Tag: Law

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American Airlines not responsible for damage to cheese delivered to New York from Paris, court rules

An airline cannot be held responsible for damage to cargo caused by the government’s delay, a federal court in Brooklyn has ruled.

The ruling dismisses a lawsuit filed in April by Best Value Kosher Foods, a Newark-based seller of dairy products, against American Airlines, which Best Value accused of damaging a shipment of cheese delivered to New York from Paris.

According to Best Value, the cheese arrived via American at Kennedy Airport, where the airline notified a courier service working for Best Value of the shipment’s arrival. The courier picked up the cheese six days later, by which time ice packs accompanying it had melted and the cheese itself allegedly became unmarketable, which Best Value said cost the company roughly $18,000.

Best Value’s CEO testified that the delay in picking up the cheese stemmed from a hold put on it by both the Food and Drug Administration and U.S. Customs and Border Protection while they inspected the cargo. Still, American had an obligation to refrigerate the shipment until it could be retrieved, Best Value charged.

U.S. District Judge Jack Weinstein disagreed, noting that both the U.S. and France are parties to the Montreal Convention, which relieves a carrier from responsibility for damage to cargo where such damage follows “an act of public authority carried out in connection with the entry, exit or transit of the cargo.”

Best Value’s CEO “testified that inspections of the shipment by the United States agencies responsible for inspecting food imports prevented Best Value’s agents from picking up the in a timely manner,” Weinstein wrote in a ruling dated Dec. 7. “Damage to the cheese falls squarely within the ‘act of public authority’ exception.”

Though Best Value and American disputed whether American refrigerated the cheese while in its possession, Weinstein rejected a contention by Best Value that American’s putting the cheese in a cooler for shipment triggered a responsibility to refrigerate the cheese until its release to Best Value following the inspection.

“Even if American’s decision to gratuitously place the cargo in a cooler gave rise to some duty to keep the cargo refrigerated at a certain temperature, American is only obligated to ‘use reasonable care’ in discharging that duty,” Weinstein said. [citation omitted] “It was unreasonable to expect American to refrigerate Best Value’s shipment indefinitely until Best Value was able to pick it up. Six days is too long to have expected American to keep the cheese at a low temperature.

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Law

Animal shelter not liable for dog attack on owner where owner had opportunities to observe animal’s aggressiveness

An animal shelter that fails to warn someone who adopts a dog of the animal’s aggressiveness is not liable for injuries when the dog later attacks the owner if the shelter’s negligence was not the cause of those injuries.

Though the North Shore Animal League America neglected to warn the owner that the dog had previously bitten someone in the face, the animal’s displays of aggressive behavior in the first three months that the owner brought it home gave the owner sufficient knowledge of the dog’s vicious tendencies, a state appeals court in Brooklyn ruled in a decision dated Aug. 17.

The ruling overturned an order by a trial judge who permitted the lawsuit to proceed based on the owner’s claims of negligence and breach of warranty implied by the adoption agreement.

The parties agreed that after the owner adopted the dog on May 19, 2012, the dog acted aggressively, including growling when the owner attempted to feed it. Eight weeks later, the dog bit the owner’s hand when she tried to retrieve a cookie from the floor, about seven weeks before the dog allegedly bit her in the face.

The weeks between the first bite on July 13 and the attack that followed “gave the plaintiff sufficient knowledge of the dog’s vicious propensities before she was bitten again on September 3, 2012,” wrote four judges of the Appellate Division’s Second Department. “Similarly, once she knew of the dog’s vicious propensities, the plaintiff was in the best position to take precautionary measures to prevent harm to herself and others.”

While New York law has held for two centuries that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be liable for harm the animal causes as a result, in this case the owner’s becoming independently aware of the dog’s tendencies meant that the shelter’s alleged failure to advise the owner of them “was not a proximate cause of her injuries,” the court added.

According to the court, the trial judge should have dismissed both the claim of negligence against the owner and the contention that the owner violated a warranty that the dog was fit to be a pet. Even if the adoption of an animal from a shelter were a transaction to which a so-called warranty of merchantability applies, the owner failed to notify the shelter of the dog’s propensities within a reasonable time after she discovered or should have discovered them, the court ruled.

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Law

Press for advantage, act ethically, avoid spinachy

For the second time in a year I’m studying for a test that constitutes part of admission to the New York bar.

This one goes by the name of Multistate Professional Responsibility Exam (MPRE). It has 60 multiple-choice questions and tests knowledge of the rules of professional and judicial conduct.

Alert: reading about the bar exam may feel, to borrow a word from the novelist (and lawyer) Ayelet Waldman, “spinachy.”

I had forgotten about the MPRE when I set out a year ago to pass the bar exam and apply for a law license here in the Empire State. Last fall, I received a letter advising me that I passed, but the letter went on to say that the examiners would hold off on certifying me for admission until I passed the MPRE too.

Oh. That.

Thus, I’m studying for the MPRE, which takes place on March 28. Spinachy. Still, the material illuminates something about the law that appeals to me.

For example, you may have heard it said that a lawyer should represent his or her client zealously. That matters in our adversary system, which assumes that opposing sides, represented zealously within the bounds of law, will produce justice.

However, a lawyer also owes a duty of candor to the court. According to the rules, an attorney is subject to discipline for knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Suppose you represent a client in a New York court, and your opponent fails to call the court’s attention to a case from the state’s Court of Appeals that directly counters a position taken by your client. You must cite the case.

That doesn’t mean that you have an obligation to volunteer facts that are harmful to your client – we trust the opposing side to handle that – or that you have to cite a case from Virginia, for example, here in New York. But it does mean that you have a responsibility to the tribunal that transcends even your duty to your client.

In short, press for advantage but remember that you have a responsibility to act ethically.