The Derailment of a Transport Statute: How Regal-Beloit Shipwrecked the Carmack Amendment on the Shoals of COGSA

Abstract

In 2010, the United States Supreme Court decided that only the Carriage of Goods by Sea Act (COGSA), and not the Carmack Amendment, governs the domestic legs of international intermodal shipments coming into the United States by sea. While the Court sought to preserve uniformity in general maritime law, whatever meager uniformity the majority decision in Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. did preserve came at the expense of a plain-meaning interpretation of the relevant statutes and sensible jurisprudence. Meanwhile, the interpretation proposed by the Regal-Beloit dissent also would ignore the plain meaning of the Carmack Amendment, which otherwise arguably allows for the result reached by the majority.

This Article examines the dispute and legal issues in Regal-Beloit. It examines the jurisprudential deficiencies of Regal-Beloit to demonstrate that the Court could have artfully preserved the freedom of contract already cognized by both COGSA and the Carmack Amendment without using the former to wreck the latter, simply by reading the plain language of both statutes. The majority essentially reached the right result in this particular controversy for the wrong reasons — reasons that failed to address difficult open questions and created a set of strange side effects. Because these side effects make the practice of intermodal cargo law more uncertain, Congress should intervene to unwind the confusion that Regal-Beloit leaves in its wake.

Keywords: COGSA, Carriage of Goods by Sea Act, Carmack Amendment, intermodal transport, bill of lading, through bill of lading, cargo law, Kawasaki Kisen Kaisha, Regal-Beloit, container, container ship, container shipping, Clause Paramount, Himalaya Clause