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EASTERN AIR EXPRESS, INC., and GEMAIR, INC., Plaintiffs, vs. FEDEX FREIGHT, INC

EASTERN AIR EXPRESS, INC., and GEMAIR, INC., Plaintiffs, vs. FEDEX FREIGHT, INC., Defendants.

 

CASE NO. 0:16-cv-60367-WPD

 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

 

2017 U.S. Dist. LEXIS 29010

 

 

February 27, 2017, Decided

February 28, 2017, Entered on Docket

 

 

COUNSEL:  [*1] For Eastern Air Express, Inc., Gemair, Inc., Plaintiffs: Jason Goldstein, Richard L. Richards, LEAD ATTORNEY, Richards Goldstein LLP, Coral Gables, FL; Joshua A. Saval, LEAD ATTORNEY, Richards and Associates, Coral Gables, FL.

 

For Fedex Freight, Inc., Defendant: Edwina Victoria Kessler, Catri Holton Kessler & Kessler, Fort Lauderdale, FL.

 

JUDGES: WILLIAM P. DIMITROULEAS, United States District Judge.

 

OPINION BY: WILLIAM P. DIMITROULEAS

 

OPINION

 

ORDER GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Defendant FedEx Freight, Inc.’s Motion for Summary Final Judgment (the “Motion”) [DE 20], filed herein on December 9, 2016. On February 24, 2017, the Court held oral argument on the Motion. The Court has carefully considered the Motion [DE 20], Plaintiffs’ Response [DE 26], and Defendant’s Reply [DE 29], and is otherwise fully advised in the premises.

 

  1. BACKGROUND

The parties to this action are Plaintiff Eastern Air Express, Inc. (“Eastern”) and Gemair, Inc. (“Gemair”) (collectively, “Plaintiffs”) and Defendant FedEx Freight, Inc. (“FedEx” or “Defendant”). Plaintiff has brought this action pursuant to 49 U.S.C. § 14706 et. seq., the Carmack Amendment, to recover damages arising from the transportation of a reconditioned aircraft [*2]  engine. See [DE 1-2]. Eastern leased an airplane owned by Gemair. [DE 21 ¶¶ 2-3]. When the plane’s engine needed repairs, Gemair authorized Eastern to coordinate the transport of the engine from Ft. Lauderdale, FL to Terre Haute, IN for repair by Turbines, Inc. (“Turbines”). [DE 21 ¶¶ 4-6]. Eastern engaged Echo Global Logistics (“Echo”) to facilitate transportation. [DE 1-2 ¶10]. Echo chose FedEx as the carrier to transport the engine. [DE 21 ¶ 9].

Turbines and Gemair reached a deal for Gemair to purchase a reconditioned engine (the “Engine”) from Turbines instead of repairing the engine that was sent. [Id. ¶ 10]. Again, Gemair authorized Eastern to coordinate the transport of the Engine, this time from Terre Haute, IN to Ft. Lauderdale, FL. [Id. ¶11]. Eastern utilized Echo’s services to facilitate transport, and again Echo selected FedEx as the carrier. [Id. ¶ 12]. The Engine was delivered to Ft. Lauderdale, and an Eastern employee signed FedEx’s delivery receipt; Eastern’s employee did not note any damage or exceptions on the delivery receipt. [DE 25 AT 6 ¶ 11]. After the FedEx driver left, Plaintiffs noticed damage to the Engine’s shipping container and to the Engine itself. [Id. ¶ 12]. Plaintiffs [*3]  contacted Echo to begin the claims process. [Id. ¶ 13]. Plaintiffs did not fully recover for the lost value of the damaged engine; instead, they recovered $550.43 ($245 for damages at $0.50 per pound–engine weighed 490 pounds; and $305.43 in refunded freight charges). [DE 21 ¶ 17; DE 25 ¶ 17].Defendant argues that Plaintiffs were bound by an agreement between FedEx and Echo that limited liability to the lower of $0.50 per pound per package, or $10,000 per incident. [DE 21 ¶ 17].

