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Expeditors International of Washington, Inc. v. United Parcel Service Co.

United States District Court, D. Colorado

February 27, 2019

EXPEDITORS INTERNATIONAL OF WASHINGTON, INC., Plaintiff,
v.
UNITED PARCEL SERVICE CO., and UNITED PARCEL SERVICE, INC., Defendants.

          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 ...

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