L. Barber Gems, Inc. v. Brink's Diamond & Jewelry North America

MEMORANDUM **

L. Barber Gems, Inc. (“Barber”) appeals the district court’s grant of summary judgment in favor of Brink’s Diamond & Jewelry North America, et al., (“Brink’s”). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

Barber contends the district court erred in finding that Jodhani’s alleged conversion of diamonds was not the reasonably foreseeable consequence of Brink’s delivery of the diamonds without first collecting payment. As a preliminary matter, the district court correctly held that the agreement between Barber and Brink’s was a carriage contract, not a C.O.D. contract. See Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1382 (9th Cir.1978). Under a C.O.D. contract, a carrier must strictly comply with its duty to collect, and is liable to the shipper for loss or damage caused by its failure to collect the price before delivery. See 13 Am.Jur.2d § 489 (2000). However, carriers under a general carriage contract have no duty to act as a collection agent; instead, they are bound by common law duties, including duties to receive,…

Circuit Judge, dissenting.

I respectfully dissent.

First, I am not at all sure that there was not a C.O.D. agreement between the parties. C.O.D. stands for “collect on delivery.” See Blacks Law Dictionary (6th ed. *167 1991) (“These letters import the carrier’s liability to the consignor to collect the cost of the goods from the consignee, and, if not collected, to return the goods to the consignor.”); see also Oxford English Dictionary (2d Ed. 1989). Even though C.O.D. delivery generally requires a turning over of cash or a check to the carrier, in today’s world it makes sense to treat a contract requiring the collection of proof of a wire transfer as analogous to a C.O.D. contract. There is no substantial difference between collecting a check, which is simply a piece of paper telling a bank to give someone money, and collecting a piece of paper confirming an electronic payment that has already occurred. The fundamental purpose of the transaction here is the same as in any C.O.D. agreement — to assign to the carrier not only the task of delivery but also the task of assuring that the product is paid for before it is placed in the hands of the customer. The precise manner in…