Tronosjet Maintenance, Inc. v. ConWay Freight, Inc.
Filing
18
MEMORANDUM OPINION AND ORDER Granting 13 MOTION for Summary Judgment and Brief in Support Thereof.(Signed by Judge Sim Lake) Parties notified.(jewilliams, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TRONOSJET MAINTENANCE, INC.,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
CON-WAY FREIGHT, INC.,
Defendants.
CIVIL ACTION NO. H-10-3459
MEMORANDUM OPINION AND ORDER
Plaintiff, Tronosjet Maintenance, Inc. (Tronosjet), brings
this action against defendant, Con-way Freight, Inc. (Con-way), “to
recover monetary damages for the in-transit damage and loss to its
cargo consisting of an aircraft landing gear and related components
carried over the road from St. Stephen, New Brunswick, Canada to
Fort Worth, Texas in March 2009.”1
$165,000
plus
reasonable
and
Tronosjet seeks to recover
necessary
incidental
damages.2
Pending before the court is Defendant Con-way Freight, Inc.’s
Motion for Summary Judgment and Brief in Support Thereof (Docket
Entry No. 13).
For the reasons explained below, Con-way’s motion
for summary judgment will be granted.
I.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
1
Original Complaint, Docket Entry No. 1, p. 1 ¶ 1.
2
Id. at 3 ¶ 10.
entitles it to judgment.
Fed. R. Civ. P. 56(c).
Disputes about
material facts are “genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
The
Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment “after adequate time for
discovery and upon motion, against a party who 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.” Celotex Corp. v. Catrett, 106 S.Ct.
2548,
2552
(1986).
If
the
moving
party
meets
this
burden,
Rule 56(c) requires the nonmovant to go beyond the pleadings and
show
by
affidavits,
depositions,
answers
to
interrogatories,
admissions on file, or other admissible evidence that specific
facts exist over which there is a genuine issue for trial.
Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
In reviewing the evidence “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence.”
Reeves v.
Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000).
II.
Undisputed Facts
The relevant evidence is undisputed.3
On March 11, 2009, a
Straight Bill of Lading 992-066331 (BOL) was issued for a shipment
3
Opposition to Motion for Summary Judgment, Docket Entry
No. 16, p. 2 (acknowledging that “Tronosjet does not dispute the
clear majority of facts set forth in those parts of the Motion [for
Summary Judgment] entitled, ‘Summary’ and ‘Background’”).
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of cargo from Canada to the United States.
The BOL identifies the
shipper as the Tronosjet Maintenance, Inc., Summerside, PE, the
customs broker as AIT Worldwide Logistics, Grapevine, Texas, and
the consignee as Montex Drilling, Fort Worth, Texas.
The “SPECIAL
AGREEMENT” box for declaring value and agreeing to pay for excess
liability is blank.
The BOL identifies the cargo as three crates
of landing gear, and contains the following notation:
“*Interline
with Conway Freight in New Brunswick.”4
Con-way’s Pro History shows the following sequence of events
in the cargo’s carriage:
On March 13, 2009, the cargo was picked
up in St. John, New Brunswick, Canada.5
On March 17, 2009, the
cargo was transloaded to another trailer, carried from Canada
across the border to the United States, and transloaded to another
trailer in the United States.
transloaded to another trailer.
On March 18, 2009, the cargo was
On March 19, 2009, the cargo was
4
Straight Bill of Lading, Exhibit A to Defendant Con-way
Freight, Inc.’s Motion for Summary Judgment and Brief in Support
(Con-way’s Motion for Summary Judgment), Docket Entry No. 13.
5
Exhibit B to Opposition to Motion for Summary Judgment,
Docket Entry No. 16, p. 1 (“Origin Pickup: 03/13/2009 (XJJ of CEA)
St. John, NB, CA”). At pp. 2-3 of its Opposition to Motion for
Summary Judgment, Docket Entry No. 16, Tronosjet asserts that the
shipment originated in Prince Edward Island; this assertion is
contradicted by both Pro History and the Original Complaint, Docket
Entry No. 1, p. 1, where Tronosjet states that the cargo was
“carried over the road from St. Stephen, New Brunswick, Canada to
Fort Worth, Texas in March 2009.” Although there may be a dispute
about where in Canada the shipment originated, there is no dispute
that the shipment originated in Canada. Any dispute about where in
Canada the shipment originated is immaterial to the issues raised
in Con-way’s Motion for Summary Judgment.
