Citations
- 45 F. Supp. 2d 288
Full opinion text
OPINION AND ORDER
COTE, District Judge.
The issue presented here is whether a shipper may recover from its common carrier or its common carrier’s sub-contractor the amount of its loss beyond that covered by the limitation of liability in its carrier’s airbill. The answer is no.
Plaintiff-Nippon Fire & Marine Ins. Co., Ltd. (“Nippon”) was the insurer of two shipments of laptop computers made by Toshiba America Information Systems, Inc. (“Toshiba”). Defendant Skyway Freight Systems, Inc. (“Skyway”), an air and ground carrier, agreed to ship the laptops and then contracted with defendant American International Airways, Inc. (“AIA”), another air carrier, for their transportation. Most of the first and all of the second shipments were lost and never delivered. Prior to any formal discovery, plaintiff and both defendants now move for summary judgment.
BACKGROUND
The following facts are undisputed. Toshiba is a manufacturer and distributor of laptop computers and other electronic equipment. Defendant Skyway is a domestic air and ground common carrier that entered into a contract with Toshiba to ship Toshiba’s goods. Under this contract, Skyway agreed to carry a shipment of 50 Toshiba laptops on September 8, 1997, and a second shipment of 157 Toshiba laptops on September 9, 1997. Both shipments were shipped on “3S” or three-day air terms, requiring delivery on the third business day following pickup. 3S is Skyway’s slowest method of air service. The laptops were to be shipped from Toshiba’s facilities in Irvine, California and delivered to Toshiba’s consignee, Inacom Corporation, in New Jersey.
The backside of the airbills indicates that the shipments are governed by Sky-way’s Air .Freight and Express Truck Rules and Regulations Tariff No. 1. The tariff states that “Skyway’s liability shall, in no event, exceed the declared value of the shipment ...” The tariff defines declared value as follows:
Declared Value — Air
A shipment will have a declared value of 50 cents per pound or $50.00, whichever is higher, unless a higher value is declared on the Airbill at the time of receipt.
(Emphasis supplied.) The airbills issued by Skyway contain boxes that permit Toshiba to declare the value of the goods. If it had declared a value, the fee for shipping the goods would have been increased at a rate dependent on the value declared. The tariff provides:
An additional charge of 75 cents shall be assessed for each $100.00 (or fraction thereof) by which the value declared on the Airbill, at the time of receipt of the shipment from the shipper, exceeds 50 cents per pound or $50.00, whichever is higher.
Choosing instead to insure the shipment of the laptops through Nippon, Toshiba left the boxes for a declared value blank. Toshiba declared a weight of 600 pounds on the bill of lading for the first shipment and 1,606 pounds on the bill of lading for the second shipment.
Rather than transport the goods itself, Skyway shipped the goods from California to Pennsylvania through AIA. AIA issued two airway bills for the shipments, and “NVD” or no value declared was written in the box entitled “Declared Value for Carriage” on that bill. Each airway bill states on its face that the goods are
subject to the conditions of contract on the reverse hereof, the shipper’s attention is drawn to the notice concerning carrier’s limitation of liability. Shipper may increase such limitation of liability by declaring a higher value for carriage and by paying a supplemental charge subject to conditions of contract on reverse side.
(Emphasis supplied.) The reverse side contains the following limitation of liability provision:
[the] carrier’s liability is limited to damages which occur while the shipment is in the custody of carrier or its duly authorized agent and shall in no event exceed (1) 50