Danner v. International Freight Systems of Washington, LLC (855 F. Supp. 2d 433, 2012)

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

Dennis Danner; his son, Alexander Danner; and his son-in-law, Michael Coletta, plaintiffs, went on a hunting trip in South Africa in June 2007, during which each plaintiff killed a “trophy quality” lion. The lion skins and skulls (the “Lion Trophies” or the “Cargo”) were shipped to the United States, but at some point were lost in transit. The Cargo was located many months later, in a warehouse in Vancouver, Canada. By that time, two of the Lion Trophies allegedly had suffered irreparable damage due to buildup of moisture and bacteria.

As a result, plaintiffs filed suit against International Freight Systems of WA, LLC (“International Freight”), a customs broker and freight forwarder; Cargolux Airlines International S.A. d/b/a Cargolux Airlines International, Inc. (“Cargolux”), an all-cargo air carrier; Cargo Airport Services USA, Inc. (“CAS”), Cargolux’s ground handling agent in Seattle (CAS and Cargolux are collectively referred to as the “Cargolux Defendants”); and Even Rock, Inc. d/b/a Seattle Air Cargo (“Even-Rock”), defendants, to recover for damages allegedly sustained as a result of the loss of the Cargo. International Freight and the Cargolux Defendants filed cross-claims against each other and against Even-Rock, seeking indemnity or contribution in the event that liability is established. See ECF 13, 16. Even-Rock is no longer a party; in an earlier ruling (ECF 36 & 37), Judge Richard D. Bennett granted Even-Rock’s motion to dismiss the claims against it for lack of personal jurisdiction.

The remaining parties have filed cross-motions for summary judgment. In partieular, International Freight has filed a motion for summary judgment (ECF 53), the Cargolux Defendants have filed a motion for summary judgment (ECF 54), and plaintiffs have filed combined oppositions and cross-motions for summary judgment (ECF 56 & 56). The motions have been fully briefed, and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I will grant International Freight’s motion for summary judgment and deny plaintiffs’ cross-motion. As to the Cargolux Defendants, I will deny both their motion and plaintiffs’ cross-motion.

Background

In June 2007, plaintiffs participated in a two-week hunting safari at a private game reserve in South Africa, operated by Tam Safaris, a South African business. See Cargolux Motion at 2; IF Motion at 2; Danner-Cargolux Motion at 1. During the safari, each of the plaintiffs shot and killed a “trophy quality,” full-maned, male lion, as well as other game. See Cargolux Motion at 2; IF Motion at 2; Danner-Cargolux Motion at 1. Mr. Danner paid all of the expenses of the trip, including airfare and accommodations for himself, his son, and his son-in-law; a $35,000 trophy fee for each lion; and other costs related to the hunt. Danner-Cargolux Motion at 1; IF Motion at 3. The three lions were skinned and “salted and dipped” in South Africa, in preparation for shipment by air to Seattle, Washington and subsequent transport to a taxidermist in Butte, Montana. See Danner-Cargolux Motion at 1; Cargolux Motion at 2.

On or about July 24, 2007, the Lion Trophies were packed into two crates, along with other trophies of plaintiffs’ hunt. One of the crates contained one lion pelt and one skull, along with the skulls, horns, and skins of a wildebeest and a springbuck. Coletta was listed as the “client” with respect to this crate, and it was marked with his name. Alex was listed as the “client” as to the second crate, which was marked with his name. That crate contained the other two lion pelts and skulls, along with the skulls, horns, and skins of two blesbucks, a rhebok, a nyala, a caracal, and a fallow deer. See South African Professional Hunting Registers & Trophy Export Applications # # 29156 & 29157, Ex. A to Aff. of Joseph Moine at 12-13, Ex. G to IF Motion (ECF 53-9); Danner-Cargolux Motion at 2.

Plaintiffs hired Rex Freight Forwarders (“Rex”), a South African business entity that is not a party to this case, to arrange for shipment of the Lion Trophies to the United States. See Danner-Cargolux Motion at 2; IF Motion at 3; Cargolux Motion at 2. The process of clearing the Cargo for export from South Africa with various South African agencies apparently took several months. See generally Ex. A to Aff. of Joseph Moine at 9-19, Ex. G to IF Motion (ECF 53-9). At his deposition, Mr. Danner recounted that he instructed Rex to insure the shipment for “at least the cost of the trip.” Dep. of Dennis Danner at 142, Ex. C to Cargolux Motion (ECF 54-4). Rex obtained a “Marine Certificate of Insurance” for each crate from an insurer, Santam Limited, by which the crates were insured against “risk” during a “voyage,” defined as “Port Elizabeth via Johannesburg / Luxembourg via Seattle to final destination in the United States of America.” Certificates of Insurance, Ex. A to Aff. of Joseph Moine at 21-22. Coletta’s crate was insured for ZAR 120,000, and Alex’s crate was insured for ZAR 240,000. Id.

Rex hired Cargolux to transport the Cargo to the United States. See Cargolux Air Waybill, Ex. 1 to Deck of Joseph M. Joyce, Ex. D to Cargolux Motion (ECF 54-5). The Air Waybill for the flight listed Rex as the “shipper.” International Freight, which was hired by plaintiffs as their United States customs agent and freight forwarder, was listed as the “consignee.” Id. The Cargo was described as two crates containing “consolidated cargo of dip & pack trophies,” with a “gross weight” of 114 kilograms. Id. The following text appears in the front, upper right corner of the Air Waybill, id.:

It is agreed that the goods described herein are accepted in apparent good order and condition (except as noted) for carriage 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 paying a supplemental charge if required.

The reverse side of the Air Waybill contained a “Notice Concerning Carriers’ [sic] Limitation of Liability,” which stated that the “Warsaw Convention may be applicable” and that the Warsaw Convention “in most cases limits the liability of the carrier in respect of loss, damage or delay to cargo” to certain amounts. Id. (capitalization altered). The reverse side of the Air Waybill also contained several “Conditions of Contract,” including provisions purporting to limit the carrier’s liability for lost or damaged cargo both in circumstances in which the Warsaw Convention applied, as well as those in which the convention was inapplicable. Id.

On the front of the Air Waybill, Rex listed the “Declared Value for Carriage” as “NDV,” (i.e., no declared value). Id. The Air Waybill also contained a blank for the shipper to indicate the “Amount of Insurance,” accompanied by the following instruction: “INSURANCE- — If carrier offers insurance, and such insurance is requested in accordance with the conditions thereof, indicate amount to be insured in figures in box marked ‘Amount of Insurance’.” Id. Rex listed the amount of insurance as “NIL.” Id.

