Tokio Marine & Nichido Fire Insurance Co. Ltd. V. Flash Expedited Services, Inc.

Filing 34

ORDER GRANTING Defendant's Motion for Partial Summary Judgment re 12 filed by FLASH EXPEDITED SERVICES, INC.. Signed by Judge George C Smith on 8/6/13. (lvw1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TOKIO MARINE & NICHIDO
FIRE INSURANCE CO. LTD.,
Plaintiff,
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Case No.: 2:12-cv-1057
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers

FLASH EXPEDITED SERVICES, INC.,
Defendant.

OPINION AND ORDER
Plaintiff Tokio Marine & Nichido Fire Insurance Co. Ltd. (“Tokio Marine”) brings this
action as subrogee for its insured, Nikon, Inc. (“Nikon”), against Defendant Flash Expedited
Services, Inc. (“Flash”) pursuant to the Carmack Amendment to the Interstate Commerce Act, 49
U.S.C. § 14706, et seq., after a truckload of digital cameras were stolen while being transported
by Defendant. This matter is before the Court on Defendant’s Motion for Partial Summary
Judgment (Doc. 12). This matter is fully briefed and ripe for review. For the reasons that
follow, the Court GRANTS Defendant’s Motion for Partial Summary Judgment.
I.

BACKGROUND
Plaintiff Tokio Marine is a corporation organized and operating at 230 Park Avenue,

New York, New York. Plaintiff was the cargo insurer of Nikon. Defendant Flash is a
corporation organized and operating at 4255 Meek Road, Powder Springs, Georgia. Defendant
is engaged in business as a common carrier of goods for hire.

In October 2010, Tokio Marine’s insured, Nikon, sold to Costco Wholesale U.S. in
Jamesburg, New Jersey, 1,392 digital cameras. The cameras were located at a UPS Logistics
facility in Louisville, Kentucky. Nikon had a written contract with Ground Freight Expeditors,
LLC (“Ground Freight”), entered into in December 2006, to provide for transportation related
services. (Def.’s Ex. C). Nikon contacted Ground Freight to arrange for shipment of the
cameras. Ground Freight brokered the shipment to Forward Air, Inc. Then, a representative of
Forward Air contacted Israel Hernandez, a dispatcher for Defendant Flash to inquire as to
Flash’s ability to transport the cargo from Kentucky to New Jersey. Forward Air and Flash had
an existing relationship in which Forward Air brokered shipments to Flash for transportation
pursuant to a Broker/Carrier Agreement dated May 6, 2008. (Hernandez Depo. at 19-23).
According to Hernandez, that Agreement was still in effect. (Hernandez Depo. at 22-23). To
confirm acceptance of the shipment of cameras, Israel Hernandez faxed a “load confirmation” to
Forward Air. (Hernandez Depo. at 38, Ex. 7). However, at no time did Hernandez ask Forward
Air the value of the goods tendered for shipment. (Hernandez Depo. at 45-48). Hernandez
described that “mainly what we ask is the weight. First because – because that has a lot to do
with the rates and fuel consumption. And – but we will ask where it’s going from and where it’s
going to. Again, since we have – we have a contract with Forward Air, up to 100,000, we, you
know, we would – we would think that we’re not going to move a load for them – that they
would not allow us to pull a load that is way over value than – than what we are allowed to
carry.” (Hernandez Depo. at 45-46).
The Broker/Carrier Agreement provided with respect to liability of Flash for loss of or
damage to cargo transported by Flash:

