International Business Machines Corp. v. Universal Transcontinental Corp.

Majority

p. 536

International Business Machines Corporation, Appellant, v Universal Transcontinental Corporation, Respondent.

[595 NYS2d 106]

—In an action, inter alia, to recover damages for breach of a bailment contract, the plaintiff appeals from a decision of the Supreme Court, Westchester County (Bowers, J.H.O), dated October 31, 1990, which limited the plaintiff’s recovery to $50, and from a judgment entered July 5,1991, thereon.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

In the instant action, the plaintiff seeks damages incurred as a result of a cargo loss at the defendant’s airport facility on March 12, 1979.

Contrary to the plaintiff’s contentions, we find that the Supreme Court properly determined that the defendant’s $50 liability limitation contained in the contract between the parties was enforceable. On appeal, the plaintiff argues that since the defendant, a certified air freight forwarder, temporarily stored its cargo prior to interstate shipment, it should be treated as a warehouseman under New York law (see, UCC

p. 537

7-102 [1] [h]), which has a strong public policy against such limitations (see, I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657 ). However, the defendant should not be treated as a warehouseman simply because it stores goods temporarily at its airport facility prior to transport by an air carrier (see, Baloise Ins. Co. v United Airlines, 723 F Supp 195 ; Royal Ins. v Amerford Air Cargo, 654 F Supp 679 ).

We have reviewed the plaintiff’s remaining contentions and find them to be without merit. Sullivan, J. P., Balletta, O’Brien and Santucci, JJ., concur.

Cases cited

I.C.C. Metals, Inc. v. Municipal Warehouse Co. 50 NY2d 657 N.Y. 1980-07-01 p. 537