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transloaded to another trailer and physical damage to the crates
was noted.
On March 23, 2009, the cargo was delivered to Montex
Drilling in Fort Worth, Texas.6
III.
Analysis
Con-way seeks summary judgment
that Plaintiff’s claims for alleged damage to cargo
carried from New Brunswick, Canada to Forth Worth, Texas
under the Con-way BOL are subject to the limitation of
liability set forth in the Con-way BOL and Tariff CNWY199, being 10 cents (CAN) per pound or, alternatively,
$2.00 (CAN) per pound (or $4.41 (CAN) per kilogram),
regardless of whether Canadian or U.S. law is applied to
interpret the contractual agreement of the parties.7
Without disputing that its claims for damages would be subject to
the limitation of liability set forth in the Con-way BOL and Tariff
CNWY-199
if
subject
to
Canadian
law,
Tronosjet
argues
that
Con-way’s Motion for Summary Judgment should be denied because the
claims
for
damages
asserted
in
this
action
are
subject
to
United States law, i.e., the Carmack Amendment, and
because material issues of fact exist about whether
(1) Con-Way obtained Tronosjet’s agreement as to its
choice of liability, (2) gave Tronosjet a reasonable
opportunity to choose between two or more levels of
liability, or (3) issued to Tronosjet a receipt or bill
of lading before moving the shipment.8
6
Opposition to Motion for Summary Judgment, Docket Entry
No. 16, p. 3 (citing Con-way’s Pro History, Exhibit B, pp. 1-4).
7
Con-way’s Motion for Summary Judgment, Docket Entry No. 13,
p. 13.
8
Opposition to Motion for Summary Judgment, Docket Entry
No. 16, p. 2.
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For the reasons explained below, the court concludes that Con-way
is entitled to summary judgment that Tronosjet’s claims are subject
to the limitation of liability set forth in the Con-way BOL and
Tariff CNWY-199 regardless of whether the claims are subject to
Canadian or United States law.
Con-way has presented undisputed
evidence that it satisfied the elements necessary to limit its
liability under the Carmack Amendment, and Tronosjet has failed to
raise a genuine issue of material fact for trial by presenting
evidence from which a reasonable fact-finder could conclude that
Con-way did not satisfy the elements necessary to limit its
liability under the Carmack Amendment.
A.
The Carmack Amendment
The Carmack Amendment was enacted in 1906 as part of the
former Interstate Commerce Act.
The Amendment, now codified at 49
U.S.C. § 14706, created a national scheme to compensate shippers
for
goods
damaged
or
lost
during
interstate
shipping.
See
New York, New Haven & Hartford R.R. v. Nothnagle, 73 S.Ct. 986, 988
(1953) (“With the enactment in 1906 of the Carmack Amendment,
Congress superseded diverse state laws with a nationally uniform
policy
governing
loss.”).
interstate
carriers’
liability
for
property
Under the Carmack Amendment a carrier is generally liable
“for the actual loss or injury to the property.”
§ 14706(a)(1).
49 U.S.C.
However, a carrier may
establish rates for the transportation of property . . .
under which the liability of the carrier for such
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property is limited to a value established by written or
electronic declaration of the shipper or by written
agreement between the carrier and shipper if that value
would be reasonable under the circumstances surrounding
the transportation.
49 U.S.C. § 14706(c)(1)(A).9
To establish a prima facie case for damage to goods arising
from the interstate transportation of goods by a common carrier, a
shipper must show (1) delivery of the goods in good condition,
(2) receipt by the consignee of damaged goods, and (3) the amount
of damages.
See Hoskins v. Bekins Van Lines, 343 F.3d 769, 778
(5th Cir. 2003).
See also Missouri Pacific Railroad Co. v.
Elmore & Stahl, 84 S.Ct. 1142, 1145 (1964) (“[U]nder federal law,
in an action to recover from a carrier for damage to a shipment,
the shipper establishes his prima facie case when he shows delivery
in good condition, arrival in damaged condition, and the amount of
damages.”).