In November 2007, Cargolux transported the Cargo by air from Johannesburg, South Africa to Seattle, Washington. It arrived at Seattle-Tacoma International Airport (“SEA”) on or about November 23, 2007. While the Cargo was awaiting clearance by United States Customs and other federal agencies for formal entry into the United States, it was placed in a bonded warehouse operated by CAS, the handling company and ground handling agent for Cargolux in Seattle. See IF Motion at 3; Danner-Cargolux Motion at 2; Cargolux Motion at 2; Deck of Roxana Alvarado ¶ 4, Ex. B to Cargolux Motion (ECF 54-3).

The parties agree that International Freight was hired by plaintiffs, upon referral from Atcheson Taxidermy (their taxidermist in Butte, Montana), to act as plaintiffs’ customs broker and freight forwarder. See Danner-IF Motion at 2; IF Reply at 2. The roles of a customs broker and a freight forwarder are distinct, although International Freight performed both functions on behalf of plaintiffs.

A “‘[c]ustoms broker’ means a person who is licensed ... to transact customs business on behalf of others.” 19 C.F.R. § 111.1. In turn, “customs business” includes “activities involving transactions with [U.S. Customs] concerning the entry and admissibility of merchandise, its classification and valuation, [and] the payment of duties, taxes, or other charges assessed or collected by [U.S. Customs] on merchandise by reason of its importation.” Id.

The parties do not dispute that International Freight’s duties as a customs broker consisted, in the words of Joseph Moine, International Freight’s Chief Financial Officer and corporate designee, of “clearfing] the cargo through U.S. Fish and Wildlife and U.S. Customs,” as well as the “USDA.” Deposition of Joseph Moine (“Moine Dep.”) at 12. This task involves only the submission of documents to the appropriate federal agencies, see id. at 5, and does not involve physical handling of cargo. Id. at 32. According to Mr. Moine, in order to enable International Freight to act as its customs broker, an importer must execute a customs power of attorney,

which grants International Freight authority to sign documents on the importer’s behalf. See id. at 25-26, 29. On November 28, 2007, Alex and Coletta each executed a customs power of attorney appointing International Freight as their customs broker. See Ex. N to IF Motion (ECF 53-16). Mr. Danner did not execute a power of attorney.

As noted, International Freight also served as a freight forwarder. A “freight forwarder is one who hires independent common or contract carriers” to transport goods for a shipper. Shippers’ Co-op., Inc. v. I.C.C., 308 F.2d 888, 891 (9th Cir.1962). In other words, a freight forwarder “facilitates the movement of cargo” by, in essence, acting as a “ ‘travel agent’ ” for cargo. Prima U.S. Inc. v. Panalpina, Inc., 223 F.3d 126, 129 (2d Cir.2000). According to Mr. Moine, International Freight’s responsibility was to arrange for transportation of the Cargo to the taxidermist in Montana. Moine Dep. at 12; see also IF Reply at 3. However, International Freight does not physically handle or transport cargo. Moine Dep. at 27, 32, 55, 57. Rather, it hires other companies to do so. Id. at 27. The parties have not submitted a written contract governing International Freight’s responsibilities to plaintiffs as a freight forwarder and, at his deposition, Mr. Moine testified that “[t]here was no contract.” Id. at 28.

The Cargo was cleared by U.S. Fish & Wildlife as well as U.S. Customs on or about November 28, 2007. See DannerIF Motion at 2; IF Motion at 3. Upon notification that the Cargo had been cleared, International Freight instructed Even-Rock, a Seattle-based warehousing company with which International Freight worked regularly, see Moine Dep. at 8, to pick up the Cargo from CAS’s bonded warehouse, and to “hold” the crates at Even-Rock’s “facility until further notice.” Ex. B to Affidavit of Joseph Moine, Ex. G to IF Motion at 23-24 (ECF 53-9); see IF Motion at 4; Danner-IF Motion at 2. International Freight also instructed CAS to release the Cargo to Even-Rock. See IF Motion at 4; Danner-IF Motion at 3; Moine Dep. at 36.

At 7:24 p.m. on November 30, 2007, a driver, Kim Keep, signed a CAS warehouse delivery order for the Cargo, accepting receipt of the two crates. See Ex. 1 to Decl. of Roxana Alvarado, Ex. B to Cargolux Motion (ECF 54-3). In his deposition, Mr. Moine stated that he could “only assume” that Keep was a driver employed by Even-Rock. Moine Dep. at 36.

On or about December 5, 2007, Midwest Motor Express, the trucking company hired by International Freight to transport the Cargo to Atcheson Taxidermy, arrived at Even-Rock’s warehouse to pick up the Cargo, but the crates could not be located. See IF Motion at 4; Moine Dep. at 41. An International Freight employee, Mary Terry, contacted other entities that had been involved with the transmission of the Cargo, including Cargolux and Rex, in an attempt to locate the Cargo, and filed a “Preliminary Notice of Claim” with CAS. See Danner-IF Motion at 3; Ex. 11 to Danner-IF Motion (ECF 55-13); Ex. 17 to Danner-IF Motion (ECF 55-19). According to Mr. Moine, however, no one from International Freight attempted to contact the driver, Kim Keep, who purportedly had picked up the Cargo from CAS’s warehouse. Moine Dep. at 44-45.

Over six months later, in July 2008, the Cargo was discovered during a Canadian Customs walkthrough in a bonded warehouse in Vancouver operated by Menzies, a company that performed warehousing operations for Cargolux in Vancouver, with responsibilities similar to those of CAS. See IF Motion at 4; Danner-Cargolux Motion at 3; Chinn Dep. at 30-31, 70; Ex. 12 to Danner-IF Motion (ECF 55-14). No party has any record of how the Cargo was transported to Vancouver. See Danner-Cargolux Motion at 3; IF Motion at 4.

Gordon Chinn, Cargolux’s corporate designee, testified that Cargolux and its ground handling agents use a computer system called “E-Champ” for tracking of cargo. See Chinn Dep. at 50, 52, 54, 70. If a Cargolux package is received at the wrong destination, Cargolux or its ground handling agent at the incorrect destination can generate an “alert” in the E-Champ system associated with the package’s air waybill, such that a “teletype message” would be sent to the Cargolux facility at the correct destination, and the alert would be “in the system ... every time you pull the air waybill up.” Id. at 50. However, the Menzies warehouse did not generate an E-Champ alert regarding the Cargo. Id. at 96. Cargolux’s first indication that Menzies had possession of the Cargo came by way of a phone call in July 2008 from Menzies, in Vancover, to Cargolux’s Seattle office.