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. . . Carrier’s [Flash] liability for loss or damage to cargo shall be the invoice
value or, in the absence of an invoice, the wholesale destination market value for
the lost or damaged cargo subject to a maximum liability of $100,000 per
truckload Shipment. . .
(Pl.’s Ex. 5 at 4). Based on this Agreement, Hernandez stated that the limitation is $100,000 and
“we don’t move a load over $100,000.” (Hernandez Depo. at 48).
As set forth in the Confirmation, the rate charged by Flash to Forward Air was $1,748.40,
based on the origin and destination of the shipment, as well as the $100,000 limitation.
(Hernandez Depo. at 32-33, 39).
Israel Hernandez dispatched the shipment of the load to Hector Pinto, a driver that
worked for Flash. Pinto also employed a co-driver, Marcos Gomez, to share the driving
responsibilities. On October 28, 2010, both Pinto and Gomez arrived at Ground Freight’s
facility in Louisville, Kentucky to pick up the paperwork associated with the shipment. Mr.
Pinto and Mr. Gomez both signed a Ground Freight “Asset Protection Plan – Driver Checklist”
(the “Asset Protection Plan”). The Asset Protection Plan stated in pertinent part:
Driver(s) will not stop before traveling 200 miles from origin, unless at final
destination.
Driver(s) has fueled before pick-up.
Drivers driving as a team will not leave their truck unattended at any time – one
member of the team will stay with the truck at all times.
*
*
*
Driver(s) acknowledges receipt of High Value/High Risk (HVHR) security load.
*
*
*
Driver(s) will not make unauthorized stops.
*
*
*
DRIVER(S) AGREE TO COMPLY WITH ALL OF THE ABOVE CHECKLIST
ITEMS BY AFFIXING SIGNATURE(S) BELOW
(Pl.’s Ex. 10).
After signing the Asset Protection Plan, Pinto and Gomez drove to the UPS facility to

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pick up the shipment. The trailer was loaded with 29 skids of digital cameras. After loading,
Pinto signed the bills of lading which identified the cargo as “cameras, digital.” (Pl.’s Exs. 8 and
9). The Bills of Lading provided in pertinent part:
NOTE Liability Limitation for loss or damage in this shipment may be applicable.
See 49 U.S.C. 14706(c)(1)(A) and (B).
RECEIVED subject to the individually determined rates or contracts that have
been agreed upon in writing between the carrier and shipper, if applicable,
otherwise to the rates, classifications and rules that have been established by the
carrier and are available to the shipper, on request, and to all applicable state and
federal regulations.
(Pl.’s Exs. 8 and 9). Additionally, the Bills of Lading make the shipment:
subject to . . . contracts that have been agreed upon in writing between the carrier
and shipper, if applicable, otherwise to the rates, classifications and rules that
have been established by the carrier and are available to the shipper, in request,
and to all applicable state and federal regulations.
(Id.).
There was a space on the Bill of Lading for Nikon to declare the value of the shipment,
however, Nikon chose to leave that space blank. (Id.).
During the transport, Pinto and Gomez stopped the truck at a Flying J truck stop near
Jefferson, Ohio, which was within 170 miles of where the load was picked up. They filled up the
truck with gas and then parked the truck to go inside to eat and shower. The truck was left
unattended for approximately 2 hours. When they returned to where the truck had been, both the
truck and trailer were gone. The cargo inside the trailer was never recovered. (Pl.’s Ex. 4, Pinto
Depo. at 25-27). Plaintiff Tokio Marine paid a loss in the amount of $361,864.32, the invoice
value of the stolen cameras.
Plaintiff initiated this case on October 17, 2011 in the United States District Court for the

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District of New Jersey, asserting breach of the agreement to transport and store the cargo,
material deviation from the contract and other shipping instructions, and breach and violation of
its duties and objections as a carrier. On November 15, 2012, the case was transferred to this
Court as the proper venue. Defendant filed its Motion for Summary Judgment while the case
was still pending in New Jersey. This Court asked the parties to brief the issues including
applicable Sixth Circuit law and the Motion was ripe in January 2013.
II.

STANDARD OF REVIEW
The standard governing summary judgment is set forth in Rule 56 of the Federal Rules of

Civil Procedure, which provides that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate,
however, if the nonmoving party fails to make a showing sufficient to establish the existence of
an element essential to that party’s case and on which that party will bear the burden of proof at
trial. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.
2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); see also Matsushita Electric
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
When reviewing a summary judgment motion, the Court must view all the facts, evidence
and any inferences that may permissibly be drawn from the facts, in favor of the nonmoving
party. Matsushita, 475 U.S. at 587. The Court will ultimately determine whether “the evidence

