CASES (2022)

JIANG V. Z&D TOUR

Supreme Court of New York, Richmond County

April 22, 2022, Decided; April 28, 2022, Published

152331/2021

Reporter

2022 NYLJ LEXIS 412 *

Jiang v. Z&D Tour Inc.

(Jiang v. Z&D Tour Inc., NYLJ, Apr. 28, 2022 at p.17, col.2)

Core Terms

Sequence, personal jurisdiction, principal place of business, transport, Truck, bus stop, Leasing, ticket, travel, dismissal with prejudice, motion to dismiss, conducting business, due process, contracted, systematic, courts, driver

Judges: [*1] Judge: Justice Ronald Castorina, Jr.

Opinion

This case arose from a multi-vehicle accident that occurred in PA.Plaintiff was a passenger on a bus operated by defendant Z&D Tour, that was travelling on the PA Turnpike. The driver lost control of the bus, causing it to roll onto its side and come to a rest, blocking all lanes of westbound travel and the shoulder of the Turnpike. A tractor-trailer owned by co-defendant collided with the bus, and another tractor-trailer owned and leased by two other defendants struck the first tractor-trailer. In deciding general and specific jurisdiction, the court evaluated four separate defendants’ motions to dismiss, granting three of the four motions and dismissing plaintiff’s complaint, with prejudice. The court denied Z&D’s motion to dismiss, without prejudice, finding it subject to jurisdiction as it conducts business in NY, and maintains a brick-and-mortar office location in NY, where it engages in the sale of tickets for bus tours that transport people from NY to other states. Finally, the court found that NY is a “surrogate principal place of business” for Z&D, and that the facts exemplify an “exceptional case” as provided for by Damler AG and its progeny. [*2]

Full Case Digest Text

DECISION ON MOTION This is a combined Decision and Order on Motion Sequences #001, #002, #003, and #004. The following papers, numbered by the NYSCEF system, to wit: 10-79 were read and considered, respectively, on Defendant’s motions to dismiss Plaintiff’s complaint, pursuant to CPLR §3211 [a] [8], and it is hereby: ORDERED, that Motion Sequence #001 is GRANTED, and Plaintiff’s complaint as to Defendant FED EX GROUND PACKAGE is dismissed with prejudice, and it is further,

ORDERED, that Motion Sequence #002 is GRANTED, and Plaintiff’s complaint as to Defendant UNITED PARCEL SERVICE, INC., is dismissed with prejudice, and it is further,

ORDERED, that Motion Sequence #003 is DENIED, without prejudice to renew, and it is further,

ORDERED, that Motion Sequence #004 is GRANTED, and Plaintiff’s complaint as to Defendant PENSKE TRUCK LEASING CORPORATION is dismissed with prejudice, and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly, and it is further,

ORDERED, that counsel shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry, upon all parties.

I. Procedural History

Oral argument was heard by the court on motion sequences #001, [*3] #002, and #003 on April 4, 2022. Motion sequence #004, was filed on April 7, 2022, and plaintiff and defendant Penske Truck Leasing Corporation requested that the court render its decision on Motion Sequence #004 on submission alone, as the arguments for and against the motion were made on the record, sounding in similarity with motion sequence #002.

II. Background

This case arises from a multi-vehicle accident that occurred on January 5, 2020, in the State of Pennsylvania. Plaintiff was a passenger on a bus operated by Defendant Z & D Tour, Inc. (“Z & D”), that was travelling on the Pennsylvania Turnpike/Interstate 70 in Mount Pleasant Township, Pennsylvania. The bus driver lost control of the bus, causing it to roll onto its side and come to a rest, blocking all lanes of westbound travel as well as the shoulder of the Pennsylvania Turnpike. As a result of the bus laying on its side, blocking all lanes of travel, as well as the shoulder, a tractor trailer owned by Defendant FedEx Ground Package System, Inc. (“Fed Ex Ground”), collided with the bus. In addition, and subsequent thereto, a tractor trailer owned by Defendant Penske Truck Leasing Corporation (“Penske”), and leased by Defendant [*4] United Parcel Service, Inc. (“UPS”) struck the rear of the Fed Ex Ground tractor trailer. Plaintiff’s complaint alleges that the accident caused her to sustain severe and permanent personal injuries.

III. Facts

A. Plaintiff

Plaintiff filed this action on December 20, 2021, in New York State Supreme Court, County of Richmond, where the Plaintiff resides.