After the Cargo was located in Vancouver, International Freight coordinated its return to the United States, including its clearance through Canadian Customs. IF Motion at 4. Atcheson Taxidermy then hired a trucking company to transport the Cargo to Atcheson in Butte, Montana. Deposition of Dennis Danner at 87, Ex. A to IF Motion (ECF 53-3). The Cargo arrived at Atcheson Taxidermy in September 2008. Affidavit of Dennis Danner ¶ 13, Ex. 1 to Danner-Cargolux Motion (ECF 55-3). According to Mr. Danner, Atcheson discovered during the tanning process that two of the Lion Trophies (specifically, those of Alex and Coletta) were irreparably damaged, as a result of “severe slippage on the faces and paw due to bacteria buildup.” Id.

Plaintiffs filed claims against the San-tam Limited insurance policy that Rex had procured and obtained payment of the sum of ZAR 360,000, the full amount for which the Cargo had been insured. However, at then-current exchange rates, this only amounted to $47,140.71. See Ex. M to IF Motion (ECF 53-15).

This suit followed. Plaintiffs filed their original Complaint (ECF 1) on November 23, 2009. The currently operative pleading is plaintiffs’ Amended Complaint (ECF 6), filed on December 18, 2009, which contains six counts: breach of contract against International Freight (Count I); negligence against International Freight (Count II) ; negligence against Even-Rock (Count III) ; breach of contract against Cargolux (Count IV); negligence against Cargolux (Count V); and negligence against CAS (Count VI). Plaintiffs seek damages of $111,820, plus interest, costs, and attorney’s fees.

Additional facts will be included in the discussion.

Discussion

A. Subject Matter Jurisdiction

Before addressing the merits, I must consider whether the Court possesses subject matter jurisdiction. Plaintiffs asserted subject matter jurisdiction on the basis of diversity of citizenship. See Amended Complaint at 2 (ECF 6); 28 U.S.C. § 1332.

All of the plaintiffs apparently are Maryland citizens. See Amended Complaint ¶¶ 1-3. If any defendant is also a Maryland citizen, complete diversity is not present. See Cent. W. Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir.2011) (“With the exception of certain class actions, Section 1332 requires complete diversity among parties, meaning that the citizenship of every plaintiff must be different from the citizenship of every defendant.”) (footnote omitted). Upon review of plaintiffs’ Amended Complaint, however, it is impossible to discern the citizenship of the defendants, so as to determine whether diversity jurisdiction is satisfied.

To illustrate, as to CAS and Even-Rock, which are corporations, plaintiffs asserted only their principal places of business (the states of New York and Washington, respectively), see Amended Complaint ¶¶ 5, 7, and did not allege the states in which the defendants are incorporated. But see 28 U.S.C. § 1332(c)(1) (providing that, for purposes of diversity jurisdiction, “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business”) (emphasis added). As to International Freight, which is a limited liability company, plaintiffs alleged only that defendant’s principal place of business is in Washington state. See Amended Complaint ¶ 4. However, “[f]or purposes of diversity jurisdiction, the citizenship of a limited liability company ... is determined by the citizenship of all of its members.” Mountain State, supra, 636 F.3d at 103; see also Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 120 (4th Cir.2004).

With regard to Cargolux, the record does not make clear whether it is incorporated in a United States jurisdiction (as suggested by its alleged “d/b/a” name, which contains the suffix of “Inc.”), or whether it is solely a foreign corporation, as suggested by the suffix “S.A.” in its name. That suffix designates a “société anonyme” or “sociedad anónima” (literally, “anonymous society”), a “business form roughly equivalent to a U.S. corporation” in several countries. Pittway Corp. v. United States, 88 F.3d 501, 502 (7th Cir. 1996); see, e.g., Eurofins Pharma U.S. Holdings v. BioAlliance Pharma SA 623 F.3d 147, 152 n. 2 (3d Cir.2010). In addition, an exhibit to the Cargolux Motion identifies Cargolux as a “Foreign Air Carrier of Luxembourg.” Ex. A to Cargolux Motion, at 4 (ECF 54-2).

The citizenship of foreign corporations under 28 U.S.C. § 1332 has long been the subject of “unfortunate doubt” in the federal courts. 13F Wright, Miller & Cooper, Federal Practice & Procedure § 3624, at 69 (2009, 2011 Supp.); see generally id. § 3628. A recent amendment to § 1332(c)(1) aims to resolve this doubt by providing that a corporation (whether foreign or domestic) is deemed “a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” 28 U.S.C. § 1332(c)(1), as amended by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub.L. No. 112-63, 125 Stat. 758, § 102 (Dec. 7, 2011). However, the amendment applies only to cases (unlike this one) that are “commenced on or after” January 6, 2012. See id. § 105(a). In any event, plaintiffs failed sufficiently to specify Cargolux’s citizenship under any standard, because they alleged only that Cargolux has its principal place of business in the state of Washington. See Amended Complaint ¶ 6.

In sum, this Court might possess diversity jurisdiction, but it is not possible to determine whether it does from plaintiffs’ Amended Complaint. Nor is the uncertainty resolved by the balance of the record. To be sure, there is no affirmative suggestion in the record that any of the defendants is a Maryland citizen. Nor has any party or the Court previously raised this jurisdictional issue. Nevertheless, federal courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, — U.S. -, 130 S.Ct. 1181, 1193, 175 L.Ed.2d 1029 (2010). “No court can ignore” a jurisdictional defect, once it is discovered; “rather a court, noticing the defect, must raise the matter on its own.” Wis. Dept. of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998).

However, plaintiffs’ inadequate pleading of diversity jurisdiction does not create an insurmountable hurdle. This is because, as discussed, infra, some of plaintiffs’ claims against Cargolux arise under federal law. Thus, the Court possesses original jurisdiction over those claims pursuant to federal question jurisdiction, see 28 U.S.C. § 1331, and, even in the absence of complete diversity, it may exercise supplemental jurisdiction over the other claims against Cargolux and the claims involving the other parties that “form part of the same case or controversy.” 28 U.S.C. § 1367(a).

B. Standard of Review

Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, which provides, in part, that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In resolving a summary judgment motion, the court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002). “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [its] plead ings,’ but rather must ‘set forth specific facts’ ” showing that there is a triable issue. Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042, 124 S.Ct. 2171, 158 L.Ed.2d 732 (2004). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The “judge’s function” in reviewing a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” there is a dispute of material fact that precludes summary judgment. Id. at 248,106 S.Ct. 2505.

