FREIGHT DAMAGE (CARMACK AMENDMENT & CARRIAGE OF GOODS BY SEA ACT / “COGSA”) / Two high-value shipments of aerospace parts from Italy to Southern California arrive at seaport unharmed but are damaged on motor carrier move to inland destination – Held: Cross-motions for summary judgment denied based on controverted facts.

HELD:

1. UPS-Supply Chain Services (3PL / logistics company) motion for summary judgment based on liability limitation contained in its “Master Services Agreement” with shipper denied – held: Activities triggering such limitation of UPS’ liability do not correspond to what UPS-Supply Chain Services is alleged to have performed in this case (“UPS-SCS’s position on this issue is a bit amorphous”).

2. Similar motion under a separate agreement between UPS-Supply Chain Services and shipper called “Customs Brokerage Services Agreement” by which UPS agreed to act as customs broker for shipper – held: Motion denied to the extent that controverted facts require trial to determine whether or not UPS acted solely as a customs broker in this case. Put another way, shipper argued that UPS had also acted “as a freight forwarder or motor carrier”.

3. Similar motion by inland motor carrier limiting damages under Carriage of Goods by Sea Act denied – held: Facts controverted as to whether or not UPS had in fact issued a “through” bill of lading for the sea voyage  between Italy and the Southern California seaport that protected such motor carrier as a third party beneficiary.

4. Similar motion by shipper to recover against inland motor carrier under Carmack due to controverted issue of facts as to whether or not a “through” bill of lading had been issued by UPS, thereby covering such motor carriage as third party beneficiary under the Carriage of Goods by Sea Act. 

My point: Much of such cases’ outcome depends upon drafting of agreements, including the bill of lading – but much also relates to managing the process so as to make clear who is issuing what bill of lading and what services in a liability limitation agreement are in fact going to be performed by the 3PL / logistics company.

Rohr, Inc. v. UPS-Supply Chain Solutions, Inc., Case No. 11cv617-GPC (WVG) Slip copy (U.S. District Court for the Southern District of California, April 8, 2013). Free copy available here.