Wade Clark Mulcahy LLP

Anyone dealing in the world of jewelry, fine art, or specie is all too aware of the limitation of liability clauses that appear in shipping contracts.  That issue was front and center in a recent appellate court decision in New York, <em><a href="http://scholar.google.com/scholar_case?case=9809062132771280380&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr">Maxine v. Brinks</a>.</em>

Plaintiff, a jewelry retailer, used Brinks to ship 157 “ornate pieces of handmade jewelry” from plaintiff's New York City facility to a department store in Virginia. The items were contained in a soft-sided rolling suitcase, and the airbill listed a declared value of $2 million. The retail value, according to invoices, was more than $6,000,000, with a wholesale value about half that amount.

While in transport, the shipment was damaged, and plaintiff’s claim was over $600,000.  In the trial court, Brinks was awarded summary judgment and the complaint was dismissed.

The airbill contained a provision limiting Brink’s liability to lost shipments, unless specific items were identified and their values declared – which would have required plaintiff to pay additional charges for the shipment.  On appeal, plaintiff claimed that the limitation of liability was ambiguous, because it required identification of a “fragile” item -- a term not defined anywhere in the Brink’s airbill.

But in its decision, the appellate court pointed out that plaintiff was unable to overcome the other provision in the airbill that excluded breakage for jewelry.  Specifically, the provision excluded “BREAKAGE of statuary, marble, glassware, bric-a-brac,' porcelain, decorative items including jewelry and similar fragile articles…”

Plaintiff tried to claim that provision was buried in small print and was also ambiguous because it lumped together a number of items in an unclear manner, and appeared to only apply to breakage of “fragile jewelry” or certain decorative items.   But the Court rejected plaintiff’s claims, finding that the list clearly excluded the enumerated items, including jewelry, and that a definition for fragile only needed to be applied if an item was not specifically listed.  Thus, the trial court’s decision to dismiss the complaint was upheld.

If you would like more information about this case, please write to mbono@wcmlaw.com.

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