United States District Court for the District of New Jersey
December 28, 2021, Decided; December 28, 2021, Filed
Civil Action No. 18-13502

Reporter
2021 U.S. Dist. LEXIS 247754 *; 2021 WL 6143669
Siaci Saint Honore v. United Parcel Service, Inc. et al.
Core Terms

shipper, Tariff, package, carrier, Intermodal, summary judgment, declare, shipment, subcontractors, transportation, Cross-Motion, charges, obligations, shipping, rates, limitation of liability, customer, cargo, terms, independent contractor, terms and conditions, electronic, argues, lading
Counsel: [*1] For Siaci Saint Honore, Plaintiff: TIMOTHY DONALD BARROW, Lebanon, NJ USA.
For United Parcel Service, Inc., Defendant: JAMIE LEVITT, LEAD ATTORNEY, MORRISON & FOERSTER LLP, New York, NY USA; STEVEN THOMAS RAPPOPORT, LEAD ATTORNEY, MORRISON & FOERSTER LLP, New York, NY USA.
For CSX Transportation, Inc., Defendant: ERIC C. PALOMBO, JEFFREY DAVID COHEN, LEAD ATTORNEYS, COHEN & PALOMBO P.C., Ardmore, PA USA.
Judges: MADELINE COX ARLEO, UNITED STATES DISTRICT JUDGE.
Opinion by: MADELINE COX ARLEO
Opinion

LETTER ORDER
Dear Litigants:
Before the Court is (1) Defendant CSX Transportation, Inc.’s (“CSX”) Motion for Summary Judgment, ECF No. 100, and (2) United Parcel Service, Inc.’s (“UPS” and collectively with CSX, “Defendants”) Motion for Summary Judgment, ECF No. 106. Plaintiff Siaci Saint Honore (“Plaintiff” or “Siaci Saint”) opposes the Motions and cross-moves for summary judgment, ECF No. 127. CSX and UPS each oppose Plaintiff’s Cross-Motion. ECF Nos. 136, 140. For the reasons explained below, CSX’s and UPS’s Motions are GRANTED and Siaci Saint’s Cross-Motion is DENIED.

I. BACKGROUND1
This action arises from the alleged pilfering of high fashion merchandise from a UPS shipping container. Loro Piana, Inc. (“Loro Piana”), an [*2] affiliate and subsidiary of LVMH Moet Hennessy Louis Vuitton Inc. (“LVMH”), manufactures and sells high-end apparel products and owned the subject freight. ECF No. 101 ¶ 4; ECF No. 106.2 ¶ 4.
Siaci Saint is a foreign insurance corporation doing business in the United States through Arthur Gallagher & Co. and is bringing this action on behalf of both Loro Piana and AXA Corporate Solutions (“AXA”), the subrogated insurer of the subject cargo. ECF No. 124 ¶ 3; Loser Dep. Tr. 98:2-20, ECF No. 121.4. Siaci Saint paid a settlement to Loro Piana in exchange for an assignment of the claim, the terms of which are contained in an executed subrogation receipt. ECF No. 101 ¶ 46; ECF No. 124 ¶ 46.