B. Defendant Z & D Tour, Inc.

Defendant Z & D is a domestic profit corporation, organized under the laws of the State of New Jersey, with a principal place of business in Rockaway, New Jersey. Z & D has registered, pursuant to BCL §§1301 and 1304, with the New York State Secretary of State as an out-of-state corporation authorized to do business in New York. Z & D owns and operates a brick-and-mortar storefront located at 59 Canal Street, New York, New York. Z & D sells tickets for and charters buses, that transport patrons to and from the State of New York and the State of Ohio, from a dedicated intercity bus stop (with authority to post signage and use of the bus stop granted by the New York City Department of Transportation) in front of its office located at 59 Canal Street, New York, New York.

C. Defendant Fed Ex Ground Package

Fed Ex Ground is incorporated [*5] under the laws of the State of Delaware, and maintains a principal place of business in Moon Township, Allegheny County, Pennsylvania. The tractor operated by Fed Ex Ground on the date of the accident, did not depart from or travel through the State of New York, and its destination was not New York.

D. Defendant Penske Truck Leasing Corporation

Penske is a Delaware business corporation that maintains a corporate office and principal place of business in Reading, Pennsylvania.

E. Defendant United Parcel Service, Inc.

UPS is a foreign corporation organized under the laws of the State of Ohio, with its principal place of business located in Atlanta, Georgia.

IV. Discussion

A. General Personal Jurisdiction and Specific Jurisdiction

Plaintiff bears the ultimate burden of demonstrating “satisfaction of statutory and due process prerequisites” to the exercise of general personal jurisdiction over defendants (Stewart v. Volkswagen of Am, 81 NY2d 203 [1993]; see Archer-Vail v. LHV Precast, Inc, 168 AD3d 1257 [3d Dept 2019]). However, that burden does not entail making a prima facie showing of personal jurisdiction at this stage of the litigation (see Peterson v. Spartan Indus, 33 NY2d 463 [1974]). Rather, for its claims to survive a motion pursuant to CPLR §3211 [a] [8], Plaintiff need only show that they have made a “sufficient start” at demonstrating jurisdiction [*6] to warrant discovery (Gottlieb v. Merrigan, 119 AD3d 1054 [3d Dept 2014]). This showing may be made “by reference to pleadings, affidavits, and other suitable documentation” (Avilon Auto Group v. Leontiev, 168 AD3d 78 [1 Dept 2019]).

Under CPLR §301, “[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore.” This section preserves the power of the New York courts to exercise general personal jurisdiction (see Pichardo v. Zayas, 122 AD3d 699 [2d Dept 2014]). However, any exercise of such jurisdiction over a foreign corporation on the basis of CPLR §301 must comport with due process requirement[s] (Fernandez v. Daimler-Chrysler AG, 143 AD3d 765, 766 [2d Dept 2016], appeal dismissed 28 NY3d 1129 [2017], cert denied __ US __, 138 S Ct 145 [2017]).

Prior to the United States Supreme Court’s decision in Daimler AG v. Bauman (571 US 117 [2014]), a foreign corporation was amenable to suit in New York under CPLR §301 if it had engaged in such a continuous and systematic course of doing business here that a finding of its presence in this jurisdiction was warranted (Aybar v. Aybar, 169 AD3d 137, 143 [2d Dept 2019]). Following Daimler AG, however, “general personal jurisdiction over a foreign corporation…exists only if the corporation is essentially ‘at home’ in the forum state typified by the place of incorporation and principal place of business” (Motorola Credit Corp v. Standard Chartered Bank, 24 NY3d 149, 160 [2014]; see Aybar, 169 AD3d at 144 [“the paradigm bases for general jurisdiction are the place of incorporation and principal place of business”] [Emphasis added]; accord: State of New York v. Vayu, Inc, 195 AD3d 1337, 1338 [3d Dept 2021]).

