Danner v. Int'l Freight Sys. of Wash., LLC

• Decision Date: 23 February 2012
• Docket Number: Civil Action No. ELH–09–3139.
• Parties: Dennis DANNER, et al., Plaintiffs, v. INTERNATIONAL FREIGHT SYSTEMS OF WASHINGTON, LLC, et al., Defendants.
• Court: U.S. District Court — District of Maryland

855 F.Supp.2d 433

Dennis DANNER, et al., Plaintiffs,

v.INTERNATIONAL FREIGHT SYSTEMS OF WASHINGTON, LLC, et al., Defendants.

Civil Action No. ELH–09–3139.

United States District Court, D. Maryland.

Feb. 23, 2012.

Alyssa Chang, Law Offices of Alyssa W. Chang, Germantown, MD, for Plaintiffs.

Peggy Chaplin Louie, Sandler Travis and Rosenberg PA, Washington, DC, Arthur K. Purcell, Sandler Travis and Rosenberg PA, New York, NY, Michelle L. Mejia, Sandler Travis and Rosenberg PA, Miami, FL, Kenneth S. Nankin, Nankin and Verma PLLC, Bethesda, MD, for Defendants.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

Dennis Danner; his son, Alexander Danner; and his son-in-law, Michael Coletta, plaintiffs, went on a hunting trip in South Africa in June 2007, during which each plaintiff killed a “trophy quality” lion.¹ The lion skins and skulls (the “Lion Trophies” or the “Cargo”) were shipped to the United States, but at some point were lost in transit. The Cargo was located many months later, in a warehouse in Vancouver, Canada. By that time, two of the Lion Trophies allegedly had suffered irreparable damage due to buildup of moisture and bacteria.

As a result, plaintiffs filed suit against International Freight Systems of WA, LLC (“International Freight”), a customs broker and freight forwarder; Cargolux Airlines International S.A. d/b/a Cargolux Airlines International, Inc. (“Cargolux”), an all-cargo air carrier; Cargo Airport Services USA, Inc. (“CAS”), Cargolux's ground handling agent in Seattle (CAS and Cargolux are collectively referred to as the “Cargolux Defendants”); and Even Rock, Inc. d/b/a Seattle Air Cargo (“EvenRock”),² defendants, to recover for damages allegedly sustained as a result of the loss of the Cargo. International Freight and the Cargolux Defendants filed cross-claims against each other and against Even–Rock, seeking indemnity or contribution in the event that liability is established. See ECF 13, 16. Even–Rock is no longer a party; in an earlier ruling (ECF 36 & 37), Judge Richard D. Bennett granted Even–Rock's motion to dismiss the claims against it for lack of personal jurisdiction. ³

The remaining parties have filed cross-motions for summary judgment.⁴ In particular,International Freight has filed a motion for summary judgment (ECF 53), the Cargolux Defendants have filed a motion for summary judgment (ECF 54), and plaintiffs have filed combined oppositions and cross-motions for summary judgment (ECF 56 & 56). The motions have been fully briefed,⁵ and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I will grant International Freight's motion for summary judgment and deny plaintiffs' cross-motion. As to the Cargolux Defendants, I will deny both their motion and plaintiffs' cross-motion.

Background⁶

In June 2007, plaintiffs participated in a two-week hunting safari at a private game reserve in South Africa, operated by Tam Safaris, a South African business. See Cargolux Motion at 2; IF Motion at 2; Danner–Cargolux Motion at 1. During the safari, each of the plaintiffs shot and killed a “trophy quality,” full-maned, male lion, as well as other game. See Cargolux Motion at 2; IF Motion at 2; Danner–Cargolux Motion at 1. Mr. Danner paid all of the expenses of the trip, including airfare and accommodations for himself, his son, and his son-in-law; a $35,000 trophy fee for each lion; ⁷ and other costs related to the hunt. Danner–Cargolux Motion at 1; IF Motion at 3. The three lions were skinned and “salted and dipped” in South Africa, in preparation for shipment by air to Seattle, Washington and subsequent transport to a taxidermist in Butte, Montana. See Danner–Cargolux Motion at 1; Cargolux Motion at 2.

On or about July 24, 2007, the Lion Trophies were packed into two crates, along with other trophies of plaintiffs' hunt. One of the crates contained one lion pelt and one skull, along with the skulls, horns, and skins of a wildebeest and a springbuck. Coletta was listed as the “client” with respect to this crate, and it was marked with his name. Alex was listed as the “client” as to the second crate, which was marked with his name. That crate contained the other two lion pelts and skulls, along with the skulls, horns, and skins of two blesbucks, a rhebok, a nyala, a caracal, and a fallow deer. See South African Professional Hunting Registers & Trophy Export Applications # # 29156 & 29157, Ex. A to Aff. of Joseph Moine at 12–13, Ex. G to IF Motion (ECF 53–9); Danner–Cargolux Motion at 2.⁸

