selection clauses. It only applies to shipments from United
States ports to foreign ports and vice versa, but permits parties to ex
tend certain of its terms “by contract” to cover “the entire period in
which [the goods] would be under [a carrier’s] responsibility, includ
ing [a] period of inland . . . transport.” Norfolk Southern R. Co. v.
James N. Kirby, Pty Ltd., 543 U. S. 14, 29. The Carmack Amend
ment, on which respondents rely, requires a domestic rail carrier that
“receives [property] for transportation under this part” to issue a bill
of lading. 49 U. S. C. §11706(a). “[T]his part” refers to the Surface
Transportation Board’s (STB’s) jurisdiction over domestic rail trans
portation. See §10501(b). Carmack assigns liability for damage on
the rail route to “receiving rail carrier[s]” and “delivering rail car
rier[s],” regardless of which carrier caused the damage. §11706(a).
Its purpose is to relieve cargo owners “of the burden of searching out
a particular negligent carrier from among the often numerous carri
ers handling an interstate shipment of goods.” Reider v. Thompson,
339 U. S. 113, 119. Thus, it constrains carriers’ ability to limit liabil
ity by contract, §11706(c), and limits the parties’ choice of venue to
federal and state courts. §11706(d)(1). Pp. 4–7.
(b) In Kirby, as in these cases, an ocean shipping company issued a
through bill of lading that extended COGSA’s terms to the inland
segment, and the property was damaged during the inland rail por
tion. This Court held that the through bill’s terms governed under
federal maritime law, notwithstanding contrary state laws, 543 U. S.,
at 23–27, explaining that “so long as a bill of lading requires substan
tial carriage of goods by sea, its purpose is to effectuate maritime
commerce,” id., at 27, and adding that “[a]pplying state law . . . would
undermine the uniformity of general maritime law,” id., at 28, and
defeat COGSA’s apparent purpose “to facilitate efficient contracting
in contracts for carriage by sea,” ibid. Here, as in Kirby, “K” Line is
sued through bills under COGSA, in maritime commerce, and ex
tended its terms to the journey’s inland domestic segment. Pp. 7–8.
(c) The Carmack Amendment’s text, history, and purposes make
clear that it does not require a different result. Pp. 8–21.
(1) Carmack divides the realm of rail carriers into receiving, de
livering, and connecting rail carriers. Its first sentence requires a
compliant bill of lading (1) if a rail carrier provid[es] transportation
or service subject to the [STB’s] jurisdiction” and (2) if that carrier
“receives” the property “for transportation . . . .” 11706(a). It thus
requires the receiving rail carrier—but not the delivering or connect
Cite as: 561 U. S. ____ (2010) 3
Syllabus
ing rail carrier—to issue a bill of lading. This conclusion is consistent
with statute’s text and this Court’s precedent. See St. Louis, I. M. &
S. R. Co. v. Starbird, 243 U. S. 592, 595, 604. A receiving rail carrier
is the initial carrier, which “receives” the property for domestic rail
transportation at the journey’s point of origin. If the Carmack’s bill
of lading requirement referred not to the initial carrier, but to any
carrier “receiving” the property from another carrier, then every car
rier during the shipment would have to issue its own separate bill.
This would be contrary to Carmack’s purpose of making the receiving
and delivering carriers liable under a single, initial bill for damage
caused by any carrier within a single course of shipment. This con
clusion is consistent with Mexican Light & Power Co. v. Texas Mexi
can R. Co., 331 U. S. 731, where the Court held that a bill of lading
issued by a subsequent rail carrier when the “initial carrier” has is
sued a through bill is “void” unless it “represents the initiation of a
new shipment,” id., at 733–734. And Reider, supra, is not to the con
trary. There, absent a through bill of lading, the original journey
from Argentina terminated at the port of New Orleans, and the first
rail carrier in the United States was the receiving rail carrier for
Carmack purposes. Id., at 117. Carmack’s second sentence estab
lishes that it applies only to transport of property for which a receiv
ing carrier is required to issue a bill of lading, regardless of whether
that carrier actually issues such a bill. See §11706(a). Thus, Car
mack applies only if the journey begins with a receiving rail carrier
that had to issue a compliant bill of lading, not if the property is re
ceived at an overseas location under a through bill that covers trans
port into an inland location in this country. The initial carrier in that
instance receives the property at the shipment’s point of origin for
overseas multimodal import transport, not domestic rail transport.
Carmack did not require “K” Line to issue bills of lading because “K”
Line was not a receiving rail carrier. That it chose to use rail trans
port to complete one segment of the journey under its “essentially
maritime” contracts, Kirby, supra, at 24, does not put it within Car
mack’s reach. Union Pacific, which the cargo owners concede was a
mere delivering carrier that did not have to issue its own Carmack
bill of lading, was also not a receiving rail carrier under Carmack.
Because the Ninth Circuit ignored Carmack’s “receive[d] . . . for
transportation” limitation, it reached the wrong conclusion. Its con
clusion is also an awkward fit with Carmack’s venue provisions,
which presume that the receiving carrier obtains the property in a
judicial district within the United States. If “K” Line were a receiv
ing carrier in a case with a “point of origin” in China, there would be
no place under Carmack to sue “K” Line, since China is not within a
judicial district “of the United States or in a State Court.”
4 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
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§11706(d)(1). Pp. 8–15.
(2) Carmack’s statutory history supports this conclusion. None of
its legislative versions—the original 1906 statute or the amended
1915, 1978, or 1995 ones—have applied to the inland domestic rail
segment of an import shipment from overseas under a through bill.
Pp. 15–17.
(3) This interpretation also attains the most consistency between
Carmack and COGSA. Applying Carmack to the inland segment of
an international carriage originating overseas under a through bill
would undermine Carmack’s purposes, which are premised on the
view that a shipment has a single bill of lading and any damage is
the responsibility of both receiving and delivering carriers. Under
the Ninth Circuit’s interpretation, there might be no venue in which
to sue the receiving carrier. That interpretation would also under
mine COGSA and international, container-based multimodal trans
port: COGSA’s liability and venue rules would apply when cargo is
damaged at sea and Carmack’s rules almost always would apply
when the damage occurs on land. Moreover, applying Carmack to in
ternational import shipping transport would undermine COGSA’s
purpose “to facilitate efficient contracting in contracts for carriage by
sea.” Kirby, supra, at 29. The cargo owners’ contrary policy argu
ments are unavailing. Pp. 17–20.
557 F. 3d 985, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, BREYER, and ALITO, JJ., joined. SOTOMAYOR,
J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ.,
joined.
Cite as: 561 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 08–1553 and 08–1554
_________________
KAWASAKI KISEN KAISHA LTD., ET AL.,
PETITIONERS
08–1553 v.
REGAL-BELOIT CORPORATION ET AL.
UNION PACIFIC RAILROAD COMPANY, PETITIONER
08–1554 v.
REGAL-BELOIT CORPORATION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2010]
JUSTICE KENNEDY delivered the opinion of the Court.
These cases concern through bills of lading covering
cargo for the entire course of shipment, beginning in a
foreign, overseas country and continuing to a final, inland
destination in the United States. The voyage here in
cluded ocean transit followed by transfer to a rail carrier
in this country. The Court addressed similar factual
circumstances in Norfolk Southern R. Co. v. James N.
Kirby, Pty Ltd., 543 U. S. 14 (2004). In that case the
terms of a through bill were controlled by federal maritime
law and by a federal statute known as the Carriage of
Goods by Sea Act (COGSA), note following 46 U. S. C.
§30701. Kirby held that bill of lading provisions permissi
ble under COGSA can be invoked by a domestic rail car
rier, despite contrary state law.
2 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
The instant cases present a question neither raised nor
addressed in Kirby. It is whether the terms of a through
bill of lading issued abroad by an ocean carrier can apply
to the domestic part of the import’s journey by a rail car
rier, despite prohibitions or limitations in another federal
statute. That statute is known as the Carmack Amend
ment and it governs the terms of bills of lading issued by
domestic rail carriers. 49 U. S. C. §11706(a).
I
Respondents Regal-Beloit Corporation, Victory Fire
works, Inc., PICC Property & Casualty Company Ltd., and
Royal & Sun Alliance Insurance Company Ltd. are cargo
owners or insurance firms that paid losses to cargo owners
and succeeded to their rights, all referred to as “cargo
owners.” To ship their goods from China to inland desti
nations in the Midwestern United States, the cargo own
ers delivered the goods in China to petitioners in No. 08–
1553, Kawasaki Kisen Kaisha, Ltd., and its agent “K” Line
America, Inc., both referred to as “K” Line. All agree the
relevant contract terms governing the shipment are con
tained in four through bills of lading “K” Line issued to the
cargo owners. The bills of lading covered the entire course
of shipment.
The bills required “K” Line to arrange delivery of the
goods from China to their final destinations in the United
States, by any mode of transportation of “K” Line’s choos
ing. A bill of lading “records that a carrier has received
goods from the party that wishes to ship them, states the
terms of carriage, and serves as evidence of the contract
for carriage.” Kirby, 543 U. S., at 18–19. A through bill
of lading covers both the ocean and inland portions of the
transport in a single document. Id., at 25–26.
“K” Line’s through bills contain five relevant provisions.
First, they include a so-called “Himalaya Clause,” which
extends the bills’ defenses and limitations on liability to
Cite as: 561 U. S. ____ (2010) 3
Opinion of the Court
parties that sign subcontracts to perform services contem
plated by the bills. See id., at 20, and n. 2. Second, the
bills permit “K” Line “to sub-contract on any terms what
soever” for the completion of the journey. App. 145.
Third, the bills provide that COGSA’s terms govern the
entire journey. Fourth, the bills require that any dispute
will be governed by Japanese law. Fifth, the bills state
that any action relating to the carriage must be brought in
“Tokyo District Court in Japan.” Id., at 144. The forum
selection provision in the last clause gives rise to the
dispute here.
“K” Line, pursuant to the bills of lading, arranged for
the entire journey. It subcontracted with petitioner in No.
08–1554, Union Pacific Railroad Company, for rail ship
ment in the United States. The goods were to be shipped
in a “K” Line vessel to a port in Long Beach, California,
and then transferred to Union Pacific for rail carriage to
the final destinations.
In March and April 2005, the cargo owners brought four
different container shipments to “K” Line vessels in Chi
nese ports. All parties seem to assume that “K” Line
safely transported the cargo across the Pacific Ocean to
California. The containers were then loaded onto a Union
Pacific train and that train, or some other train operated
by Union Pacific, derailed in Tyrone, Oklahoma, allegedly
destroying the cargo.
The cargo owners filed four separate lawsuits in the
Superior Court of California, County of Los Angeles. The
suit named “K” Line and Union Pacific as defendants.
Union Pacific removed the suits to the United States
District Court for the Central District of California. Union
Pacific and “K” Line then moved to dismiss based on the
parties’ Tokyo forum-selection clause. The District Court
granted the motion to dismiss. It decided that the forum
selection clause was reasonable and applied to Union
Pacific pursuant to the Himalaya Clause in “K” Line’s bills
4 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
of lading. 462 F. Supp. 2d 1098, 1102–1103 (2006).
The United States Court of Appeals for the Ninth Cir
cuit reversed and remanded. 557 F. 3d 985 (2009). The
court concluded that the Carmack Amendment applied to
the inland portion of an international shipment under a
through bill of lading and thus trumped the parties’ fo
rum-selection clause. Id., at 994–995. The court noted
that this view was consistent with the position taken by
the Court of Appeals for the Second Circuit, see id., at 994
(citing Sompo Japan Ins. Co. of Am. v. Union Pacific R.