To determine whether [*7] a foreign corporate defendant’s affiliations with the state are so continuous and systematic as to render it essentially ‘at home’, Daimler advised that “the general personal jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts, but instead calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them (Daimler AG v. Bauman, 571 US at 139; see BNSF R Co v. Tyrrell, 137 S Ct at 1559). The Daimler court suggested that Perkins v. Benguet Consol Mining Co, (342 US 437 [1952]) exemplified the “exceptional case” in which a corporate defendant’s operations in the forum state were so substantial and of such a nature as to render the corporation “at home” in that state (see Daimler AG v. Bauman, 571 US at 129). In Perkins, the defendant was incorporated in the Philippine Islands, where it owned and operated certain mines (342 US at 439). Its operations were completely halted during the Japanese occupation of the Islands in World War II. During that interim, the president of the company, who was also the general manager and principal stockholder, returned to his home in Ohio, where he maintained an office and conducted the corporations’ affairs (see id at 447-448). The Supreme Court held that Ohio courts could exercise [*8] general jurisdiction over the corporation without offending due process (see id at 448). The Supreme Court later noted that “Ohio was the corporation’s principal, if temporary, place of business so that Ohio jurisdiction was proper even over a cause of action unrelated to the activities in the State” (Keeton v. Hustler Magazine, Inc, 465 US 770 [1994]). A New York Court may exercise personal jurisdiction over a nondomiciliary who, either in person or through his or her agent, “transacts any business within the state or contracts anywhere to supply goods or services in the state (Urfirer v. SB Bldrs, LLC, 95 AD3d 1616, 1617 [2012] quoting CPLR §302 [a] [1]). In determining whether long-arm jurisdiction has been acquired over a nondomiciliary, the court must undertake a two-part inquiry: “[f]irst, it must be determined whether our long-arm statute (CPLR §302) confers jurisdiction over the defendants, in light of their contacts with this state. The defendant must have purposefully availed itself of the privilege of conducting activities within the forum [s]tate by either transacting business in New York or contracting to supply goods or services in New York. For specific jurisdiction to attach, there must be a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the [*9] former (Lowy v. Chalkable, LLC, 186 AD3d 590 [2020]). Second, the claim must arise from that business transaction or from the contract to supply goods or services (D & R Global Selections, SL v. Bodega Olegario Falcon Pineiro, 29 NY3d 292, 297 [2017]). Ultimately, as the party seeking to assert jurisdiction, it is Plaintiff’s burden to demonstrate a proper basis for long-arm jurisdiction (see Gottlieb v. Merrigan, 170 AD3d 1316 [2019]; Andrew Greenberg Inc v. Sirtech Can Ltd, 79 AD3d 1419, 1420 [2010]). Satisfaction of the second prong requires that there be an “articulable nexus” or a “substantial relationship” between a defendant’s New York activities and the cause of action sued upon (Qudsi v. Larios, 173 AD3d at 923; see Skutnik v. Messina, 178 AD3d at 75). “Due process requires that a nondomiciliary have ‘certain minimum contacts’ with the forum and ‘that the maintenance of the suit does not offend traditional notions of fair play and substantial justice'” (Williams v. Beemiller, Inc, 33 NY3d 523,528 [2019], quoting International Shoe Co v. Washington, 326 US 310, 316 [1945]). If either the statutory or constitutional prerequisite is lacking, the action may not proceed (id).

V. Synthesis of the Facts

A. Defendant Z & D Tour, Inc.

To determine whether Z & D is subject to the general personal Jurisdiction, and/or specific conduct-linked jurisdiction of the State of New York, the court must employ the two-prong test. Z & D is a New Jersey Corporation that conducts business in New York. A discussion of the scope and character of the business is appropriate [*10] to determine whether Z & D is ‘at home’ in New York for the purpose of imposing general personal jurisdiction. Z & D maintains a brick-and-mortar office location in New York State, particularly, at 59 Canal Street, New York, New York, where it engages in the sale of tickets for bus tours, that transport individuals from New York to other states. The bus stop is directly in front of the office where an individual can purchase the ticket for the bus tour. In fact, Z & D’s name appears on a New York City Bus Stop sign post, along side another sign that says “Kentucky, Ohio.”