When, as here, more than one party has filed a motion for summary judgment, the court must consider “each motion separately on its own merits ‘to determine whether [any] of the parties deserves judgment as a matter of law.’ ” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (citation omitted), cert. denied, 540 U.S. 822, 124 S.Ct. 135, 157 L.Ed.2d 41 (2003). 477 of the “motions must be denied if the court finds that there is a genuine issue of material fact. But if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment.” 10A Wright, Miller & Kane, Federal Practice & Procedure § 2720, at 336-37 (3d ed. 1998, 2010 Supp.).

In this case, the Cargolux Defendants and International Freight have filed separate motions for summary judgment. Defendants seek determinations that they are not liable to plaintiffs or, in the alternative, a ruling that the amount of damages recoverable by plaintiffs is reduced as a matter of law, effectively to zero. Defendants make no arguments with respect to their cross-claims against each other.

For their part, plaintiffs only seek partial summary judgment against defendants; at this juncture, they seek judgment as to liability, but not damages. See ECF 64 at 1. Plaintiffs contend that the Court should find defendants jointly liable as a matter of law and that, “[a]s joint tortfeasors, Defendants should have the burden of sorting out their respective level of fault.” Danner-IF Motion at 11.

C. Choice of Law

Preliminarily, I note that no party has mentioned the issue of choice of law. Rather, the parties have briefed the issues as if substantive Maryland law governs all of plaintiffs’ claims. Although they have cited persuasive authority from other states and various federal courts, and although the Cargolux Defendants contend that plaintiffs’ negligence claims against them are preempted by federal law, the parties rely primarily upon Maryland law as to the substantive common law principles at issue. Setting aside the issues of federal law with regard to the negligence claims against the Cargolux Defendants, it is by no means clear that substantive Maryland law should control plaintiffs’ other common law claims.

“When choosing the applicable state substantive law while exercising diversity or supplemental jurisdiction, a federal district court applies the choice of law rules of the forum state.” Ground Zero Museum Workshop v. Wilson, 813 F.Supp.2d 678, 696 (D.Md.2011) (citing, inter alia, ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 49 n. 11 (4th Cir.1983), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985)). Maryland is, of course, the forum state of this Court. Under Maryland’s choice-of-law principles, tort claims are governed by the law of the state where the alleged harm occurred (“lex loci delicto”). See, e.g., Proctor v. Washington Metropolitan Area Transit Auth, 412 Md. 691, 726, 990 A.2d 1048, 1068 (2010). And contract claims are ordinarily governed by the law of the state where the contract was made (“lex loci contractus”), unless the parties to the contract agreed to be bound by the law of another jurisdiction. See, e.g., Am. Motorists Ins. Co. v. ARTRA Group, Inc., 338 Md. 560, 573, 659 A.2d 1295, 1301 (1995). The record before me strongly suggests that the harm inflicted by the defendants’ alleged negligence occurred in Seattle (or, perhaps, in Vancouver). The contract between Cargolux and plaintiffs’ agent, Rex, was apparently made in South Africa. The record does not make clear where plaintiffs’ contractual arrangements with International Freight were made, but Washington appears at least as plausible a location as Maryland. In sum, it is quite doubtful that Maryland substantive law ought to control any of the claims in this case.

Nevertheless, Maryland . choice-of-law principles also contain guidance for courts when the parties fail to address a choice-of-law issue. In Chambco, Div. of Chamberlin Waterproofing & Roofing, Inc. v. Urban Masonry Co., 338 Md. 417, 421, 659 A.2d 297, 299 (1995), the Maryland Court of Appeals said:

Where the parties to an action fail to give ... notice of an intent to rely on foreign law, and where it is clear that one or more issues in the case are controlled by another jurisdiction’s law, a court in its discretion may exercise one of two choices with respect to ascertaining the foreign law. First, the court may presume that the law of the other jurisdiction is the same as Maryland law. Alternatively, the court may take judicial notice of the other state’s law. This discretion may be exercised by either the trial court, or by an appellate court

Accord Felland Ltd. P’ship v. Digi-Tel Commc’ns, LLC, 384 Md. 520, 530 n. 1, 864 A.2d 1027,1033 n. 1 (2004).

Here, the parties rely upon Maryland law and have not identified any relevant legal principles that might differ in other jurisdictions. In the absence of any analysis presented by the parties, I decline to undertake a choice-of-law analysis. See Ohio Sav. Bank v. Progressive Cas. Ins. Co., 521 F.3d 960, 962 (8th Cir.2008) (“Like the district court, we will ignore what might be a complex choice of law analysis because the parties have not identified a relevant state law conflict.”); Cleaning Authority, Inc. v. Neubert, 739 F.Supp.2d 807, 820 (D.Md.2010) (“ ‘Choice-of-law analysis becomes necessary ... only if the relevant laws of the different states lead to different outcomes.’ ”) (citation omitted). Accordingly, except with respect to the issues of federal law that control plaintiffs’ negligence claims against the Cargolux Defendants, I will resolve the parties’ disputes by applying Maryland law, in accordance with the Chambeo presumption that, to the extent that the law of any other jurisdiction ought to govern, it is the same as the law of Maryland.

D. International Freight

In arguing that International Freight is liable as a matter of law, plaintiffs describe their contract and negligence claims as arising from the bailment of the Cargo. See Danner-IF Motion at 5. International Freight argues principally that it cannot be liable to plaintiffs for loss of the Cargo because it never took physical possession of the Cargo, nor was it obligated to do so. Therefore, it maintains that it did “not enter into a bailment relationship” with plaintiffs. IF Opp. at 6. In response, plaintiffs argue that International Freight had “constructive” possession of the Cargo, by virtue of the (purported) possession of the Cargo by Even-Rock. Danner-IF Motion at 6. Plaintiffs cite a criminal case regarding possession of controlled dangerous substances, United States v. Rusher, 966 F.2d 868 (4th Cir.1992), for the proposition that constructive possession is established where “the defendant exercised, or had the power to exercise, dominion and control over the item.” Id. at 878.-

According to plaintiffs, International Freight was a bailee of the Cargo, and Even-Rock was International Freight’s “agent.” Danner-IF Motion at 6. Plaintiffs reason that International Freight used Even-Rock “on a daily basis for [International Freight’s] business of transporting and warehousing cargo,” and International Freight directed Even-Rock “to pick up the Cargo and take it to then-warehouse at which point [International Freight] (the named consignee) had the exclusive power to control the movement of the Cargo, either by itself or through an agent trucker [International Freight] hired.” Danner-IF Motion at 5-6. Rejecting this assertion, International Freight contends that Even-Rock was not its agent because, inter alia, it had no authority over the hiring or management of Even-Rock’s employees; it exerted no control over Even-Rock with respect to its transportation or storage of cargo; it did not supervise EvenRock’s daily activities; and Even-Rock did not act primarily for International Freight’s benefit.