Co., 456 F. 3d 54 (2006)), but inconsistent with the views
of the Courts of Appeals for the Fourth, Sixth, Seventh,
and Eleventh Circuits, see 557 F. 3d, at 994 (citing Shao v.
Link Cargo (Taiwan) Ltd., 986 F. 2d 700 (CA4 1993);
American Road Serv. Co. v. Consolidated Rail Corp., 348
F. 3d 565 (CA6 2003); Capitol Converting Equip., Inc. v.
LEP Transp., Inc., 965 F. 2d 391 (CA7 1992); Altadis USA,
Inc. ex rel. Fireman’s Fund Ins. Co. v. Sea Star Line, LLC,
458 F. 3d 1288 (CA11 2006)). This Court granted certio
rari to address whether Carmack applies to the inland
segment of an overseas import shipment under a through
bill of lading. 558 U. S. ___ (2009).
II
A
Before turning to Carmack, a brief description of
COGSA is in order; for “K” Line’s and Union Pacific’s
primary contention is that COGSA, not Carmack, controls.
COGSA governs the terms of bills of lading issued by
ocean carriers engaged in foreign trade. 49 Stat. 1207, as
amended, note following 46 U. S. C. §30701, p. 1178. It
requires each carrier to issue to the cargo owner a bill that
contains certain terms. §3(3)–(8), at 1178–1179. Although
COGSA imposes some limitations on the parties’ authority
to adjust liability, it does not limit the parties’ ability to
adopt forum-selection clauses. See Vimar Seguros y
Cite as: 561 U. S. ____ (2010) 5
Opinion of the Court
Reaseguros, S. A. v. M/V Sky Reefer, 515 U. S. 528, 537–
539 (1995). By its terms, COGSA only applies to ship
ments from United States ports to ports of foreign coun
tries and vice versa. §§1(e), 13, at 1178, 1180. The stat
ute, however, allows parties “the option of extending
[certain COGSA terms] by contract” to cover “the entire
period in which [the goods] would be under [a carrier’s]
responsibility, including [a] period of . . . inland transport.”
Kirby, 543 U. S., at 29 (citing COGSA §7, at 1180). Ocean
carriers, who often must issue COGSA bills of lading, are
regulated by the Federal Maritime Commission (Maritime
Commission), which is responsible for oversight over
“common carriage of goods by water in . . . foreign com
merce.” 46 U. S. C. §40101(1).
B
The next statute to consider is the Carmack Amend
ment, §7, 34 Stat. 595, which governs the terms of bills of
lading issued by domestic rail carriers. Carmack was first
enacted in 1906 as an amendment to the Interstate Com
merce Act, 24 Stat. 379. The Carmack Amendment has
been altered and recodified over the last century. It now
provides, in relevant part, as follows:
“(a) A rail carrier providing transportation or service
subject to the jurisdiction of the [Surface Transporta
tion Board (STB)] under this part shall issue a receipt
or bill of lading for property it receives for transporta
tion under this part. That rail carrier and any other
carrier that delivers the property and is providing
transportation or service subject to the jurisdiction of
the [STB] under this part are liable to the person enti
tled to recover under the receipt or bill of lading. The
liability imposed under this subsection is for the ac
tual loss or injury to the property caused by—
“(1) the receiving rail carrier;
6 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
“(2) the delivering rail carrier; or
“(3) another rail carrier over whose line or route
the property is transported in the United States or
from a place in the United States to a place in an
adjacent foreign country when transported under a
through bill of lading.
“Failure to issue a receipt or bill of lading does not af
fect the liability of a rail carrier.” 49 U. S. C. §11706;
see also §14706(a) (motor carriers).
The Carmack Amendment thus requires a rail carrier
that “receives [property] for transportation under this
part” to issue a bill of lading. §11706(a). The provision
“this part” refers to is the STB’s jurisdiction over rail
transportation within the United States. See §10501
(2006 ed. and Supp. II). The STB is the successor to the
Interstate Commerce Commission (ICC). The STB has
“exclusive” jurisdiction to regulate “transportation by rail
carriers” between places in the United States as well as
between a place “in the United States and a place in a
foreign country.” §10501(a)(2)(F), (b) (2006 ed.). Regu
lated rail carriers must provide transportation subject to
STB rail carrier jurisdiction “on reasonable request,”
§11101(a), at reasonable rates, §§10702, 10707(b),
11101(a), (e).
In cases where it applies, Carmack imposes upon “re
ceiving rail carrier[s]” and “delivering rail carrier[s]”
liability for damage caused during the rail route under the
bill of lading, regardless of which carrier caused the dam
age. §11706(a). Carmack’s purpose is to relieve cargo
owners “of the burden of searching out a particular negli
gent carrier from among the often numerous carriers
handling an interstate shipment of goods.” Reider v.
Thompson, 339 U. S. 113, 119 (1950). To help achieve this
goal, Carmack constrains carriers’ ability to limit liability
by contract. §11706(c).
Cite as: 561 U. S. ____ (2010) 7
Opinion of the Court
Carmack also limits the parties’ ability to choose the
venue of their suit:
“(d)(1) A civil action under this section may be
brought in a district court of the United States or in a
State court.
“(2)(A) A civil action under this section may only be
brought—
“(i) against the originating rail carrier, in the judi
cial district in which the point of origin is located;
“(ii) against the delivering rail carrier, in the judi
cial district in which the principal place of business
of the person bringing the action is located if the de
livering carrier operates a railroad or a route
through such judicial district, or in the judicial dis
trict in which the point of destination is located; and
“(iii) against the carrier alleged to have caused the
loss or damage, in the judicial district in which such
loss or damage is alleged to have occurred.” §11706.
For purposes of these cases, it can be assumed that if
Carmack’s terms apply to the bills of lading here, the
cargo owners would have a substantial argument that the
Tokyo forum-selection clause in the bills is pre-empted by
Carmack’s venue provisions. The parties argue about
whether they may contract out of Carmack’s venue provi
sions and other requirements, see §§10502, 10709; but in
light of the disposition and ruling to follow, those matters
need not be discussed or further explored.
III
In Kirby, an ocean shipping company issued a through
bill of lading, agreeing to deliver cargo from Australia to
Alabama. Like the through bills in the present cases, the
Kirby bill extended COGSA’s terms to the inland segment
under a Himalaya Clause. There, as here, the property
8 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
was damaged by a domestic rail carrier during the inland
rail portion. 543 U. S., at 19–20.
Kirby held that the through bill’s terms governed under
federal maritime law, notwithstanding contrary state
laws. Id., at 23–27. Kirby explained that “so long as a bill
of lading requires substantial carriage of goods by sea, its
purpose is to effectuate maritime commerce.” Id., at 27.
The Court added that “[a]pplying state law to cases like
this one would undermine the uniformity of general mari
time law.” Id., at 28. “Confusion and inefficiency will
inevitably result if more than one body of law governs a
given contract’s meaning.” Id., at 29. The Court noted
that its conclusion “reinforce[d] the liability regime Con
gress established in COGSA,” and explained that COGSA
allows parties to extend its terms to an inland portion of a
journey under a through bill of lading. Ibid. Finally, the
Court concluded that a contrary holding would defeat “the
apparent purpose of COGSA, to facilitate efficient con
tracting in contracts for carriage by sea.” Ibid.Much of what the Court said in Kirby applies to the
present cases. “K” Line issued the through bills under
COGSA, in maritime commerce. Congress considered
such international through bills and decided to permit
parties to extend COGSA’s terms to the inland domestic
segment of the journey. The cargo owners and “K” Line
did exactly that in these cases, agreeing in the through
bills to require that any suit be brought in Tokyo.
IV
The cargo owners argue that the Carmack Amendment,
which has its own venue provisions and was not discussed
in Kirby, requires a different result. In particular they
argue that Carmack applies to the domestic inland seg
ment of the carriage here, so the Tokyo forum-selection
clause is inapplicable. For the reasons set forth below,
this contention must be rejected. Instructed by the text,
Cite as: 561 U. S. ____ (2010) 9
Opinion of the Court
history, and purposes of Carmack, the Court now holds
that the amendment does not apply to a shipment origi
nating overseas under a single through bill of lading. As
in Kirby, the terms of the bill govern the parties’ rights.
A
The text of the statute charts the analytic course. Car
mack divides the realm of rail carriers into three parts:
(1) receiving rail carriers; (2) delivering rail carriers; and
(3) connecting rail carriers. A “receiving rail carrier” is
one that “provid[es] transportation or service . . . for prop
erty it receives for transportation under this part.”
§11706(a); see §11706(a)(1). The provision “this part”
refers to is the STB’s jurisdiction over rail transportation
within the United States. See §10501. A “delivering rail
carrier” “delivers the property and is providing transporta
tion or service subject to the jurisdiction of the [STB]
under this part.” §11706(a); see §11706(a)(2). A connect
ing rail carrier is “another rail carrier over whose line or
route the property is transported in the United States or
from a place in the United States to a place in an adjacent
foreign country when transported under a through bill of
lading.” §11706(a)(3).
A rail carrier’s obligation to issue a Carmack-compliant
bill of lading is determined by Carmack’s first sentence:
“A rail carrier providing transportation or service sub
ject to the jurisdiction of the [STB] under this part
shall issue a receipt or bill of lading for property it re
ceives for transportation under this part.” §11706(a).
This critical first sentence requires a Carmack-compliant
bill of lading if two conditions are satisfied. First, the rail
carrier must “provid[e] transportation or service subject to
the jurisdiction of the [STB].” Second, that carrier must
“receiv[e]” the property “for transportation under this
part,” where “this part” is the STB’s jurisdiction over
10 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
domestic rail transport. Carmack thus requires the re
ceiving rail carrier—but not the delivering or connecting
rail carrier—to issue a bill of lading. As explained below,
ascertaining the shipment’s point of origin is critical to
deciding whether the shipment includes a receiving rail
carrier.
The conclusion that Carmack’s bill of lading require
ment only applies to the receiving rail carrier is dictated
by the text and is consistent with this Court’s precedent.
See St. Louis, I. M. & S. R. Co. v. Starbird, 243 U. S. 592,
604 (1917) (explaining that Carmack “requires the receiv
ing carrier to issue a through bill of lading”). A receiving
rail carrier is the initial carrier, which “receives” the
property for domestic rail transportation at the journey’s
point of origin. §11706(a). If Carmack’s bill of lading
requirement did not refer to the initial carrier, but rather
to any rail carrier that in the colloquial sense “received”
the property from another carrier, then every carrier
during the shipment would have to issue its own separate
bill. This would be altogether contrary to Carmack’s
purpose of making the receiving and delivering carriers
liable under a single, initial bill of lading for damage
caused by any carrier within a single course of shipment.
This Court’s decision in Mexican Light & Power Co. v.
Texas Mexican R. Co., 331 U. S. 731 (1947), supports the
conclusion that only the receiving rail carrier must issue a
Carmack bill of lading. There, a subsequent rail carrier in
an export shipment from the United States to Mexico
issued its own separate bill of lading at the U. S.-Mexico
border. The second bill differed from the through bill
issued by the “initial carrier,” id., at 733, (that is, the
receiving carrier) at the inland point of origin. The Court
held that Carmack, far from requiring nonreceiving carri
ers to issue their separate bills of lading, makes any sub
sequent bill “void” unless the “so-called second bill of
lading represents the initiation of a new shipment.” Id., at
Cite as: 561 U. S. ____ (2010) 11
Opinion of the Court
734.
