ELR Citation: ELR 20816
No(s). 95-1582 (D.C. Cir. Jan 31, 1997)

The court holds that the U.S. Department of Transportation (DOT) acted within the scope of its discretion in issuing a regulation that established a rebuttable presumption that loose closures on railroad tank cars transporting hazardous materials result from the shipper's failure to conduct a proper inspection. The court first holds that DOT adequately articulated a reasonable evidentiary basis for the presumption in the regulation's preamble. The court rejects plaintiff trade group's assertion that DOT may not adopt the presumption without making specific findings in the administrative record to support its conclusion. DOT's presumption only purports to shift the burden of producing evidence, and not the ultimate burden of proof. The court next holds that the regulatory presumption is not inconsistent with the Carmack Amendment, which codifies the common-law rule that a carrier is liable for damage to goods transported unless it can show that the damage was caused by an act of God, the public enemy, the shipper, a public authority, or the inherent vice nature of the goods. The Carmack Amendment only applies in a civil proceeding to recover damages for actual loss or injury to property being transferred by a railroad. The DOT presumption applies only in an administrative enforcement proceeding, which is not an action to recover damages for loss or injury to property. The court also holds that the regulation does not violate the Due Process Clause of the Fifth Amendment by limiting the type of evidence that a shipper may submit to rebut the presumption.

Counsel for Petitioner
Paul M. Donovan
LaRoe, Winn, Moerman & Donovan
3506 Idaho Ave. NW, Washington DC 20016
(202) 362-3010

Counsel for Respondents
Peter J. Plocki
U.S. Department of Transportation
400 7th St. SW, Washington DC 20024
(202) 366-4000

Before: SENTELLE, RANDOLPH, and ROGERS, Circuit Judges.