1. Bailment

Before addressing the parties’ arguments, I pause to elucidate the concept of bailment.

“A bailment is ‘the relation created through the transfer of the possession of goods or chattels, by a person called the bailor to a person called the bailee, without a transfer of ownership, for the accomplishment of a certain purpose, whereupon the goods or chattels are to be dealt with according to the instructions of the bail- or.’ ” Broadview Apts. Co. v. Baughman, 30 Md.App. 149, 151, 350 A.2d 707, 709 (1976) (citation omitted). Put more simply, a “bailment may be defined as the rightful possession of goods by one who is not the owner.” Richard A. Lord, 19 Willistón on Contracts § 53:1, at 5 (4th ed. 2001, 2011 Supp.) (“Williston”).

Under Maryland law, a bailment consists of the following elements: (1) “ ‘an existing subject-matter’ ” consisting of personal property; (2) “ ‘a contract with reference to [the property] which involves possession of it by the bailee’ ”; (3) “ ‘delivery, actual or constructive,’ ” of the property to the bailee; and (4) “ ‘acceptance, actual or constructive,’ ” of the property by the bailee. John T. Handy Co. v. Carman, 102 Md.App. 188, 201-02, 648 A.2d 1115, 1122 (1994) (quoting Gen. Refining Co. v. Int’l Harvester Co., 173 Md. 404, 414-15, 196 A. 131 (1938)) (emphasis omitted); see also Paul Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland § 2.20, at 73-74 (4th ed. 2008, 2010 Supp.).

A bailment relationship can arise in a variety of ways. In modern usage, there are three general categories of bailments: “ ‘(1) for the sole benefit of the bailor; (2) for the sole benefit of the bailee; and (3) for the mutual benefit of both.’ ” John T. Handy, 102 Md.App. at 199-200, 648 A.2d at 1121 (quoting 8 Am. Jur.2d Bailments § 17 (1980)). Assuming, arguendo, that bailment principles apply here, plaintiffs contend, and I agree, that the alleged bailments created in this case would be bailments for mutual benefit, also known as bailments for hire. Compare, e.g., Fox Chevrolet Sales, Inc. v. Middleton, 203 Md. 158, 160-61, 99 A.2d 731, 732 (1953) (“when an automobile is delivered to one who, for a consideration, undertakes to repair it, the contract is one of bailment for hire, or for mutual benefit”); Schleisner Co. v. Birchett, 202 Md. 360, 363-64, 96 A.2d 494, 496 (1953) (holding that where employee was required as a condition of employment to keep her coat in an “executive closet” and “denied use of a locker,” the relationship between the employer and employee, as to the coat, was one of “ ‘bailment for profit, for the mutual benefit of the parties’ ”) (citation omitted), with Mickey v. Sears, Roebuck & Co., 196 Md. 326, 330, 76 A.2d 350, 352 (1950) (holding that, where customer inadvertently left his briefcase at a store, the store “became a gratuitous bailee of the brief case”).

It is “quite clear,” under Maryland law, “that a mutual benefit bailment is a contract.” Fisher v. Tyler, 284 Md. 100, 108, 394 A,2d 1199, 1203-04 (1978). Nevertheless, in “the case of a bailee for hire, liability is usually, though not always, asserted in a contract action.” Mickey, supra, 196 Md. at 331, 76 A.2d at 352 (emphasis added). This flexibility is likely attributable to the nature of the bailee’s duty of care existing by reason of the bailment relationship, because “the standards more nearly approximate the law of torts than that of contracts.” 19 WILLI-STON § 53:5, at 23.

Of import here, “when the subject matter of a mutual bailment for hire is delivered by the bailor to the bailee, it must be returned by the bailee in substantially the same condition ordinary wear and tear excepted.” Charles J. Miller, Inc. v. McClung-Logan Equip. Co., 40 Md. App. 585, 588, 392 A.2d 1153, 1155 (1978). Put another way, the “bailee in accepting possession of the bailed property assumes the duty of exercising reasonable care in protecting it.” Broadview Apts., supra, 30 Md.App. at 151, 350 A.2d at 709.

When bailed property is lost or damaged, Maryland courts apply a burden-shifting procedure with respect to the burden of production in a suit against a bailee, as described by the Maryland Court of Special Appeals in McClung-Logan, 40 Md.App. at 588, 392 A.2d at 1155:

When the bailed chattel is either not returned or returned in a damaged condition without legal excuse, a prima facie case of lack of due care or negligence is made out. It is then the duty of the bailee to go forward with proof that the loss or injury was occasioned by a cause which excuses the bailee, thereby providing a complete defense as the bailee is not an insurer. The bailor is then, by reason of his burden of proof, required to overcome this defense by establishing by a preponderance of the evidence that the bailee failed to use ordinary care and diligence to safeguard the bailor’s property, and that failure to perform his duty caused the loss to the bailor.

See also Stehle Equip. Co. v. Alpha Constr. & Dev. Co., 247 Md. 210, 213, 230 A.2d 654, 655 (1967) (“Once appellant proved the delivery, the bailment for hire, and the unexplained failure to return ... a prima facie case of negligence was made out.”); Trans-System Serv., Inc. v. Keener, 249 Md. 369, 372, 239 A.2d 897, 898 (1968) (“the burden of proof remains upon the [bailor] to show negligence on the part of the [bailee] and ... the prima facie case established by the failure to return the bailed property simply shifts to the [bailee] the burden of going forward with the evidence showing that it was not negligent”).

A bailee may be liable for negligence, but is not strictly liable for loss of bailed property. This is because a bailee for hire “is not an insurer of the safety of the property entrusted to its care, but ... owes only such care as persons of common prudence in their own situation and business usually use in the custody and keeping of similar property belonging to themselves.” Trans-System, 249 Md. at 372, 239 A.2d at 898 (internal citation omitted); see also Broadview Apts., 30 Md.App. at 151, 350 A.2d at 709; 19 Williston § 53:11, at 52-54 (“The bailee is not an insurer, and the standard of care with respect to bailed property remains the exercise of ordinary care.”).

2. Liability of International Freight as a Freight Forwarder

In arguing that International Freight is liable for the loss of the Cargo, plaintiffs suggest that a freight forwarder is a bailee, subject to a bailee’s duty of reasonable care in the safekeeping of bailed property. Although plaintiffs recognize that International Freight did not take actual physical possession of the Cargo, they contend that International Freight is vicariously liable for the alleged negligence of Even-Rock because, according to plaintiffs, Even-Rock was International Freight’s “agent.” As I shall explain, I disagree in both respects.