The Court’s decision in Reider v. Thompson, 339 U. S.
113, is not to the contrary. That case involved goods
originating in Argentina, bound for an inland location in
the United States. The Court in Reider determined that
because there was no through bill of lading, the original
journey from Argentina terminated at the port of New
Orleans. Thus, the first rail carrier in the United States
was the receiving rail carrier and had to issue a Carmack
bill of lading. Id., at 117. And because that carrier had to
issue a separate bill of lading, it was not liable for damage
done during the ocean-based portion of the shipment. Id.,at 118–119. Notably, neither Mexican Light nor Reider
addressed the situation in the present cases, where the
shipment originates overseas under a through bill of lad
ing. And, for this reason, neither case discussed COGSA.
The Carmack Amendment’s second sentence establishes
when Carmack liability applies:
“[The receiving rail carrier referred to in the first sen
tence] and any other carrier that delivers the property
and is providing transportation or service subject to
the jurisdiction of the [STB] under this part are liable
to the person entitled to recover under the receipt or
bill of lading.” §11706(a)
Thus, the receiving and delivering rail carriers are subject
to liability only when damage is done to this “property,”
that is to say, to property for which Carmack’s first sen
tence requires the receiving rail carrier to issue a bill of
lading. Ibid. Put another way, Carmack applies only to
transport of property for which Carmack requires a receiv
ing carrier to issue a bill of lading, regardless of whether
that carrier erroneously fails to issue such a bill. See ibid.
(“Failure to issue a receipt or bill of lading does not affect
the liability of a rail carrier”). The language in some of the
Courts of Appeals’ decisions, which were rejected by the
12 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
Court of Appeals in the opinion now under review, could
be read to imply that Carmack applies only if a rail carrier
actually issued a separate domestic bill of lading. See,
e.g., Atladis, 458 F. 3d, at 1291–1294; American Road, 348
F. 3d, at 568; Shao, 986 F. 2d, at 703; Capitol Converting,
965 F. 2d, at 394. This may have led to some confusion.
The decisive question is not whether the rail carrier in fact
issued a Carmack bill but rather whether that carrier was
required to issue a bill by Carmack’s first sentence.
The above principles establish that for Carmack’s provi
sions to apply the journey must begin with a receiving rail
carrier, which would have to issue a Carmack-compliant
bill of lading. It follows that Carmack does not apply if
the property is received at an overseas location under a
through bill that covers the transport into an inland loca
tion in the United States. In such a case, there is no
receiving rail carrier that “receives” the property “for
[domestic rail] transportation,” §11706(a), and thus no
carrier that must issue a Carmack-compliant bill of lading.
The initial carrier in that instance receives the property at
the shipment’s point of origin for overseas multimodal
import transport, not for domestic rail transport. (Today’s
decision need not address the instance where goods are
received at a point in the United States for export. Nor is
it necessary to decide if Carmack applies to goods initially
received in Canada or Mexico, for import into the United
States. See infra, at 16.)
The present cases illustrate the operation of these prin
ciples. Carmack did not require “K” Line to issue bills of
lading because “K” Line was not a receiving rail carrier.
“K” Line obtained the cargo in China for overseas trans
port across an ocean and then to inland destinations in the
United States. “K” Line shipped this property under
COGSA-authorized through bills of lading. See supra, at
4–5. That “K” Line chose to use rail transport to complete
one segment of the journey under these “essentially mari
Cite as: 561 U. S. ____ (2010) 13
Opinion of the Court
time” contracts, Kirby, 543 U. S., at 24, does not put “K”
Line within Carmack’s reach and thus does not require it
to issue Carmack bills of lading.
As for Union Pacific, it was also not a receiving rail
carrier under Carmack. The cargo owners conceded at
oral argument that, even under their theory, Union Pacific
was a mere delivering carrier, which did not have to issue
its own Carmack bill of lading. See Tr. of Oral Arg. 29, 39.
This was a necessary concession. A carrier does not be
come a receiving carrier simply by accepting goods for
further transport from another carrier in the middle of an
international shipment under a through bill. After all,
Union Pacific was not the “initial carrier” for the carriage.
Mexican Light, 331 U. S., at 733.
If a carrier like Union Pacific, which acts as a connect
ing or delivering carrier during an international through
shipment, was, counterintuitively, a receiving carrier
under Carmack, this would in effect outlaw through ship
ments under a single bill of lading. This is because a
carriage like the one in the present case would require two
bills of lading: one that the overseas carrier (here, “K”
Line) issues to the cargo owners under COGSA, and a
second one that the first domestic rail carrier (here, Union
Pacific) issues to the overseas carrier under Carmack.
Kirby noted “the popularity of ‘through’ bills of lading, in
which cargo owners can contract for transportation across
oceans and to inland destinations in a single transaction.”
543 U. S., at 25–26. The Court sees no reason to read
COGSA and Carmack to outlaw this efficient mode of
international shipping by requiring these journeys to have
multiple bills of lading. In addition, if Union Pacific had
to issue a Carmack bill of lading to “K” Line, it is unclear
whether the cargo owners (the parties Carmack is de
signed to protect) would be able to sue under the terms
governing that bill, especially in light of their different
through bill with “K” Line. These difficulties are reason
14 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
enough to reject this novel interpretation of Carmack,
which was neither urged by any party nor adopted by any
authority that has been called to this Court’s attention.
This would be a quite different case if, as in Reider, the
bills of lading for the overseas transport ended at this
country’s ports and the cargo owners then contracted with
Union Pacific to complete a new journey to an inland
destination in the United States. Under those circum
stances, Union Pacific would have been the receiving rail
carrier and would have been required to issue a separate
Carmack-compliant bill of lading to the cargo owners. See
Reider, 339 U. S., at 117 (“If the various parties dealing
with this shipment separated the carriage into distinct
portions by their contracts, it is not for courts judicially to
meld the portions into something they are not”).
The Court of Appeals interpreted Carmack as applying
to any domestic rail segment of an overseas shipment,
regardless of whether Carmack required a bill of lading.
The court rested on the assumption that “[STB]’s jurisdic
tion . . . is coextensive with Carmack’s coverage.” 557
F. 3d, at 992. Yet, as explained above, Carmack applies
only to shipments for which Carmack requires a bill of
lading; that is to say, to shipments that start with a car
rier that is both subject to the STB’s jurisdiction and
“receives [the property] for [domestic rail] transportation.”
The Court of Appeals ignored this “receive[d] . . . for trans
portation” limitation and so reached the wrong conclusion.
See, e.g., Reiter v. Sonotone Corp., 442 U. S. 330, 339
(1979) (courts are “obliged to give effect, if possible, to
every word Congress used”).
The Court of Appeals’ conclusion is also an awkward fit
with Carmack’s venue provisions. Under Carmack, a suit
against the “originating” (that is, receiving) rail carrier
that has not actually caused the damage to the goods “may
only be brought . . . in the judicial district in which the
point of origin is located.” §11706(d)(2)(A), (A)(i). Suit
Cite as: 561 U. S. ____ (2010) 15
Opinion of the Court
against either a delivering carrier or any carrier that
caused the damage, by contrast, may be brought in vari
ous other districts. See §11706(d)(2)(B), (C). “[J]udicial
district” refers to “district court of the United States or in
a State Court.” §11706(d)(1). Carmack’s venue provisions
presume that the receiving carrier obtains the property in
a judicial district within the United States. Here, the
journey’s “point of origin” was China, so Carmack’s venue
provisions reinforce the interpretation that Carmack does
not apply to this carriage.
Indeed, if “K” Line were a receiving carrier in a case
where the journey’s “point of origin” was China, there
would be no place under Carmack to sue “K” Line, since
China is not within a judicial district “of the United States
or in a State court.” Ibid. Carmack’s original premise is
that the receiving carrier is liable for damage caused by
the other carriers in the delivery chain. This premise
would be defeated if there were no venue in which to sue
the receiving rail carrier, as opposed to suing a different
carrier under one of Carmack’s other venue provisions and
then naming the receiving carrier as a codefendant. The
far more likely conclusion is that “K” Line is not a receiv
ing rail carrier at all under Carmack, and thus Carmack,
including its venue provisions, does not apply to property
shipped under “K” Line’s through bills. True, if the sole
question were one of venue, suit could still be brought
against the carrier that caused the damage or the deliver
ing carrier. But the issue need not be explored here, for,
as the Court holds, Carmack is inapplicable in these cases.
B
Carmack’s statutory history supports the conclusion
that it does not apply to a shipment originating overseas
under a through bill. None of Carmack’s legislative ver
sions have applied to the inland domestic rail segment of
an import shipment from overseas under a through bill.
16 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
Congress enacted Carmack in 1906, as an amendment
to the Interstate Commerce Act. At that time, the amend
ment’s provisions applied only to “property for transporta
tion from a point in one State to a point in another State.”
§7, 34 Stat. 595. Congress amended Carmack in 1915, §1,
38 Stat. 1197, and the relevant language remained un
changed until Carmack was recodified in 1978. Under the
pre-1978 language, Carmack’s bill of lading provisions
applied not only to wholly domestic rail transport but also
to cargo “receive[d] . . . for transportation” “from any point
in the United States to a point in an adjacent foreign
country.” 49 U. S. C. §20(11) (1976 ed.).
Even if there could be some argument that the Carmack
Amendment before 1978 applied to imports from Canada
and Mexico because the phrase “from . . . to” could also
mean “between,” cf. Reider, supra, at 118 (explicitly not
deciding this issue), the Court is unaware of any authority
holding that the Carmack Amendment before 1978 applied
to cargo originating from nonadjacent overseas countries
under a through bill. See, e.g., In re The Cummins
Amendment, 33 I. C. C. 682, 693 (1915); Brief for Respon
dents 8 (effectively conceding this point).
In 1978, Congress adopted the Carmack Amendment in
largely its current form. §1, 92 Stat. 1337. Congress in
the statute itself stated that it was recodifying Carmack
and instructed that this recodification “may not be con
strued as making a substantive change in the la[w].”
§3(a), id., at 1466; see Burlington Northern R. Co. v. Okla
homa Tax Comm’n, 481 U. S. 454, 457, n. 1 (1987). By
interpreting the current version of the Carmack Amend
ment to cover cargo originating overseas, the Court of
Appeals disregarded this direction and dramatically ex
panded Carmack’s scope beyond its historical coverage.
Finally, in 1995, Congress reenacted Carmack. But that
reenactment evidenced no intent to affect the substantive
change that Court of Appeals’ decision would entail. See
Cite as: 561 U. S. ____ (2010) 17
Opinion of the Court
§102(a), 109 Stat. 847–849. There is no claim that the
1995 statute altered Carmack’s text in any manner rele
vant here, as that reenactment merely indented subsec
tions of Carmack for readability. Cf. United States v.
O’Brien, 560 U. S. ___, ___ (2010) (slip op., at 14)
(“[C]urrent legislative drafting guidelines . . . advise draft
ers to break lengthy statutory provisions into separate
subsections that can be read more easily”).
C
Where the text permits, congressional enactments
should be construed to be consistent with one another.