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presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-53. Moreover,
the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine
issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). The Court’s
duty is to determine only whether sufficient evidence has been presented to make the issue of
fact a proper question for the jury; it does not weigh the evidence, judge the credibility of
witnesses, or determine the truth of the matter. Liberty Lobby, 477 U.S. at 249; Weaver v.
Shadoan, 340 F.3d 398, 405 (6th Cir. 2003).
In responding to a summary judgment motion, the nonmoving party “cannot rely on the
hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present
affirmative evidence in order to defeat a properly supported motion for summary judgment.’”
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Liberty Lobby, 477
U.S. at 257). The existence of a mere scintilla of evidence in support of the opposing party’s
position is insufficient; there must be evidence on which the jury could reasonably find for the
opposing party. Liberty Lobby, 477 U.S. at 252. The nonmoving party must present “significant
probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the
material facts.” Moore v. Phillip Morris Companies, Inc., 8 F.3d 335, 340 (6th Cir. 1993). The
Court may, however, enter summary judgment if it concludes that a fair-minded jury could not
return a verdict in favor of the nonmoving party based on the presented evidence. Liberty Lobby,
477 U.S. at 251-52; see also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
Moreover, “[t]he trial court no longer has a duty to search the entire record to establish
that it is bereft of a genuine issue of material fact.” Street, 886 F.2d at 1479-80. That is, the

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nonmoving party has an affirmative duty to direct the court’s attention to those specific portions
of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris,
260 F.3d 654, 665 (6th Cir. 2001).
III.

DISCUSSION
Defendant Flash has moved for partial summary judgment on Plaintiff’s claim for the

loss of a cargo of digital cameras valued at $361,864.32. Defendant seeks to limit its liability to
$1,566.00 based on the agreements of the parties involved and the Carmack Amendment to the
Interstate Commerce Act, 49 U.S.C. § 14706. Defendant argues that the parties are bound by the
damages limitation in the Shipper’s Contract. However, Plaintiff argues that Flash cannot
establish a limitation on liability and that Flash committed a material deviation and is fully liable
for the loss. The Court will address these arguments in turn.
A.

