other defendants as her agents and is therefore bound by their decisions. On this point, the court ruled that if Mollen was plaintiff's agent, under traditional principles of agency plaintiff might be bound by their decisions; but that would necessarily depend upon the arrangement between plaintiff and the other defendants. The court stated that "while this theory may have some validity, Roadway has not met its burden under Rule 56(c) of demonstrating that there are no genuine issues of material fact. " (Transcript of proceedings on May 28, 1993 at p. 19).
Now, on reconsideration, Roadway argues that the court has overlooked well-established law which dictates that plaintiff's rights as consignee are no greater than those of Mollen or Butler. In her response to the motion for reconsideration, plaintiff argues, among other things, that she was not the consignee. However, plaintiff is clearly listed as the consignee on the bill of lading, and in opposition to the motion for summary judgment plaintiff did not present any evidence to the contrary. Nevertheless, the issue still remains whether plaintiff is bound by Mollen's failure to designate a higher released rate on the bill of lading.
The decision to grant or deny a motion for reconsideration is clearly within the discretion of the court. See McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983). However, in asking for reconsideration, Roadway bears a heavy burden. It must specifically identify the matters or controlling decisions which the court has overlooked and which would have materially altered the prior ruling.See Inmates of New York with Human Imunodeficiency Virus v. Cuomo, 1992 U.S. Dist. LEXIS 18797, 1992 WL 373516, slip op. at 2 (N.D.N.Y. 1992) (McAvoy, J.). In its motion, Roadway argues that the court overlooked controlling precedent which dictates that partial summary judgment be granted limiting Roadway's liability to $ 100.00.
Specifically, Roadway argues that the facts in the present case are similar to the facts in Great Northern Railway Company v. O'Conner, 232 U.S. 508, 34 S. Ct. 380, 58 L. Ed. 703 (1914), where the Supreme Court held that the plaintiff customer was bound by the terms of the contract between the forwarder and the carrier. Great Northern was not cited by Roadway in the memorandum of law submitted in support of its motion for summary judgment. Nonetheless, it is controlling precedent which must now be considered on the instant motion. Upon reconsideration, the court concludes that the Supreme Court's decision in Great Northern dictates that Roadway's motion for partial summary judgment be granted.
In Great Northern the plaintiff shipped household goods via Boyd Transfer Co., a freight forwarder. Boyd Transfer then delivered the goods to Great Northern, as carrier of the goods. The goods were lost en route to their destination, and the plaintiff sued Great Northern for their full value. Great Northern argued that in view of the provisions of the tariff filed with the Interstate Commerce Commission, and the fact that the goods had been shipped at the $ 1.00 rate, its liability was limited to $ 10.00 per hundredweight. Unbeknownst to the plaintiff, Boyd Transfer had filled out the bill of lading listing the released rate as "$ 10.00 per cwt.", and naming Boyd Transfer as the shipper. The plaintiff argued that Boyd failed to transport her goods as she had expected, and that she had not given Boyd the authority to agree to a loner released rate.
However, the Supreme Court held that the forwarder's customer is bound by the terms of the contract between the forwarder and the carrier. It explained that "nothing to the contrary appearing, the carrier had the right to assume that the transfer company could agree upon the terms of the shipment, some of which were embodied in the tariff." Id. at 514, 34 S. Ct. at 383. Nevertheless, the plaintiff was net without a remedy.
"If there was any undervaluation, wrongful classification, or violation of her instructions, resulting in damage, the plaintiff has a remedy against the [forwarder]." Id. at 514-515, 34 S. Ct. 383.
The facts of Great Northern are indistinguishable from the facts in the instant case. Roadway had the right to assume that Mollen had the authority to agree to the terms of the shipment, and plaintiff has presented no evidence to the contrary. Consequently, upon reconsideration the court is constrained by the Supreme Court's ruling in Great Northern to grant Roadway's motion for partial summary judgment. See also Gulf & Western Industries, Inc. v. Old Dominion Freight Line, Inc., 633 F. Supp. 688 (M.D. N.C. 1986) (plaintiff bound by two year and a day limitations period found in contract between forwarder and carrier).... Therefore, for these reasons, it is hereby
ORDERED, that defendant Roadway's motion for reconsideration is granted, and it is further
ORDERED, that upon reconsideration, defendant Roadway's motion for partial summary judgment, previously denied, is granted, and it is further
ORDERED, that defendant Roadway's liability to plaintiff, if any, is limited to $ 100.00.
Dated at Binghamton, New York
July 17, 1993
Thomas J. McAvoy
Chief U.S. District Judge
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