And the interpretation of Carmack the Court now adopts
attains the most consistency between Carmack and
COGSA. First, applying Carmack to the inland segment
of an international carriage originating overseas under a
through bill would undermine Carmack’s purposes. Car
mack is premised on the view that the shipment has a
single bill of lading and any damage during the journey is
the responsibility of both the receiving and the delivering
carrier. See supra, at 6. Yet, under the Court of Appeals’
interpretation of Carmack, there would often be no venue
in which to sue the receiving carrier. See supra, at 14–15.
Applying two different bill of lading regimes to the same
through shipment would undermine COGSA and interna
tional, container-based multimodal transport. As Kirby
explained, “[t]he international transportation industry
‘clearly has moved into a new era—the age of multimo
dalism, door-to-door transport based on efficient use of all
available modes of transportation by air, water, and
land.’ ” 543 U. S., at 25 (quoting 1 T. Schoenbaum, Admi
ralty and Maritime Law 589 (4th ed. 2004)). If Carmack
applied to an inland segment of a shipment from overseas
under a through bill, then one set of liability and venue
rules would apply when cargo is damaged at sea (COGSA)
and another almost always would apply when the damage
18 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
occurs on land (Carmack). Rather than making claims by
cargo owners easier to resolve, a court would have to
decide where the damage occurred to determine which law
applied. As a practical matter, this requirement often
could not be met; for damage to the content of containers
can occur when the contents are damaged by rough han
dling, seepage, or theft, at some unknown point. See H.
Kindred & M. Brooks, Multimodal Transport Rules 143
(1997). Indeed, adopting the Court of Appeals’ approach
would seem to require rail carriers to open containers at
the port to check if damage has been done during the sea
voyage. This disruption would undermine international
container-based transport. The Court will not read Con
gress’ nonsubstantive recodification of Carmack in 1978 to
create such a drastic sea change in practice in this area.
Applying Carmack’s provisions to international import
shipping transport would also undermine the “purpose of
COGSA, to facilitate efficient contracting in contracts for
carriage by sea.” Kirby, supra, at 29. These cases provide
an apt illustration. The sophisticated cargo owners here
agreed to maritime bills of lading that applied to the
inland segment through the Himalaya Clause and author
ized “K” Line to subcontract for that inland segment “on
any terms whatsoever.” The cargo owners thus made the
decision to select “K” Line as a single company for their
through transportation needs, rather than contracting for
rail services themselves. The through bills provided the
liability and venue rules for the foreseeable event that the
cargo was damaged during carriage. Indeed, the cargo
owners obtained separate insurance to protect against any
excess loss. The forum-selection clause the parties agreed
upon is “an indispensable element in international trade,
commerce, and contracting” because it allows parties to
“agre[e] in advance on a forum acceptable” to them. The
Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 13–14 (1972).
A clause of this kind is enforced unless it imposes a venue
Cite as: 561 U. S. ____ (2010) 19
Opinion of the Court
“so gravely difficult and inconvenient that [the plaintiff]
will for all practical purposes be deprived of his day in
court.” Id., at 18. The parties sensibly agreed that be
cause their bills were governed by Japanese law, Tokyo
would be the best venue for any suit relating to the cargo.
The cargo owners’ contrary policy arguments are un
availing. They assert that if Carmack does not apply, the
inland segment of international shipments will be “un
regulated.” Brief for Respondents 2, 21, 24, 64, 91. First,
any speculation that not applying Carmack to inland
segments of overseas shipments will cause severe prob
lems is refuted by that fact that Carmack even arguably
did not govern the inland portion of such shipments from
its enactment in 1906 until its nonsubstantive recodifica
tion in 1978. See supra, at 15–17. It is true that if the
cargo owners’ position were to prevail, the terms of
through bills of lading made in maritime commerce would
be more restricted in some circumstances. But that does
not mean that the Court’s holding leaves the field unregu
lated. Ocean-based through bills are governed by COGSA,
and ocean vessels like those operated by “K” Line are
overseen by the Federal Maritime Commission. Supra, at
4–5. Rail carriers like Union Pacific, furthermore, remain
subject to the STB’s regulation to the extent they operate
within the United States. See supra, at 13–14. It is nota
ble that although the STB has jurisdiction to regulate the
rates of such carriers, even when the carriage is not gov
erned by the Carmack Amendment, STB has exercised its
authority to exempt from certain regulations service pro
vided by a rail carrier “as part of a continuous intermodal
freight movement,” 49 CFR §1090.2 (2009), like the jour
ney at issue in these cases, see ibid. (exercising STB’s
deregulation authority under 49 U. S. C. §10502(f)).
Finally, the cargo owners miss the mark in relying on
the recent United Nations Convention on Contracts for the
International Carriage of Goods Wholly or Partly by Sea,
20 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
Opinion of the Court
which has yet to be “ratified by the President with the
advice and consent of the Senate.” Brief for United States
as Amicus Curiae 11. These so-called “Rotterdam Rules”
would explicitly allow the inland leg of an international
shipment to be governed by a different legal regime than
the ocean leg, under some circumstances. See G. A. Res.
63/122, art. 26, U. N. Doc. A/RES/63/122 (Dec. 11, 2008).
Nothing in the Rotterdam Rules, however, requires every
country to mandate a different regime to govern the inland
rail leg of an international through shipment; and, as ex
plained above, Congress, by enacting COGSA, has opted for
allowing shipments governed by a single through bill. And
if the objection is that today’s decision will undermine the
results of these international negotiations in some way,
that concern is met by the fact that the United States
Government has urged the result the Court adopts today.
See Brief for United States as Amicus Curiae 13–29.
Congress has decided to allow parties engaged in inter
national maritime commerce to structure their contracts,
to a large extent, as they see fit. It has not imposed Car
mack’s regime, textually and historically limited to the
carriage of goods received for domestic rail transport, onto
what are “essentially maritime” contracts. Kirby, 543
U. S., at 24.
V
“K” Line received the goods in China, under through
bills for shipment into the United States. “K” Line was
thus not a receiving rail carrier under Carmack and was
not required to issue bills of lading under that Amend
ment. Union Pacific is also not a receiving carrier for this
carriage and was thus not required to issue Carmack
compliant bills. Because the journey included no receiving
rail carrier that had to issue bills of lading under Car
mack, Carmack does not apply. The parties’ agreement to
litigate these cases in Tokyo is binding. The cargo owners
Cite as: 561 U. S. ____ (2010) 21
Opinion of the Court
must abide by the contracts they made.
* * *
The judgment of the Court of Appeals for the Ninth
Circuit is reversed, and the cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
Cite as: 561 U. S. ____ (2010) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 08–1553 and 08–1554
_________________
KAWASAKI KISEN KAISHA LTD., ET AL.,
PETITIONERS
08–1553 v.
REGAL-BELOIT CORPORATION ET AL.
UNION PACIFIC RAILROAD COMPANY, PETITIONER
08–1554 v.
REGAL-BELOIT CORPORATION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2010]
JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and
JUSTICE GINSBURG join, dissenting.
In my view, the Carmack Amendment to the Interstate
Commerce Act (ICA), §7, 34 Stat. 595, plainly applies to
the inland leg of a multimodal shipment traveling on an
international through bill of lading. Unless they have
permissibly contracted around Carmack’s requirements,
rail carriers in the United States such as petitioner Union
Pacific are subject to those requirements, even though
ocean carriers such as petitioner “K” Line are not. To
avoid this simple conclusion, the Court contorts the stat­
ute and our cases, misreads the statutory history, and
ascribes to Congress a series of policy choices that Con­
gress manifestly did not make. Because I believe Carmack
provides the default legal regime for rail transportation of
cargo within the United States, regardless of whether the
shipment originated abroad, I would reach the second
question presented: whether Union Pacific was free to opt
2 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
out of Carmack under 49 U. S. C. §10709, or whether
Union Pacific first had to offer “K” Line, its contractual
counterparty, Carmack-compliant terms under §10502.
As to that question, I would hold that opt-out under
§10709 was not available and would remand to the Dis­
trict Court to consider in the first instance whether Union
Pacific satisfied its obligations under §10502. For these
reasons, I respectfully dissent.
I
The Court’s interpretation of Carmack’s scope is wrong
as a matter of text, history, and policy.
A
1
I begin with the statute’s text. Two provisions guide my
conclusion that Carmack provides the default legal regime
for the inland leg of a multimodal shipment traveling on
an international through bill of lading: §11706(a), which
outlines the basic requirements for liability under Car­
mack, and §10501(a), which defines the jurisdiction of the
Surface Transportation Board (STB or Board), the succes­
sor to the Interstate Commerce Commission (ICC), see
ante, at 7. Section 11706(a) states as follows:
“A rail carrier providing transportation or service
subject to the jurisdiction of the Board under this part
shall issue a receipt or bill of lading for property it re­
ceives for transportation under this part. That rail
carrier and any other carrier that delivers the prop­
erty and is providing transportation or service subject
to the jurisdiction of the Board under this part are li­
able to the person entitled to recover under the receipt
or bill of lading. The liability imposed under this sub­
section is for the actual loss or injury to the property
caused by—
“(1) the receiving rail carrier;
Cite as: 561 U. S. ____ (2010) 3
SOTOMAYOR, J., dissenting
“(2) the delivering rail carrier; or
“(3) another rail carrier over whose line or route the
property is transported in the United States or from
a place in the United States to a place in an adja­
cent foreign country when transported under a
through bill of lading.
“Failure to issue a receipt or bill of lading does not af­
fect the liability of a rail carrier. A delivering rail car­
rier is deemed to be the rail carrier performing the
line-haul transportation nearest the destination but
does not include a rail carrier providing only a switch­
ing service at the destination.”
With respect to the Board’s jurisdiction, §10501(a) pro­
vides as follows:
“(1) Subject to this chapter, the Board has jurisdic­
tion over transportation by rail carrier that is—
“(A) only by railroad; or
“(B) by railroad and water, when the transporta­
tion is under common control, management, or ar­
rangement for a continuous carriage or shipment.
“(2) Jurisdiction under paragraph (1) applies only to
transportation in the United States between a place
in—
“(A) a State and a place in the same or another
State as part of the interstate rail network;
. . . . .
“(E) the United States and another place in the
United States through a foreign country; or
“(F) the United States and a place in a foreign
country.”
“A simple, straight-forward reading of [these provisions]
practically compels the conclusion that the Carmack
Amendment applies in a typical multimodal carriage case
with inland damage.” Sturley, Maritime Cases About
Train Wrecks: Applying Maritime Law to the Inland
4 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
Damage of Ocean Cargo, 40 J. Mar. L. & Com. 1, 13 (2009)
(hereinafter Train Wrecks). The first sentence of
§11706(a) sets forth the circumstances in which a receiv­
ing rail carrier must issue a bill of lading: when property
is first “receive[d]” for domestic transportation. This
sentence does not define the full scope of Carmack liabil­
ity, however, as the penultimate sentence of §11706(a)
makes the absence of a bill of lading ultimately immate­
rial to the question of Carmack liability. Instead, the
second sentence of §11706(a) establishes Carmack’s ex­
pansive scope, explaining which carriers are subject to
Carmack liability: not only the rail carrier that receives
the property, but also “any other carrier that delivers the
property and is providing transportation or service subject
to the jurisdiction of the Board under this part.” Criti­
cally, that a rail carrier’s provision of “transportation or
service subject to the jurisdiction of the Board” is the
criterion that establishes liability under Carmack demon­
strates that Carmack’s scope must be considered in tan­
dem with the provision describing the Board’s jurisdiction
over rail carriage.
