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Tnt Usa Inc v. Dhl Express (Usa)

February 23, 2012

TNT USA INC., PLAINTIFF,
v.
DHL EXPRESS (USA), INC., DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff TNT USA Inc. ("Plaintiff" or "TNT") sued Defendant DHL Express (USA), Inc. ("Defendant" or "DHL") for breach of contract. Pending before the Court are Plaintiff's motion for summary judgment (Docket Entry 83) and Defendant's motion for partial summary judgment, which seeks a determination that Plaintiff's damages, if any, are limited to a two-year period (Docket Entry 87). For the following reasons, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART. Defendant's motion is GRANTED.

BACKGROUND

The following discussion is taken from the parties' Local Civil Rule 56.1 Statements and Counter-Statements*fn1 and the exhibits in the record. Any genuine disputes of material facts are noted.

The parties are the United States affiliates of two competing global express parcel shipping networks. (See Def. 56.1 Cntr-Stmt. ¶ 14.) In January 2002, TNT entered into a "National Account Agreement" with Airborne Express, Inc. ("Airborne"). (Pl. Ex. 10, Agreement.) DHL acquired Airborne in 2003 and succeeded to its obligations under the Agreement. (See Pl. Ex. 14, Amend. No. 2 at 1.) The contract was amended three times; the National Account Agreement and Amendment Nos. 1, 2, and 3 constitute the "Agreement" in this case.*fn2 (Def. 56.1 Cntr-Stmt. ¶ 21.)

I. The Parties' Agreement

The Agreement "covers the transportation by air of

shipments on behalf of [TNT] by [DHL]" (Agreement art. 1), and it provides in relevant part that "[DHL] shall receive from [TNT] such shipments as may be tendered from time to time for transportation by air, and [DHL] shall make all reasonable effort to deliver on a timely basis" (id. art. 3). DHL was responsible for the costs of maintaining the equipment and systems required to fulfill its delivery responsibilities. (See id. art. 4.) TNT received discounted shipping prices under the Agreement, provided that it met a minimum monthly volume of 66,000 "domestic net shipments." (Id. art. 5.) If TNT failed to meet its monthly minimum, DHL was entitled to "adjust the rates or terminate this Agreement." (Id.) The original contract also specified that:

The rates herein stipulated are based upon an anticipated volume of air express shipments by [TNT] and the intent that [TNT] will tender substantially all air express shipments to [DHL] sufficient to meet the monthly volume requirements. Notwithstanding the foregoing, [TNT] may from time to time use the services of other air express carriers to meet delivery requirements. The parties agree to confer if [TNT] reasonably believes that its air express needs are not being met as to specific pickup and delivery locations.

(Id. art. 11.) The contract also contained provisions addressing how the parties could terminate the Agreement and what notices were required. (Id. arts. 18, 19.) The contract further provided that "[n]o waiver, alteration or modification of the terms and conditions of this Agreement shall be binding unless in writing and signed by a duly authorized agent of [TNT] and [DHL]." (Id. art. 20.)

As mentioned already, TNT and DHL (or Airborne, prior to its 2003 acquisition by DHL) amended the Agreement three times. Amendment No. 1, which was effective May 5, 2003, amended the shipping rates. (Pl. Ex. 12, Amend. No. 1.)

Amendment No. 2, which was effective October 14, 2004, reflected several changes to the parties' bargain. First, it extended the duration of the agreement through October 2014. Second, it changed the termination provision ("Article 18") to provide three ways to terminate the contract:

(a) Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party in the event of a material breach of any provision of this Agreement.

(b) Either party may terminate this Agreement without cause upon two (2) years prior written notice to the other party.

(c) Either party may terminate this Agreement immediately upon the insolvency or bankruptcy of the other party, or if the other party has a receiver or trustee appointed over any of its assets.

(Pl. Ex. 14, Amend. No. 2 ¶ 13.) Third, it updated the notice clause to provide new addresses for the notice recipients (id. ¶ 14) and it included a clause that "[a]ny dispute arising under or in any way connected to this Agreement shall be subject to the exclusive jurisdiction of the courts of New York State, U.S. District County [sic] for the Eastern District of New York" (id. ¶ 15). Fourth, it revised the section titled "Limitations of Liability" to include, in relevant part, the following language: "DHL shall use its best efforts to pick up, transport, and deliver [TNT's] documents and packages in accordance with DHL's regular practices and procedures." (Id. ¶ 12.) Fifth, it provided that "[a]ll shipments transported hereunder shall be subject to the conditions of this Agreement and either DHL's Terms and Conditions of Carriage (Exhibit D) or the Terms and Conditions of Service (Exhibit E) current at the time of shipment, and as published on www.dhl-usa.com." (Id. at ¶ 10.) Sixth, it revised the shipping rates but retained language to the effect that TNT would receive a volume discount:

The domestic and international Express rates as set forth in the attached Schedule (B) reflect a discount for volume, based upon a minimum monthly amount of five hundred thousand dollars ($500,000) domestic net freight (meaning domestic express and ground delivery services collectively) and international air express charges tendered by [TNT] . . . . If [TNT] does not maintain its minimum volume requirement for three (3) consecutive months, [DHL] may adjust the rates. If [DHL] and [TNT] can not [sic] agree on a mutually acceptable rate adjustment, within thirty (30) days of [DHL] notifying [TNT] of its intent to implement new rates, then either party may terminate this Agreement on ninety (90) days written notice to the other. (Id. ¶ 4.) The option in this provision to terminate the Agreement on 90 days' notice, when combined with the three ways to terminate the Agreement under Article 18, meant that the parties contemplated four ways to end the contract.

Amendment No. 3, which was effective October 14, 2007, extended the Agreement through December 2014 and changed the shipping rates. (Pl. ...


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