If a prima facie case is established, the carrier may
offer evidence that it limited its liability.
See Schoenmann
Produce Co. v. Burlington Northern and Santa Fe Railway Company,
9
See Rohner Gehrig Company, Inc. v. Tri-State Motor Transit,
950 F.2d 1079, 1082 (5th Cir. 1992) (en banc) (explaining that
under the Carmack Amendment
Congress absolutely forbade carriers to limit their
liability to shippers for damage to goods. As a result
of this legislation, the carriers increased shipping
rates sharply. Congress reacted to this rate increase by
enacting the so-called Cummings Amendment, now codified
at 49 U.S.C. § 10730 (Supp. 1990), which allows a carrier
to limit its liability if it complies with I.C.C.
[Interstate Commerce Commission] approved rates through
tariffs filed by the carrier with the I.C.C.
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420 F.Supp.2d 757, 762-63 (S.D. Tex. 2006).
Historically, a
carrier could limit its liability under the Carmack Amendment by
(1)
maintaining
a
tariff
filed
with
the
Interstate
Commerce
Commission (I.C.C.), (2) obtaining the shipper’s written agreement
as to its choice of liability, (3) giving the shipper a reasonable
opportunity to choose between two or more levels of liability, and
(4) issuing a receipt or BOL prior to moving the shipment.
See
Hoskins, 343 F.3d at 778 (citing Rohner Gehrig Co., 950 F.2d at
1081 (approving adoption of four-part test articulated in Hughes v.
United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir. 1987), cert.
denied, 108 S.Ct. 1068 (1988)).
B.
Con-way Limited Its Liability Under the Carmack Amendment
Con-way argues that even if the Carmack Amendment applies, its
liability is limited under the BOL.
Asserting that “the parties
entered into a written agreement (the Con-way BOL) authorizing
Con-way to limit its liability with respect to the shipment at
issue,”10 and that Tronosjet’s “own documentation states that the
shipment consisted of ‘used landing gear’ and, hence, was ‘other
than new’ for the purpose of Tariff CNWY-199,”11 Con-way argues that
it is entitled to summary judgment that its liability for this
10
Con-way’s Motion for Summary Judgment, Docket Entry No. 13,
p. 10 ¶ 16.
11
Id. (citing Exhibit E, Report prepared for Travelers
Insurance Company, p. 1 (“Montex Drilling Company had ordered a set
of used landing gear from Tronos . . .”)).
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shipment is capped at $819.71 (CAN).12
Tronosjet does not dispute
Con-way’s assertion that the cargo at issue was “other than new,”
and does not challenge the accuracy or reasonableness of Con-way’s
rates.
Instead, citing Hughes, 970 F.2d at 611-12, Tronosjet
argues that genuine issues of material fact as to whether Con-way
limited its liability in accordance with the Carmack Amendment
preclude granting Con-way’s motion for summary judgment.13 Applying
the Hughes test the court concludes that Con-way’s motion for
summary judgment should be granted.
1.
Con-way Maintained a Tariff
Since Hughes was decided in 1992, Congress has amended the
statutory provisions underlying the Hughes test. The first part of
the Hughes test was derived from the Carmack Amendment’s provision
that the I.C.C. would authorize a motor carrier to establish rates
limiting its liability.
See Rohner Gehrig, 950 F.2d at 1082.
In
1994 Congress eliminated the requirement that carriers of nonhousehold goods file tariffs with the I.C.C.
See Sassy Doll
Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 841
(11th Cir. 2003) (citing Trucking Industry Regulatory Reform Act of
1994, Pub. L. No. 103-311, 108 Stat. 1673, 1683-85, codified at 49
U.S.C. §§ 10702 and 10762).
12
In 1995 Congress added a requirement
Id. at 11.
13
Opposition to Motion for Summary Judgment, Docket Entry
No. 16, pp. 9-10 ¶¶ 13-14.
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that carriers “provide to the shipper, on request of the shipper,
a written or electronic copy of the rate, classification, rules,
and practices upon which any rate applicable to a shipment, or
agreed to between the shipper and the carrier, is based.”
Id.
(quoting I.C.C. Termination Act of 1995, Pub. L. No. 104-88, 109
Stat. 803, 907-10 (quoting 49 U.S.C. § 13710(a)(1)).
