KITZ CORP., PLAINTIFF, v. TRANSCON SHIPPING SPECIALISTS, INC., THIRD-PARTY
RESPONDENT-APPELLANT, v. RADIX GROUP INT'L, INC., ET AL., THIRD-PATRY
DEFENDANTS, J&J AIR FREIGHT TRUCKING CO., INC., THIRD-PARTY
APPLELLANT-RESPONDENT.
89 N.Y.2d 822, 675 N.E.2d 455, 652 N.Y.S.2d 720 (1996).
November 14, 1996
1 No. 244 (1996 NY Int. 213)
Decided November 14, 1996
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Jean M. Gardner, for Appellant-respondent.
Submitted by Donald A. Pitofksy, for Respondent-Appellant.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs,
and the certified question answered in the affirmative.
Kitz Corporation, a fine arts collector in Japan, purchased a lamp
valued at $886,000 from Christie, Manson and Woods auction house in
New York City. Christie's hired Transcon Shipping Specialists to crate
the lamp in preparation for its shipment to Japan, and employed Radix
Group International to arrange for its delivery. Radix engaged the
services of appellant, J & J Air Freight Trucking Co., to transport
the lamp from Transcon's facility in the Bronx to the Nippon Cargo
Airways terminal at John F. Kennedy International Airport in Queens.
The lamp arrived in Japan damaged. Kitz, through its insurer, sued
Transcon for breach of contract and negligence, and Transcon in turn
sought contribution from Radix, J & J and Nippon. J & J moved for
partial summary judgment on the ground that its liability to Transcon
was limited to $50.00 in accordance with its contract of carriage with
Radix.
The issue being whether the $50.00 limitation of liability binds
Transcon, and there being no other issue before us regarding J & J's
liability on Transcon's third-party action, we agree that the motion
for summary judgment was properly denied. Transcon had no contract
with J & J, had no ongoing relationship with J & J, and played no part
in its selection. There was no proof that Transcon was aware of the
limitation contained in J & J's contract of carriage with Radix. J &
SNIPPETS:
DEFENDANTS, J&J AIR FREIGHT TRUCKING CO., INC., THIRD-PARTY APPLELLANT-RESPONDENT.
This memorandum is uncorrected and subject to revision before publication in the New York
for Appellant-respondent.
for Respondent-Appellant.
The order of the Appellate Division should be affirmed, with costs, and the certified
Kitz Corporation, a fine arts collector in Japan, purchased a lamp valued at $886,000 from
Christie's hired Transcon Shipping Specialists to crate the lamp in preparation for its
Radix engaged the services of appellant, J & J Air Freight Trucking Co., to transport the
Kitz, through its insurer, sued Transcon for breach of contract and negligence, and Transcon
J & J moved for partial summary judgment on the ground that its liability to Transcon was
The issue being whether the $50.00 limitation of liability binds Transcon, and there being no
Transcon had no contract with J & J, had no ongoing relationship with J & J, and played no
J & J's limitation of liability clause therefore cannot be enforced against Transcon.
That Nippon's liability may be limited to $671.18 by reason of the Warsaw Convention,
Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.
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