Mark Kesel v. United Parcel Service, Inc. UPS Airlines, Inc. UPS Customhouse Brokerage, Inc.

Opinion by Judge McKEOWN; Dissent by Judge FERGUSON

OPINION

A package of paintings by prominent Ukrainian artists, en route from Odessa to California via United Parcel Service, arrived at a Kentucky warehouse, then vanished like the Ark of the Covenant. 1 The shipper, Mark Kesel, contends that the paintings were worth far more than the $558 declared value listed on the waybill, and seeks to hold United Parcel Service and UPS Custom Brokerages, Inc., (collectively, “UPS”) liable for the full value of the paintings.

We must decide whether UPS violated the released valuation doctrine, which requires carriers to give interstate shippers reasonable notice of limited liability and a fair opportunity to buy more insurance. ■UPS provided notice of its limited liability ($100 per shipment) in the documents that constituted its shipping contract. Although Kesel, through his agent, was able to purchase insurance in excess of the limitation, UPS rebuffed the agent’s attempt to insure the paintings for more than their value as stated on a Ukrainian customs form. The district court, on summary judgment, concluded that UPS complied with the released valuation doctrine, and limited its…

dissenting.

I respectfully dissent. The majority misconstrues our decision in King Jewelry, Inc. v. Fed. Express Corp., 316 F.3d 961, 966 (9th Cir.2003), effectively permitting common carriers to manipulate their rate structures by adding unpublished terms to their tariffs at the time of shipment. Even more troubling, the majority holds that a shipper has presumptively been afforded a fair “opportunity to purchase additional coverage” anytime she “could have bought separate insurance elsewhere or shipped with a different carrier.” Maj. Op. at 854-855. In other words, after this decision, a carrier may comply with the requirements of the released valuation doctrine by posting a sign listing some (but not all) of their terms and doing business in a location where there are other carriers or third-party insurance providers. This evisceration of the protection afforded by the released valuation doctrine is unwarranted and unwise. Because I believe that, construing the facts in the light most favorable to Kesel, UPS did not provide a “fair opportunity” to purchase greater liability coverage, I must dissent.

As the majority recognizes, under the released valuation doctrine,

Deiro v.…

339 F.3d 849 Mark KESEL, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC.; UPS Airlines, Inc.; UPS Customhouse Brokerage, Inc., Defendants-Appellees. No. 02-15329. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 8, 2003. Filed August 4, 2003. Paul McCarthy, Oakland, California, for the appellant. Paul T. Friedman and Ruth N. Borenstein, Morrison & Foerster LLP, San Francisco, California, for the appellees. Appeal from the United States District Court for the Northern District of California; Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV-00-03741-SI/EMC. Before FERGUSON, McKEOWN, and RAWLINSON, Circuit Judges. Opinion by Judge McKEOWN; Dissent by Judge FERGUSON OPINION McKEOWN, Circuit Judge. 1 A package of paintings by prominent Ukrainian artists, en route from Odessa to California via United Parcel Service, arrived at a Kentucky warehouse, then vanished like the Ark of the Covenant. 1 The shipper, Mark Kesel, contends that the paintings were worth far more than the $558 declared value listed on the waybill, and seeks to hold United Parcel Service and UPS Custom Brokerages, Inc., (collectively, "UPS") liable for the full value of the…