A. Relationship Between Loro Piana and UPS
Loro Piana regularly uses UPS’s shipment services, pursuant to the binding terms and conditions contained in the UPS Incentive Program Agreement (“Incentive Agreement”) between UPS and Loro Piana. ECF No. 101 ¶ 8. LVMH negotiated the Incentive Agreement with UPS as the customer, and Loro Piana was later added to the agreement as an affiliate. ECF No. 101 ¶ 7; Munoz Dep. Tr. 114:3-16, ECF No. 121.2. UPS enters into incentive program agreements with many high-volume [3] shippers, like LVMH, to provide discounts off published rates and other terms. Declaration of Lori Cerrigone ¶ 5 (“Cerrigone Decl.”), ECF No. 109. The Incentive Agreement, in effect during the relevant time, sets forth the terms and conditions under which UPS shall provide its services to Loro Piana, and incorporates by reference the UPS Rate and Service Guides and the UPS Tariff/Terms and Conditions of Services (“Tariff”) in effect at the time of shipping. Incentive Agreement §§ 1.1-1.2, ECF No. 149.1. The Incentive Agreement provides the link where the Rate and Service Guides and the Tariff are maintained online, and notes that they are also available at local UPS offices. Id. The Incentive Agreement also provides that “transportation charges,” as used in the agreement, are defined as UPS Daily Rates only and do not include other charges or fees that may apply to the customer or a shipment. Incentive Agreement § 4.2. Under the Tariff, UPS’s liability for loss or damage to a UPS package is limited to a value of $100, unless the shipper declares a value in excess of $100 for the package and pays an additional fee. Tariff § 55, ECF No. 109.2. If the shipper does not declare a greater value, [4] the shipper agrees that the “released value” is no greater than $100 and UPS will not be liable for more than $100 for each package. Id. If the shipper does declare a value over $100, UPS’s liability for loss or damage can be increased up to $50,000 per package. Cerrigone Decl. Ex. C. The UPS Rate and Service Guide sets forth the declared value fees, which in September 2017 was $0.90 for each $100.00, or portion of $100.00, of the total value declared, and subject to a minimum charge of $2.70. Id.
Protection available directly from UPS is not insurance, but rather an adjustment of UPS’s limitation of liability to correspond to the declared value. Id.; see also Cerrigone Decl. ¶ 13. The Tariff advises that “[s]hippers desiring cargo insurance, all risk insurance, or another form of insurance should purchase such insurance from a third party.” Tariff § 55.
The Incentive Agreement also permits UPS to use subcontractors to perform any of its obligations, “provided that UPS shall remain responsible for obligations performed by subcontractors or delegees to the same extent as if such obligations were performed by UPS.” Incentive Agreement § 3.3. The Tariff ensures that any subcontractors engaged [*5] by UPS to perform transportation services will also have the benefit of the Tariff. Tariff § 57.

B. Relationship Between UPS and CSX
UPS contracts with CSX, an interstate rail carrier, to handle the rail portion of intermodal transport for Loro Piana’s shipments. ECF No. 101 ¶¶ 1, 14. CSX’s transportation services are subject to the terms and conditions of the Intermodal Transportation Contract—Contract No. AGRT2020 (“Intermodal Agreement”)—between CSX and UPS and the Intermodal Service Directory No. 1 (“SD1”) attached thereto. Id. ¶¶ 14-15.
The Intermodal Agreement between CSX and UPS provides that both parties are independent contractors, that neither party has control or ownership interest in the other party, and that CSX “shall determine and be solely responsible for the means and methods of the performance of Services provided hereunder, to the extent not inconsistent with this Contract.” Intermodal Agreement ¶ 12.6, ECF No. 105. The Intermodal Agreement also incorporates its attached appendices and Intermodal SD1.
Appendix 1 to the Intermodal Agreement, which expressly modifies the terms contained in the incorporated Intermodal SD1, provides that the amount of CSX’s “liability related [*6] to a specific lading transported shall in no event be greater than that of UPS with respect to any underlying agreement(s) UPS may have with its own customer who is the owner or beneficial owner of the product which is the subject of any such claim.” Intermodal Agreement App’x 1, at ¶ 9(B).

C. The Shipment
In September 2017, OMLOG2 shipped multiple cartons containing high-end fashion clothing and accessories with UPS from Secaucus, New Jersey to Loro Piana in Sunrise, Florida. See ECF No. 124 ¶ 6; EIMC Non-Survey Report No. 18-030088, ECF No. 130.1 (“EIMC Report”). According to an email from Florida East Coast Railway, a security officer was inspecting a train at the interchange yard and noted that a UPS trailer did not have a seal and that several boxes were open. EIMC Report at 3. UPS was put on notice and confirmed that a total of 233 pieces were reported stolen from ten cartons. Id. at 3-4. Following an investigation, it appeared that the UPS trailer carrying the subject cargo was broken into while it was at a CSX railyard. Id. at 5-6.
The retail price of the 233 items lost was $208,690 and Loro Piana submitted a claim for this amount. EIMC Report at 8-9. The total cost of the same [*7] was $72,897.00. See EIMC Report at 8; ECF No. 138 ¶ 7. However, Loro Piana did not declare a value in excess of $100 on any of the subject packages. ECF No. 124 ¶ 13. It was separately insured for the shipment of the packages by the insurance company, AXA. ECF No. 106.2 ¶ 15; Loser Dep. Tr. 98:2-20. In connection with Loro Piana’s claim, UPS paid Loro Piana at least $100 for each of the packages, for a total of $1,065.16. ECF No. 106.2 ¶ 24.

