ZOBEL, District Judge.
Hologic, Inc. ("Hologic"), a manufacturer of medical equipment, has, for thirteen years, regularly used defendant, Horizon Air Services, Inc. ("Horizon") to transport such equipment from its Bedford, Massachusetts, facility to a warehouse in Chelsea, Massachusetts. On March 12, 2009,
It is undisputed that Hologic prepared the bill of lading in this, as in all other transactions with Horizon. In the column entitled "Description of Articles, Marks and Exceptions," the form includes below a handwritten list of items to be shipped, a printed notation "NMFC 63560, Sub 1, Class 100." The parties agree that NMFC refers to the National Motor Freight Classification, a publication of commodity descriptions, classes, rules, terms and conditions that are prepared by the National Motor Freight Traffic Association ("NMFTA") for use by motor carriers and shippers. They disagree about the applicability of the Classification to this case. In any event, the specific notation on the bill of lading in issue translates to X-Ray machines with an actual value not exceeding $30 per pound. The bill of lading included a separate space for declaring value, as follows:
That space was left blank.
The freight bill, prepared by Horizon, includes on the back a limitation that its liability "shall not exceed $100.00 unless a greater valuation is declared and specifically agreed to by Horizon in writing in advance of the shipment and an extra charge of $.50 for each hundred dollars of valuation is paid...." George F. Mercuri, defendant's president, states by affidavit that Horizon has handled shipments for Hologic since 1997 at the rate of three to five per week. He estimates the total over the last thirteen years to be 2,000-3,000 shipments. The bills of lading for all of these shipments have been similar to the one in issue and the charge has been $200 per trailer plus a fuel surcharge. Defendant did not and does not recognize the NMFC notation on the bill of lading as a declaration of value and its charges have therefore never varied from the flat rate plus fuel surcharge and it has never imposed the additional charge provided in the freight bill for greater value, and Hologic has never paid extra charges for increased value. Defendant points out that had plaintiff declared a value of 175,000, the freight charges would have been $1,117. Finally, Horizon has never been a member of the NMFTA nor has it ever participated in the NMFTA classification. Participation requires the carrier to issue a power of attorney to the Association as the carrier's publishing agent and nonparticipating carriers may not use the NMFC. Although plaintiff does not dispute these statements, it does not accept their relevance.
Both parties' submissions make clear that the NMFC contains voluntary standards for classifying commodities moving in inter and intrastate commerce "for the accounts of participating carriers and
Plaintiff cites Siren, Inc. v. Estes Express Lines, 249 F.3d 1268 (11th Cir.2001), for the proposition that when the parties use "industry-specific terminology" they are bound to those terms. However, in this case the parties have for thirteen years used the same language and followed the same course, which does not inexorably lead to the conclusion plaintiff advocates. For thirteen years Horizon billed Hologics at a flat rate plus fuel surcharge although the freight bill limits Horizon's liability unless a greater valuation is declared and "an extra charge of $.50 for each hundred dollar of valuation is paid." Hologics never paid that extra charge. By their conduct for thirteen years the parties evidenced their understanding that these shipments were not subject to a claim of increased value.
Because the facts recited are not in dispute and because Hologics did not properly declare a value of $30 per pound or pay the increased charge for extra valuation as required, plaintiff's motion for summary judgment is denied. Defendant's motion is allowed because its limitation of liability of $100 per shipment is effective in the absence of a declared value and the payment of the additional charge attendant on the declaration of extra value.