Plaintiffs hired Rex Freight Forwarders (“Rex”), a South African business entity that is not a party to this case, to arrange for shipment of the Lion Trophies to the United States. See Danner–Cargolux Motion at 2; IF Motion at 3; Cargolux Motion at 2. The process of clearing the Cargo for export from South Africa with various South African agencies apparently took several months. See generally Ex. A to Aff. of Joseph Moine at 9–19, Ex. G to IF Motion (ECF 53–9).⁹ At his deposition, Mr. Danner recounted that he instructed Rex to insure the shipment for “at least the cost of the trip.” Dep. of Dennis Danner at 142, Ex. C to Cargolux Motion (ECF 54–4). Rex obtained a “Marine Certificate of Insurance” for each crate from an insurer, Santam Limited, by which the crates were insured against “risk” during a “voyage,” defined as “Port Elizabeth via Johannesburg / Luxembourg via Seattle to final destination in the United States of America.” Certificates of Insurance, Ex. A to Aff. of Joseph Moine at 21–22. Coletta's crate was insured for ZAR 120,000, and Alex's crate was insured for ZAR 240,000.¹⁰Id.

Rex hired Cargolux to transport the Cargo to the United States. See Cargolux Air Waybill, Ex. 1 to Decl. of Joseph M. Joyce, Ex. D to Cargolux Motion (ECF 54–5). The Air Waybill for the flight listed Rex as the “shipper.” International Freight, which was hired by plaintiffs as their United States customs agent and freight forwarder, was listed as the “consignee.” Id. The Cargo was described as two crates containing “consolidated cargo of dip & pack trophies,” with a “gross weight” of 114 kilograms. Id. The following text appears in the front, upper right corner of the Air Waybill, id.:

It is agreed that the goods described herein are accepted in apparent good order and condition (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON THE REVERSE HEREOF.... THE SHIPPER'S ATTENTION IS DRAWN TO THE NOTICE CONCERNING CARRIER'S LIMITATION OF LIABILITY. Shipper may increase such limitation of liability by declaring a higher value for carriage and paying a supplemental charge if required.

The reverse side of the Air Waybill contained a “Notice Concerning Carriers' [sic] Limitation of Liability,” which stated that the “Warsaw Convention may be applicable” and that the Warsaw Convention “in most cases limits the liability of the carrier in respect of loss, damage or delay to cargo” to certain amounts. Id. (capitalization altered). The reverse side of the Air Waybill also contained several “Conditions of Contract,” including provisions purporting to limit the carrier's liability for lost or damaged cargo both in circumstances in which the Warsaw Convention applied, as well as those in which the convention was inapplicable. Id.¹¹

On the front of the Air Waybill, Rex listed the “Declared Value for Carriage” as “NDV,” ( i.e., no declared value). Id. The Air Waybill also contained a blank for the shipper to indicate the “Amount of Insurance,” accompanied by the following instruction: “INSURANCE—If carrier offers insurance, and such insurance is requested in accordance with the conditions thereof, indicate amount to be insured in figures in box marked ‘Amount of Insurance’.” Id. Rex listed the amount of insurance as “NIL.” Id.

In November 2007, Cargolux transported the Cargo by air from Johannesburg, South Africa to Seattle, Washington. It arrived at Seattle–Tacoma International Airport (“SEA”) on or about November 23, 2007. While the Cargo was awaiting clearance by United States Customs and other federal agencies for formal entry into the United States, it was placed in a bonded warehouse operated by CAS,¹² the handling company and ground handling agent for Cargolux in Seattle.¹³See IF Motion at 3; Danner–Cargolux Motion at 2; Cargolux Motion at 2; Decl. of Roxana Alvarado ¶ 4, Ex. B to Cargolux Motion (ECF 54–3).

The parties agree that International Freight was hired by plaintiffs, upon referral from Atcheson Taxidermy (their taxidermist in Butte, Montana), to act as plaintiffs' customs broker and freight forwarder. See Danner–IF Motion at 2; IF Reply at 2. The roles of a customs broker and a freight forwarder are distinct, although International Freight performed both functions on behalf of plaintiffs.

A “ ‘[c]ustoms broker’ means a person who is licensed ... to transact customs business on behalf of others.” 19 C.F.R. § 111.1. In turn, “customs business” includes “activities involving transactions with [U.S. Customs] concerning the entry and admissibility of merchandise, its classification and valuation, [and] the payment of duties, taxes, or other charges assessed or collected by [U.S. Customs] on merchandise by reason of its importation.” Id.

The parties do not dispute that International Freight's duties as a customs broker consisted, in the words of Joseph Moine, International Freight's Chief Financial Officer and corporate designee, of “clear[ing] the cargo through U.S. Fish and Wildlife and U.S. Customs,” as well as the “USDA.” Deposition of Joseph Moine (“Moine Dep.”) at 12.¹⁴ This task involves only the submission of documents to the appropriate federal agencies, see id. at 5, and does not involve physical handling of cargo. Id. at 32. According to Mr. Moine, in order to enable International Freight to act as its customs broker, an importer must execute a customs power of attorney, which grants International Freight authority to sign documents...