Beardslee v FedEx

[*1] Beardslee v FedEx 2015 NY Slip Op 51548(U) Decided on July 7, 2015 City Court Of Ithaca, Tompkins County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2015
City Court of Ithaca, Tompkins County

Kenneth C. Beardslee, Plaintiff,

against

FedEx, Defendant.



SC45824-14
Scott A. Miller, J.

Plaintiff commenced this Small Claim on December 3, 2014 seeking $4,323.98 for FedEx's failure to deliver a left-handed bow and arrow to Colorado for Mr. Beardslee's scheduled elk hunting trip. At the hearing held on March 12, 2015, Mr. Beardslee appeared and the Defendant, FedEx, defaulted, and the Court entered judgment for $4,323.98 plus costs after an inquest on damages. On April 2nd, approximately three weeks after judgment was entered, Defendant filed a verified application to open the default, and the Court, after finding a reasonable excuse for the default and a meritorious defense, reopened the default judgment, conditioned on Plaintiff paying Defendant a $200.00 sanction, which Plaintiff has paid.At the hearing on the merits, on June 18th , Douglas Sarsfield, Senior Manager, and Robert Simon, Operations Coordinator for Plaintiff's Horseheads office, appeared for Plaintiff, and Defendant appeared and testified. Plaintiff's Exhibits 1 through 7 and Defendant's Exhibits A and B were marked and received into evidence. After evaluation of the evidence, the Court finds and concludes as follows.

The essential facts are not in dispute, and the legal question before the Court is whether the Plaintiff may recover the cost of a hunting trip for FedEx's failure to timely ship his bow and arrow to a hunting lodge in Colorado, as promised. Mr. Beardslee booked a six day elk hunting trip in Colorado beginning August 30, 2014. He paid Track'Em Outfitters, LLC, a guide, $3,000.00 for guide services and lodging, spent $601.00 on a Colorado elk hunting license, paid $360.00 for airfare, and spent approximately $300.00 on airport hotels. On August 25th, Plaintiff contracted with FedEx to ship his left-handed bow to the guide for $71.69. He declared a value of $1,500.00, and paid the extra charge for declared values over $100.00. He testified that he was assured that the bow had plenty of time to arrive before August 30th. The bow did not arrive by August 30th, a Saturday. Plaintiff's wife, Mrs. Beardslee, made over 20 calls to various agents of FedEx, attempting to track down the bow. The bow's location was tracked to a hub station in Lewisberry, PA, but an agent informed Mrs. Beardslee that nothing would be done over Labor Day weekend. Mrs. Beardslee [*2]notified Plaintiff, but he was unable to borrow, rent, purchase, or obtain another left-handed bow for the hunting trip. Instead, Plaintiff spent the hunting trip forced to merely observe other hunters for six days as they successfully downed elk, while he remained bowless. FedEx eventually returned the bow and arrow to Plaintiff's home in New York. The Court finds that FedEx delivered less than reliable service in this instance. In short, FedEx completely missed the mark.

On August 25, 2014, Plaintiff had completed a FedEx Ground Order Form, declaring a value of $1,500.00 for the bow and arrow, and paid the shipping fee of $71.69. The front of the Order Form directs the customer to read the reverse side, which limits FedEx's liability. The reverse side limits liability to $100.00, or a higher declared value, and strictly limits liability for "special, incidental or consequential damages," whether or not FedEx had knowledge that such damages might be incurred.The Court finds the Colorado elk hunting license fee, $601.00, and the Track Em Hunting outfitter/guide package fee, $3,000.00, to be instructive on the issue of general contract damages, that is, damages approximating the value of the loss of use of the left handed bow and arrow during this very special six day elk hunting trip . General damages have been defined as "those which are the natural and probable consequence of the breach." American List Corp. V. US News & World Report, Inc., 75 NY2d 38, 43 (1989). In contrast, special damages are "extraordinary in that they do not flow directly from the breach." Id., at 43.

