618 F.2d 441 WISCONSIN PACKING CO., INC., Plaintiff-Appellant,v.INDIANA REFRIGERATOR LINES, INC., Defendant-Appellee. No. 78-2305. United States Court of Appeals,Seventh Circuit. Rehearing En Banc Dec. 3, 1979.Decided March 18, 1980. John P. Brady, Milwaukee, Wis., for plaintiff-appellant. H. Barney Firestone, Chicago, Ill., for defendant-appellee. Before FAIRCHILD, Chief Judge, and SWYGERT, CUMMINGS, PELL, SPRECHER, TONE, BAUER, WOOD and CUDAHY, Circuit Judges. CUMMINGS, Circuit Judge. 1 This is the second time this case has been before this Court. In August 1979, a divided panel of this Court upheld the district court's summary judgment for defendant. 604 F.2d 1022. On November 1, 1979, we granted plaintiff's petition for rehearing en banc and the case was subsequently reargued before all active judges. We now vacate the district court's judgment and remand the cause for trial. 2 In this action under the Carmack Amendment to the Interstate Commerce Act (49 U.S.C. § 20(11)), plaintiff seeks $13,092.66 in damages arising from the U.S. Navy's rejection of approximately 33,465 pounds of frozen meat shipped by plaintiff via defendant carrier from Milwaukee, Wisconsin, to the Naval Supply Center in Norfolk, Virginia. With the allegations in plaintiff's affidavits taken as true for purposes of reviewing defendant's summary judgment motion,1 the record in this case discloses the following: On July 29, 1974, plaintiff shipper transferred the goods to defendant for delivery at Norfolk on July 31. The plaintiff had previously had the meat tested for compliance with Navy temperature regulations and had specified that the carrier was to maintain the meat en route in a refrigerated trailer at zero degrees Fahrenheit (Plaintiff's Supp. App. 18). When the goods arrived at Norfolk on the appointed day, the Naval Supply Center refused delivery because the cargo temperature was 1.2 degrees over tolerances (Plaintiff's Supp. App. 19). Defendant immediately notified plaintiff of the rejection and subsequently brought the shipment back to Milwaukee, stopping in Pittsburgh so that the refrigeration unit on the trailer could be tested. 3 Defendant carrier retained exclusive possession of the meat during this period. Thus one of its representatives was present when the seals were broken and the trailer opened in Norfolk and he observed the tests that indicated the meat was not within acceptable military standards. A carrier representative was also present when the meat was returned to the shipper's Wisconsin premises on August 2. He remained there while the meat was again tested and found to be 1.2 degrees over the required tolerances. Recognizing that the temperature of the meat represented a fatal deviation from the shipper's specifications, the carrier's agent chose not to investigate any further the circumstances surrounding the damage to the cargo. The shipper then refused the carrier's tender of the returned meat, and the carrier removed the trailer and its cargo from plaintiff's premises with the intention of attempting to resell the meat. Carrier representatives also rechecked the refrigeration unit on the trailer and continued to perform tests on the unit for three days. On August 5, the carrier's Milwaukee terminal manager advised the …
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