Plaintiff appeals from an order of the Supreme Court, New York County (Eileen Bransten, J.), entered April 23, 2010, granting defendant's motion for summary judgment and dismissing the complaint.
The opinion of the court was delivered by: Tom, J.
Maxine Co., Inc. v Brinks's Global Servs. USA, Inc.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 26, 2012
SUPREME COURT, APPELLATE DIVISION First Judicial Department
Peter Tom,J.P. David Friedman Rolando T. Acosta Dianne T. Renwick Leland G. DeGrasse, JJ. Index 602233/05
On appeal from the summary dismissal of the complaint, plaintiff, which shipped valuable jewelry with defendant, contends that the contract of carriage is ambiguous, particularly with respect to the term "fragile." Whether that term is precisely defined in the contract is immaterial to the construction of the instrument since the contract designates all jewelry as fragile for the purpose of Brink's liability for damage sustained by transported merchandise.
The complaint describes plaintiff as a jewelry retailer and alleges that, on or about November 16, 2004, Brink's picked up a shipment consisting of 157 ornate pieces of handmade jewelry from plaintiff's New York City facility for delivery to the Nieman Marcus department store in McLean, Virginia. The items were contained in a soft-sided rolling suitcase, and the waybill lists a declared value of $2 million. Plaintiff's invoices, however, place a retail value on the merchandise of $6,627,868, and plaintiff's principal placed the wholesale value at half that amount. It is uncontested that, while in transport, the shipment was damaged, resulting in 23 pieces being unrepairable, for which plaintiff seeks $631,900 at wholesale prices, and 26 pieces requiring repairs, for which plaintiff seeks $100,000. On defendant's motion, Supreme Court held that the action was barred by the terms of the contract and dismissed the complaint.
Plaintiff contends that the contract's liability provisions are ambiguous, particularly article X -- which limits Brink's liability to the carrier's loss of a shipment, not any damage that the shipment might sustain while in transport, should the shipper "fail to identify a fragile item and pay additional charges if required by Brink's." It is undisputed that plaintiff did not identify as fragile any of the jewelry it shipped. Plaintiff, however, contends that the jewelry was not necessarily fragile and suggests that the term, which is undefined in the contract, is vague. Thus, it maintains, the meaning intended to be ascribed by the parties to the term "fragile" presents a material question of fact precluding summary judgment.
Plaintiff's argument is without merit. Jewelry is expressly included in those items deemed to be fragile for the purpose of Brink's liability for damage sustained by goods during shipment. Article X of the contract contains various exclusions from liability, providing, inter alia, that Brink's will not be directly or indirectly responsible for specified occurrences, including in pertinent part: "BREAKAGE of statuary, marble, glassware, bric-a-brac,' porcelain, decorative items including jewelry and similar fragile articles unless this breakage is caused by [instrumentalities not pertinent to this matter]." Plaintiff argues that it is inaccurate to include jewelry in the list because not all articles of jewelry are fragile. Further, it argues that the list of articles deemed to be fragile is "buried" in a contract that is printed in very small type. Without citation to any statutory provision that is violated by the form of the contract, plaintiff asks this Court to ignore the provision, thereby permitting it to avoid the contractual limitation on recovery for breakage.
Article X is entitled "BRINK'S LIABILITY; DECLARED VALUE LIMITS; LIMITATIONS ON BRINK'S LIABILITY," and plaintiff can hardly profess surprise that it contains, among other things, a limitation on liability for breakage. Plaintiff purports to find the explicit exclusion of "decorative items including jewelry" to be unclear, arguing that it is uncertain whether the phrase "similar fragile articles" refers to "jewelry," or "decorative items," or whether it limits application of the exclusion to only the listed items that are actually fragile.
As a matter of common usage, a list of entities stated in the conjunctive is set off by commas, with the last entity preceded by the word "and," as in "a, b, c and d." The provision at issue reads, "BREAKAGE of statuary, marble, glassware, bric-a-brac,' porcelain, decorative items including jewelry and similar fragile articles . . ." In order for the phrase "similar fragile articles" to refer only to "decorative items" or "jewelry," the provision would have to read, "BREAKAGE of statuary, marble, . . . porcelain and decorative items including jewelry and similar fragile articles . . ." To limit the exclusion to listed items that are actually fragile, the provision would read, "BREAKAGE of fragile statuary, marble . . . porcelain and decorative items including jewelry and similar fragile articles . . ." Appearing between the final comma and the conjunction, the phrase "decorative items including jewelry" is obviously intended to be a single entity in a list of articles deemed to be fragile for which recovery is limited ...