Nikon and Ground Freight’s Contract

Defendant asserts that Plaintiff is bound by the contract between its insured, Nikon, and
the shipper, Ground Freight. (Def.’s Ex. C to Attachment #4). The Carrier’s Liability as set
forth in the contract provides:
7. In consideration of GFE’s rate for transportation of any shipment which is in
part dependent upon the declared value of the shipment, GFE’s liability of any
kind whatsoever shall be the lesser of:
A) The actual value of the goods lost or damaged, or
B) $0.50 per pound (where no value is declared) multiplied by:
i. the number of pounds of the shipment, or
ii. in the case of a partial loss or damage the average weight of the
part lost or damaged from the total shipment.
C) With a declared value:
i. the declared value of the shipment, or
ii. in the case of a partial loss or damage the average declared
value per pound of the shipment which is lost or damaged, unless
the shipper declares different values on the pieces which are
tendered to GFE as separate identifiable units by so indicating on
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the airbill and specifically and completely describing the contents
thereof as to the articles, weights, and number of pieces.
(Id. at 1).
Ground Freight then contracted with Forward Air for transportation of the Nikon
shipment, and then Forward Air brokered the shipment to Defendant Flash.
Defendant argues that as the “downstream” carrier, it should receive the benefit of the
limitation of liability in the Nikon/Ground Freight Contract. Defendant relies on two United
States Supreme Court cases, Kansas Southern Railway v. Carl, 227 U.S. 639, 648 (1913), and
Oregon Washington Railroad and Navigation Co. v. McGinn, 258 U.S. 409, 413 (1992), in
support of its argument. In Oregon Washington Railroad, the Supreme Court looking at the
entire transaction applied the shipper’s agreed-upon limitation of liability to the delivering
carrier because the shipper had agreed to that limitation. The Court held:
The connecting carrier is not relieved from liability by the Carmack Amendment,
but the bill of lading required to be issued by the initial carrier upon an interstate
shipment governs the entire transportation and thus fixes the obligations of all
participating carriers to the extent that the terms of the bill of lading are
applicable and valid.
Id. at 413.
Additionally, the Carmack Amendment governs the liability of carriers of interstate
cargo. It states:
A carrier… shall issue a receipt or bill of lading for property it receives for
transportation. That carrier and any other carrier that delivers that property and is
providing transportation or service… are liable to the person entitled to recover
under the receipt or bill of lading. The liability imposed under this paragraph is
for the actual loss or injury to the property caused by (A) the receiving carrier, (B)
the delivering carrier, or (C) another carrier over whose line or route the property
is transported in the United States.
49 U.S.C. 14706(a)(1). The Carmack Amendment has been interpreted to preempt all state law
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claims against a carrier for loss or damages to interstate shipments. North American Van Lines
v. Pinkerton Security Systems, Inc., 89 F.3d 452, 458 (7th Cir. 1996); W.D. Lawson & Company
v. Penn Central Co., 456 F.2d 419, 421 (6th Cir. 1972). Pursuant to the Carmack Amendment,
49 U.S.C. § 14706, if a shipper fails to declare the value of its cargo, the shipper is bound by the
lowest released value. See also, Mechanical Technology Inc. v. Ryder Truck Lines, Inc., 776
F.2d 1085 (2d Cir. 1985), and W.C. Smith, Inc. v. Yellow Freight System, 596 F. Supp. 515 (E.D.
Pa. 1983).
In Anton v. Greyhound Van Lines, Inc., 591 F.2d 103, 108 (1st Cir. 1978), Judge
Miner acknowledged that “shippers are charged with notice of terms, conditions,
and regulations contained in the tariff schedule. . ..” The tariff expressly provides
that failure to designate a rate results in a released rate of $5.00 per pound. By
leaving the spaces blank, MTI effectively selected the lowest freight rate and its
corresponding low level of liability. Having had the opportunity on its own form
to secure greater protection, MTI “cannot complain about the consequences of
leaving the applicable spaces blank. . ..” W.C. Smith, Inc. v. Yellow Freight
Systems, Inc., 596 F. Supp. 515, 517 (E.D. Pa. 1983). We recently reached a
similar conclusion in Ruston Gas Turbines, Inc. v. Pan American World Airways,
757 F.2d 29 (2d Cir. 1985).
Mechanical Technology, 776 F.2d at 1087. Accordingly, Defendant argues that the shipper,
Nikon, failed to declare a value for the shipment and is therefore bound by the limitation of
liability in its own contract. Defendant asserts that Nikon sought to have the shipment
transported for a low freight rate and in exchange received a limitation of liability. The freight
rate charged by Flash for transporting the shipment weighing 3,132 lbs. was $1,748.40.
Defendant argues that the weight, 3,132 lbs, multiplied by the $.50 per pound limitation of
liability yields a maximum cap on damages in the amount of $1,566.00.

Defendant Flash argues that had Nikon entered the value of the shipment, $361,000, then

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all the carriers would have been on notice of the value and potential risk involved in the
shipment. But the higher value would have meant a higher freight rate. Flash asserts that had
that value been declared, it would have either declined to carry the shipment, would have
charged a much higher freight rate, or would have purchased an insurance rider at an increased
cost to the shipper. (Hernandez Certif.).
Plaintiff, however, argues that well-established Federal law holds a carrier strictly liable
for loss or damage in interstate motor carriage, and in select circumstances where limitations on
liability are permitted, the burden of establishing limited liability is on the carrier. See Carmana
Designs Ltd. v. North American Van Lines, Inc., 943 F.2d 316, 319 (3d Cir. 1991); Asset
Management & Control, Inc. v. ABF Freight Systems, Inc., 18 F. Supp.2d 187, 191 (N.D.N.Y.
1988). But, if such limitation is imposed, Plaintiff claims that the Broker/Carrier Agreement
between Flash and Forward Air dated May 6, 2008, which has a $100,000 limitation of liability
governs and not the contract between Nikon and Ground Freight. Therefore, Plaintiff states that
at a minimum, Flash should be held to the $100,000 limitation and not the $1,556 limitation of
liability.
Plaintiff’s argument, however, is not persuasive as the Broker/Carrier Agreement
between Flash and Forward Air did not include the shipper, Nikon. Nikon entered into an
agreement with Ground Freight that specifically includes a limitation of liability of $0.50 per
pound. And, the Bill of Lading incorporates by reference the contract between Nikon and
Ground Freight. Further, well-established law states that the amount of liability of “any carrier”
is “measured by the original contract of shipment.” Kansas Southern Railway v. Carl, 227 U.S.
639, 648 (1913). It is important to note that Plaintiff is not suing on the Broker/Carrier

