                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 10 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CERTAIN LLOYDS                                No. 12-55166
UNDERWRITERS SUBSCRIBING TO
POLICY NUMBER MC-13159,                       D.C. No. 2:11-cv-03625-ODW-FMO

              Plaintiff - Appellee,
                                              MEMORANDUM*
  v.

BALDWIN DISTRIBUTION
SERVICES, LTD., a corporation,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Otis D. Wright, II, District Judge, Presiding

                            Submitted August 8, 2013**
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                               -2-
Before: SILVERMAN and WARDLAW, Circuit Judges, and GEORGE, Senior
District Judge.***


         Fed-Ex subcontracted with Baldwin Distribution Services, Ltd. (“Baldwin”)

to transport cargo shipped by Netgear. Baldwin received the cargo but its truck

overturned during transport, resulting in a total loss of the cargo. Certain Lloyds

Underwriters Subscribing to Policy Number MC-13159 (“Lloyds”), who insured

Netgear and became subrogated to its rights, brought this action against Baldwin

pursuant to the Carmack Amendment, 49 U.S.C. §14706 et seq. The parties filed

cross-motions on the amount of Baldwin’s liability.1 To limit expenses, the parties

stipulated to have their cross-motions heard exclusively on seventeen stipulated

facts and two documents. The district court ruled in favor of Lloyds, and Baldwin

appeals. We affirm.

             We have jurisdiction pursuant to 28 U.S.C. § 2107(a). We review the grant

of summary judgment de novo. Hughes Aircraft Co. v. North American Van Lines,

Inc., 970 F.2d 609, 611 (9th Cir. 1992).




             ***
             The Honorable Lloyd D. George, Senior District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
         1
                   Baldwin does not dispute that it is liable for the loss of Netgear’s
cargo.
                                            -3-
       The Carmack Amendment subjects a motor carrier transporting cargo in

interstate commerce to absolute liability to the shipper for “actual loss or injury to

property.” 49 U.S.C § 14706(a)(1). However, a carrier may limit its liability “to a

value established by written or electronic declaration of the shipper or by written

agreement between the carrier and shipper if that value would be reasonable under

the circumstances surrounding the transportation.” 49 U.S.C. §14706(c)(1)(A). To

effectively limit its liability, a carrier must: (1) at the shipper's request, provide the

shipper with a written or electronic copy of applicable rates, (2) give the shipper a

reasonable opportunity to choose between two or more levels of liability, (3) obtain

the shipper’s written agreement as to his choice of the carrier’s liability limit, and

(4) issue a bill of lading that reflects such agreement prior to moving the shipment.

Hughes Aircraft, 970 F.2d at 611-12; OneBeacon Ins. Co. v. Haas Industries, Co.,

634 F.3d 1092, 1100 (9th Cir. 2011) (revising the first requirement established in

Hughes to reflect a statutory change).

       The extremely limited evidentiary record to which Baldwin stipulated

precludes a finding as to any of these elements. Not one of the stipulated facts

concerns whether the carrier would have provided Netgear with a copy of

applicable rates if Netgear had so requested. None of the stipulated facts allow a

conclusion that Netgear entered into a written agreement limiting carrier liability.
                                            -4-
Hughes Aircraft, 970 F.2d at 612 n.3 (“This agreement must be in writing and must

contain an ‘inadvertence clause,’ which specifies the ‘released rate’ and states that

such a rate will apply unless the shipper expressly declares otherwise”). While

Stipulated Fact No. 5 permits the conclusion that Netgear agreed to limit carrier

liability pursuant to the Bill of Lading, the stipulation does not establish that such

agreement was written. The Bill of Lading lacks any plain language suggesting

that it: (a) is the written agreement limiting carrier liability, (b) states the terms of

any such agreement, or (c) otherwise reflects any such agreement.

       AFFIRMED.
                                                                               FILED
Certain Lloyds Underwriters v. Baldwin Distribution Services, Ltd., 12-55166 10 2013
                                                                         SEP

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS



SILVERMAN, Circuit Judge, dissenting:



      I respectfully dissent.

      Under the Carmack Amendment, the liability provisions of a bill of lading

cover “(A) the receiving carrier, (B) the delivering carrier, or (C) another carrier

over whose line or route the property is transported.” 49 U.S.C. § 14706. “[T]he

liability of such participating carrier is fixed by the applicable valid terms of the

original bill of lading.” Missouri, K. & T. Ry. Co. of Texas v. Ward, 244 U.S. 383,

387 (1917).

      The parties stipulated that the bill of lading limited the carrier’s liability to

the shipper to $5 per pound. That stipulation is dispositive and forecloses further

debate about the bill of lading’s liability limit. Because Baldwin operated under

the bill of lading, its liability to the shipper – Netgear – was governed by the bill of

lading. The separate Master Agreement between Baldwin and FedEx defined the

liability of Baldwin to FedEx, not Baldwin to Netgear. I would reverse.
