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NIPPON FIRE & MARINE INS. v. SKYWAY FREIGHT SYS.

September 22, 1999

NIPPON FIRE & MARINE INSURANCE CO., LTD., PLAINTIFF,
v.
SKYWAY FREIGHT SYSTEMS, INC.; U.S. AIRWAYS, INC.; AND UNITED AIR LINES, INC., DEFENDANTS.



The opinion of the court was delivered by: Cote, District Judge.

OPINION AND ORDER

Plaintiff Nippon Fire & Marine Insurance Co., Ltd. ("Nippon") was the insurer of three shipments made by Toshiba America Information Systems, Inc. ("Toshiba") through Skyway Freight Systems, Inc. ("Skyway"). In each of the first two shipments, Skyway subcontracted with another carrier — U.S. Airways, Inc. ("USAir") on the first shipment and United Air Lines, Inc. ("United") on the second shipment. Skyway made the third shipment itself by truck. None of the shipments were delivered complete. Skyway and the sub-contracting carriers now move for summary judgment. For the reasons stated, the motions are granted.

BACKGROUND

The following facts are undisputed. Skyway is an interstate common carrier that made three shipments for Toshiba, a manufacturer and distributor of laptop computers, from Toshiba's facilities in California to either New Jersey or Florida. The definition section of Skyway's tariff indicates that "Service Level means 3S (3-day), Standard (2-day) or Emergency (1-day) air freight service or Express Truck service." For most cities, Express Truck Service requires delivery within 2 to 5 business days after pick-up. The Skyway bills of lading filled out by Toshiba state that the shipments are subject to Skyway's tariffs in effect at the time of the shipment. The appropriate tariff contains the following limitation of liability clause:

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 that "Skyway's liability shall, in no event, exceed the declared value of the shipment. . . ."

The tariff authorizes Skyway, "exercising due diligence in order to protect all property accepted for transportation, [to] determine the routing of all shipments." Skyway is also authorized to

  substitute common motor carrier transportation, in
  order to expedite delivery, under the following
  conditions:
  1. When a shipment, because of its size, weight or
    contents, cannot be accommodated on aircraft over
    some portion of its routing; or,
  2. When airlift is unavailable due to weather
    conditions, mechanical trouble, embargo, strike, or
    other emergency

    conditions beyond Skyway's control; or
  3. When a shipment will be unreasonably delayed
    because, on some portion of its routing, the volume
    of cargo on hand exceeds the capacity of aircraft
    departing within reasonable time.

The tariff also specifies claim procedures in the event that a shipment is lost or damaged. The tariff states that "All claims (except overcharge) must be made in writing to Skyway within 270 days after the date of acceptance of the shipment for transportation." Nonetheless, the tariff requires that "[c]laims for concealed loss or damage must be reported to Skyway within 12 days after delivery of the shipment. . . ." Concealed loss is defined as "that which could not have been noticed at the time of delivery."

First Shipment — USAir

On January 28, 1997, Toshiba shipped 54 cartons of data processing machines from California to Toshiba's consignee in New Jersey (the "First Shipment"). On the bill of lading, Toshiba selected "SS-SKYWAY ST 2 DAY" or Skyway's standard two day service. Toshiba left ...


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