At the outset, it is important to observe that the term “freight forwarder” has more than one meaning. As the Supreme Court observed in Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Acme Fast Freight, Inc., 336 U.S. 465, 69 S.Ct. 692, 93 L.Ed. 817 (1949), one must “distinguish between two very different kinds of ‘forwarders.’ ” Id. at 484, 69 S.Ct. 692. The Supreme Court stated, id.:

The term [“freight forwarder”] was originally applied to persons who arrange for the transportation by common carrier of the shipper’s goods. The forwarderf’s] ... duties, as agent of the shipper, went no farther than procuring transportation by carrier and handling the details of shipment....

Later, a different type of forwarding service was offered. This forwarder picked up the less than carload shipment at the shipper’s place of business and engaged to deliver it safely at its ultimate destination. The freight forwarder charged a rate covering the entire transportation and made its profit by consolidating the shipment with others in carload quantities to take advantage of the spread between carload and [less-than-carload] rates. It held itself out not merely to arrange with common carriers for the transportation of the goods, but rather to deliver them safely to the consignee. The shipper seldom if ever knew which carrier would be utilized in the carriage of his shipment.

As the Supreme Court explained, Congress regulated the second type of freight forwarder, which takes actual physical possession of cargo in order to consolidate small shipments into larger lots. See id. at 485, 69 S.Ct. 692 (“The Freight Forwarder Act encompasses only the second type of forwarder described above.”); 49 U.S.C. § 13102(8) (definition of “freight forwarder” in the Freight Forwarder Act, a component of the Interstate Commerce Act). However, there is no indication in the record that International Freight operated as the kind of freight forwarder that takes actual possession of cargo. Rather, the record reflects that International Freight was hired merely to arrange transportation of plaintiffs’ Cargo. In the words of the Supreme Court, International Freight’s “duties ... went no farther than procuring transportation by carrier and handling the details of shipment.” Acme Fast Freight, 336 U.S. at 484, 69 S.Ct. 692.

In my view, a freight forwarder of the first variety described by the Supreme Court, which does not take physical possession of cargo, is not a bailee. Thus, no bailment relationship was established if International Freight did not take or agree to take physical possession of plaintiffs’ Cargo. In this regard, I am guided by the Supreme Court and by an instructive Florida appellate decision, Monroe Systems for Business, Inc. v. Intertrans Corp., 650 So.2d 72 (Fla.App.1994), which involved circumstances analogous to this case (although no party has cited it).

In Acme Fast Freight, the Supreme Court observed that an “agent-forwarder,” i.e., the “original ]” type of freight forwarder whose “duties, as agent of the shipper, went no farther than procuring transportation by carrier and handling the details of shipment,” was “liable to the shipper only for its own negligence, including negligence in selecting a carrier,” and was not “liable for loss or damage [regardless of] whether it or an underlying carrier had been at fault.” Acme, 336 U.S. at 484-85, 69 S.Ct. 692.

Monroe exemplifies the distinction made in Acme Fast Freight. In Monroe, the plaintiff was an importer of calculators manufactured in Asia. The calculators were shipped to the Port of Miami, and “Monroe hired Intertrans, a freight forwarder, to serve as its Miami agent.” 650 So.2d at 73. Monroe’s calculators were to be stored in warehouses in Miami, until Intertrans arranged for shipment of them in accordance with Monroe’s instructions. Id. The calculators fell into two groups: (1) products imported for domestic sale in the United States; and (2) so-called “in-bond” products that were not intended to be imported into the United States, but rather would be held in bonded warehouses for later shipment to Latin America (and thus would never incur United States customs duties). Id. at 74. With respect to the calculators imported for domestic sale, Intertrans stored the calculators in its own warehouse until shipment, and “[w]hile the goods were in the warehouse, Intertrans was clearly the bailee.” Id. However, Intertrans did not operate a bonded warehouse, and so “it was agreed that Intertrans would select a customs-bonded warehouse for storage of Monroe’s in-bond goods.... Thus, under the agreement and operative statutes, Intertrans would never obtain physical custody of the in-bond goods because Intertrans could not legally do so.” Id. To store the in-bond calculators, Intertrans selected a bonded warehouse operated by another party, IWDC, which “took its instructions from Intertrans and submitted its bills to Intertrans,” who in turn billed Monroe. Id. Subsequently, Monroe’s in-bond calculators were destroyed as a result of a toxic chemical fire at IWDC’s warehouse. Id.

In the suit that followed, Monroe asserted two claims against Intertrans. First, Monroe alleged that Intertrans was negligent in selecting IWDC to store the goods, because Intertrans should have inspected IWDC’s warehouse and discovered various alleged fire code violations at the facility. This count “went to the jury and Inter-trans was exonerated.” Id. at 75. Second, Monroe alleged that “Intertrans and IWDC were both bailees of the in-bond goods,” and that “Intertrans was vicariously liable for the negligence of IWDC, even if Intertrans itself was entirely without fault.” Id. The trial court held that Inter-trans was not vicariously liable as a matter of law, and dismissed the count, prompting Monroe’s' appeal. Id.

As a preliminary matter, the Florida appellate court held that Intertrans was not a bailee of the in-bond calculators (as opposed to the calculators imported for domestic sale and held in Intertrans’s own warehouse, as to which Intertrans “was plainly a bailee”). Id. at 76 & n. 11. The Monroe Court reasoned, id. at 76:

It is facially clear that with regard to the products held for export, Intertrans undertook only to act as Monroe’s agent to procure a suitable bonded warehouse. Intertrans could not itself act as bailee. Its responsibility was to locate a bailee — a bonded warehouse which could store Monroe’s in-bond goods.

Monroe says, however, that the result should be otherwise because Intertrans selected the IWDC warehouse, and Monroe was dependent on Intertrans’ judgment in that regard. That argument does not change the analysis. Intertrans acted within the scope of the agency relationship. Intertrans was obliged to use due care and would incur liability if negligent. Here, of course, Intertrans was exonerated on the negligence claim.

In sum, when Intertrans obtained bonded warehouse space for Monroe, Intertrans was acting as agent and did not thereby become the bailee of the goods.

In Monroe, Monroe hired Inter-trans as Monroe’s agent to secure IWDC’s services as a bailee. Here, plaintiffs argue that they hired International Freight as a bailee, and International Freight in turn secured Even-Rock’s services as International Freight’s agent. In my view, however, the situation is the same as in Monroe: plaintiffs hired International Freight as their agent to secure the services of a bailee, which happened to be Even-Rock. In other words, International Freight was not the bailee of the Cargo; it was plaintiffs’ agent in selecting a bailee. And, Even-Rock was not International Freight’s agent; it was the bailee of the Cargo (hired by plaintiffs’ agent, International Freight).