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Agreement between Forward Air and Flash because it cannot. Plaintiff, or its insured Nikon,
was not a party to that contract. Therefore, it should not be surprising that the Court will not
apply the terms of that contract to this case.
After careful review of the applicable cases in this area of law, as well as the testimony in
this case, there is no dispute that the shipping charge of $1,748.40 to carry over 3,000 pounds for
approximately 750 miles was a bargained-for rate and was not based on a specific value of the
shipment. Plaintiff’s insured, Nikon, chose not to fill-in the value of the shipment. Had that
value been disclosed, this would be a different case. But as testimony from Mr. Hernandez with
Flash established, Flash would have taken steps to ensure that a shipment with that high of a
value would have been insured. But that cost would have been passed along to Nikon. Nikon
wanted a low-cost rate for shipping and that is exactly what it got. Plaintiff’s insured, Nikon,
received the benefit of its bargain in the form of a low shipping rate based on the limitation of
liability.
Plaintiff also argues that neither Ground Freight, nor Forward Air acted as a motor carrier
in connection with this shipment. Flash was the initial and only motor carrier of this shipment.
Plaintiff asserts that Flash did not issue a bill of lading and therefore should not be entitled to
limit its liability. The Supreme Court held in Missouri, Kansas & Texas Railway Co. of Texas v.
J.H. Ward, 244 U.S. 383 (1917), that the bill of lading required to be issued by the initial carrier
governs the entire transportation.
Defendant Flash, however, argues that well-established law proves that the shipper is
bound by its contract regardless of who was the initial carrier. Ground Freight was a broker and
was also a freight forwarder. In Gulf & Western Industries, Inc. v. Old Dominion Freight Line,

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Inc., 688 F. Supp. 688 (M.D.N.C. 1986), the plaintiff shipper had a contract with a freight
forwarder. The freight forwarder had a contract with a motor carrier. Relying on the United
States Supreme Court precedent in Chicago, Milwaukee, St. Paul & Pac. R. Co. v. Acme Fast
Freight, 366 U.S. 465 (1949), the Gulf & Western court held that plaintiff was bound to its
contract with the freight forwarder. Similarly, in this case, merely because Ground Freight
brokered the shipment for Nikon, does not mean that Nikon is not bound by the terms of the
contract between it and Ground Freight.
Plaintiff also attempts to attack the limitation of liability based on Toledo Ticket Co. v.
Roadway Express, Inc., 133 F.3d 439 (6th Cir. 1998). In Toledo Ticket, plaintiff shipper
contracted with defendant carrier to deliver a shipment of tickets and a portion of the shipment
was stolen. The district court ruled that defendant carrier had limited its liability to $34 in
accordance with the Interstate Commerce Act. On appeal, the Sixth Circuit reversed, holding
that the carrier was required to bring to the shipper’s attention its option to choose between
levels of liability even though the shipper was sophisticated. Further, the Court noted that the
shipper’s failure to fill in the value of the shipment was not an affirmative act of agreement to a
limitation on liability.
However, unlike Toledo Ticket, the parties in this case entered into a written agreement
with a limitation of liability. As set forth above, Nikon entered into an agreement with Ground
Freight who ultimately brokered the shipment. Therefore, there was a written agreement that
clearly contains a limitation of liability. Further, recent decisions question the holding of Toledo
Ticket because that case was based on events prior to the recent changes to the Carmack
Amendment. See EFS National Bank v. Averitt Express, Inc., 164 F. Supp. 2d 994 (W.D. Tenn.

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2001) (“Given the recent changes in the law, the four factors used by the Sixth Circuit in earlier
cases interpreting the pre-1996 Carmack Amendment may no longer be completely relevant.”).
There is no question that the Carmack Amendment as amended allow a carrier to limit its
liability “to a value established by . . . written agreement between the carrier and shipper. . ..” 49
U.S.C. §14706(c)(1)(A). The Eleventh Circuit found that the bill of lading, which the shipper
prepared and both parties signed, was a sufficient “written agreement” under the statute to allow
a carrier to enforce its tariff since the bill of lading made reference to the tariff’s liability-limiting
provision. See Siren, Inc. v. Estes Express Lines, 249 F.3d 1268, 1271-73 (11th Cir. 2001). The
Eleventh Circuit specifically stated that when the shipper was the one to fill out the bill of
lading, it was not necessary to “protect shippers from themselves.” Id. at 1271.
B.