D. UPS’s Shipping Process
According to UPS, the shipper here—OMLOG on behalf of Loro Piana—used an electronic shipping system to enter the “package level detail” for the packages, which were tendered to UPS for shipment. Declaration of Hugo Padilla ¶ 13 (“Padilla Decl.”), ECF No. 113. Once the shipper transmitted the details, UPS sent the shipper a control report to acknowledge successful transmission. Id. ¶¶ 13-14. When the shipper processed the subject packages, it did not declare a value in excess of $100, id. ¶ 4, and Plaintiff admits as much. ECF No. 120 ¶ 13. The “declared value” field is maintained in the shipper’s system, rather than in UPS’s systems; if the shipper had declared a value greater than $100, the entry would have been transmitted [*8] to UPS with the other package level detail. Padilla Decl. ¶¶ 4, 13-15; Declaration of Gregory Koltun ¶ 3 (“Koltun Decl.”), ECF No. 140.4. The packages were assigned UPS tracking numbers, as well Pickup Record Number 6512174126, which was later used to generate a Delivery Service Invoice. Id. ¶¶ 4, 8; ECF No. 112. The Delivery Service Invoice reflected the data the shipper input for each particular package. Padilla Dec. ¶ 8.

E. Procedural History
On September 1, 2018, Plaintiff filed a Complaint against CSX and UPS asserting claims of breach of contract, negligence, breach of bailment, gross negligence, and conversion. ECF No. 1. On November 20, 2018, following a joint Motion to Dismiss based on preemption, Plaintiff amended its complaint and now asserts claims for carrier liability under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. §§ 11706 & 14706, for cargo loss and damage against CSX and UPS. ECF No. 12.
On May 24, 2021, CSX and UPS filed their Motions for Summary Judgment, ECF Nos. 100, 106. Plaintiff filed its opposition and Cross-Motion for Summary Judgment against both Defendants on July 12, 2021, ECF No. 127. Defendants oppose the Cross-Motion. ECF Nos. 136, 140.

II. LEGAL STANDARD [*9]
Pursuant to Federal Rule of Civil Procedure 56(c), the Court will grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with available affidavits, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The Court does not “weigh the evidence to determine the truth of the matter,” but rather assesses “whether the evidence 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.” Anderson, 477 U.S. at 249-52
The Court construes all facts and inferences in the light most favorable to the non-moving party. Peters v. Del. River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994). “[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)) (internal quotation marks omitted). The standard does not change “when the issue is presented in the context of cross-motions for summary judgment.” Appelmans v. Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).

III. ANALYSIS
Defendants argue that they are entitled to summary judgment because the Incentive Agreement limits UPS’s liability—and [*10] thus CSX’s liability as a subcontractor—to $100 per package as permitted by the Carmack Amendment and because Loro Piana did not declare a value in excess of $100 and pay the additional charge. Plaintiff argues that (1) Defendants fail to satisfy the standard for enforcing limitations of liability because UPS offered and contracted for only one set of rates; (2) CSX is an independent contractor that cannot take advantage of UPS’s contract and failed to provide an alternate rate or corresponding level of liability; and (3) its cross-motion should be granted because it established a prima facie case of liability under the Carmack Amendment. The Court agrees with UPS and CSX and finds Defendants are entitled to summary judgment.