Under that provision, the Board has authority “over
transportation by rail carrier,” either when that transpor­
tation is “only by railroad” or when it is “by railroad and
water, when the transportation is under common control,
management, or arrangement for a continuous carriage or
shipment.” §10501(a)(1). Board jurisdiction over trans­
portation by rail carrier “applies only to transportation in
the United States,” not to transportation abroad.
§10501(a)(2). Within the United States, however, Board
jurisdiction exists broadly whenever that transportation is
“between,” inter alia, “a place in . . . a State and a place in
the same or another State as part of the interstate rail
network,” “a place in . . . the United States and another
place in the United States through a foreign country,” or
“a place in . . . the United States and a place in a foreign
Cite as: 561 U. S. ____ (2010) 5
SOTOMAYOR, J., dissenting
country.” §§10501(a)(2)(A), (E), (F).
With the jurisdictional framework in mind, I return to
the final sentences of Carmack, §11706. The third sen­
tence clarifies that liability under Carmack is imposed
upon (1) “the receiving rail carrier” (which, under the first
sentence of §11706(a) and the definition of the Board’s
jurisdiction over domestic rail carriage in §10501(a), is the
rail carrier that first receives the property for transporta­
tion in the United States); (2) “the delivering rail carrier”
(which, under the last sentence of §11706(a) and the
Board’s jurisdiction over domestic rail carriage in
§10501(a), is the final rail carrier providing the long­
distance transportation “nearest the destination” in the
United States); and (3) “another rail carrier over whose
line or route the property is transported in the United
States or from a place in the United States to a place in an
adjacent foreign country when transported under a
through bill of lading.” §11706(a). This last phrase in
§11706(a)(3) serves two functions. It ensures that, where
the entire rail transportation is “[with]in the United
States,” any connecting rail carrier between the point at
which the goods were received and the point at which the
goods were delivered is liable under Carmack. It also
ensures that, where the final destination of the goods is in
Canada or Mexico, such that there is no domestic “deliver­
ing” carrier, a connecting carrier taking on the goods in
the United States will remain subject to Carmack as it
travels toward its foreign destination while still in the
United States. (As noted, the jurisdictional provision,
incorporated by reference in §11706(a), is limited to
“transportation in the United States,” §10501(a)(2).)
The language of Carmack thus announces an expansive
intent to provide the liability regime for rail carriage of
property within the United States. Once a first domestic
rail carrier subject to the Board’s jurisdiction receives
property in the United States, Carmack attaches, regard­
6 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
less of where the property originated. Carmack then
applies to any other rail carrier subject to the Board’s
jurisdiction in the chain of transportation, no matter
whether the ultimate destination of the property is in the
United States or elsewhere, for the period the carrier is
traveling within the United States.
It seems to me plain that, under these broadly inclusive
provisions, Carmack governs rail carriers such as Union
Pacific for any transportation of cargo within the United
States, whether or not their domestic transportation is
part of a multimodal international shipment, and whether
or not they actually issued a domestic bill of lading. There
is no question that Union Pacific is a “rail carrier” that is
“subject to the jurisdiction of the Board.” §11706(a). It
“receive[d]” the cargo, ibid., in California for domestic
transportation to four different domestic inland loca­
tions—i.e., “between a place in . . . a State and a place in
. . . another State,” §10501(a)(2)(A)—while the shipment
itself was transported “between a place in . . . the United
States and a place in a foreign country,” §10501(a)(2)(F).
Union Pacific should have issued a bill of lading for the
cargo it received, but its failure to do so does not shield it
from liability, as §11706(a) makes clear. Carmack there­
fore provides the legal regime governing Union Pacific’s
rail transportation in these cases.
Carmack does not, however, govern ocean carriers such
as “K” Line, because such carriers are not “rail carrier[s]
providing transportation or service subject to the jurisdic­
tion of the Board.” §11706(a). The ICA defines a “rail
carrier” as “a person providing common carrier railroad
transportation for compensation.” §10102(5). To resolve
whether “K” Line meets this definition, I would apply the
STB’s well established test and ask whether it “conduct[s]
rail operations” and “ ‘hold[s] out’ that service to the pub­
lic.” Assoc. of P&C Dock Longshoremen v. Pittsburgh and
Conneaut Dock Co., 8 I. C. C. 2d 280, 290 (1992).
Cite as: 561 U. S. ____ (2010) 7
SOTOMAYOR, J., dissenting
Respondents—the owners of cargo that was allegedly
damaged during Union Pacific’s train derailment in Okla­
homa, ante, at 2–3—primarily contend that “K” Line
conducted rail operations by using containers to transport
the cargo from China to the United States in conjunction
with Union Pacific’s subsequent carriage of those same
containers. Brief for Respondents 82–83 (noting that the
statutory definition of “railroad” includes “ ‘intermodal
equipment used by or in connection with a railroad,’ ”
§10102(6)(A)). This interpretation goes too far. Read so
literally, the statute would render a truck a railroad sim­
ply because the truck transported containers during a
journey in which the containers also traveled by rail.
Such a reading would gut the separate provisions of the
ICA governing motor carriage in subtitle IV, part B of
Title 49. The ICA’s broad description of what the term
“railroad” “includes,” §10102(6), is better read as ensuring
that all services a rail carrier conducts are regulated
under the Act “to prevent overcharges and discriminations
from being made under the pretext of performing such
additional services.” Cleveland, C., C. & St. L. R. Co. v.
Dettlebach, 239 U. S. 588, 594 (1916).
At oral argument, respondents focused on a separate
argument, contending that “K” Line should be considered
a rail carrier because it conducts substantial rail opera­
tions at its depot facility in Long Beach, California. Tr. of
Oral Arg. 37 (describing transportation between Port of
Los Angeles, where “K” Line’s private chassis transport
the containers on the Port’s train tracks to the Los Ange­
les train depot, where the containers are loaded onto
Union Pacific trains for inland transportation). I agree
with the Board, however, that “ ‘ownership and operation
of private terminal facilities, including rail yards,’ ” is not
sufficient to bring a shipper within the definition of “ ‘a rail
carrier subject to [Board] jurisdiction’ ” where the “ ‘termi­
nal is maintained for [the ocean common carrier’s] exclu­
8 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
sive use in interchanging cargo with rail and motor carri­
ers providing inland transportation.’ ” Joint Application of
CSX Corp. & Sea-Land Corp. Under 49 U. S. C. §11321, 3
I. C. C. 2d 512, 519 (1987).1
The jurisdictional provisions of the ICA and the Ship­
ping Act of 1984, 46 U. S. C. §40101 et seq., confirm my
view that “K” Line is not a rail carrier “subject to the
jurisdiction of the Board,” 49 U. S. C. §11706(a), under
Carmack. The STB’s jurisdiction over transportation by
rail carriers is “exclusive,” §10501(b), while ocean carriers
are subject to the jurisdiction of the Federal Maritime
Commission (FMC), 46 U. S. C. §40102; see also 46 CFR
§520.1 (2009). In addition, the Board’s jurisdiction over
water carriage is limited to domestic water carriage. 49
U. S. C. §13521(a)(3). The Board itself has concluded that
ocean carriers providing intermodal transportation jointly
with inland rail and motor carriers are subject to the
FMC’s jurisdiction rather than its own. See Improvement
of TOFC/COFC Regulations, 3 I. C. C. 2d 869, 883 (1987).
For these reasons, Carmack governs Union Pacific but
not “K” Line for the inland transportation at issue in these
cases.
2
In finding Carmack inapplicable to the inland transpor­
tation in these cases, the majority relies on the fact that
Carmack does not govern ocean carriers such as “K” Line.
While I agree that “K” Line is not a rail carrier, the major­
ity places too much weight on that determination. That
the ocean carrier “K” Line is not subject to Carmack does
not affect the determination that the rail carrier Union
Pacific is, for the textual reasons I have explained. The
——————
1 BecauseI do not think that “K” Line conducts rail operations at all,
I would not reach the question whether “K” Line holds itself out as
offering rail common carriage. Compare Brief for Respondents 84–85,
with Reply Brief for Petitioners in No. 08–1553, pp. 7–10.
Cite as: 561 U. S. ____ (2010) 9
SOTOMAYOR, J., dissenting
majority’s contrary reading of the statute reflects four
fundamental errors.
First, the majority reads the term “receiving rail carrier”
in §11706(a) too narrowly. There is simply no basis in the
text of the statute to support the majority’s conclusion
that Carmack applies only when the first rail carrier in
the chain of transportation accepted the cargo at the
shipment’s point of origin. Cf. ante, at 10, 12. The two
cases the majority cites for this proposition are inapposite,
as neither addresses an international, multimodal ship­
ment in which the first leg of the trip was by ocean.2 In
St. Louis, I. M. & S. R. Co. v. Starbird, 243 U. S. 592, 594
(1917), the entire shipment was by rail from Arkansas to
New York City. And in Mexican Light & Power Co. v.
Texas Mexican R. Co., 331 U. S. 731, 732 (1947), the entire
shipment was by rail from Pennsylvania to Mexico. Given
that the first rail carrier was in each case the carrier that
received the goods from the shipper and issued a through
bill of lading, it is unsurprising that the Court, applying
Carmack, described that carrier as the “initial carrier.”
243 U. S., at 595; 331 U. S., at 733. But nothing in these
cases, and nothing in Carmack itself, requires that the
“receiving carrier” take the goods from the shipper at the
shipment’s point of origin.3
Instead, these cases are compatible with my view that
the “receiving carrier” is any rail carrier that first receives
cargo for transportation in the United States. Union
——————
2 The additional cases the United States cites for this proposition
suffer from this same flaw. See Brief for United States as Amicus
Curiae 27–28; Tr. of Oral Arg. 20.
3 Carmack’s venue provision refers to the “receiving rail carrier” as
the “originating rail carrier” and states that the proper venue for a
lawsuit against this carrier is “the judicial district in which the point of
origin is located.” §11706(d)(2)(A)(i). Especially because the focus of
Carmack is on transportation by rail, the phrase “point of origin” in this
context is best read as referring to the point of origin of the “originating
rail carrier[’s]” transportation, not the point of origin of the shipment.
10 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
Pacific, which is unquestionably a “rail carrier” in the
normal sense of those words, is also the “receiving carrier”
subject to liability under Carmack.4 Our opinion in Reider
v. Thompson, 339 U. S. 113 (1950), further supports this
reading. There we explained that the test for Carmack
applicability “is not where the shipment originated, but
where the obligation of the carrier as receiving carrier
originated.” Id., at 117. Because Carmack applies to
domestic rail transport, and the domestic rail carrier’s
obligation in that case arose in New Orleans where the
rail carrier received the goods, it did not matter that the
shipment began overseas in Buenos Aires. Similarly, in
the instant cases, because Union Pacific’s obligations to
transport by rail originated in California, it does not mat­
ter that the shipment began overseas in China.5
Second, the majority errs in suggesting that the issu­
ance of an international through bill of lading precludes
the applicability of Carmack. Cf. ante, at 10–11, 13. The
——————
4 The majority suggests that respondents “conceded” at oral argument
that Union Pacific was not a receiving carrier but only a delivering
carrier. Ante, at 13. Of course, this Court is not bound by a party’s
concession in our interpretation of a statute. See, e.g., Massachusetts v.
United States, 333 U. S. 611, 624–625 (1948).
