United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY
JUDGMENT
Marcia
S. Krieger, Chief United States District Judge
THIS
MATTER comes before the Court pursuant to
Third-Party Defendant Bronson Trucking, Inc.'s
(“Bronson”) Motion for Summary Judgment
(# 34) on the claims asserted by Defendants
United Parcel Service Co. and United Parcel Service
(collectively, “UPS”), UPS' response
(# 35), and Bronson's reply (#
39); and the Plaintiff's
(“Expeditors”) Motion for Summary Judgment
(# 36), UPS' response (#
40), and Expeditor's reply (#
42).
FACTS
On
March 3, 2016, Expeditors delivered a shipment of computer
servers racks to UPS to be flown from London to Denver. As
discussed in more detail below, the cargo arrived damaged. A
second shipment on March 4, 2016, transported in the same
manner, also arrived damaged.
Based
on these facts, Expeditors asserts (# 1)
four claims against UPS: (i) a claim brought under the
“Montreal Convention”[1] that UPS failed to properly
transport the cargo; (ii) breach of contract, under an
unspecified jurisdiction's common law, in that UPS
breached the terms of an agreement it had with Expeditors to
safely transport the cargo; (iii) negligence, under an
unspecified jurisdiction's common law, in that UPS failed
to use reasonable care when handling the cargo; and (iv)
“breach of bailment, ” arising under an
unspecified jurisdiction's common law.
In
response, UPS filed a Third-Party Complaint (#
18). UPS' Complaint appears to allege that
Bronson is actually responsible for “some or all
of” the damage to Expeditor's cargo. Thus, UPS
asserts two[2] causes of action against Bronson: (i) for
contribution, under an unspecified jurisdiction's common
law, in that Bronson was “negligent or in breach of
contract or in some other actionable manner legally
responsible for” the damage to the cargo; and (ii) for
declaratory judgment “of the respective rights and
duties, ” apparently among Bronson and other unnamed
third-party defendants.
The
parties' summary judgment briefing clarifies, to some
extent, the circumstances regarding the two shipments. As to
the March 3 shipment, it is undisputed that UPS acknowledged
that it received the cargo from Expeditors in London in good
condition. UPS then flew the cargo to Denver. UPS arranged
for Bronson to take possession of the cargo at a location
known as the “hub” and transport it by truck to
the recipient a few blocks away. Clint Turner, the Bronson
driver handling the cargo, states in an affidavit that he
observed that the cargo consisted of two packages on separate
pallets. On one pallet, “the surrounding cardboard,
also known as the ‘shroud,' was loose, torn, and
had indentations.” On the second pallet, the package
“had puncture holes in the carton which was open on the
bottom and some of the cargo was exposed.” As a result,
Mr. Turner wrote on the waybill “[outer] packaging
crushed and damaged[, ] may have hidden damage x2.”
Steve
Sinohui, UPS' representative at the scene, testified in
his deposition that he also observed the damage to the
packaging, but that neither he or Mr. Turner “could
make a determination that there was damage to the
[packages'] contents.” Thus, Mr. Sinohui wrote,
beneath Mr. Turner's notation on the waybill, “no
visible damage to contents.” Thereafter, Mr. Turner
loaded the pallets onto his truck.
No
party has come forward with any evidence regarding unusual
circumstances that may have occurred during Mr. Turner's
brief transportation of the pallets to the recipient. The
recipient observed damages to the pallets' contents and
complained to Expeditors.
As to
the second shipment, it is undisputed that UPS did not note
any damage to the shipment when it took delivery from
Expeditors. Neither party has come forward with any evidence
about any events that occurred during the cargo's
transportation to the recipient. It appears to be undisputed
that the recipient of the cargo noted upon delivery that the
cargo had suffered substantial damage.
On
March 30, 2016, a company called MTI Inspection Services
conducted an examination of the cargo and its packaging at
the recipient's location. MTI's report notes the
following:
This inspector observed a server cabinet . . . laying on its
side. Cabinet was on pallet that was unrelated to the
original shipment. A small single corrugated liner had been
partially placed between the cabinet and the pallet. Pallet
had one upper slat that had split clean into two pieces,
width-wise. Portion of cabinet rested on broken slat.
Original solid top skid [ ] was available for inspection,
constructed of new heat pressed wood panels, on weight
bearing foam type footers. Footers were sturdy and firm.
Item had been upright, bolted to skid. This inspector viewed
evidence of sheared bolts, as well as remnants of threading
still fixed into position. Metal ramps, utilized to
facilitate movement of cabinet from ...