There is evidence that Z & D applied to the New York City Department of Transportation and made a plea to the local community board for the authority to use and post signage at this bus stop. Z & D offers regular and frequent bus transport from the Canal Street bus stop to Ohio and Kentucky. When a person purchases a ticket for bus service from Z & D, they are engaging in a contract for services. The service provided, is a bus tour to a particularized destination. The expectation of the purchaser/passenger is that they will board the bus at the Canal Street bus stop and arrive safely at the final destination. Naturally, [*11] it is reasonable to expect that the bus would have to stop along the way for refueling, and for the bus driver to take a break, depending on the extent of the journey. Nonetheless, the contract is complete upon the delivery and arrival of the passenger at the agreed upon destination at the time of the purchase of the bus ticket. Z & D engages in a systematic course of doing business in New York. Z & D has entrenched itself so deeply in New York, that it has engaged with the local municipality to obtain rights and privileges one would expect an ‘at home’ corporation to have and maintain. Z & D does not just conduct business in New York. New York is the major hub for bus transport. Z & D may be a New Jersey corporation, but they appear to be at home in New York based upon the foregoing. The exercise of general personal jurisdiction over Z & D would not offend due process, as it maintains an office, and conducts its affairs from New York. As to specific jurisdiction, there must be a relatedness between the transaction and the legal claim, such that the latter is not completely unmoored from the former. Here, the transaction is a contract for services, to wit: the purchase of a bus ticket [*12] to transport an individual from New York to Ohio. The court looks to Plaintiff’s complaint and finds that the relevant claim against Z & D, for negligence in the operation, control, maintenance of, supervision, and repair of the bus, that Z & D used to provide the service contracted for. Moreover, Z & D admits in its own papers that the proximate cause of the accident is solely due to the negligence of its driver, who lost control of the bus, causing it to roll and thereafter rest in a position where it blocked all lanes of travel and the shoulder of the roadway. Thereafter, and as a result, Defendant Fed Ex Ground vehicle collided with the bus, and the UPS vehicle collided with the Fed Ex Ground vehicle. Plaintiff contracted with Z & D for the service of transportation from New York to Ohio. It is of no moment that the accident happened in the State of Pennsylvania, under this claim, as the contract for the provided service occurred in New York, and transpired between a New York resident, and a New Jersey Corporation that was ‘at home’ in New York, based upon the continuous, systematic, and regular way that it conducted its business of bus transport. Further entrenching itself in [*13] the State by contracting with the municipality for a grant of authority (limited by the laws of the City and State of New York), Z & D utilizes and maintains a bus stop location with signage on a New York City owned and operated bus stop pole and sign, permanently affixed to the sidewalk. This was a regular bus route for Z & D that was used multiple times per day. These facts cannot be ignored in determining whether Z & D was ‘at home’ in New York State, including the continuous and systematic nature of Z & D’s conduct within the state. Z & D holds itself out as a New York corporation, in the manner and frequency it conducts business in New York. Z & D enjoyed the benefits and protection of the laws of the State of New York, including the right to resort to its courts for the enforcement of its rights. There is no doubt that New York is indeed a “surrogate principal place of business” for Z & D, and that the facts exemplify an ‘exceptional case,’ as provided for by Damler AG and its progeny.

This court finds it quite curious that Z & D failed to address these facts in its opposition to Plaintiff’s motion. Further, Z & D barely broches the facts and issues raised by Plaintiff in their [*14] reply papers. This court finds that Z & D’s contacts with New York State are far more than ‘minimum contacts,’ and that the maintenance of the suit in New York, does not offend traditional notions of fair play and substantial justice. Based upon the foregoing, Defendant Z & D’s motion to dismiss pursuant to CPLR §3211 [a] [8] is DENIED, without prejudice to renew.

B. Defendants Fed Ex Ground Package, Penske Truck Leasing, and United Parcel Service Inc.

Using the two-prong test to determine whether jurisdiction exists, the court finds that Fed Ex Ground, Penske, and UPS are not incorporated in New York and do not maintain a principal place of business in New York. Fed Ex Ground is a Delaware corporation that maintains its principal place of business in Allegheny County, Pennsylvania. Penske is a Delaware business corporation that maintains a corporate office and principal place of business in Reading, Pennsylvania.

Plaintiff has failed to plead facts which establish that this is an exceptional case (as it has done so with Z & D), such that Fed Ex Ground, Penske, and UPS’s business transactions within New York would render them ‘at home’ and of an exceptional nature, for the purposes of general personal [*15] jurisdiction, pursuant to Damler AG and its progeny. Fed Ex Ground, Penske, and UPS conducts business in every state of the union, and this court cannot, without specific facts, contradict the spirit of general jurisdiction which can only be exercised in forums in which the foreign defendant is found to be ‘at home’. It is well settled law that the registration to do business, and the designation of an agent within the state for the purpose of acceptance of service, does not constitute consent to New York’s general personal jurisdiction.