5 Contrary to Union Pacific’s suggestion, Brief for Petitioner in 08–
1554, p. 33, its obligations did not originate in China. “K” Line’s bills of
lading, issued in China, “entitled [“K” Line] to sub-contract on any
terms . . . all duties whatsoever undertaken,” App. 145, and therefore
did not create any obligation on the part of Union Pacific in China. In
turn, the agreement between “K” Line and Union Pacific—which “K”
Line made “by and through its duly authorized agent and representa­
tive in the United States, ‘K’ Line AMERICA, Inc. . . ., a Michigan
corporation,” id., at 120—was a multiyear contract committing “K” Line
to “tender to [Union Pacific] not less than 95% of its Container traffic,”
ibid., but did not actually commit “K” Line to deliver any particular
piece of cargo to Union Pacific. As “K” Line explains, then, “the Agree­
ment [with Union Pacific] was a ‘requirements’ contract, which did not
become effective as to any particular container until ‘K’ Line delivered
it” to Union Pacific in California. Brief for Petitioners in No. 08–1553,
p. 12.
Cite as: 561 U. S. ____ (2010) 11
SOTOMAYOR, J., dissenting
cases on which the majority relies do not stand for this
proposition. In Reider, the Court found Carmack applica­
ble when the first domestic rail carrier issued a bill of
lading from New Orleans to Boston. Although we ob­
served in that opinion that there was no through bill of
lading from Buenos Aires to Boston, 339 U. S., at 117, we
did not say, and it is not a necessary corollary, that the
presence of such a bill of lading would have commanded a
different result. The observation is better read as indicat­
ing that no law other than Carmack could possibly have
applied in that case: Because “the shipment . . . could not
have moved an inch beyond New Orleans under the ocean
bill,” id., at 118, a new domestic bill of lading for domestic
transportation was required, and as to that transporta­
tion, we held, Carmack unquestionably applied.
For its part, Mexican Light held only that, where the
first rail carrier in the chain of transportation issued a bill
of lading, a subsequent bill of lading issued by a later rail
carrier was void because Carmack contemplates one
through bill of lading governing the entire journey by rail.
331 U. S., at 734. A subsequent bill of lading by a connect­
ing rail carrier, however, can be void under Carmack
without requiring the conclusion that an international
through bill of lading involving initial transportation by
ocean carrier would void a subsequent bill of lading issued
in the United States by the first rail carrier in the domes­
tic chain of transportation. Because the text of Carmack
expressly requires a bill of lading to be issued for property
“receive[d] for transportation under this part,” and Union
Pacific first received the property for rail transportation in
the United States, it should have issued a bill of lading.
Of course, its failure to do so did not affect its liability
under Carmack (or that of a subsequent connecting or
delivering carrier), as §11706(a) explicitly states.
Third, the majority errs in giving weight to the differ­
ence in scope between Carmack liability and the jurisdic­
12 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
tion of the Board. Ante, at 14. I agree with the majority
that Carmack’s reach is narrower than the Board’s juris­
diction. The Board’s jurisdiction extends over transporta­
tion by rail carrier “in the United States between a place
in . . . the United States and a place in a foreign country,”
§10501(a)(2)(F), which indicates that it does not matter
whether the movement of the transportation is from the
United States to the foreign country or from the foreign
country to the United States.6 In contrast, Carmack ap­
plies only when a rail carrier first receives property in the
United States, §11706(a), and therefore would not apply to
a rail carrier originating in Canada and delivering in the
United States without transferring the property to a
domestic rail carrier.7 As long as there is a receiving rail
carrier in the United States, however, Carmack attaches.
Because the property at issue in these cases was received
in the United States for domestic transportation by Union
Pacific, Carmack governs the rail carrier’s liability.
Finally, the majority misunderstands the role I believe
Carmack liability plays in international shipments to the
United States. My reading of the statute would not “out­
law through shipments under a single bill of lading.”
——————
6 The ICA’s jurisdictional provision uses the term “foreign country” to
describe the Board’s jurisdiction, §10501(a)(2)(F), while Carmack uses
the term “adjacent foreign country” to describe the liability of connect­
ing carriers, §11706(a)(3). I find the difference between these terms to
be of no moment. Section 10501 describes the Board’s jurisdiction over
rail carriers, and it is impossible to have connecting rail lines between
the United States and a foreign country that is not adjacent. This
reading is confirmed by §10501(a)(2)(E), which refers to the Board’s
jurisdiction over transportation by railroad “in the United States
between a place in . . . the United States and another place in the
United States and a foreign country.” No rail transportation between
two places in the United States that is interrupted by rail transporta­
tion through a foreign country could be through a foreign country that
is anything but adjacent.
7 This situation is consistent with historical agreements between the
ICC and its Canadian counterpart. See infra, at 14–15.
Cite as: 561 U. S. ____ (2010) 13
SOTOMAYOR, J., dissenting
Ante, at 13. To the contrary, an overseas ocean carrier
like “K” Line can still issue a through bill of lading govern­
ing the entire international trip to an American destina­
tion. That bill of lading reflects the ocean carrier’s agree­
ment with and obligations to the original shipper of the
cargo. As the ocean carrier has no independent Carmack
obligations of its own, the ocean carrier and the shipper
are free to select whatever liability terms they wish to
govern their relationship during the entire shipment. See
infra, at 20–21. Carmack simply requires an American
“receiving rail carrier” like Union Pacific to issue a bill of
lading to the party from whom it received the goods for
shipment—here, “K” Line. See Norfolk Southern R. Co. v.
James N. Kirby, Pty Ltd., 543 U. S. 14, 33 (2004) (“When
an intermediary contracts with a carrier to transport
goods, the cargo owner’s recovery against the carrier is
limited by the liability limitation to which the intermedi­
ary and carrier agreed”); Great Northern R. Co. v.
O’Connor, 232 U. S. 508, 514–515 (1914) (holding that a
railroad company is entitled to treat the intermediary
forwarder as the shipper). As to that bill of lading, Car­
mack provides the legal regime and defines the relation­
ship between the contracting parties (unless they have
agreed to contract out of Carmack, see infra, at 23–26).
The issuance of this second bill of lading, however, in no
way undermines the efficiency of the through bill of lading
between the ocean carrier and the original shipper, nor
does it require that those parties bind themselves to apply
Carmack to the inland leg.8
——————
8 The majority seems to find it troubling that my view “would require
two bills of lading.” Ante, at 13. But international shipments fre­
quently contain more than one bill of lading. See, e.g., Kirby, 543 U. S.,
at 30–33 (interpreting the parties’ obligations under two bills of lading,
one between a shipper and a freight forwarding company to which the
shipper originally delivered its goods, and one between the freight
forwarding company and the ocean carrier to which the freight for­
14 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
B
In addition to misreading the text, the Court’s opinion
misapplies Carmack’s statutory history. The Court states
that no version of Carmack has ever applied to imports
originating overseas on a through bill of lading. Ante, at
15. The Court further asserts that, because Congress
stated that the 1978 recodification of the ICA effected no
“substantive change,” Carmack should be read consis­
tently with this historical practice. Ante, at 16. There are
three problems with this analysis.
First, if “Congress intended no substantive change” to
Carmack in the 1978 recodification, “that would mean only
that the present text is the best evidence of what the law
has always meant, and that the language of the prior
version cannot be relied upon to support a different read­
ing.” Keene Corp. v. United States, 508 U. S. 200, 221
(1993) (STEVENS, J., dissenting). Because the present text
of Carmack indicates that it applies to the domestic inland
rail transportation of a multimodal international ship­
ment, there is no reason to rely on Congress’ statement in
the recodification.
Second, there is no necessary conflict between the pre­
——————
warder delivered the shipper’s goods). The majority also suggests that
an original shipper might not be able to sue Union Pacific under the
terms of Union Pacific’s bill with “K” Line. Ante, at 13. In Kirby,
however, 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. Indeed, we held that in an action
against the rail carrier, the shipper was bound to the terms of the bill of
lading governing the rail carrier’s transportation, even though those
terms were less generous than the terms in the shipper’s through bill of
lading with the freight forwarder with which it originally contracted.
543 U. S., at 33–34. We observed that the shipper could sue the freight
forwarder to recover the difference. Id., at 35. In light of this analysis,
I see no reason to doubt a shipper’s ability to sue an American rail
carrier under Carmack, even though its bill of lading with an overseas
ocean carrier is not governed by Carmack.
Cite as: 561 U. S. ____ (2010) 15
SOTOMAYOR, J., dissenting
1978 version of Carmack and my reading of the current
text. The pre-1978 text referred to a carrier “receiving
property for transportation from a point in one State or
Territory or the District of Columbia to a point in another
State, Territory, [or the] District of Columbia, or from any
point in the United States to a point in an adjacent foreign
country.” 49 U. S. C. §20(11) (1976).9 A rail carrier like
Union Pacific who receives property in California for
transportation to locations in the American midwest “re­
ceiv[es] property from a point in one State . . . to a point in
another State,” regardless of whether the property origi­
nated in California or China. The geographical restriction
“from any point in the United States to a point in an adja­
cent foreign country” simply reflected agreements between
the ICC and its Canadian counterpart to respect each
other’s regulation of rail carriage originating in that coun­
try. See Brief for United States as Amicus Curiae (herein­
after Brief for United States) 17–18. It does not indicate
any rejection of Carmack’s applicability to imports as a
whole or exports to a nonadjacent foreign country.10 In­
——————
9 The pre-1978 version of Carmack referred generally to a “carrier,”
rather than a “rail carrier.” It was not until 1995 that Congress distin­
guished between Carmack’s applicability to rail carriers, §11706, and
motor carriers, freight forwarders, and domestic water carriers, §14706.
Pub. L. No. 104–88, §102(a), 109 Stat. 803, 847–849, 907–910.
10 The Court ignores a further reason to believe that prior to 1978,
Carmack could be understood to apply to imports as well as exports.
Even assuming (contrary to my view) that the relevant language in
Carmack governing any international commercial exchange was the
phrase “from any point in the United States to a point in an adjacent
foreign country,” the seemingly uni-directional “from . . . to” could
reasonably have been interpreted as also encompassing “to . . . from” in
light of our decision in Galveston, H. & S. A. R. Co. v. Woodbury, 254
U. S. 357 (1920). In that case, this Court interpreted similar “from . . .
to” language in the jurisdictional section of the ICA as conferring
jurisdiction on the ICC over all transportation between such countries.
Id., at 359–360 (construing “ ‘transportation . . . from any place in the
United States to an adjacent foreign country’ ” in former 49 U. S. C. §116 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
stead, the “adjacent foreign country” provision was expan­
sive rather than limiting, ensuring that Carmack would
apply where a shipment traveled by rail from New York
City through to Montreal without stopping at the border of
Canada.
Third, to the extent there are meaningful differences
between the pre-1978 text of Carmack and its current text,
it is the current text that we should interpret, regardless
of Congress’ general hortatory statement in the 1978
Public Law applicable to the entire ICA. As we have often
observed, “[a] specific provision controls one of more gen­
eral application.” Gozlon-Peretz v. United States, 498 U. S.