U.S.C. § 14706(1)(B)).
See also 49
As the Eleventh Circuit has observed, “the
most that can be said about the latest version of the statute is
that a carrier is now required to provide a shipper with the
carrier’s tariff if the shipper requests it, instead of the carrier
filing its tariff with the now defunct I.C.C.”
Id.
Accordingly,
courts have held that the Hughes test remains the same with one
exception:
Instead of maintaining a tariff in compliance with the
I.C.C., a motor carrier must now, at the shipper’s request, provide
the shipper with “a written or electronic copy of the rate,
classification, rules, and practices upon which any rate applicable
to a shipment, or agreed to between the shipper and the carrier, is
based.”
49 U.S.C. § 14706(c)(1)(B).
See Emerson Electric Supply
Co. v. Estes Express Lines Corp., 451 F.3d 179, 188 (3d Cir. 2006);
OneBeacon Insurance Co. v. Haas Industries, Inc., 634 F.3d 1092,
1100 (9th Cir. 2011); Gulf Rice Arkansas, LLC v. Union Pacific R.R.
Co., 376 F.Supp.2d 715, 722 (S.D. Tex. 2005) (quoting Fireman’s
Fund McGee v. Landstar Ranger, Inc., 250 F.Supp.2d 684, 689 (S.D.
Tex. 2003) (“If a shipper is unaware of the ‘rate, classifications,
rules and practices . . . agreed to between the shipper and
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carrier,’ the shipper has the burden to request a copy of the
carrier’s tariff.”)).
On motions for summary judgment involving the new first part
of the Hughes test, courts generally do no more than mention the
absence of evidence that the plaintiff requested a copy of the
terms.
See OneBeacon Insurance Co., 634 F.3d at 1100.
See also
Gulf Rice, 376 F.Supp.2d at 722 (citing EFS National Bank v.
Averitt Express, Inc., 164 F.Supp.2d 994, 1002 (W.D. Tenn. 2001)
(“EFS failed to request a copy of the tariff.
The bill of lading
is a sufficient written agreement by both parties allowing Averitt
to limit its liability to the terms stated in Tariff 100.”), and
Jackson v. Brook Ledge, Inc., 991 F.Supp. 640, 646 (E.D. Ky. 1997)
(“[T]he Court finds that because the shipper did not request a copy
of the rate, classification, rules and practices, upon which any
rate applicable to its shipment or agreed to between the shipper
and carrier is based, Brook Ledge was not required to supply the
same.
However, Brook Ledge could have furnished such information,
if it were solicited, as such information was contained in its
tariff on file with the ICC as disclosed by Brook Ledge’s bill of
lading. Accordingly the Court finds that Brook Ledge has satisfied
the new first prong of the test.”).
Here, citing the Affidavit of Michael Hintzel, Manager of
Claims for Con-way, Con-way argues that the first factor of the
Hughes test has been satisfied because (1) Con-way maintained a
tariff,
specifically
Tariff
CNWY-199,
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which
incorporated
the
limitation of liability, as well as a separate excess valuation
charge for full liability; (2) Conway made its tariff available to
all members of the shipping public by publishing the tariff on its
website; (3) the Con-way tariff is incorporated by reference into
the
BOL
at
issue;
and
(4)
Tronosjet
is
now
deemed
to
have
constructive knowledge of the terms of the Con-way tariff.14 Tariff
CNWY-199, effective during March of 2009, contains the following
Liability Statement in Item 25:
Carrier liability with shipment originating within
Canada: Unless the Spot Quote provisions apply, and
unless the Shipper agrees to a Special Agreement,
declares the value in the appropriate box on the Bill of
Lading and agrees to pay the excess liability charge by
initialing where indicated, Carrier’s maximum liability
is CAN$2.00 per pound (CAN$4.41 per kilogram) per
individual lost or damaged piece within the shipment,
subject to a maximum total liability per shipment of
CAN$20,000.00 and provided further that Carrier’s
liability on articles other than new articles, such as
including but not limited to used, remanufactured, or
refurbished articles, shall not exceed ($0.10) ten cents
(CAN$) per pound per individual lost or damaged piece
within the shipment.15
A
similar
provision
appears
under
the
heading
Value/Liability Charge” in Item 27 of the Tariff.16
“Excessive
Moreover, the
BOL under which the cargo shipped states that “the shipment is
14
Con-way’s Motion for Summary Judgment, Docket Entry No. 13,
p. 12 ¶¶ 19-20 (citing Affidavit of Michael Hintzel attached
thereto at ¶¶ 6-8, and Con-way Tariff CNWY-199-S.3, Exhibit D to
Con-way’s Motion for Summary Judgment).
