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January 29, 1991


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


Before the Court is defendant's motion for summary judgment pursuant to Federal Rule 56. After reviewing the submissions of the parties and hearing oral argument, the Court finds that defendant is entitled to summary judgment for the reasons expressed below.


On August 5, 1988, plaintiff Commodities Recovery Corporation ("Commodities") contacted Emery Worldwide ("Emery") to arrange for overnight shipping of a package valued at $42,000. A Commodities' employee spoke to an Emery representative who told her that Emery would accept a package valued at $42,000 and insure it for that amount for a price of $231.25 for overnight delivery. Commodities filled out an Emery Air Waybill and stated in the Waybill that the declared value of the package was $42,000.*fn1 However, Commodities left blank the section on the bill for the description of the package's contents. In the afternoon of August 5, an Emery driver picked up Commodities' package. The package was never received at its intended destination in Miami, Florida and Commodities has brought this action to recover $42,000 from Emery.

The Emery Waybill states on the face of the bill, in bold print, that the shipment "is subject to the terms and conditions as set forth on the reverse side of this non-negotiable Air Waybill." The reverse side of the Air Waybill list the "Terms and Conditions of Contract." Item four in the "Terms and Conditions" section is entitled "Limitation of Liability." This item provides, in all capitals, "THE LIABILITY OF EMERY IS LIMITED TO $9.07 PER POUND, . . . UNLESS A HIGHER DECLARED VALUE IS REQUESTED, AND THE FEES SET FORTH IN THE EMERY SERVICE GUIDE IN EFFECT ON THE DATE OF SHIPMENT FOR SUCH HIGHER DECLARED VALUE ARE PAID BY THE SHIPPER IN NO EVENT SHALL THE LIABILITY OF EMERY EXCEED THE DECLARED VALUE OF THE SHIPMENT OR THE AMOUNT OF LOSS OR DAMAGE ACTUALLY SUSTAINED, WHICHEVER IS LOWER."

Further below this statement in Item four of the "Terms and Conditions" section, is a statement in regular size type that provides: "Shipments containing items of extraordinary value including but not limited to drawings, paintings, sculptures, porcelain, ceramics, furs, jewelry, fur trimmed clothing, watches, gems, stones, money, bullion, currency, coins, trading stamps, or other extraordinary valuable items may not be acceptable or are acceptable subject to special limitations of liability as set forth in the Emery Service Guide in effect on the date of shipment." On page 4 of the Emery Service Guide, under the bold faced heading "Shipments Not Acceptable," is a list of shipments that Emery will not accept for transportation "under any circumstances." Item F under this heading includes "Money, Currency, Bonds, Bills of Exchange, Deeds, Promissory Notes, Negotiable Securities and Stock Certificates." Item four of the terms and conditions, the limitation of liability section, states that Emery is not liable for any loss, damage, or non-delivery caused by the Shipper's violation of any of the terms or conditions contained in the Air Waybill.

Page five of the Emery Service Guide provides, under "Shipments Subject to Advance Arrangements," that any shipment having a declared or insured value exceeding $25,000 would only be accepted for carriage upon completion of "advance arrangements." Such advance arrangements are not further described anywhere in the guide.

Commodities did not possess a copy of the Emery Service Guide at the time that it arranged for the transportation of the package. However, the reverse side of the Air Waybill states that a copy of the service guide may be obtained from any Emery office or Emery's Headquarters in Wilton, Connecticut.


A. Standard for Summary Judgment

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The party moving for summary judgment has the burden of showing that there is no genuine issue of material fact, and once the moving party has sustained this burden, the opposing party must introduce specific evidence showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Williams v. Borough of West Chester, 891 F.2d 458, 464 (3d Cir. 1989).

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., 7 ...

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