395, 407 (1991). The general statement that Congress
intended no change to the ICA should not require us to
ignore what the current text of the specific Carmack pro­
vision says, as both Union Pacific and “K” Line explicitly
ask us to do. See Brief for Petitioner in No. 08–1554, at 20
(“The Pre-1978 Statutory Language Controls This Case”);
Brief for Petitioners in No. 08–1553, at 41–49 (arguing for
reliance on pre-1978 text). Petitioners’ view of statutory
interpretation would give rise to an unwieldy—and un­
just—system. I would have thought it beyond cavil that
litigants are entitled to rely on the currently applicable
version of enacted statutes to determine their rights and
obligations.
In the final analysis, the meaning of the pre-1978 lan­
——————
to include “transportation . . . from that country to the United States”).
Given the “presumption that a given term is used to mean the same
thing throughout a statute,” Brown v. Gardner, 513 U. S. 115, 118
(1994) (citing Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S.
427 (1932)), our construction of “from . . . to” in the ICA’s jurisdictional
provision could reasonably have been read to sweep imports within the
scope of Carmack. I would not, however, read “from . . . to” in the
current version of §11706(a)(3) to encompass “to . . . from,” as Congress
specifically amended the similar language in the jurisdictional provi­
sion at §10501(a)(2) to “between” while leaving intact the “to . . . from”
in Carmack, against the background of Woodbury.
Cite as: 561 U. S. ____ (2010) 17
SOTOMAYOR, J., dissenting
guage is murky, and Congress’ instruction that the 1978
recodification effected no substantive change provides no
meaningful guidance. The current text does not restrict
Carmack’s coverage to trade with adjacent foreign coun­
tries, and it makes no distinction between imports and
exports. Carmack’s ambiguous history cannot justify
reading such atextual limitations into the statute.11
C
The Court’s suggestion that its interpretation properly
effectuates the goals of Carmack and “attains the most
——————
11 The United States, as amicus in support of “K” Line and Union
Pacific, makes an effort to find such limitations in the current statutory
text. See Brief for United States 21; see also Reply Brief for Petitioner
in No. 08–1554, p. 10 (agreeing with the United States’ interpretation).
This argument is unpersuasive. The United States observes that
§11706(a)(3) describes the liability of “another rail carrier over whose
line or route the property is transported in the United States or from a
place in the United States to a place in an adjacent foreign country
when transported under a through bill of lading.” (Emphasis added.)
According to the United States, “[t]hat textual limitation, when read in
light of Carmack’s purpose, reflects Congress’s continued intent to
restrict Carmack to the carriage of goods between places in the United
States and for export to an adjacent foreign country.” Brief for United
States 21. As I have already explained, however, once a domestic rail
carrier first receives property for transportation within the United
States, regardless of where the property itself originated, Carmack
applies. Supra, at 3–6. Section 11706(a)(3) simply ensures that when a
connecting carrier that neither received the property in the United
States nor delivered it in the United States transports the property
from the United States to either Canada or Mexico, that connecting
carrier remains subject to Carmack liability during the part of the
transportation that is in the United States. Further, as I explain
below, see infra, at 18–20, Carmack’s purpose would be better effectu­
ated by applying its provisions inland as the default rule. In any event,
the “adjacent foreign country” provision in §11706(a)(3) has no bearing
on the rail transportation provided in these cases by Union Pacific as
“receiving rail carrier,” §11706(a), from California to four locations in
the American midwest. To this transportation, Carmack plainly
applies.
18 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
consistency between Carmack and [the Carriage of Goods
by Sea Act (COGSA)],” ante, at 17, reflects its fundamental
misunderstanding of these statutes and the broader legal
context in which the international shipping industry
functions. As the mandatory default regime governing the
relationship between an American receiving rail carrier
and its direct contracting partner (here an overseas ocean
carrier), Carmack permits the shippers who contract for a
through bill of lading with the ocean carrier to receive the
benefit of Carmack through that once-removed relation­
ship. Such a legal regime is entirely consistent with
COGSA and industry practice.
As noted, the Court’s position as to Carmack rests on its
erroneous belief that the “receiving carrier” must receive
the goods at the point of the shipment’s origin. Ante, at
12–15. Because Carmack provides that suit against the
receiving rail carrier “may only be brought . . . in the
judicial district in which the point of origin is located,” 49
U. S. C. §11706(d)(2)(A)(i), and defines “judicial district” as
only a federal or state court, §11706(d)(2)(B), the Court
mistakenly concludes that were Carmack to apply to
inland transportation of international shipments, “there
would often be no venue in which to sue the receiving
carrier” because that carrier would have received the
goods in a foreign country where no federal or state court
exists. Ante, at 14–15, 17. Contrary to the Court’s sugges­
tion, however, the proper venue in which to sue a receiving
carrier under Carmack is the location in which the first
domestic rail carrier received the goods for domestic
transportation. Supra, at 4–5, 9.
Nor is it true that Carmack’s focus is on providing a
single through bill of lading for an entire shipment. Ante,
at 17. Carmack’s purpose in §11706 is to ensure that a
single bill of lading, with a single protective liability re­
gime, governs an entire shipment by rail carrier within
Cite as: 561 U. S. ____ (2010) 19
SOTOMAYOR, J., dissenting
the United States.12 It does not require the rail carrier to
offer Carmack-compliant terms to anyone but the party
with whom the rail carrier contracts when it receives the
goods. It does not place obligations on the relationship
between any overseas carrier and any overseas shipper
who operate under their own bill of lading. That Congress
expected different liability regimes to govern ocean and
rail carriers can be inferred from the different regulatory
oversight provided for each type of carrier—the FMC for
the former, the STB for the latter, see supra, at 8.
Moreover, that Carmack provides certain greater pro­
tections than does COGSA demonstrates that one of Car­
mack’s purposes—beyond simply the fact of a single bill of
lading governing all rail transportation—was to specify a
protective liability regime for that part of the shipment
only. As compared to COGSA, Carmack provides height­
ened liability rules for rail transportation, compare
COGSA §4, 49 Stat. 1207, note following 46 U. S. C.
§30701, p. 1179, with 49 U. S. C. §§11706(a)–(c); stricter
venue requirements, compare Vimar Seguros y Reasegu
ros, S. A. v. M/V Sky Reefer, 515 U. S. 528, 535 (1995),
with §11706(d); and more generous time allowances for
filing suit, compare COGSA §3(6), at 1179, with §11706(e).
Congress is evidently wary of creating broad exemptions
from Carmack’s regime: While Congress has given expan­
sive authority to the STB to deregulate carriers from the
requirements of the ICA, it has precluded the STB from
excusing carriers from complying with Carmack. See
infra, at 25 (discussing §10502). By taking Carmack’s
protections out of the picture for goods that travel by rail
in the United States whenever the goods first traveled by
ocean liner, it is the Court that “undermine[s] Carmack’s
purposes,” ante, at 17. Cf. Reider, 339 U. S., at 119 (apply­
——————
12 A separate version of Carmack applies to motor and other nonrail
carriers within the United States. See supra, at 15, n. 8.
20 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
ing Carmack to domestic rail transportation of goods, even
where the goods originated overseas, in order to avoid
“immuniz[ing] from the beneficial provisions of the [Car­
mack] Amendment all shipments originating in a foreign
country when reshipped via the very transportation chain
with which the Amendment was most concerned”).
The Court’s suggestion that its interpretation best
comports with the goals of COGSA fares no better. The
Court is correct, ante, at 8, that Congress has permitted
parties contractually to extend COGSA, which, by its own
terms, applies only to the period “from the time when the
goods are loaded on to the time when they are discharged
from the ship.” §§1(e), 7, at 1178, 1180. But the Court
ignores that COGSA specifically contemplates that there
may be “other law” that mandatorily governs the inland
leg, and makes clear that contractual extension of COGSA
does not trump this law. §12, at 1180 (“Nothing in
[COGSA] shall be construed as superseding . . . any . . .
other law which would be applicable in the absence of
[COGSA], insofar as they relate to the duties, responsibili­
ties, and liabilities of the ship or carrier prior to the time
when the goods are loaded on or after the time they are
discharged from the ship”); see also Sturley, Freedom of
Contract and the Ironic Story of Section 7 of the Carriage
of Goods by Sea Act, 4 Benedict’s Mar. Bull. 201, 202
(2006) (“It is highly ironic to suggest that section 7 was
intended to facilitate the extension of COGSA [inland].
The unambiguous history demonstrates that section 7 was
specifically designed to accomplish exactly the opposite
result”). Notably, when it wants to do so, Congress knows
how to specify that a contractual extension of COGSA
supersedes other law: COGSA elsewhere defines a limited
circumstance—the carriage of goods by sea between ports
of the United States—in which a contractual extension of
COGSA has the force of law. §13, at 1180 (providing that
such bills of lading “shall be subjected hereto as fully as if
Cite as: 561 U. S. ____ (2010) 21
SOTOMAYOR, J., dissenting
subject hereto by the express provisions of [COGSA]”).
That Congress did not make the same provision for inland
travel is powerful evidence that it meant for Carmack to
remain the default regime on land governing the relation­
ship between an inland rail carrier and an overseas car­
rier with which it directly contracted.
The Court is also wrong that its interpretation avoids
the risk that two sets of rules will apply to the same ship­
ment at different times.13 Ante, at 17–18. Even under the
Court’s interpretation, two sets of rules may govern, be­
cause the parties need not extend COGSA to the inland
leg—they may agree on any terms they choose to cover
that transportation. §7, at 1180 (permitting the parties to
“ente[r] into any agreement . . . as to the responsibility and
liability of the carrier or the ship” for the period before the
goods are loaded on and after they are discharged from the
ship (emphasis added)); see also Train Wrecks 23
(“[C]arriers regularly include clauses in their bills of lad­
ing to limit their liability [for inland travel] in ways that
COGSA prohibits”); 1 T. Schoenbaum, Admiralty and
Maritime Law §10–4, p. 599–600 (4th ed. 2004) (describing
typical non-COGSA liability rules parties select for the
inland leg). In these cases, for example, “K” Line’s bills of
lading include certain terms governing the inland leg that
differ from the terms governing the ocean carriage. See,
e.g., App. 147 (providing different time frames within
which suit must be brought depending on whether the
actionable conduct “occurred during other than Water
Carriage”).
The Court relies heavily on Kirby as identifying the
relevant policy consideration in these cases, but it takes
——————
13 Nor would my interpretation of the statute necessarily require that
two different regimes apply to each shipment, given the parties’ ability
to contract around Carmack as long as they follow appropriate proce­
dures, infra, at 25–27, and, if they so choose, select COGSA terms.
22 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
the wrong lesson from Kirby. In that case, we were con­
cerned about displacing a single federal law, COGSA, with
50 varying state liability regimes.14 543 U. S., at 28–29.
The rule the Court establishes today creates even greater
practical difficulties than the regime we criticized in Kirby
by displacing Carmack with as many liability rules as
there are bills of lading. It would even permit different
liability rules to apply to different lawsuits arising out of
the same inland accident depending on where each piece
of cargo originated. Contrary to the Court’s view, then,
the value of uniformity articulated in Kirby is best pro­
moted by application of Carmack to the obligations of the
rail carrier during the inland leg in these cases. Cf. ante,
at 7–8, 17–18.
Finally, while purporting to effectuate the contractual
choices of the parties in the international multimodal
shipping industry, ante, at 17–20, the Court ignores the
realities of the industry’s operation. The industry has long
been accustomed to drafting bills of lading that encompass
two legal regimes, one governing ocean transportation and
another governing inland transportation, given mandatory
law governing road and rail carriage in most of Europe
and in certain countries in Asia and North Africa. See
generally Convention on the Contract for the International
Carriage of Goods by Road, May 19, 1956, 399 U. N. T. S.