This action was initiated by Plaintiffs on December 17, 2015 and removed to this Court on February 25, 2016. See [DE 1]. Plaintiffs assert a claim against FedEx for damages based on the Carmack Amendment. On December 9, 2016, Defendant filed the instant Motion [DE 20], seeking summary judgment.

 

  1. STANDARD OF REVIEW

Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears “the stringent burden of establishing the absence of a genuine issue of material fact.” Suave v. Lamberti, 597 F. Supp. 2d 1312, 1315 (S.D. Fla. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

“A fact is material for the purposes of summary judgment only if it might affect the outcome of the suit under the governing law.” [*4]  Kerr v. McDonald’s Corp., 427 F.3d 947, 951 (11th Cir. 2005) (internal quotations omitted). Furthermore, “[a]n issue [of material fact] is not ‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely colorable’ or ‘not significantly probative.'” Flamingo S. Beach I Condo. Ass’n, Inc. v. Selective Ins. Co. of Southeast, 492 F. App’x 16, 26 (11th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). “A mere scintilla of evidence in support of the nonmoving party’s position is insufficient to defeat a motion for summary judgment; there must be evidence from which a jury could reasonably find for the non-moving party.” Id. at 26-27 (citing Anderson, 477 U.S. at 252). Accordingly, if the moving party shows “that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party” then “it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact.” Rich v. Sec’y, Fla. Dept. of Corr., 716 F.3d 525, 530 (11th Cir. 2013) (citation omitted).

 

III. DISCUSSION

 

  1. The Carmack Amendment

The Carmack Amendment created a uniform scheme of carrier liability for loss or damage to goods transported in interstate commerce. A.I.G. Uruguay Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 1003 (11th Cir. 2003) (citing U.S.C. § 14706(a)(1)). In order to establish a prima facie case under the Carmack Amendment, Plaintiff must show by a preponderance of the evidence that: “(1) the goods were delivered to the carrier in good condition[;] (2) the goods arrived [*5]  at the destination in damaged condition[;] and (3) a specified amount of damages resulted.” Id. (citing Fine Foliage of Fla., Inc. v. Bowman Transp., Inc., 901 F.2d 1034, 1037 (11th Cir.1990)).

The Carmack Amendment is a strict liability statute. UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1285-86 (11th Cir. 2014). “When a shipper shows delivery of goods to a carrier in good condition and non-delivery or delivery in a damaged condition, there arises a prima facie presumption of liability.” Id. (citing Chesapeake & O. Ry. Co. v. A.F. Thompson Mfg. Co., 270 U.S. 416, 422-23, 46 S. Ct. 318, 70 L. Ed. 659, (1926); A.I.G., 334 F.3d at 1003).1

 

1   Once plaintiff establishes a prima facia case, “the burden shifts to the carrier to prove (1) that it was free from negligence, and (2) that the damage to the cargo was caused by one of five excusable factors.” A.I.G., 334 F.3d at 1003. (citing Fine Foliage, 901 F.2d at 1039).

 

  1. First Element of Carmack Amendment Claim: Whether Goods Were Delivered to Carrier in Good Condition

Defendant argues that Plaintiffs fail to meet their burden on the first element of a Carmack Amendment claim by failing to provide evidence that the Engine was transferred to FedEx in good condition at the time it was picked up for transport. Plaintiff has the initial burden to show that the cargo was transferred to the carrier in good condition. Missouri Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964). If the shipped cargo that was damaged en route was placed in a sealed container2, as in this case, then the carrier had no ability to ascertain the contents of the shipment at the time it was picked up for transport. Therefore, “reliable, substantial circumstantial evidence of condition will suffice to prove a prima facie case.” A.I.G., 334 F.3d at 1004.

 

2   A shipment is considered to be in a “sealed” container if its contents are not visible and open to inspection at the time that the carrier takes possession for purposes of transport. Spartus Corp. v. S/Syafo, 590 F. 2d 1310 (5th Cir. 1979). The Eleventh Circuit has adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).