However, the Monroe Court did not rest its conclusion solely on the determination that Intertrans was not a bailee. The court “[a]ssum[ed] for purposes of discussion that Intertrans was the bailee of the in-bond goods,” and went on to determine whether Intertrans could be held vicariously liable for IWDC’s negligence. Id. at 76-77. Applying Florida bailment law (which is consistent with the Maryland bailment law I have discussed), the Monroe Court explained that a “ ‘bailee is not an insurer of the property delivered into its' keeping and is not liable for the loss of the thing bailed, except where there is a breach of the duty of the requisite degree of care.’ ” Id. at 77 (citation omitted). The appellate court adopted the trial court’s reasoning that, “since the negligence count and the bailment count would both be governed by a negligence standard, the case should go to the jury solely under the negligence count.” Id. at 75. It held, id. at 77:

Here, the selection of IWDC as the in-bond warehouse was consistent with, and not in violation of, Intertrans’ contract with Monroe. Intertrans had not agreed to act as an insurer for these goods and is therefore governed only by the standard of ordinary care. Consistent with well settled principles, Inter-trans would be liable only if negligent in selecting IWDC to serve as the in-bond warehouse. The question of negligence was submitted to the jury, and Inter-trans was found not negligent.

In my view, the Monroe Court’s analysis is equally applicable here. To be sure, there was no allegation in Monroe that Intertrans was liable, on a theory that IWDC acted as Intertrans’s “agent.” However, applying well settled Maryland principles of agency, vicarious liability, and bailment law, I am convinced that the result here is precisely the same as in Monroe.

Under Maryland agency law, three characteristics have “particular relevance to the determination of the existence of a principal-agent relationship: (1) the agent’s power to alter the legal relations of the principal; (2) the agent’s duty to act primarily for the benefit of the principal; and (3) the principal’s right to control the agent.” Id. at 503, 735 A.2d at 1048. As to the third factor, the Maryland Court of Appeals has explained, id. at 507-08, 735 A.2d at 1050:

The control a principal must exercise over an agent in order to evidence an agency relationship is not ... comprehensive. A principal need not exercise physical control over the actions of its agent in order for an agency relationship to exist; rather, the agent must be subject to the principal’s control over the result or ultimate objectives of the agency relationship.

Often an agent is left free from direct supervisory control as he or she furthers the interest of the principal.... Indeed, there are circumstances under which very little control is exercised by the principal.

In Maryland, a principal may, in some circumstances, be “ ‘liable to third persons in a civil suit, for the ... torts, negligences, and other malfeasances, or misfeasances, and omissions of duty of his agent----’” Sanders v. Rowan, 61 Md. App. 40, 54, 484 A.2d 1023, 1030 (1984) (citations and some internal quotation marks omitted). This doctrine of vicarious liability is commonly referred to as respondeat superior, and typically arises in the employment context. See Southern Mgmt. Corp. v. Taha, 378 Md. 461, 481, 836 A.2d 627, 638 (2003) (“On a successful claim under the doctrine of respondeat superior, an employer will be held jointly and severally liable for the tortious acts committed by its employee.”); Barclay v. Ports Am. Balt., Inc., 198 Md.App. 569, 577-78, 18 A.3d 932, 937 (2011) (“[T]he doctrine of respondeat superior ... holds an employer vicariously — and jointly and severally— liable for the tortious conduct of an employee, where it has been shown that the employee was acting within the scope of the employment relationship at that time.”).

“Generally, a principal is vicariously liable for the negligence of its agent when the two share a master-servant relationship but not when the agent is merely an independent contractor of the principal.” Hunt v. Mercy Med. Ctr., 121 Md. App. 516, 545, 710 A.2d 362, 376 (1998). In the taxonomy of agents, employee/servants, and independent contractors, a “‘master is a species of principal and a servant is a species of agent,’ ” Green, 355 Md. at 509, 735 A.2d at 1051 (quoting Restatement (Second) op Agency § 2 cmt. a), and there are different “species” of independent contractor: those who are agents and those “from an entirely separate genus of ‘non-agents.’ ” Brooks v. Euclid Sys. Corp., 151 Md.App. 487, 517, 827 A.2d 887, 904, cert. denied, 377 Md. 276, 833 A.2d 31 (2003). Put another way, “all masters are principals and all servants are agents, but only when the level of control is sufficiently high does a principal become a master and an agent a servant.” Green, 355 Md. at 509, 735 A.2d at 1051. “ ‘Agents who are not servants are regarded as independent contractors.’” Brooks, 151 Md.App. at 517, 827 A.2d at 904 (quoting Sanders, supra, 61 Md.App. at 50, 484 A.2d at 1028). But, “[n]ot all independent contractors are agents. ‘A person who contracts to accomplish something for another or to deliver something to another, but who is not acting as a fiduciary for the other, is a non-agent independent contraetor.’ ” Brady v. Ralph Parsons Co., 308 Md. 486, 510 n. 26, 520 A.2d 717, 730 n. 26 (1987) (citing Restatement (Second) of Agency §§ 2 cmt. b, 14N cmt. b) (internal citations omitted); accord Brooks, 151 Md. App. at 517, 827 A.2d at 904.

Thus, the dispute between plaintiffs and International Freight as to whether Even-Rock was an “agent” of International Freight is beside the point. The question of International Freight’s vicarious liability for Even-Rock’s alleged negligence hinges not on agency, but on whether Even-Rock was International Freight’s “servant” or, instead, an independent contractor. The distinction between a servant and an independent contractor lies in the degree of control exerted by the employer.

In Kersten v. Van Grack, Axelson & Williamowsky, P.C., 92 Md.App. 466, 608 A.2d 1270 (1992), the Maryland Court of Special Appeals explained that “ ‘the decisive test in determining whether the relation of master and servant exists is whether the employer has the right to control and direct the servant in the performance of his work and in the manner in which the work is to be done.”’ Id. at 469-70, 608 A.2d at 1272 (citation omitted) (emphasis in original). See also Balt. Harbor Charters, Ltd. v. Ayd, 365 Md. 366, 387, 780 A.2d 303, 315-16 (2001) (“ ‘[T]he test in determining whether a person is a servant or an independent contractor is whether the employer has the right of control over the employee in respect to the work to be performed.’ ”) (citation omitted); Hunt, supra, 121 Md.App. at 545, 710 A.2d at 376 (“The ultimate test for whether an agent is also a servant is control....”).