A. CSX’s Limitation of Liability as a Subcontractor
Plaintiff argues that CSX is an independent contractor separate from UPS with its own terms under which it operates and thus cannot benefit from UPS’s suggested limited liability. In support, it exclusively relies on the paragraph in CSX and UPS’s Intermodal Agreement that states: “Both Parties acknowledge that they are independent contractors and that neither Party has control or ownership interest in the other Party. CSX[] shall determine and [11] be solely responsible for the means and methods of the performance of Services provided hereunder, to the extent not inconsistent with this Contract.” ECF No. 126 ¶ 2; Pl. Mem. at 5-6, ECF No. 133. Reading the relevant contracts as a whole, the Court finds this argument holds no weight.3 First, under the Incentive Agreement, UPS and Loro Piana contemplated UPS’s use of subcontractors to perform some of its obligations under the contract. Incentive Agreement § 3.3 (“UPS may permit its subsidiaries and affiliates or subcontractors to perform any of its obligations hereunder; provided that UPS shall remain responsible for obligations performed by subcontractors or delegees to the same extent as if such obligations were performed by UPS.”). Likewise, the terms and conditions of the Tariff submit that UPS may engage subcontractors and that those subcontractors “shall have the benefit of [the Tariff]” as well. Tariff § 57. Second, under UPS and CSX’s Intermodal Agreement, specifically in Appendix 1, the amount of CSX’s “liability related to a specific lading transported shall in no event be greater than that of UPS with respect to any underlying agreement(s) UPS may have with its own customer [12] who is the owner or beneficial owner of the product which is the subject of any such claim.” Intermodal Agreement App’x 1, at ¶ 9(B). The paragraph in the Intermodal Agreement stating that UPS and CSX are independent contractors “to the extent not inconsistent with [the Intermodal Agreement]” therefore does not preclude UPS from subcontracting CSX or preclude CSX from benefiting from the same limited liability as UPS under UPS’s contracts with its customers. Accord Kansas City S. R. Co. v. Carl, 227 U.S. 639, 648, 33 S. Ct. 391, 57 L. Ed. 683 (1913) (“The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act as measured by the original contract of shipment so far as it is valid under the act.”).
Therefore, the Court concludes as a matter of law that the limitation of liability provisions in the Incentive Agreement apply to CSX.