Defendant avers that neither Plaintiffs nor any of their employees had personal knowledge of the condition of the Engine as they did not inspect the Engine prior to shipment and were not present [*6]  when the Engine was packaged into a sealed container. Furthermore, Defendant asserts that assuming arguendo that the Engine was in good condition at the time it was picked up by FedEx, the delivery receipt indicates that the Engine arrived in that same good condition.3 The Court finds that Defendant is not entitled to summary judgment on this issue because there is a triable issue of fact concerning the Engine’s condition at the time FedEx picked up the package for transport.

 

3   The delivery receipt contains the following language “[s]hipment received in apparent good order with wrap intact unless otherwise noted.” [25-9]. An Eastern employee signed the delivery receipt and did not note any damage at that time.

Plaintiffs argue that Turbines is an FAA-certified repair station that is required to submit a Form FAA 8130-3 when reconditioning an aircraft engine. The 8130-3 certifies that the repair station repaired the Engine, tested it, and found it to be airworthy according to FAA operational standards. [DE 25-3]. Defendant cites a lack of evidence regarding the condition of the Engine when FedEx picked up the shipment, but the Court finds the Form FAA 8130-3 is “reliable, substantial evidence” that the Engine was in good condition when it left Turbines. Plaintiffs, as the nonmoving party, have come forward “with significant, probative evidence demonstrating the existence of a triable issue of fact.” Rich, 716 F.3d at 530.

Defendant states that [*7]  the 8130-3 is inadmissible hearsay and the deposition and affidavit testimony of Eastern’s director of maintenance are not sufficient to authenticate the contents of the FAA form. “The general rule is that inadmissible hearsay ‘cannot be considered on a motion for summary judgment.'” Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999)(citations omitted). However, “a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be ‘reduced to admissible evidence at trial’ or ‘reduced to admissible form.'” Id. At trial, Plaintiffs could present the 8130-3 as a record of regularly conducted activity and authenticate the document with a qualified witness. See Fed. R. Evid. 803. Defendant has not shown the absence of a genuine issue of material fact concerning the condition of the engine when FedEx picked up the shipment. Therefore, Defendant is not entitled to summary judgment on this issue.

 

  1. Affirmative Defense to Carmack Amendment Claim: Limitation of Liability

Plaintiffs argue that FedEx has not limited its liability under the Carmack Amendment . Defendant seeks summary judgment on this issue, arguing that their liability limitation satisfies the statute’s requirements. The “default posture” of the Carmack Amendment is full liability on the carrier; carriers can limit liability to an amount less than actual value for [*8]  lost or damaged goods only by following specific requirements. UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1287 (11th Cir. 2014).

In order to limit its liability for damage to the cargo, the shipper must agree to the limitation in writing. 49 U.S.C. § 11706(a), (c), § 14101(b). The carrier may limit liability “to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.” 49 U.S.C. § 14706(c)(1)(A). Further, the carrier must provide “to the shipper, on request of the shipper, a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based.” 49 U.S.C. § 14706(c)(1)(B)(emphasis added).

The Eleventh Circuit uses a four-prong test to determine if the Carrier effectively limited liability under the Carmack Amendment; the Carrier must: “(1) maintain a tariff within the prescribed guidelines of the Interstate Commerce Commission; (2) obtain the shipper’s agreement as to his choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment.” Bio-Lab, Inc. v. Pony Exp. Courier Corp., 911 F.2d 1580, 1582 (11th Cir. 1990).

 

  1. Prong 2: Whether There was an [*9] Agreement Between Plaintiffs and FedEx to Limit Liability

The first prong has been largely eliminated due to statutory changes. “Instead, carriers are now required to provide shippers on request with a written or electronic copy of the rates, classifications, rules, or practices applicable to the shipment or agreed to between the shipper and carrier.” See UPS Supply Chain Solutions, Inc. v. Megatrux Transp., Inc., 750 F.3d 1282 (2014) at n.3 (citing Werner, 554 F.3d at 1326 n.6) (emphasis added). Therefore, the Court begins its analysis with prong two of the Eleventh Circuit test.