This Court must first determine whether state common law contract or tort actions are permissible when suing a common carrier for a shipment that has traveled through interstate commerce. It is true that New York's public policy prohibits a party from contractually insulating itself from damages caused by grossly negligent conduct. Abacus Federal Savings Bank v. ADT Sec. Services, Inc., 18 NY3d 675 (2012). However, an interstate shipping claim against a common carrier, such as Defendant, FedEx, is governed by the Carmack Amendment to the Interstate Commerce Act, 49 USC §14706, "which governs the liability of common carriers for loss or damage to goods shipped through interstate commerce." Elich-Krumplet v UPS, Inc. 13 Misc 3rd 1203 [A]. The Carmack Amendment, adopted in 1906, is the exclusive remedy, and pre-empts state and federal common law. Id. In other words, since the Carmack Amendment governs this transaction, state common law does not apply, and the sole claim available is for a breach of the transportation agreement. 49 USC §14706(c)(1)(A) expressly provides:

Shipper waiver.—Subject to the provisions of subparagraph (B), a carrier

providing transportation or service subject to jurisdiction under subchapter

I or III of chapter 135 may, subject to the provisions of this chapter (including

with respect to a motor carrier, the requirements of section 13710(a)), establish

rates for the transportation of property (other than household goods described

in section 13102(10)(A)) under which the liability of the carrier for such

property is limited to a value established by written or electronic

declaration of the shipper or by written agreement between the

carrier and shipperif that value would be reasonable under the

circumstances surrounding the transportation.

In short, the Carmack Amendment does allow a carrier to limit liability in the manner that Defendant, FedEx, so limited here, and a damaged party may sue for damages only upon a breach of the shipping contract, not upon a common law state action. "Claims by a shipper for damages to [*3]good[s] in interstate commerce is an area of interstate commerce law that has been fully occupied by Congress' passage of [the Carmack Amendment] delineating what remedies are available, leaving no room for additional state or federal common law causes of action.'" Brody v. Liffey Van Lines, Inc., 2014 WL 2450807 at 4 (S.D.NY 2014), quoting, Cleveland v. Beltman, 30 F.3d 373, 374 (2d Cir. 1994). In Cleveland v. Beltman, the Second Circuit explained that while all state common law claims are preempted by the Carmack Amendment, even federal common law claims are preempted under this statute "because the issue of a shipper's compensation for actual loss or injury to its property has been comprehensively and directly addressed." Id., at 381. See Windward Photos v. UPS, 230 AD2d 648 (1st Dept. 1996) (holding no basis to expand UPS' $100.00 contractual limitation of liability). See also, Williams v. FedEx, 32 Misc. 32 1210(A) (Mt. Vernon City Ct. 2011) (holding that a third party beneficiary (shipping recipient) is entitled only to the rights that the original parties (seller and carrier) intended in the shipping contract). Consequently, Plaintiff does not possess a state common law cause of action for damages, as the area has been preempted and comprehensively addressed by the Carmack Amendment.

FedEx breached the shipping contract. The Court finds, as a matter of substantial justice, that the loss of use of the bow and arrow for this trip is a general damage that naturally flows from the breach of the shipping contract. The cost of the Colorado elk hunting license, $601.00, and Tracking Em package, $3,000.00 is a useful guide in assessing general damages. However, because the Carmack Amendment controls, Plaintiff's damages are limited to the declared amount of $1,500.00. As a matter of substantial justice, $1,500.00 is fair compensation for Defendant's breach of contract, which directly resulted in Plaintiff's complete loss of use of his left-handed bow for six days. Plaintiff is also entitled to $71.69 which was the shipping cost.

Plaintiff's recovery here is $1,571.69, plus costs.

JUDGEMENT FOR PLAINTIFF IS AWARDED IN THE AMOUNT OF $1,571.69

PLUS $20.00 COSTS.

This constitutes the Decision and Judgement of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.

Dated: July 7 , 2015

____________________________________SCOTT A. MILLER

Ithaca City Court Judge

cc:Kenneth C. Beardslee

2279 Hanshaw Road

Freeville, NY 13068

FedEx

747 Warren Road

Ithaca, NY 14850