In other words, a “servant is a person who is employed to perform ... services for another ... and who, in respect to his physical movements in the performance of the service, is subject to the other’s control or right of.control.” Globe Indem. Co. v. Victill Corp., 208 Md. 573, 581-82, 119 A.2d 423, 427 (1956); accord Green, 355 Md. at 508-09, 735 A.2d at 1050-51. Conversely, an independent contractor is generally “ ‘free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, exclusive of the control and direction, in this respect, of the party for whom the work is being done.’ ” Baltimore Harbor Charters, 365 Md. at 387 n. 15, 780 A.2d at 316 n. 15. Notably, “ ‘[t]he reservation of some control over the manner in which work is done does not destroy the independent contractor relationship where the contractor is not deprived of his judgment in the execution of his duties.’ ” Brooks, 151 Md.App. at 510, 827 A.2d at 900 (quoting Schweizer v. Keating, 150 F.Supp.2d 830, 840 (D.Md. 2001)).

On the undisputed facts in the record before me, there is no indication that Even-Rock was a servant of International Freight, rather than an independent contractor. In this regard, it is salient that the two companies appear to be independent businesses. Moreover, International Freight did not exercise control over Even-Rock’s selection of drivers. Indeed, International Freight’s corporate designee, Joseph Moine, did not know whether Kim Keep was a driver for Even-Rock, but “assumed” so. It is undisputed that International Freight instructed Even-Rock to pick up the Cargo and hold it at Even-Rock’s warehouse, but plaintiff has advanced no evidence that International Freight directed the details of how Even-Rock was to accomplish that task. The fact that International Freight frequently used Even-Rock’s services did not transform Even-Rock into a servant of International Freight.

The distinction between a servant and an independent contractor is critical here, because “[generally, an ‘employer of an independent contractor is not liable for the negligence of the contractor or his employees.’ ” Appiah v. Hall, 416 Md. 533, 558, 7 A.3d 536, 551 (2010) (quoting Rowley v. Baltimore, 305 Md. 456, 461, 505 A.2d 494, 496 (1986)). This rule is subject to some exceptions, but none are applicable here. To be sure, I have not found a Maryland case applying the foregoing principles in a bailment case. But, there is no indication that Maryland would depart from these principles in the context of bailment.

Of course, an employer is liable for its own negligence “ ‘in selecting, instructing, or supervising the contractor.’ ” Appiah, 416 Md. at 559, 7 A.3d at 551 (citation omitted). As the Florida court in Monroe observed, a bailee can be liable for negligence in selecting a sub-bailee. See Monroe, 650 So.2d at 77. One Maryland bailment case seems to illustrate this principle. In Goldberg v. Kunz, 185 Md. 492, 45 A.2d 279 (1946), the Court of Appeals upheld a judgment against a bailee for damage to the bailor’s automobile, which had been “practically demolished” in an accident while being driven, without authorization, by the bailee’s employee. Id. at 494, 45 A.2d at 280. The employee’s unauthorized use of the vehicle placed the case outside the scope of respondeat superior liability, because the use was outside the scope of employment. See id. at 497, 45 A.2d at 281. Nevertheless, the Court of Appeals held the bailee liable, stating that “ ‘[i]t was the duty of the defendant to use ordinary care to employ a trustworthy servant in charge of the garage,’ ” and that the bailee placed the employee “in complete charge of the garage on a Sunday,” despite knowing “nothing whatever about” the employee, “who had worked for [the bailee] for only three weeks.” Id. at 495-97, 45 A.2d at 280-81 (citation omitted).

Corpus Juris Secundum also supports the foregoing analysis. It states that a bailee is not liable for the negligence of independent contractors to whom the bailed property is entrusted, “in the absence of a showing of negligence in the selection of the contractor.” 8 C.J.S. Bailments § 70 (2011).

Here, plaintiffs do not allege, and the record does not reflect, that International Freight was negligent in selecting Even-Rock to retrieve and store the Cargo. Therefore, even if, arguendo, International Freight was a bailee of the Cargo under plaintiffs’ theory of constructive possession, it is nevertheless clear that International Freight discharged its duty of ordinary care and its obligation to arrange for transportation of the Cargo by hiring Even-Rock, an independent contractor, to take actual possession of the Cargo. Assuming that the loss of the Cargo was the result, in whole or in part, of Even-Rock’s negligence, International Freight is not vicariously liable for the negligence of its independent contractor, Even-Rock. Accordingly, because there is no material dispute of fact as to either motion, I will grant International Freight’s motion for summary judgment, and deny plaintiffs’ cross-motion for summary judgment against International Freight.

D. Cargolux Defendants

1. Airline Deregulation Act Preemption

The Cargolux Defendants’ principal argument is that plaintiffs’ negligence claims against them (i.e., Counts Y and V I) are precluded by 49 U.S.C. § 41713(b)(1), which is the preemption provision of the Airline Deregulation Act of 1978 (“ADA”), Pub.L. No. 95-504, 92 Stat. 1705 (codified as amended in various sections of 49 U.S.C.). Section 41713(b)(1) provides, with exceptions not relevant here, that “a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this sub-part.”

The Cargolux Defendants contend that § 41713(b)(1) preempts plaintiffs’ negligence claims against both Cargolux and CAS, because the claims are “related to a ... service” that Cargolux provides, namely storing and accounting for cargo in connection with transporting it. Cargolux Motion at 9. The Cargolux Defendants rely, inter alia, upon an unreported decision of the Fourth Circuit, Wagman v. Federal Express Corp., 47 F.3d 1166, 1995 WL 81686 (4th Cir. Feb. 17, 1995), which they contend stands for the proposition that the ADA preempts common law tort claims against air carriers for cargo loss and damage. Although CAS, Cargolux’s ground handling agent, is not an “air carrier” itself, the Cargolux Defendants argue that plaintiffs’ claim against CAS is also preempted. In support, they cite two lower court decisions holding that the ADA’s preemption provision applies to claims against “agents, servants and employees of an airline as well as the airline itself.” Vail v. Pan Am Corp., 260 N.J.Super. 292, 616 A.2d 523, 528 (N.J.Super.Ct.App.Div.1992); see also Huntleigh Corp. v. La. State Bd. of Private Sec. Examiners, 906 F.Supp. 357, 362 (M.D.La. 1995).

In response, plaintiffs dispute that Cargolux is an “air carrier” within the meaning of § 41713(b)(1). As noted, § 41713(b)(1) preempts claims “related to a price, route, or service of an air carrier that may provide air transportation.” (Emphasis added.) The term “air carrier,” defined in 49 U.S.C. § 40102(a)(2), means “a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.” In turn, § 40102(a)(15) provides the following definition of “citizen of the United States”:

(A) an individual who is a citizen of the United States;

(B) a partnership each of whose partners is an indivi