As a preliminary matter, there are three agreements discussed by the parties. The first is the Carrier Contract Agreement (“CCA”) entered into by Echo and FedEx in 2012 [DE 21-2], three years before Plaintiffs dealings with Echo. The second is Echo’s Terms and Conditions which were sent to Eastern’s director of maintenance, and signed by him, when Eastern used Echo’s services to ship the first engine to Turbines. [DE 21-9; DE 21 ¶¶ 7-8; DE 25 ¶¶ 7-8]. Plaintiffs argue that Echo’s Terms and Conditions concern a credit agreement, which was never entered into by Plaintiffs, and in any event the Terms and Conditions were sent in reference to the first transaction with Echo for shipment of Gemair’s engine to Turbines, [*10]  not for the second transaction involving the shipment of the reconditioned Engine purchased from Turbines. [DE 21-9; DE 25-2 at 28-29]. Finally, there is the Bill of Lading [21-4], completed by Echo–which is disputed by Plaintiffs.

The Court finds that Plaintiffs cannot reasonably dispute that Echo created the Bill of Lading [DE 21-4]. Plaintiffs argue that Echo asked Plaintiffs questions regarding the Engine shipment, which information may have been used to complete the Bill of Lading, but Plaintiffs have no personal knowledge of who completed the Bill of Lading and they did not receive a copy of it until after FedEx delivered the Engine; additionally, the CCA states that FedEx will provide the Bill of Lading while Echo’s Terms and Conditions state that the customer will prepare the Bill of Lading or Echo will prepare the Bill of Lading on behalf of the customer. [DE 25 at 2 ¶ 13; DE 25 at 5 ¶ 4; DE 26 at 9-10]. Defendant provides FedEx’s interrogatories and Eastern’s director of maintenance’s deposition testimony to show that Echo prepared the Bill of Lading. [DE 29 FN 3].

In the face of sworn testimony indicating that Echo used information provided by Plaintiffs to create the Bill [*11]  of Lading [DE 27-1: p.24: 10-20], plus FedEx’s sworn interrogatory [DE 27: Answer to interrogatory 3] stating that “Echo created the Bill of Lading[,]” Plaintiffs’ statements that they did not actually witness preparation of the Bill of Lading and did not see it until after delivery are insufficient to create a disputed fact. Therefore, the Court finds the record evidence supports that Echo, Plaintiffs’ agent, created the Bill of Lading [DE 21-4].

Defendant argues that Plaintiffs are bound by the CCA [DE 21-2] and that it references FedEx’s Tarriff [DE 21-3]. The record evidence shows that the CCA, [DE 21-2], references the Tariff stating that “[t]his Agreement is governed by the rates and provisions of the below listed tariffs. . . FXF 100 – Series Rules.” [DE 21-2 at 11]. The Tariff designates that used or reconditioned articles for which no value is declared4 are subject to “Carrier’s maximum liability” which “shall not exceed 50 cents per pound per package or $10,000 per incident, whichever is lower.” [DE 21-3 at 15].

 

4   The Bill of Lading [21-4] provided the following language “Where the rate is dependent on value, shippers are required to state specifically in writing the agreed or declared value of the property as follows: ‘The agreed or declared value of the property is specifically stated by the shipper to be not exceeding     per    .'” These boxes were left blank. Note, however, that even if those boxes had been filled in, FedEx’s Tariff provides a strict cap of $10,000 in coverage for reconditioned goods.

The CCA provides the same limitation, indicating that “[u]sed items are limited to a recovery value of $0.50 per pound per package or $10,000 per incident, whichever is lower.” [*12]  [DE 21-2 at 3]. However, the CCA also states that the agreement “applies only on the Carrier’s standard transportation services and accessorial services and does not apply on special transportation services offered by the carrier such as, but not limited to, guaranteed or expedited services. FXF 100 (Series) Rules Tariff will apply on all shipments for which special transportation services are requested.” [DE 21-2 at 12](emphasis added). The Bill of Lading states that the shipment is “Guaranteed Plus by 5pm 3/18/15.” [DE 21-4]. Therefore, this shipment may be a “special transportation service” since it is “guaranteed,” making the liability limitations in the CCA inapplicable to this transaction. However, even if the liability limitations in the CCA do not apply, the Tariff applies “on all shipments for which special transportation services are requested,” and the Tariff provides the identical liability limitation for used goods.

