which also includes a statement that, "in no event will Purolator be liable for special or consequential damages including but not limited to loss of profits or income. In case of the loss or damage of a shipment with a number of pieces, the value of the shipment will be prorated over the number of pieces." The bill also provides that "due to the nature of the business, Purolator cannot guarantee delivery by a stipulated date or by a stipulated time, nor shall Purolator be liable for the consequences of delay, misdelivery or the failure to deliver." Finally, the bill of lading provides that "FOR ALL CURRENT RULES, REGULATIONS AND RATES, SEE PUROLATOR'S SERVICE GUIDE OR, IF APPLICABLE, ITS TARIFF AVAILABLE FROM ALL PUROLATOR OFFICES." The defendant's service guide in effect in January 1984 sets forth similar limitations of liability and clearly advises shippers that the defendant will not be liable for failure to deliver by a stipulated time or date, and that the defendant "in no event shall be liable for any consequential, incidental or special damages which may arise from loss, damage, nondelivery or delay of any shipment." The guide also provides that "if the shipment involves a bid or other similar extremely time-sensitive material, the loss or delay of which might result in consequential, incidental or special damages, Purolator will accept such shipments, but subject to the limitations contained herein." The guide contains additional limitations as to liability addressed to the failure to deliver or late delivery and acts of God such as inclement weather.
The plaintiff concedes that prior to January 13, 1984, it was never assured by anyone that the defendant Purolator would guarantee overnight delivery of the package or any package tendered to them. Nathanson Dep. at 162. Nathanson contends that such an assurance was made through defendant's advertisement which reads "Overnight Not Overpriced".
Plaintiff offers no evidence that the defendant engaged in fraud or misrepresentation since the bill of lading clearly sets forth the terms of the contract. Although the plaintiff contends that those terms are not clearly set forth in the bill, that argument is without merit. Directly under the signature of the shipper is a notation directing the shipper to the terms of a contract set forth on the reverse side of the bill. Moreover, the records reflect that the plaintiff had a copy of the defendant's January 1984 service guide. Nathanson Dep. at 143. The record further reflects that the plaintiff had made 49 shipments with the defendant prior to the shipment which is the subject of this action and therefore should have been familiar with the terms and conditions of shipment and the bill of lading which is a part of this action.
It is noted that in the affidavit of Mr. Nathanson filed in support of plaintiff's opposition to the first motion for summary judgment, he states that "I was assured by defendant's employees on January 11, 1984, that the bid package would be delivered on time on January 12, 1984." Nathanson Affidavit para. 7. That affidavit was signed on August 6, 1985. However, on October 1, 1985, Mr. Nathanson testified at his deposition, as indicated above, that he was never assured by anyone at Purolator, prior to January 13, 1984, that Purolator would guarantee overnight delivery of the package or any package delivered to them. Indeed, he further testified that he never personally contacted anyone at Purolator in an effort to obtain assurances of overnight delivery of the packages tendered to Purolator by the plaintiff. Finally in this regard, the Court notes that the contract entered into by the parties is complete in and of itself and the contract is unambiguous. The statement that the contract was somehow modified by oral representations of unknown persons employed by the defendant would not be admissible since it would violate the parol evidence rule. See District-Realty Title Insurance Corp. v. Ensmann, 247 U.S. App. D.C. 228, 767 F.2d 1018, 1022-1023 (D.C. Cir. 1985).
The Court concludes that there are no genuine issues of material fact and that the defendant is now entitled to judgment as a matter of law. In sum, the terms of the contract are set forth in the written agreement between the parties and those terms cannot be modified by the alleged oral representations made by a representative of the defendant. Indeed, the record reflects that at no time did plaintiff receive a representation which guaranteed delivery of the package on or before the bid date.
The plaintiff made a business judgment. As Mr. Nathanson himself recognized, he could have delivered the bid directly himself but made a judgment to send the bid through Purolator. He must now live by that decision. In addition, as the defendant has demonstrated, the limitation of liabilities set forth by Purolator does not differ substantially from the limitation of liability utilized by other carriers in the same business. See reply to brief in opposition to summary judgment, Exhibit 1 (copies of bills of lading for Federal Express, DHL Worldwide Courier Express, and Airborne Freight Corp.)
Summary judgment will be entered for the defendant and this action will be dismissed. An appropriate Order has been issued.
This comes before the Court on the defendant's motion for summary judgment. After giving careful consideration to the motion, the opposition thereto, the arguments of counsel and the record in this case, the Court concludes, for the reasons set forth in the accompanying memorandum, that the motion should be granted. Accordingly, this action will be dismissed.
It is hereby
ORDERED that the defendant's motion for summary judgment is granted, and it is further
ORDERED that this case is dismissed with prejudice.