To satisfy the second prong of the analysis, as to specific jurisdiction, New York State Courts have held that there must be an “articulable nexus” or “substantial relationship” between a defendant’s business activities in New York and the cause of action sued upon. Id. (citing D & R Global Selections, SL v. Bodega Olegario Falcon Pinerio, 29 NY3d 292 [2017]). Here, the multi-vehicle accident on the Pennsylvania Turnpike in no way arose from, let alone, had a substantial relationship with any Fed Ex Ground, Penske, or UPS business transaction within the State of New York, and Plaintiff has not alleged as such. The facts of this case are substantially similar to those presented to the Second Department in Santiago v. Highway Freight Carriers, Inc (153 AD3d 750 [2d Dept 2017]), where a New York plaintiff [*16] brought suit in Nassau County based upon an accident that took place in Virginia between plaintiff’s vehicle and a tractor-trailer. The defendant truck driver was a resident of New Jersey, and the defendant trucking company was both incorporated and had its principal place of business in Pennsylvania. Id. In upholding the trial court’s dismissal for lack of personal jurisdiction, the Second Department rejected plaintiff’s argument that jurisdiction existed under CPLR §302 [a] [1] of New York’s long-arm statute, because the accident happened in Virginia, and the defendant trucking company’s activities in New York did not bear a “substantial relationship” (Zapata v. Training, 2020 WL 3507681, at *2 [Sup Ct Bronx County 2020]) to the subject matter of the underlying action. As was the result in Santiago and Zapata, there is no specific jurisdiction under CPLR §302 [a] [1] over Fed Ex Ground, Penske, and UPS in connection with the subject matter of Plaintiff’s Complaint.

With respect to specific jurisdiction under CPLR §302 [a] [3], the statute requires that the nondomiciliary defendant have “commit[ted] a tortious act without the state causing injury to person or property within the state (CPLR §302 [a] [3]). To determine whether an injury to a person “within the state” has occurred, New York courts apply the “situs of [*17] injury” test. That is, the situs-of-injury is where “the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred (USA Sevens LLC v. World Rugby Ltd, 191 AD3d 620 [1 Dept 2021]; US Immigration Fund LLC v. Litowitz, 182 AD3d 505 [1 Dept 2020]). In applying the “situs of injury test” this court recognizes that the place where plaintiff sustained their injuries is where the accident occurred, not where plaintiff resided or experienced the consequences of, or received care for the resulting injuries (Zapata, 2020 WL 3507681, at *2; accord Santiago, 153 AD3d at 752; Bloomgarden v. Lanza, 143 AD3d 850 [2d Dept 2016]). Here, Plaintiff’s Complaint makes clear, and no party disputes, that the accident, or the original event that caused the injuries, occurred in Westmoreland County, in the Commonwealth of Pennsylvania. As such, this court may not exercise personal jurisdiction over Fed Ex Ground, Penske and UPS pursuant to CPLR §302 [a] [3].

For the forgoing reasons, Defendant Fed Ex Ground’s Motion to Dismiss Plaintiff’s complaint (Motion Sequence #001) is GRANTED. Defendant Penske’s Motion to Dismiss Plaintiff’s complaint (Motion Sequence #004) is GRANTED. Defendant UPS’s Motion to Dismiss Plaintiff’s complaint (Motion Sequence #002) is GRANTED.

VI. Decretal Paragraphs

ORDERED, that Motion Sequence #001 is GRANTED, and Plaintiff’s complaint as to Defendant FED EX GROUND [*18] PACKAGE is dismissed with prejudice, and it is further,

ORDERED, that Motion Sequence #002 is GRANTED, and Plaintiff’s complaint as to Defendant UNITED PARCEL SERVICE, INC., is dismissed with prejudice, and it is further,

ORDERED, that Motion Sequence #003 is DENIED, without prejudice to renew, and it is further,

ORDERED, that Motion Sequence #004 is GRANTED, and Plaintiff’s complaint as to Defendant PENSKE TRUCK LEASING CORPORATION is dismissed with prejudice, and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly, and it is further,

ORDERED, that counsel shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry, upon all parties.

VII. Conclusion

The foregoing shall constitute the Decision and Order of this Court.

Dated: April 22, 2022

End of Document

CHUBB SEGUROS ARG S.A V. USP

United States District Court for the Southern District of New York

May 3, 2022, Decided; May 3, 2022, Filed

20 Civ. 3074 (AKH)

Reporter

2022 U.S. Dist. LEXIS 80352 *; 2022 WL 1321401

CHUBB SEGUROS ARGENTINA S.A. a/s/o AMX ARGENTINA S.A., Plaintiff, -against- UPS, SAVINO DEL BENE U.S.A. INC., and GROUND LOGISTICS & TRANSPORTATION, INC., Defendants.