Plaintiffs aver that they never agreed to limit FedEx’s liability through the CCA. According to Plaintiffs, they “never saw the [CCA] before this litigation and neither Fedex nor Echo ever provided the Plaintiffs any document referencing the [CCA].” [DE 26 at [*13]  2]. Plaintiffs argue that the CCA cannot be a part of the contract of carriage between Plaintiffs and FedEx because Plaintiffs never assented to the CCA and never even knew of its existence.

To determine if Plaintiffs are bound by the CCA, the Court turns to Eleventh Circuit precedent. In Werner Enterprises, Inc. v. Westwind Maritime Intern., Inc., the Court found that

 

[c]arriers do not need to investigate upstream contracts. They are entitled to assume that the party entrusted with goods may negotiate a limitation of liability. To hold otherwise would defeat the principle of efficiency that motivated the Kirby holding. Moreover, this again produces an equitable result. The cargo owner retains the option to sue the intermediary who failed to protect itself by negotiating a liability limitation. 554 F.3d 1319, 1325 (11th Cir. 2009).

 

 

The Court relied on the proposition set out in Kirby that “[w]hen an intermediary contracts with a carrier to transport goods, the cargo owner’s recovery against the carrier is limited by the liability limitation to which the intermediary and carrier agreed.” Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, 33, 125 S. Ct. 385, 160 L. Ed. 2d 283 (2004). In Werner, like in this case, the Carrier entered an agreement with an intermediary (the shipper’s agent) which incorporated the carrier’s tariff, and [*14]  the Court found that agreement bound the shipper. Werner, 554 F.3d at 1325-26.

Based on Werner, the Court could find that Plaintiffs are bound by the terms of the CCA, which states the Tariff and limits liability as to used goods. However, that finding is not necessary to determine that FedEx and Plaintiffs, through their agent Echo, had an agreement to limit liability.5

 

5   The Court does not address Echo’s Terms and Conditions document [DE 25-1] which appears to connected to a credit application and was provided in relation to a separate brokered shipment. This document creates a chain too attenuated to link Plaintiffs to the CCA and FedEx’s Tariff. Note, however, that Plaintiffs state that Echo’s Terms and Conditions do not reference the Tariff, but the record evidence runs counter to that statement. [DE 25 at 5 ¶ 3]. Echo’s Terms and Conditions [DE 21-9] reference the carrier’s tariff several times and emphasizes that the cargo owner should “[p]lease contact ECHO for more details regarding carrier insurance or carrier liability.” [DE 21-9].

The Bill of Lading warns that “Liability Limitation for loss or damage in this shipment may be applicable See [the Carmack Amendment]”. [DE 21-4]. Furthermore, the Bill of Lading references FedEx’s Tariff by stating that “rates, classifications and rules that have been established by the carrier are available to the shipper, on request. . . .” Echo, as Plaintiffs’ agent, bound Plaintiffs to FedEx’s Tariff. Plaintiffs cannot complain that they did not have actual knowledge of FedEx’s Tariff that was incorporated by reference into the Bill of Lading prepared by their agent. See Swift Textiles, Inc. v. Watkins Motor Lines, Inc. 799 F.2d 697, 704 (11th Cir. 1986); see also Siren, Inc. v. Estes Express Lines, 249 F.3d 1268, 1271-73 (11th Cir. 2001)(collecting cases). Therefore, Defendant has met the second prong in the 4-part test to limit liability.

 

III. Prong 3: Whether FedEx gave Plaintiffs a Reasonable Opportunity to Choose Between Two or More Levels of Liability

In opposition to the Motion for Summary Judgment, Plaintiffs [*15]  argue that Defendant failed to meet the third element in the test for limiting liability under the Carmack Amendment–give the shipper a reasonable opportunity to choose between two or more levels of liability–the Court disagrees.

The only agreement, according to Plaintiffs, between FedEx and Plaintiffs is the Bill of Lading. If that is true and the CCA does not apply to Plaintiffs, then the Bill of Lading alone is sufficient to link Plaintiffs to FedEx’s Tariff, which supplies an opportunity to choose different levels of liability.