15
Exhibit D to Con-way’s Motion for Summary Judgment, Docket
Entry No. 13, Item 25 at CNWY 00037.
16
Id. at CNWY 00049.
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received subject to Tariff CNWY-199, Carrier’s pricing schedules,
terms,
conditions,
and
rules
maintained
at
Carrier’s
general
offices in effect on the date of issue of this Bill of Lading.”17
Because Tronosjet does not dispute that Con-way not only maintained
a tariff that incorporated both the limitation of liability at
issue and a separate excess valuation charge for full liability,
but also published that tariff on its website, and incorporated the
tariff by reference into the BOL at issue, the court concludes that
Con-way has presented undisputed evidence showing that the first
part
of
the
Hughes
test
is
satisfied
because
Con-way
had
established rates for different levels of liability and would have
made these rates available to Tronosjet upon request.
2.
Con-way Obtained Tronosjet’s Written Agreement and Gave
Tronosjet Reasonable Opportunity to Choose Between Two or
More Levels of Liability
With respect to the second and third parts of the Hughes test,
Con-way argues that Tronosjet could have elected to declare a value
for its shipment and pay excess liability charges pursuant to the
Special
Agreement
provision
contained
on
Tronosjet deliberately chose not to do so.
the
BOL,
but
that
Con-way explains that
[u]nder the plain terms of the Con-way BOL, Con-way’s
liability is limited to “CAN$2.00 per pound (CAN$4.41 per
kilogram) per individual lost or damaged piece within the
shipment, subject to a maximum total liability per
shipment of CAN$20,000.00,” or if the articles are “other
17
Con-way’s Motion for Summary Judgment, Docket Entry No. 13,
p. 2 ¶ 2 (quoting Exhibit A).
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than new articles,” Con-way’s liability is limited to
($0.10) ten cents (CAN$) per pound.18
Asserting that “[t]he Special Agreement provision on the through
bill of lading gave [Tronosjet] a reasonable opportunity to select
the level of liability,”19 Con-way argues that by leaving blank the
declared value spaces in the Special Agreement box of the BOL,
Tronosjet made a deliberate choice not to take advantage of this
opportunity but, instead, agreed to the limitation of liability
contained in the Con-way tariff.20
Con-way argues that “[t]hese
facts compel the conclusion that [Tronosjet] . . . had a more than
fair ‘opportunity to choose’ between different levels of carrier
liability, [and] that the limitation was ‘reasonable under the
circumstances surrounding the transportation’ within the meaning of
49 U.S.C. § 14706(c)(1)(A).”21
Tronosjet opposes Con-way’s Motion for Summary Judgment, but
has neither argued nor offered any evidence (1) that the Special
Agreement box on the BOL failed to provide Tronosjet a reasonable
opportunity to choose between two or more levels of liability for
its shipment; or (2) that by leaving blank the declared value
18
Id. at 9 ¶ 14.
19
Id. at 12-13 ¶ 20.
20
Id. at 12.
21
Id. at 13. See also Defendant Con-way Freight, Inc.’s Reply
in Support of Its Motion for Summary Judgment (Con-way’s Reply),
Docket Entry No. 17, pp. 5-6 ¶ 8.
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spaces in the Special Agreement box of the BOL, Tronosjet did not
agree to the limitation of liability contained in the Con-way
tariff.
Instead, Tronosjet simply states that Con-way has failed
to present evidence that Tronosjet is bound by Con-way’s actions.22
To satisfy the second and third parts of the Hughes test, the
shipper must have had both reasonable notice of the liability
limitation and the opportunity to obtain information necessary to
make a deliberate and well-informed choice, and the carrier must
have obtained the shipper’s written agreement.