Core Terms

Cargo, summary judgment, effective, carrier, notice

Counsel: [*1] For Chubb Seguros Argentina S.A., a/s/o AMX Argentina S.A, Plaintiff: Lawrence Caruso Glynn, Caruso Glynn, LLC, Fresh Meadow, NY.

For UPS, Defendant: William Edward Lakis, LEAD ATTORNEY, DeOrchis, & Partners, LLP, New York, NY.

For Savino Del Bene U.S.A., Inc., Defendant: Andrew Robert Spector, LEAD ATTORNEY, Spector Rubin, P.A., Miami, FL.

Judges: ALVIN K. HELLERSTEIN, United States District Judge.

Opinion by: ALVIN K. HELLERSTEIN

Opinion

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT AND PARTIAL SUMMARY JUDGMENT

ALVIN K. HELLERSTEIN, U.S.D.J.:

This suit¹ involves loss and damage to telecommunications equipment (the “Cargo”), sustained in the spring of 2019, while the Cargo was moved by truck from Tempe, Arizona to Miami, Florida. AMX Argentina S.A. (“AMX”) purchased the Cargo from non-party Arizona-based Comtech and contracted with non-party freight forwarder Savino del Bene Argentina (“Savino Argentina”) to handle overall logistics for moving the Cargo from Tempe to Argentina. Savino Argentina then subcontracted with its USA-affiliate Defendant Savino del Bene U.S.A. Inc. (“Savino USA”), who in turn subcontracted with Defendant Ground Logistics & Transportation, Inc. (“GLT”), who in turn subcontracted with Defendant UPS [*2] (“UPS”) to transport the Cargo. AMX authorized Savino Argentina to make the shipping arrangements and had no contact with any of the subcontractors prior to the Cargo’s departure from Tempe. Although AMX was aware that overland carriers sometimes impose limitations on liability, and also has a department and process for considering whether to declare

values and make special arrangements to increase a limitation of liability for a shipment, in this case, AMX did not seek to increase the limits of liability, as it had an existing general cargo loss insurance policy that covered the shipment of the Cargo. Although Savino USA subcontracted with GLT, the agreement between GLT and UPS was private and confidential and included no option for full Carmack liability.

As to the bill of lading (“BOL”) under which the Cargo moved, GLT drafted it and UPS issued it; however, Savino del Bene provided the necessary information but did not include a declared value for the Cargo. (The facts do not specify whether the information was provided by Savino Argentina or Savino USA.) As issued, the BOL listed UPS Freight in the “carrier name” box, Comtech EF Data in the “ship from” box, and Savino USA in the [*3] “ship to” box. Savino del Bene did not issue a BOL but did send AMX a certificate of receipt, as proof of delivery.

While in transit between Tempe and Miami, the Cargo was damaged when a separate bulk package carried by UPS fell on top of it. The damage was noted on UPS’s bill of lading and observed when the Cargo arrived at Savino USA’s Miami warehouse. Repairs were not feasible, and the Cargo was deemed a total loss.

Plaintiff Chubb Seguros Argentina S.A. (“Plaintiff”), as subrogor of AMX, brought this suit against Savino USA, GLT, and UPS to recover damages in the amount of $203,298.00, the total value of the Cargo, asserting claims under the Carmack Amendment, 49 U.S.C. § 14706; and for bailment and breach of contract under state law.² The parties completed fact discovery and took non-expert witness depositions.

UPS now moves for summary judgment, arguing that Plaintiff lacks standing to pursue its claims under the Carmack Amendment because AMX was not listed as the consignee on the BOL. In the alternative, UPS moves for partial summary judgment on the issue of whether Plaintiff’s claims are subject to an enforceable limitation on liability.