Plaintiffs also argue the Tariff of 50 cents per pound is not reasonable for a reconditioned engine that is deemed airworthy, so it runs afoul of the Carmack Amendment because it fails to designate a limitation value that “would be reasonable under the circumstances surrounding the transportation.” See 49 U.S.C. § 14706(c)(1)(A). The Court finds this argument unpersuasive. FedEx provided up to $5.00 per pound of coverage for reconditioned goods, subject to the $10,000 cap; Echo, as Plaintiffs’ agent, chose not to select the additional coverage. [DE 21-3 at 15].6

 

6   FedEx Tariff states that “[w]hen the Consignor or Consignee requests EXCESS LIABILITY COVERAGE for used or reconditioned articles exceeding 50 cents per pound per package and describes the articles as used or reconditioned on the original Bill of Lading: . . . Consignor or Consignee will indicate on original Bill of Lading in the designated area . . . that excess liability coverage of $4.50 per pound per package has been requested for the used or reconditioned articles. When combined with the standard maximum liability of $0.50 per pound per package, the total allowable coverage . . . shall be $5.00 per pound per package. If Consignor or Consignee is using a Bill of Lading form where no designated area is provided, Consignor or Consignee shall indicate on the original Bill of Lading in the description of articles section: ‘Excess liability coverage requested in the amount of $4.50 per pound per package.’. . . In no event shall Carrier’s maximum liability for used or reconditioned articles exceed the actual value of $5.00 per pound per package . . . with a maximum of $10,000 per incident.” [DE 21-3 at 15](emphasis added).

In Werner, the agreement between the intermediary and the carrier incorporated the carrier’s tariff, [*16]  which limited the carrier liability to a set amount unless the shipper or the shipper’s agent selected higher coverage. Werner, 554 F.3d at 1325-29. Similarly, the CCA, entered into between Echo and FedEx incorporates the Tariff, but even if the CCA does not apply to Plaintiffs, the Bill of Lading prepared by Echo references the Tariff.

The agreement in Werner gave the shipper the opportunity to elect full liability coverage by completing steps listed in the tariff, paying an increased freight rate, and obtaining the carrier’s authorization in writing. Id. FedEx’s Tariff provides the same opportunity, and according to this Circuit’s precedent, Plaintiffs are bound by the Tariff by the CCA and/or the Bill of Lading prepared by their agent, both of which reference the Tariff.

 

  1. Prong 4: Whether a receipt or bill of lading was issued prior to moving the shipment

The Court has already determined that Echo created the Bill of Lading. Though Plaintiffs contend they did not see the Bill of Lading prior to shipment, their agent prepared the Bill of Lading, and Turbines’ employee signed the Bill of Lading under “SHIPPER SIGNATURE/DATE.” Therefore, the Court finds that the Bill of Lading was issued prior to moving the [*17]  shipment. Since all four prongs of the Eleventh Circuit test have been satisfied, the Court grants summary judgment in favor of Defendant on the affirmative defense of liability limitation.

 

  1. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment [DE 20] is GRANTED IN PART as set forth above; the Court will separately enter a final judgment.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida this 27th day of February, 2017.

/s/ William P. Dimitrouleas

WILLIAM P. DIMITROULEAS

United States District Judge

 

FINAL JUDGMENT AND ORDER CLOSING CASE

THIS CAUSE is before the Court upon the Court’s Order Granting in Part Defendant’s Motion for Summary Judgment, entered separately today. Pursuant to Federal Rule of Civil Procedure 58(a), the Court enters this separate final judgment.

Accordingly it is hereby ORDERED AND ADJUDGED as follows:

 

  1. Judgment is entered in favor of Defendant;
  2. Plaintiff shall recover nothing from Defendant;
  3. The Clerk is hereby directed to CLOSE this case and DENY any pending motions as moot.

 

 

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida this 27th day of February, 2017.

/s/ William P. Dimitrouleas

WILLIAM P. DIMITROULEAS

United [*18]  States District Judge

© 2017 Central Analysis Bureau