B. Carrier Liability
Under the Carmack Amendment—which establishes a uniform federal standard to govern railroad and motor carriers’ liability for loss, damage, or injury to goods while in interstate transit—a shipper can sue any carrier, not just the original carrier. AMG Res. Corp. v. Wooster Motor Ways, Inc., 796 F. App’x 96, 98-99 (3d Cir. 2020) (citing 49 U.S.C. § 14706(a), (d)). To make a prima facie case under the Carmack Amendment, a shipper must establish three elements: “(i) that the initial carrier received [13] the cargo in good condition; (ii) that the cargo was lost or damaged; and (iii) the amount of actual loss or damages.” Id. at 99-100. Carriers can, however, generally limit their liability through released value agreements. Certain Underwriters at Interest at Lloyd’s of London v. UPS of Am., Inc., 762 F.3d 332, 334 (3d Cir. 2014). The shipper and carrier “can agree to limit the carrier’s liability ‘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’ in order for the shipper to obtain a reduced rate.” Id. at 335 (quoting 49 U.S.C. § 14706(c)(1)(A)). The carrier must (1) “obtain the shipper’s agreement as to [the shipper’s] choice of liability”; (2) “give the shipper a reasonable opportunity to choose between two or more levels of liability”; and (3) “issue a receipt or bill of lading prior to moving the shipment.” Emerson Elec. Supply Co. v. Estes Express Lines Corp., 451 F.3d 179, 186 (3d Cir. 2006). Under 49 U.S.C. § 14706(c)(1)(B), the carrier shall provide “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” and “[t]he copy provided by the carrier shall clearly state the dates of applicability of the rate, classification, rules, or practices.” [14]
Here, the undisputed facts show that Defendants have established all three elements of the Emerson test and limited their carrier liability as permitted by the Carmack Amendment. Even construing all facts and inferences in the light most favorable to Plaintiff, it is clear that UPS obtained Loro Piana’s agreement as to its choice of liability and gave Loro Piana a reasonable opportunity to choose between two or more levels of liability. It is undisputed that the Incentive Agreement governs the relationship between UPS and Loro Piana and that the Incentive Agreement incorporated by reference the Tariff and the UPS Rate and Service Guide, both of which were available online or upon request. ECF No. 120 ¶¶ 6-7; Incentive Agreement § 1.2; Munoz Dep. Tr. 113:10-19, 124:24-125:11.4 Plaintiff, however, argues that the express terms of Incentive Agreement § 4.2 conflict with the incorporated Tariff and UPS Rate and Service Guide terms. See Pl. Mem. at 4-5, ECF No. 133.
Under Incentive Agreement § 4.2, “transportation charges” are defined as UPS Daily Rates only. Plaintiff argues that the Incentive Agreement thus fails to mention any alternative rate with corresponding levels of liability and instead provides for only [15] one set of freight rates. Pl. Mem. at 4-5, ECF No. 133. The Court finds this argument unavailing. Incentive Agreement § 4.2 also states: “Except as otherwise set forth in the Agreement or any Exhibit, ‘Transportation Charges’ do not include charges for Value-Added Services, Other Charges or other fees, accessorial charges, additional charges, or surcharges that may apply to Customer or shipment.” Thus, § 4.2 instructs the shipper that other fees or charges not named on the face of the Incentive Agreement can or may apply.5 In fact, the UPS Daily Rates themselves can only be found in the incorporated UPS Rate and Service Guide. Therefore, the plain language of the Incentive Agreement does not conflict with the language in the Tariff or the UPS Rate and Service Guide as Plaintiff argues. The contract must be read as a whole, and here, the Incentive Agreement plainly provides Loro Piana with discounts off the shipping rates found in the incorporated documents, with the reasonable opportunity to increase UPS’s liability. More specifically, pursuant to the Tariff and the UPS Rate and Service Guide, Loro Piana had the opportunity to increase UPS’s limit of liability for loss or [16] damage above $100 by declaring a higher value and paying an additional charge. Tariff § 55. However, without doing so, the shipper agreed that the released value is no greater than $100 for each package. Id. Loro Piana had the opportunity to declare any value up to $50,000, in exchange for paying $0.90 for each $100 of the total value declared and with a minimum of $2.70. Cerrigone Decl. Ex. C at 113. The Court finds that the aforementioned language plainly states the parameters of UPS’s limitation of liability and explains how the shipper can purchase additional protection. Loro Piana thus had “a reasonable opportunity to choose between two or more levels of liability.” Emerson Elec., 451 F.3d at 186; see also Indus. Risk Ins. v. United Parcel Serv., 328 N.J. Super. 584, 592, 746 A.2d 532 (App. Div. 2000) (“The option to select either the greater protection at a higher charge, or a $100 loss limitation at a lower charge, was clearly set out in the shipping documents prepared by UPS and furnished to [the shipper] and in UPS’s tariff.”).6
Finally, the Court is satisfied that there is no genuine dispute of fact that there was “a receipt or bill of lading prior to moving the shipment.”7 Plaintiff’s brief does not challenge this element and UPS has submitted the extent of the evidence that it maintains pursuant [17] to UPS’s process, which Plaintiff seemingly does not refute. After the shipper—OMLOG on Loro Piana’s behalf—processed the subject packages and transmitted the package level detail, UPS sent an electronic acknowledgment of the order for service back to the shipper, acknowledging successful transmission and receipt by UPS of the package level detail for Pickup Record Number 6512174126. Padilla Decl. ¶¶ 4, 13. UPS produced the Delivery Service Invoice, which used the data transmitted by the shipper to create the official record of the Source Document, which is maintained by the shipper. ECF No. 112; Koltun Decl. ¶ 3. The Carmack Amendment contemplates the use of electronic declarations of value as used here, see 49 U.S.C. § 14706(c)(1)(A), and courts have recognized that an “order for service” or something similar satisfies the receipt requirement. See, e.g., Hoskins v. Bekins Van Lines, 343 F.3d 769, 779 (5th Cir. 2003) (“Regarding the fourth and final element for a valid limitation of liability, we find that the Interstate Order for Service in this case, which contained the agreed upon terms of the contract for carriage, constituted a ‘receipt’ issued prior to the shipment.”); Kan. City Fire & Marine Ins. Co. v. Conrail, 80 F. Supp. 2d 447, 450 (E.D. Pa. 1999) (“Defendants’ policy of requiring the shipper to create its own bill of lading, which Defendants then adopt, [18] does not run afoul of the fourth requirement.”).
Thus, the undisputed facts in this case show that Defendants satisfy all three elements of the Emerson test and are entitled to judgment as a matter of law. Because the Court grants summary judgment in favor of Defendants, it need not reach Plaintiff’s arguments in its Cross-Motion for Summary Judgment.

IV. CONCLUSION
For the reasons stated above, Defendants CSX’s and UPS’s Motions for Summary Judgment, ECF Nos. 100 and 106, are GRANTED and Plaintiff Siaci Saint’s Cross-Motion for Summary Judgment, ECF No. 127, is DENIED.
SO ORDERED.
/s/ Madeline Cox Arleo
MADELINE COX ARLEO
UNITED STATES DISTRICT JUDGE