950
F.2d
at
1083
(“The
choice
of
See Rohner Gehrig,
liability
is
inextricably
intertwined with a reasonable opportunity to choose, so the focal
point of our inquiry is whether Tri-State’s proffered B.O.L. gave
Rohner a ‘reasonable opportunity to choose between two or more
levels of liability.’”).
Both the BOL and the applicable Con-way tariff clearly state
that absent a declared value, Con-way’s liability is limited.
The
court concludes that these statements on both the BOL issued for
the shipment at issue and the applicable Con-way tariff provide
sufficient notice of the limitation of liability and sufficient
opportunity to shippers to reject that limitation by declaring the
value of the shipment and agreeing to pay excess liability charges.
Absent citations to affidavits or other evidence that contradicts
22
Opposition to Motion for Summary Judgment, Docket Entry
No. 16, p. 10 ¶ 14.
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the evidence provided by the BOL and the applicable Con-way tariff,
Tronosjet has failed to show that there exists genuine issues of
material fact for trial regarding the second and/or third parts of
the Hughes test. Accordingly, the court concludes that the BOL and
tariff that Con-way has presented provide undisputed evidence that
Con-way satisfied the second and third parts of the Hughes test by
giving Tronosjet a reasonable opportunity to choose between two or
more levels of liability, and obtaining Tronosjet’s written agreement to Con-way’s limitation of liability.
See Tran Enterprises,
LLC v. DHL Express (USA), Inc., Civil Action No. H-08-2748, 2009
WL 4604660, *10 (S.D. Tex. December 3, 2009), aff’d 627 F.3d 1004
(5th Cir. 2010) (“By leaving the form blank, Nutrition Depot agreed
to limit DHL’s liability to $100.”).23
3.
Con-way Issued BOL Before Transport
With regard to the fourth part of the Hughes test, “[t]he
relevant inquiry is whether the shipper manifested assent to the
salient terms of the bill of lading before the shipment commenced.”
23
Although the space for the shipper’s signature on the BOL
attached to Con-way’s Motion for Summary Judgment is blank, there
is no requirement that the shipper sign the bill of lading prior to
shipment, so long as the shipper manifests assent to the contract.
See Hoskins, 343 F.3d at 780 (citing American Railway Express Co.
v. Lindenburg, 43 S.Ct. 206, 209 (1923) (“Having accepted the
benefit of the lower rate dependent upon the specified valuation,
the respondent is estopped from asserting a higher value. To allow
him to do so would be to violate the plainest principles of fair
dealing.”)). Id.
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Toppan Photomasks, Inc. v. North American Van Lines, Inc., Civil
Action No. H0-05-3201, 2007 WL 173904, *2 (S.D. Tex. January 19,
2007).
Here, the BOL is undisputedly dated March 11, 2009,24 and
the Pro History that Tronosjet has submitted shows that the cargo
was picked up two days later on March 13, 2009.25
Accordingly, the
court concludes that Con-way has submitted undisputed evidence that
the
BOL,
which
represents
the
written
parties, issued before the cargo moved.
agreement
between
the
Because Tronosjet has
failed to present any evidence from which a reasonable fact-finder
could conclude otherwise, the court concludes that Con-way has
presented undisputed evidence that satisfies the fourth part of the
Hughes test.
IV.
Conclusions and Order
For the reasons explained above, the court concludes that
undisputed
evidence
establishes
that
Straight
Bill
of
Lading
No. 992-066331 is a written agreement entered into by the parties
that authorized Con-way to limit its liability with respect to the
shipment at issue as provided by Con-way Tariff CNWY-199 regardless
of whether Canadian or United States law (i.e., the Carmack
Amendment) applies to the claims asserted in this action, and that
24
Exhibit A to Con-way’s Motion for Summary Judgment, Docket
Entry No. 13.
25
Exhibit B to Opposition to Motion for Summary Judgment,
Docket Entry No. 16, p. 1.
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the shipment at issue was “other than new” for purposes of that
tariff because the shipment consisted of “used landing gear.”
Accordingly, Defendant Con-way Freight, Inc.’s Motion for Summary
Judgment (Docket Entry No. 13) is GRANTED, and Tronosjet’s claim is
limited to 10 cents (CAN) per pound ($819.71 [CAN]).
SIGNED at Houston, Texas, this the 2nd day of August, 2011.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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