Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

MEMORANDUM^** 

Alfred and Stacey Alfonso appeal pro se the district court's judgment against them in their action against The Pasha Group for damages arising from the shipment of their household goods and furnishings from Turkey to the United States. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS

Alfred and Stacey Alfonso ("Alfonsos") filed an action for damages against The Pasha Group ("Pasha") in Nevada state court. The Alfonsos alleged their household goods had been water damaged during shipment from Turkey to the United States, due to Pasha's negligence. They claimed they had entered into a contract with Pasha, through Pasha's agent, a freight forwarder in Turkey, for shipment of their goods to the United States. The Alfonsos also sought damages for intentional infliction of emotional distress.

Pasha removed the action to federal court under federal question jurisdiction. At a bench trial, after the Alfonsos rested their case-in-chief, the district court dismissed their punitive damage claim, finding the Carmack Amendment, 49 U.S.C. § 11707, provides the sole remedy in actions for damages arising out of interstate shipments. At the conclusion of the trial, the district court entered its findings of fact and conclusions of law on the remaining claims. The district court found the Alfonsos failed to establish that their household goods had been damaged by water during shipment. As a result, the district court entered judgment in favor of Pasha.

DISCUSSION

Under the Carmack Amendment, 49 U.S.C. § 11707, a common carrier is liable for actual loss or injury to property it transports. The Amendment codifies the common law rule that a common carrier is liable for damage to goods it transports unless it can be shown by a preponderance of the evidence that damage was caused solely by an act of God, a public enemy, the act of the shipper, public authority, or an inherent vice or nature of the goods.

Before the burden shifts to the carrier, however, the shipper must make out a prima facie case of the carrier's negligence. It does this by showing delivery of the goods to the carrier in good condition, delivery by the carrier to the consignee in damaged condition, and damages. Once these three elements are established, a presumption of negligence operates against the carrier, who must then come forward with sufficient facts to establish that any damages were due solely to one of the excepted causes noted above. Missouri Pacific R.R. v. Elmore & Stahl, 377 U.S. 134, 137-38 (1964); Frosty Land Foods v. Refrigerated Transport, 613 F.2d 1344, 1346-47 (5th Cir. 1980); Thousand Springs Trout Farms, Inc. v. IML Freight, Inc., 558 F.2d 539, 542 (9th Cir. 1977).

Here, the district court found the Alfonsos failed to establish a prima facie case of the carrier's negligence, because they failed to establish that their goods were in a damaged condition when the carrier delivered the goods to them.

The district court made the following findings of fact:

While there was a dispute in the testimony, the court finds the more believable testimony to be that the plaintiffs suffered no substantial water damage to their household goods. The estimates which the plaintiffs secured reflect estimates for refinishing and reupholstering the furniture. None of the estimates reflect that the work is being done to repair refurbished, water-damaged goods. In addition, the plaintiff voluntarily discarded or destroyed several items of household goods for which she has made claims in this action. The most valuable item of which was a Persian rug which plaintiff values at approximately $13,000.00. The court does not find it credible that such an item would be destroyed without first securing pictures or independent corroboration of its condition prior to its destruction. The evidence also clearly established that the plaintiffs misrepresented to customs officials the nature of the goods shipped. This evidence, coupled with other significant credibility issues raised as to the plaintiff during the course of the trial, convinces the court the plaintiffs have failed to carry their burden in establishing that the household goods were significantly damaged by exposure to water.

Federal Rules of Civil Procedure 52(a) provides: "Findings of fact shall not be set aside unless clearly erroneous." Fed. R. Civ. P. 52(a). A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). When findings are based on determinations regarding the credibility of witnesses, Fed. R. Civ. P. 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bears so heavily on the listener's understanding and belief in what is said. Anderson v. City of Bessemer, 470 U.S. 564, 575 (1984).

Other than the testimony from Stacey Alfonso and her daughter, only two documents were introduced by the Alfonsos purporting to show the goods were water-damaged: a household goods inventory list and a written estimate to refinish furniture with the words "water damage" marked on it. The district court found neither document credible.

The household goods inventory list merely indicates the goods were packed in Turkey by the Turkish freight forwarder. Notations as to water damage on the inventory were not attributed to the carrier. Nor were they attributed to any independent witness. Moreover, the inventory was in Stacey Alfonso's possession, and the district court found her testimony incredible.

The repair estimate, marked "water damage," is similarly lacking in credibility. The trial court received into evidence the deposition testimony of Angelo Gurreri, the person who allegedly made the estimate. Mr. Gurreri testified he wrote "water damage" on the estimate, and would not have done so if the furniture did not show water damage. He also testified, however, that he had no recollection of the furniture and could not recall whether it actually showed any evidence of water damage or not. The estimate was not received in evidence as a business record, but was admitted "solely for the purpose of showing that [the] estimate was sent to a representative of Pasha." Reporter's Transcript Vol. II p. 11.

As to Stacey Alfonso's testimony, the district court properly admitted other testimony disputing her credibility. Given this and other evidence that disputed the Alfonsos' assertion the goods were water-damaged at delivery to them, the district court did not err by finding that the Alfonsos failed to carry their burden in establishing the goods were delivered to them in a water-damaged condition. Because the Alfonsos failed to establish that their goods were water-damaged, we need not discuss the other issues raised in this appeal.

AFFIRMED.