Material Deviation Doctrine

Plaintiff Tokio alleges that in violating the Asset Protection Plan, Defendant Flash
committed a “material deviation” which voids any limitation on Flash’s liability. Plaintiff
references this Court’s decision in The Limited, Inc. v. PDQ Transit, Inc., 160 F. Supp.2d 842
(S.D. Ohio 2001), in support of its argument that the material deviation doctrine should apply to
this case. The “material deviation” doctrine is derived from admiralty law. The Sarnia, 278 F.
459, 459 (2nd Cir. 1921). The doctrine provides that a contractual limitation of liability will not
restrict shipper’s recovery if the carrier has breached a material provision. Id. It has been held
to have no application in the context of regulated interstate commerce. Rocky Ford Moving
Vans, Inc. v. United States, 501 F.2d 1369 (8th Cir. 1974); Rafaella Gallery v. United Parcel
Service, 818 F. Supp. 53 (S.D. N.Y. 1993).
The doctrine has been applied in limited circumstances, however, where the shipper has

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paid an additional charge to ensure specialized safety measures to reduce the risk of damage to
its cargo and the carrier fails to perform those very measures which resulted in damage to the
cargo. Praxair v. Mayflower Transit Inc., 919 F. Supp. 650, 656 (S.D. N.Y. 1996); Nippon Fire
& Marine Insurance v. Skyway Freight Systems, 67 F. Supp. 2d 293 (S.D. N.Y. 1993). In
Praxair, the plaintiff had paid for a higher transportation rate for specialized care, specifically
air-ride and blanket wrapping. 919 F. Supp. at 654. A higher fee for a specialized care is what
distinguishes Praxair from Rafaella, Rocky Ford, and other federal cases that rejected the
application of the doctrine. Id.
Plaintiff Tokio in this case does not allege that its insured Nikon paid a higher fee for a
specialized service. This Court acknowledged in The Limited case that “[t]he only specialized
service that they requested is that the trailer should not be left unhooked and the PDQ drivers
were instructed to at all times stay with the LDS’ loaded trailers. There was no higher fee paid
for this service so Praxair is not applicable here.” The Limited, 160 F. Supp. 2d at 845.
Similarly, in the case at bar, the drivers were not supposed to leave the truck unattended, but
there was no higher fee paid in consideration for this service. Therefore, like in The Limited,
Praxair is not applicable here.
Plaintiff also references NipponKoa Ins. Co. v. Watkins Motor Lines, Inc., 431 F. Supp.
2d 411, 418 (S.D.N.Y. 2006), in which the court held that the carrier was unable to limit its
liability when the loss resulted from a breach of the carrier’s promise to use a high security lock
on unattended trailers and monitor the trailers by CCTV. Defendant argues, and the Court
agrees, that there was no such promise in this case. Plaintiff relies on the Asset Protection Plan –
Driver Checklist between Ground Freight and Flash, but there was no such agreement or specific

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promise made to Nikon. There is no question that the parties in NipponKoa negotiated the safety
measures and had a separate agreement which included these additional safety measures. The
contract between Nikon and Ground Freight does not mention anything about additional safety
measures, but only “ordinary care in handling.” (Def.’s Ex. C). The lack of any additional
safety measures, combined with the fact that no additional consideration was paid, results in no
application of the “material deviation” doctrine in this case.
In conclusion, the Court finds that Plaintiff Tokio Marine is bound by the terms of the
contract its insured Nikon entered into with Ground Freight who ultimately brokered the
shipment to Defendant Flash. By the terms of the contract between Nikon and Ground Freight,
the limitation of liability is $0.50 per pound. Therefore, the maximum cap on damages is
$1,566.00 based on the total weight of the shipment, 3,132 pounds. Defendant Flash’s Motion
for Partial Summary Judgment is hereby granted.
IV.

CONCLUSION
Based on the foregoing, the Court GRANTS Defendant’s Motion for Partial Summary

Judgment.
The Clerk shall remove Document 12 from the Court’s pending motions list.

IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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