IS AN NVOCC AN AGENT OR INDEPENDENT CONTRACTOR VIS A VIS A SHIPPER?
The Supreme Court will consider (“granted Certiori”) in Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 124 S. Ct. 981 (2004) the issue of whether a foreign cargo owner (“shipper”) who contracted with an NVOCC for a shipment by ocean transport for delivery at an inland point in the United States by rail is bound by limitations in the NVOs bill of lading, or those in the bill of lading of a U.S. railroad, when suing the railroad that sub-contracted with the ocean carrier to deliver the goods to destination. The Second, Third, and Ninth Circuit presume an agency relationship when the governing contract and the surrounding circumstances do not clearly establish the nature of the relationship. The 11th Circuit on the other hand has adopted a conflicting rule that states that “special particular arrangements” must be demonstrated to indicate that the intermediary is acting as an agent, rather than as an independent contractor. A holding, and even dicta (Court’s conclusions that are not part
