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SOTHEBY'S v. FEDERAL EXP. CORP.
May 15, 2000
FEDERAL EXPRESS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Chin, District Judge.
In this cargo case, Sotheby's, through an agent, hired Federal
Express Corporation ("FedEx") to transport three pieces of
artwork (the "Artwork") from London, England to Newark, New
Jersey. The air waybill provided that the Artwork was to be flown
on FedEx Flight 005 from London, England to Newark, New Jersey.
FedEx in fact transported the Artwork to Newark on Flight 005,
but then, due to its own weekend staffing needs, transported the
Artwork on FedEx Flight 007 from Newark to Memphis, Tennessee and
then from Memphis back to Newark the next day on FedEx Flight
3501. While in Memphis, one of the three pieces of Artwork, a
painting, was damaged by a forklift.
Sotheby's moves for partial summary judgment holding FedEx
liable for the full value of the damage to the painting and
striking the limitation of liability affirmative defenses
asserted by FedEx in its answer. FedEx cross-moves for partial
summary judgment limiting its liability, if any, to twenty
dollars per kilogram of the weight of the damaged painting,
pursuant to Article 22 of the Convention for the Unification of
Certain Rules Relating to International Transportation by Air, 49
Stat. 3000, T.S. 876 (1934), reprinted in 49 U.S.C. § 40105,
commonly known as the Warsaw Convention. The issue before the
Court is whether, under these circumstances, FedEx can take
advantage of the limitation of liability provided by the Warsaw
Convention. For the reasons that follow, Sotheby's motion is
granted and FedEx's cross-motion is denied.
The undisputed facts, taken from the parties' Local Civil Rule
56.1 Statements and exhibits thereto, are as follow.
On October 10, 1997, Air Express International Limited ("AEI")
booked transportation of Sotheby's Artwork for carriage by FedEx
the following day from London, England to Newark, New Jersey. The
Artwork had a total gross weight of 478 kilograms and a
chargeable weight of 669 kilograms. AEI completed an air waybill,
numbered 023-90756002, for the shipment. The air waybill
specified London as the departure airport and Newark, New Jersey
as the destination airport. It also included on its face both the
date of the flight, October 11, and the flight number, 005. The
designated spaces on the air waybill for listing stopping places
between London and Newark were left blank and no other flight
numbers appeared on the waybill. AEI did not make a special
declaration of value or pay a supplementary sum for the shipment.
FedEx received the Artwork without taking exception to its
condition or packaging, and stamped the air waybill as prepared
by AEI. On October 11, 1997 FedEx Flight 005 carried the Artwork
to Newark as scheduled. That same day, however, the Artwork was
placed on FedEx Flight 007 and transported from Newark to
Memphis, Tennessee where it was stored overnight. While in
Memphis, one of the three pieces of Artwork, a painting by Sir
Anthony Van Dyck entitled "Portrait of Prince Charles Louis, The
Elector Palatine," was damaged. The following day, FedEx
transported the Artwork, including the damaged painting, back
from Memphis to Newark on FedEx Flight 3501. Upon the shipment's
arrival in Newark, damage to the outer packaging of the painting
Sotheby's contends that AEI specifically selected FedEx Flight
005 because it was a non-stop flight, that AEI advised FedEx that
the Artwork had to be transported non-stop, and that FedEx
contracted to carry the Artwork on Flight 005. (Pl. Local Civ. R.
56.1 St.). FedEx argues that it never agreed to ship the Artwork
directly from Newark to London without stops, and asserts that it
expressly reserved its right to route the shipment any way it saw
fit. (Def. Opp. Local Civ. R. 56.1 St.). At oral argument,
counsel for FedEx explained that the Artwork was taken from
Newark to Memphis because weekend staffing shortages left FedEx
without personnel to unload the cargo from the storage containers
in Newark. (Tr. at 9).
According to FedEx, the terms and conditions of FedEx's
International Express Freight Worldwide Service Guide ("Service
Guide") applied to the transportation of the Artwork. (Def. Local
Civ. R. 56.1 St.). Sotheby's disputes that these terms and
conditions applied to the shipment but also contends, apparently
in the alternative, that AEI did not make a special declaration
of value or pay a supplementary fee because it was precluded from
doing so by the Service Guide. (Pl. Opp. Local Civ. R. 56.1 St.).
According to Sotheby's, the damaged painting is worth
approximately $1,000,000. (Compl. ¶ 10)
A. Motion for Summary Judgment
The standards governing motions for summary judgment are well
settled. A court may grant summary judgment only where there is
no genuine issue of material fact and the moving party is
therefore entitled to judgment as a matter of law. See Fed R.
Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). Accordingly, the Court's task is not to "weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). To create an issue for trial, there must be sufficient
evidence in the record to support a jury verdict in the nonmoving
party's favor. See id.
To defeat a motion for summary judgment, however, the nonmoving
party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586, 106 S.Ct. 1348. As the Supreme Court stated in
Anderson, "[i]f the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. The nonmoving
party may not rest upon mere conclusory allegations or denials,
but must set forth "concrete particulars" showing that a trial is
needed. National Union Fire Ins. Co. v. Deloach, 708 ...