189; Uniform Rules Concerning the Contract for Interna­
tional Carriage of Goods by Rail, App. B to the Convention
Concerning International Carriage by Rail, May 9, 1980,
1397 U. N. T. S. 112, as amended by Protocol for the Modi­
fication of the Convention Concerning International Car­
riage of Rail of May 9, 1980, June 3, 1999. Indeed, “K”
——————
14 Kirby did not address the question of Carmack’s applicability to the
inland leg of a multimodal international shipment traveling on a
through bill of lading because that question was not presented. Brief
for United States as Amicus Curiae in Norfolk Southern R. Co. v. Kirby,
O. T. 2004, No. 02–1028, pp. 11–12; ante, at 2.
Cite as: 561 U. S. ____ (2010) 23
SOTOMAYOR, J., dissenting
Line’s own bills of lading evidence this practice, providing
that, where an “applicable international convention or
national law” exists, “cannot be departed from,” and
“would have applied” if a separate contract for inland
carriage had been made between the merchant and the
inland carrier, those laws govern “K” Line’s liability. Brief
for Respondents 53.
The recently signed United Nations Convention on
Contracts for the International Carriage of Goods Wholly
or Partly by Sea, also known as the “Rotterdam Rules,”
provided an opportunity for the international community
to adopt rules for multimodal shipments that would be
uniform for both the ocean and inland legs. See generally
Train Wrecks 36–39. Instead, the final version of the
Rotterdam Rules retained the current system in which the
inland leg may be governed by a different legal regime
than the ocean leg. See United Nations Convention on
Contracts for the International Carriage of Goods Wholly
or Partly by Sea, G. A. Res. 63/122, art. 26, A/RES/63/122,
(Dec. 11, 2008). The Association of American Railroads
and the United States, among others, advocated for this
outcome.15 See Proposal of the United States of America
on the Definition of “Maritime Performing Party,” U. N.
Doc. A/CN.9/WG.III/WP.84, at ¶¶1–2 (Feb. 28, 2007);
Proposal by the United States of America, U. N. Doc.
A/CN.9/WG.III/WP.34, ¶7 (Aug. 7, 2003); Proposals by the
International Road Transport Union (IRU), U. N. Doc.
A/CN.9/WG.III/WP.90, ¶1 (Mar. 27, 2007); Preparation of
a Draft Instrument on the Carriage of Goods [by Sea],
Compilation of Replies to a Questionnaire on Door-to-Door
Transport, U. N. Doc. A/CN.9/WG.III/WP.28, at 32–34, 43
(Jan. 31, 2003) (Comments on behalf of the Association of
American Railroads and the International Road Transport
——————
15 Petitioner Union Pacific is a leading member of the American Asso­
ciation of Railroads. Train Wrecks 37, n. 214.
24 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
Union). Thus, the Court’s mistaken interpretation not
only upsets domestic law but also disregards industry
practice as evidenced by carefully calibrated international
negotiations.16
II
Because, in my view, Carmack provides the default legal
regime governing the relationship between the rail carrier
and the ocean carrier during the inland leg of a multimo­
dal shipment traveling on a through bill of lading, I would
reach the second question presented by these cases:
whether the parties validly contracted out of Carmack. I
would hold that where, as here, the STB has exempted rail
carriers from Part A of the ICA pursuant to its authority
as set forth in 49 U. S. C. §10502, such rail carriers may
not use §10709 to opt out of Carmack entirely. Instead,
such rail carriers must first offer their contractual coun­
terparties Carmack-compliant terms for liability and
claims, as §10502(e) requires. Having reached that con­
clusion, I would remand for consideration of whether the
requirements of §10502(e) were met in these cases. I set
forth these views only briefly, as the Court’s determina­
tion that Carmack does not apply at all makes resolution
of these questions moot.
A
In the Staggers Rail Act of 1980, Pub. L. 96–448, 94
Stat. 1895, Congress set forth a national policy of “al­
——————
16 The Court’s observation that nothing in the Rotterdam Rules “re­
quires every country to mandate a different regime to govern the inland
rail leg of an international through shipment” is irrelevant. Ante, at 20.
The Rotterdam Rules demonstrate simply that it is common practice to
have different regimes for inland and ocean transportation, so giving
full effect to Carmack as the default law governing the relationship
between “K” Line and Union Pacific can hardly be said to “undermine
COGSA and international, container-based multimodal transport,”
ante, at 17.
Cite as: 561 U. S. ____ (2010) 25
SOTOMAYOR, J., dissenting
low[ing], to the maximum extent possible, competition and
the demand for services to establish reasonable rates for
transportation by rail” and “minimiz[ing] the need for
Federal regulatory control” of the railroad industry. §101,
id., at 1897. Consistent with these goals, 49 U. S. C.
§§10502 and 10709 provide two options for contracting
around the requirements of the ICA.
Section 10502(a) provides that when certain conditions
are met, the Board “shall exempt,” “to the maximum
extent consistent with this part,” “a person, class of per­
sons, or a transaction or service” from either a particular
provision of Part A of the ICA or the entirety of that Part.
Section 10502(f) specifies that “[t]he Board may exercise
its authority under this section to exempt transportation
that is provided by a rail carrier as part of a continuous
intermodal movement.” Acting pursuant to this authority,
the Board has broadly exempted such transportation
“from the requirements of [the ICA].” 49 CFR §1090.2(2009). The authority to issue broad exemptions, however,
is not unlimited. Under 49 U. S. C. §10502(e), “[n]o ex­
emption order issued pursuant to this section shall oper­
ate to relieve any rail carrier from an obligation to provide
contractual terms for liability and claims which are consis­
tent with the provisions of [Carmack],” although, at the
same time, “[n]othing . . . shall prevent rail carriers from
offering alternative terms.” Section 10502(g) further
limits the Board from exempting rail carriers from their
obligations to comply with certain employee protections
under Part A of the ICA.
In turn, under §10709(a), “[o]ne or more rail carriers
providing transportation subject to the jurisdiction of the
Board . . . may enter into a contract with one or more
purchasers of rail services to provide specified services
under specified rates and conditions.” Having signed such
a contract, a rail carrier “shall have no duty in connection
with services provided under such contract other than
26 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
those duties specified by the terms of the contract.”
§10709(b). Once such a contract is made, that contract,
“and transportation under such contract, shall not be
subject to this part, and may not be subsequently chal­
lenged before the Board or in any court on the grounds
that such contract violates a provision of [Part A of the
ICA].” §10709(c)(1).
According to Union Pacific, §10502(e) limits only the
Board’s exemption ability; it does not place any affirma­
tive obligation on rail carriers to offer Carmack-compliant
terms. Rail carriers, Union Pacific contends, may opt out
of Carmack entirely simply by entering into a contract
under §10709, thus escaping any duty imposed by Part A
of the ICA. I disagree. I am persuaded by the Govern­
ment’s view that because the Board’s order in 49 CFR
§1090.2 exempted intermodal rail transportation from all
of Part A of the ICA, which includes 49 U. S. C. §10709,
“Union Pacific could not properly enter into a contract
under Section 10709 to relieve it of its obligations under
Section 10502(e).” Brief for United States 31. Those
obligations require “a rail carrier providing exempt trans­
portation [to] offer the shipper the option of contractual
terms for liability and claims consistent with Carmack,
presumably at a higher rate,” and they permit such a rail
carrier to “enter into a contract with different terms only if
the shipper does not select that option.” Id., at 30.
Observing that the Board’s exemption order relieves
intermodal rail transportation from the “requirements” of
Part A, Union Pacific contends that §10709 is not a re­
quirement but a privilege and therefore is not included
within the exemption. In clarifying its order, however, the
Board has described the exemption as one from “regula­
tion” under the ICA or “application” of that Act. See, e.g.,
Improvement of TOFC/COFC Regulations, 3 I. C. C. 2d, at
869–870. Especially in light of this clarification, there
seems little reason to ascribe significance to the Board’s
Cite as: 561 U. S. ____ (2010) 27
SOTOMAYOR, J., dissenting
use of the word “requirements,” instead of the statutory
term “provision,” in the exemption order.
The Government aptly describes the policy concerns
that justify this reading of the interplay between §§10502
and 10709. Brief for United States 31–32. Because a rail
carrier’s counterparty to a §10709 contract can ordinarily
require a rail carrier to comply with common carriage
rates and terms under Part A (including Carmack), such
counterparties possess considerable bargaining power.
But rail carriers the Board has exempted from Part A
under §10502 lack any obligation to comply with that
Part. If exempt carriers could escape Carmack’s obliga­
tions under §10709, their counterparties would be at a
significant disadvantage as compared to counterparties to
contracts with nonexempt carriers. Such a disadvantage
cannot be squared with Congress’ evident intent, as ex­
pressed in §10502(e), to ensure that no carrier may be
automatically exempted from Carmack.
This interpretation of §§10502 and 10709 imposes no
unfairness on exempt rail carriers. As the Court of Ap­
peals explained, “carriers providing exempt transportation
gain the benefits of deregulation, but lose the opportunity
to contract for preferable terms under §10709 without first
offering Carmack terms.” 557 F. 3d 985, 1002 (CA9 2009).
Given rail carriers’ ability to charge higher rates for full
Carmack coverage, see New York, N. H. & H. R. Co. v.
Nothnagle, 346 U. S. 128, 135 (1953), and the likelihood
that some counterparties will agree to reject Carmack­
compliant terms in favor of a lower price, such a trade-off
makes eminent sense.
B
Whether Union Pacific properly contracted out of Car­
mack under §10502(e) requires a factual determination
better suited for resolution by the District Court in the
first instance. Accordingly, I would remand for considera­
28 KAWASAKI KISEN KAISHA LTD. v. REGAL-BELOIT CORP.
SOTOMAYOR, J., dissenting
tion of that issue. Cf. 557 F. 3d, at 1003. Union Pacific
also raises a related legal argument not decided by the
courts below: that the forum selection clause at issue in
these cases is valid because venue is not encompassed
within the phrase “contractual terms for liability and
claims” in §10502(e). To the extent this argument is not
waived, it would also be properly considered on remand.
* * *
In endorsing a strained reading of the text, history, and
purpose of Carmack, the Court is evidently concerned with
a perceived need to enforce the COGSA-based contracts
that the “sophisticated cargo owners” here made with “K”
Line. Ante, at 18. But these cases do not require the
Court to interpret or examine the contract between the
cargo owners and “K” Line. The Court need consider only
the legal relationship between Union Pacific and “K” Line
as its direct contracting party. As to that relationship, it
bears emphasizing that industry actors on all sides are
sophisticated and can easily adapt to a regime in which
Carmack provides the default rule governing the rail
carrier’s liability during the inland leg of a multimodal
shipment traveling on an international through bill of
lading. See, e.g., Train Wrecks 40 (describing how ocean
and rail carriers have drafted their contracts to account
for—and permissibly escape—Carmack’s applicability); cf.
Kirby, 543 U. S., at 36 (recognizing that “our decision does
no more than provide a legal backdrop against which
future bills of lading will be negotiated”). In disregarding
Congress’ commands in both Carmack and COGSA and in
discounting the practical realities reflected in the Rotter­
dam Rules and other international conventions governing
the carriage of goods, the Court ignores what we acknowl­
edged in Kirby: “It is not . . . this Court’s task to structure
the international shipping industry.” Ibid. I respectfully
dissent.