Hill, the case law establishes that in cases of shipments by air, rail and truck where the shipper paid an additional charge to ensure specialized safety measures to reduce the risk of damage to its cargo, the carrier's failure to perform those very measures which resulted in damage to the cargo has been found to be a sufficient basis upon which the liability limitation provision in the shipping agreement may be rescinded. The parties have not cited, and the Court has not found any contrary authority in this circuit, and the decisions of the Courts of Appeals for the First and Ninth Circuits are persuasive on this proposition. Indeed, at oral argument, counsel for the defendant said that essentially there would be no consequences for simply failing to supply the provisions that the plaintiff had paid for. This would be contrary to the reasoning of the decisions which I have already mentioned.
In the present case, Praxair specifically requested and paid for shipment by air-ride truck, including blanket wrapping of the APIMS cargo. According to the undisputed testimony of Norbert Hinze, blanket wrapping refers to an "extremely specialized service" involving wrapping the cargo in blankets and securing the crates to the side walls of the trailer. (See Mazaroli Aff, Ex. 1, (Hinze Dep.) at 20.) Hinze went on to explain that:
"Tariff 300 provides for highly specialized service, which is air-ride, high-value, padded service. We received no padded service, no air-ride due to four wheels missing on the trailer, shipment not being properly secured on the trailer or tied down, allowing it to slide all over the trailer. The reason we purchase and we use Mayflower is careful handling of the commodity, and we are paying an absolute premium for that kind of service, premium, high premium for that service and we did not get that.
(Id. at 73.) Moreover, the notation "BLANKET WRAPPED" appears on the bill of lading under Special Instructions. (See Cebula Aff, Ex. B.) None of Praxair's contentions with respect to the special treatment requested for this shipment are contested or disputed.
Accordingly, Praxair's substantial allegations that Mayflower failed to provide the special safety measures specifically requested and paid for by Praxair present a general issue of material fact that, if decided in Praxair's favor, may constitute a breach of the shipping agreement, resulting in rescission of both the shipping contract and the limited liability protection afforded by the $ 5 per pound released rated rate under the bill of lading and the tariff.
Therefore, I find that there is a genuinely disputed issue of material fact with respect to whether Mayflower failed to provide Praxair's special handling requirements for the APIMS equipment by failing to provide the air-ride and blanket wrapped services for which Praxair asserts it paid an additional charge. If the finder of fact determines that Praxair did make such safety arrangements, and that Mayflower failed to provide them, and that the damage to the cargo was caused by the absence of such arrangements, Mayflower's actions in this regard may constitute a material breach of the terms of shipment. Such a breach would enter Mayflower's liability limitation unenforceble. Accordingly, Mayflower's motion for partial summary judgment is denied.
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