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January 26, 1996

PRAXAIR, INC., Plaintiff,

The opinion of the court was delivered by: KOELTL

This action is brought by Praxair to recover the cost of repairing damage to its equipment allegedly sustained during the shipment by the defendant Mayflower Transit in January 1994. Praxair Inc asserts a cause of action for breach of contract and negligence against Mayflower for damages in excess of $ 182,000. Mayflower moves for partial summary judgment with respect to the amount of damages, arguing that the liability limitation provided on the bill of lading and the applicable ICC tariff limits its damages to $ 11,434.

 Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Federal Rule of Civil Procedure 56(c); see also Celotex Corp. v. Catrett 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548, (1986); Gallo v. Prudential Residential Services Limited Partnership, 22 F.3d 1219, 1223, (Second Circuit 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. It's duty, in short, is confined at this point to issue-finding; it does not extend to issue- resolution." Id. 22 F.3d at 1224.

 The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrates the absence of a genuine issue of material fact." Celotex 477 U.S. at 323. The substantive law governing the case will identify those facts, which are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505, (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences v the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574 at 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc. 369 U.S. 654 at 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962;) see also Gallo 22 F.3d at 1223.

 If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Federal Rule of Civil Procedure 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Centers, Corp. 43 F.3d 29 at 37 (Second Circuit 1994).

 Mayflower argues that its liability is limited by the provision of both the applicable tariff and the bill of lading. Mayflower maintains that this liability limitation is valid and enforceable under the Carmack Amendment to the Interstate Commerce Act. In response, Praxair argues first that Mayflower committed gross negligence in shipping the equipment at issue and therefore should not be permitted to assert the liability limitation. Praxair relies on the "material deviation" doctrine from admiralty case law to support this argument. Alternatively, Praxair argues that a genuine issue of material fact exists with respect to whether the $ 5 per pound "released rate" governed this particular shipment because the space provided on the bill of lading for a higher declared value was left blank and a notation appears that refers to $ 5 per pound as "Insurance." I will discuss the validity of the liability limitation in the first instance.

 Mayflower is correct that the applicable statute governing the liability of common trucking carriers is the Carmack Amendment, which provides in relevant part:

 "A motor common carrier may establish rates for the transportation of property under which liability of the carrier or freight forwarder for such property is limited to a value established by written declaration of the shipper or by written agreement between the carrier or fright forwarder and the shipper if that value would be reasonable under the circumstances surrounding the transportation."

 49 U.S.C. Section 10730(b)(1). See also 49 U.S.C. Section 11707(c)(4) (permitting common carriers to limit liability pursuant to Section 10730.

 I note while the Interstate Commerce Act was amended in December 1995 to abolish the Interstate Commerce Commission, this amendment did not change the provisions of the Carmack Amendment that are germane to this action.

 None of the foregoing is disputed by Praxair. In fact, Praxair's purchasing agent for transportation, Norbert Hinze, testified at his deposition that he believed the reference on the bill of lading to "Insurance $ 5 per pound" referred to the $ 5 per pound per article liability limitation derived from the tariff. Praxair offers no evidence to contradict Hinze's testimony.

 Moreover, there is no dispute about the terms and conditions on the bill of lading. Those conditions include a released rate of either $ 5 a pound or $ 1.25 per pound, depending on the classification of the cargo and absent a different declared value. The boxes for "Tabulating tariff valuation" and "Other than tabulating tariff valuation" make that plain. Spaces were provided for Praxair to indicate a higher declared value, and those spaces were left blank. Moreover, the tariff excerpts in the record, although incomplete, establish that a released rate of $ 5 per pound is applicable for Part B cargo and that a $ 1.25 rate applies in the absence of a specific provision. Therefore, the released rate is either $ 5 or $ 1.25 per pound. For the purposes of this motion, however, there is no need to resolve that discrepancy, and the parties appear to agree that the released rate is $ 5 per pound. The bill of lading expressly identifies the cargo as tabulating equipment and cites Section 5 of the tariff, which applies to Part B cargo -- and Praxair does not dispute the classification. In any event, Mayflower concedes the higher $ 5 released rate is correct. Thus, even if there is any factual uncertainty with respect to which rate applies, for the purposes of this partial summary judgment motion, the parties have agreed that the $ 5 released rate may be presumed to be correct.

 A bill of lading including a limitation of liability in the form of a released rate constitutes a written agreement between the parties under Section 10730(b). Where the released rate appears on the bill of lading, or where the shipper is on constructive knowledge of the released rated rate provided in the tariff, the limitation on liability is enforceable. See Mechanical Technology Inc. v. Ryder Truck Lines, Inc. 776 F.2d 1085, 1088-1089 (2d Cir. 1985); Gordon H. Mooney, Ltd. v. Farrell Lines, Inc, 616 F.2d 619 at 626, (2d Cir.) cert. denied, 449 U.S. 875 (1980). In this case, the record consists of a bill of lading that classifies the cargo as tabulating equipment, recites a released rate of $ 5 a pound for such equipment, includes a space for different declared value and explains that a released rate of $ 5 per pound per article applies if that space is left blank -- and the space is blank.

 Ordinarily, where an agreement limiting liability under the Carmack Amendment exists, as is the case here, liability is governed exclusively by that agreement, irrespective of the degree of negligence attributable to the carrier. See Southeastern Express Co. v. Pastime Amusement Co, 299 U.S. 28, at 29, 81 L. Ed. 20, 57 S. Ct. 73 (1936); American Cyanamid Co. v. New Penn Motor Express, Inc. 979 F.2d 310 at 315 to 316. (3d Cir. 1992); Deiro v. American Airlines, Inc. 816 F.2d 1360, 1366 (9th Cir. 1987); Rocky Ford Moving Vans Inc. ...

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