Carrier not responsible for delay caused by Israeli customs; dismissal also warranted because shipping contract excludes liability for consequential damages
Plaintiff Avigail Rosenberg sued United Parcel Service, Inc. (“UPS”) under the Montreal Convention, alleging that UPS caused her shipment of Apple iPhone 5S telephones from the United States to Israel to be delayed. After the shipment’s arrival at Tel Aviv’s Ben Gurion International Airport, Israeli Customs would not release the cargo until the plaintiff paid required shipping charges, customs duties, taxes, fees and surcharges. After the plaintiff made the required payments, Israeli Customs cleared and released the shipment, which was delivered to the intended recipient approximately four months later than originally scheduled.
The Court granted summary judgment to UPS under Article 19 of the Montreal Convention, which provides that a carrier shall not be liable for delay damages if it proves that it “took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.”
Noting that courts consistently have found that carriers are not liable for shipment delays caused by customs border patrol or airport security measures, the Court granted summary judgment to UPS because the “plaintiff … provided no evidence that the delay was caused by UPS and not by Israeli Customs.” UPS had demonstrated that the shipment arrived in Tel Aviv “without incident” and that UPS, consistent with its procedures, submitted the shipment to Israeli Customs for the clearance process. The Court found that there was “no genuine issue as to the fact that the shipment delay was a result of a hold by Israeli Customs and plaintiff's failure to make certain required payments.”
The Court also found in UPS’s favor because the shipping receipt, which memorialized the terms of the parties’ contract, precluded liability for consequential economic losses and delayed delivery. The shipping receipt incorporated by reference UPS’s tariff and conditions of service, which specifically provided that “Under no circumstances shall UPS be liable for any special, incidental, or consequential damages including, but not limited to, damages arising from delayed delivery ... except as specifically provided for shipments made under the UPS Service Guarantee.” The UPS Service Guarantee does not apply to delays caused that are beyond UPS's control, including “acts or omissions of customs or similar authorities.”
Rosenberg v. United Parcel Serv. Gen. Servs. Co., No. 15 CV 6641 (VB), 2017 WL 481471 (S.D.N.Y. Feb. 6, 2017)