A genuine issue is not established unless the evidence,
viewed in a light most favorable to the nonmoving party, would
allow a reasonable jury to return a verdict for that party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106
S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Radich v. Goode,
886 F.2d 1391, 1395 (3d Cir. 1989). If 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. at
2510-11; Radich, 886 F.2d at 1395. Whether a fact is material
is determined by substantive law. Anderson, 477 U.S. at 248,
106 S.Ct. at 2510; United States v. 225 Cartons, 871 F.2d 409,
419 (3d Cir. 1989).
B. Validity of Air Waybill Contract
As a preliminary matter, the Court notes that federal
statutory and common law governs this case. First Pennsylvania
Bank v. Eastern Airlines, Inc., 731 F.2d 1113, 1115-16 (3d Cir.
The Supreme Court has held that a bill of lading, such as
Emery's Air Waybill, forms the basic contract for
transportation and it binds the shipper and all connecting
carriers. Southern Pacific Transp. Co. v. Commercial Metals
Co., 456 U.S. 336, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982). Thus,
Emery's Air Waybill governs the rights and liabilities of the
parties to this lawsuit.
Emery's Air Waybill plainly states that money and currency
"may not be acceptable" for shipment. In addition, the Air
Waybill incorporates the Emery Service Guide by reference. The
Emery Service Guide explicitly includes currency as a
"shipment not acceptable under any circumstances." Courts have
recognized that a carrier may impose reasonable requirements
relating to the acceptance of goods for shipment.
Household Goods Carriers Bureau v. Interstate Commerce
Commission, 584 F.2d 437, 439 (D.C. Cir. 1978).
Commodities argues that it was not notified of these
provisions for two reasons: 1) because the "Terms and
Conditions of Contract" were listed on the reverse side of the
Air Waybill which could only be read by tearing off the cover
sheet from attached carbon copies below it, and 2) because
Commodities was not provided with a copy of the Emery Service
Guide. Regarding the first argument, the front side of Emery's
Air Waybill states in boldface that the shipment is subject to
the terms and conditions as set forth on the reverse side of
the Air Waybill. The Court agrees that the reverse side of
Emery's Waybill is difficult to read because one must tear to
top sheet from perforations on both sides and separate it from
the carbon copies in order to read the waybill's terms.
However, Commodities had frequently used Emery to ship
overnight mail for several years and would have had numerous
receipts on which the terms and conditions could be read. The
Court finds that the waybill provides sufficient notice to the
shipper to read the reverse side of the bill.
Second, the terms and conditions listed on the reverse of
the bill incorporate the terms of Emery's Service Guide by
reference. At least two other courts have reached precisely
the same conclusion. Kansas State Bank & Trust Co. v. Emery Air
Freight Corp., 656 F. Supp. 200, 205 (D.Kan. 1987); Hopper Furs,
Inc. v. Emery Air Freight Corp., 749 F.2d 1261, 1264 (8th Cir.
1984). The Court thus finds that the Emery Air Waybill, signed
by Commodities, creates a valid contract which incorporates the
Emery Service Guide.
Commodities also argues that Emery waived its right to
object to Commodities' inclusion of currency in the package
because it failed to inquire about the contents of the package
and it validly accepted it for transport. In a similar case,
another district court found otherwise. In Angela Cummings,
Inc. v. Purolator Courier Corp., 670 F. Supp. 92 (S.D.N Y
1987), the waybill stated that "articles of extraordinary
value," are limited to a maximum declared value of $500 and
that the courier would not accept articles having an actual or
declared value exceeding $25,000. Id. at 95. Plaintiff argued
that defendant knowingly accepted an "article of extraordinary
value" (jewelry) by accepting shipments valued at $25,000. Id.
The court noted
that the contents of the packages were never described in the
bill of lading and the plaintiff never told the courier what
was in the packages. Id. Thus, the court concluded that the
courier did not knowingly accept an "article of extraordinary
value." Similarly, in this case, Commodities left blank the box
for a description of the contents of the package. Nor did
Commodities inform the courier that the package contained cash.
Thus, Emery could not have knowingly accepted the currency in
violation of the shipping agreement.
Commodities cites Jones v. Yellow Freight System, Inc.,
656 F. Supp. 550 (M.D.Ga. 1987), to support its claim that Emery is
liable for loss of the package. In Jones, the carrier accepted
a valuable oriental rug for shipment. No declared or released
value was given in the bill of lading. Id. at 551. The carrier
argued that its tariff prohibited it from accepting "articles
of extraordinary value" for shipment unless the shipper agrees
to a released value of the goods not exceeding five dollars per
pound. Id. at 553. The court found that the carrier's tariff
was ineffective to discharge its liability for loss of the rug.
The court found that this provision in the tariff was not a
reasonable condition of acceptance of the goods but rather an
attempt by the carrier to limit its liability in violation of
the Carmack Amendment, 49 U.S.C. § 11707(c)(4). This case is
distinguishable from Commodities' situation. Unlike the
ambiguous tariff provision in Jones, referring to "articles of
extraordinary value," the Emery service guide plainly stated
that it would not accept cash for shipment "under any
circumstances." Furthermore, the provision was incorporated in
the bill of lading rather than only in the tariff on file with
Finally, Commodities claims that the Court must determine
whether it was a "sophisticated shipper," creating a material
issue of fact about be charged with knowledge of the terms of
the contract. The Court finds that the issue of whether
Commodities was a "sophisticated shipper" is irrelevant in
this case. Pure common sense should put someone on notice that
cash should not be sent in an express delivery envelope. If
Commodities was uncertain about the appropriateness of sending
cash via Emery, it could have asked an Emery employee if the
shipment of cash was acceptable. Furthermore, Emery's Service
Guide clearly states that such shipments are not acceptable.
The Court finds that because Commodities breached the terms
and conditions of the contract of transport, it may not
recover the $42,000 declared value. The waybill states that
Emery is not liable for the shipper's failure to comply with
the terms of the contract. Summary judgment will be entered in
favor of defendant.
For the reasons expressed above, the Court will grant
defendant's motion for summary judgment.