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NIPPON FIRE & MARINE INS. v. SKYWAY FREIGHT SYS.
September 22, 1999
NIPPON FIRE & MARINE INSURANCE CO., LTD., PLAINTIFF,
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.
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.
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:
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
(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
1. When a shipment, because of its size, weight or
contents, cannot be accommodated on aircraft over
some portion of its routing; 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."
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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