The motion for summary judgment is denied. Plaintiff has standing under the Carmack Amendment. Section 14706(a) of the Carmack Amendment allows [*4] suits by anyone entitled to recover in the receipt or bill of lading, including the buyer who was to receive the goods. See Windows, Inc. v. Jordan Panel Sys. Corp., 177 F.3d 114, 118 (2d Cir. 1998). UPS contends that Plaintiff lacks standing because only Savino USA was listed on the BOL. To be sure, Savino USA has standing to sue because it is the named consignee on the BOL. However, AMX also has standing by virtue of the agency relationship between it and Savino USA. When contracting with GLT and UPS, Savino USA acted as an agent for AMX. Whether or not Savino USA disclosed AMX’s identity, UPS knew that Savino USA, a carrier agent, was not the ultimate consignee or real party in interest. And it is well-settled that an undisclosed principal may enforce a contract made for its benefit, whether or not the obligee was aware of the undisclosed principal. See Interbras Cayman Co. v. Orient Victory Shipping Co., S.A., 663 F.2d 4, 6-7 (2d Cir. 1981).

The motion for partial summary judgment also is denied because it remains unclear whether UPS effectively limited its liability as to AMX. Under the Carmack Amendment, to effectively limit its liability, a carrier must give the shipper a fair opportunity to choose between higher and lower liability by paying a correspondingly greater or lesser charge. See Mechanical Tech. Inc. v. Ryder Truck Lines, Inc., 776 F.2d 1085, 1088 (2d Cir. 1985). AMX contends that because neither it, nor non-party Comtech, [*5] was ever given a choice of rates by UPS, that it cannot be bound by the stated limitation in the BOL. UPS contends that the limitation should be deemed effective as to AMX because AMX knew that carriers might limit their liability, but in light of its general insurance policy, opted not to pay for any additional coverage and gave its agent, Savino Argentina, no special instructions. Neither of these arguments resolves the ultimate issue. That AMX was not explicitly given two choices by UPS would not preclude it from being bound by the terms of the agreement entered into on its behalf by its agent, Savino Argentina (and Savino USA), for the same reasons that Plaintiff has standing to sue under the Carmack Amendment. That is, if UPS effectively limited its liability to Savino USA (and Savino Argentina), that limitation also

could be effective as to AMX. However, AMX’s general knowledge that carriers often limit their liability and conscious decision not to pay for any additional coverage also does not establish that the limitation on liability was effective as to AMX. In order for the limitation to be effective as to AMX, the limitation must first have been effective as to Savino USA and Savino Argentina. [*6]

On the record before me, I cannot determine whether such an effective limitation occurred, whether by actual or constructive notice. The record contains no specifics as to the negotiations between GLT and Savino USA and does not indicate whether Savino USA was given an opportunity to choose between two levels of coverage, precluding a finding of actual notice. The record also lacks a sufficient basis for charging Savino USA with constructive notice and acceptance of the limitation. Although “Savino del Bene” provided the information contained in the BOL, GLT drafted it. The record does not establish that whichever Savino entity provided that information did anything more than fill in the blanks, or that at some point during the process was given an opportunity to choose a higher level of protection and price rather than accepting a quoted price and its attendant limitation on liability. Nor does the record indicate whether Savino USA (or Argentina) had awareness of the separate and private agreement between GLT and UPS, pursuant to which full Carmack liability was unavailable. Absent more facts, I cannot charge Savino USA and Savina Argentina with constructive notice of the limitation [*7] on liability, and cannot impute that notice to AMX. Chartis Seguros Mex., S.A. v. HLI Rail & Rigging, LLC, 3 F. Supp. 3d 171, 192 (S.D.N.Y. 2014) (holding summary judgment on a constructive notice theory was inappropriate when shipper did not actually draft, and only provided information for, the bill of lading, and the record did not establish that the shipper was given an opportunity to choose a higher level of protection). Thus, I cannot say, as a matter of law, that UPS effectively limited its liability as to Savino USA and Savino Argentina, and thereby, as to AMX.

In sum, the motions for summary and partial summary judgment are denied. The Clerk of Court shall terminate the motion (ECF No. 32). The parties shall appear for a status conference on May 27, 2022, at 10 a.m.

SO ORDERED.

Dated: May 3, 2022

New York, New York

/s/ Alvin K. Hellerstein

ALVIN K. HELLERSTEIN

United States District Judge

End of Document

¹The following facts are taken from the UPS’ Rule 56.1 Statement of Material Facts (ECF No. 32-8) and Plaintiff Chubb Seguros’s Rule 56.1 Counterstatement of Material Facts (ECF No. 35).

²In its opposition, Plaintiff withdrew its state law claims against UPS, acknowledging that such claims are preempted by the Carmack Amendment but stating that it brought such claims in an abundance of caution. See ECF No. 38.