McCall Thomas Engin v. Federal Express Corp

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MCCALL-THOMAS ENGINEERING
COMPANY, INCORPORATED,
Plaintiff-Appellant,
No. 95-1920
v.
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CA-93-850-5-6)
Argued: February 1, 1996
Decided: April 8, 1996
Before HALL and ERVIN, Circuit Judges, and BLAKE,
United States District Judge for the District of Maryland,
sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Hall and Judge Blake joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Braxton Bryant, III, BRYANT, FANNING &
SHULER, Orangeburg, South Carolina, for Appellant. Cynthia Joyce
Collins, FEDERAL EXPRESS CORPORATION, Memphis, Tennes-
see, for Appellee.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Appellant McCall-Thomas Engineering Co., Inc., engaged appellee
Federal Express Corporation to deliver a shipment C.O.D. and
instructed the carrier to collect a cashier's check. The cashier's check
Federal Express returned to McCall-Thomas turned out to be fraudu-
lent. In McCall-Thomas's suit to recover the amount of the bogus
check, the district court granted summary judgment in favor of Fed-
eral Express on the ground that Federal Express fully performed
under the terms of the contract. Finding no error in the decision
below, we affirm.
I.
McCall-Thomas is a South Carolina company that sells computers
and computer equipment. In February, 1993, it accepted an order for
twenty computers from Medicomp Medical Supplies, which was in
fact a sham operation. McCall-Thomas contracted with Federal
Express to ship the computers C.O.D. to Medicomp. By way of Fed-
eral Express's standard C.O.D. Airbill, a preprinted form, McCall-
Thomas instructed Federal Express to collect a cashier's check in the
amount of $84,464.55. The Airbill directed delivery to Ron Stevens,
Medicomp Medical Supplies, 1250 Long Beach Blvd., Los Angeles,
CA, 90021.
The face of the Airbill specifically incorporated the terms printed
on the back of the form, as well as the terms of a separate publication:
"Use of this airbill constitutes your agreement to the service condi-
tions in our current Service Guide available upon request. SEE BACK
OF SENDER'S COPY OF THIS AIRBILL FOR INFORMATION."
The back of the Airbill included the following terms:
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AGREEMENT TO TERMS
By giving us your package to deliver, you agree to all the
terms on this Airbill and in our current Service Guide,
which is available on request. If there is a conflict between
the current Service Guide and this Airbill, the Service Guide
will control. No one is authorized to alter or modify the
terms of our Agreement.
C.O.D. SERVICE/C.O.D. AMOUNT
C.O.D. Service consists of our carriage of goods to your
recipient, collection of a check or money order issued by or
on behalf of your recipient made payable to you, and return
delivery of the check or money order to you. . . . All checks
and money orders are collected at your risk, including risk
of non-payment and forgery. . . .
The Service Guide contained a similar provision relating to the
C.O.D. Service, and further provided that "Performance of the C.O.D.
Service will not constitute us as the shipper's agent for any purpose,
including, but not limited to, completion of the sale of the goods by
the shipper to the recipient."
On Saturday, February 6, and again on Monday, February 8, Fed-
eral Express unsuccessfully attempted to deliver the computers. The
building located at 1250 Long Beach Blvd. was an office complex
surrounded by a locked gate; entry was to be obtained by calling a
specific suite number. The Airbill did not list a suite number, and the
office complex directory included no listing for Medicomp or Ron
Stevens. Someone apparently called Federal Express looking for the
computers later that day, so Federal Express again tried to deliver.
The carrier, Marc Wilson, met someone outside the office complex's
locked gate; this person identified himself as T. Johnson and said he
was expecting the shipment. He presented a cashier's check in the
amount of $85,000, drawn on Pacific Overseas Bank, Port Vila,
Vanuatu (in the Fiji Islands). After attempting to cash the check,
McCall-Thomas learned that the check was bogus and the bank non-
existent.
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Federal Express denied McCall-Thomas's claim for reimbursement
based on the waiver printed on the Airbill. McCall-Thomas filed suit
in the Court of Common Pleas of Orangeburg County, South Caro-
lina, on March 11, 1993. Federal Express removed to the district court
based on federal question jurisdiction,* and on March 29, 1995, the
district court granted summary judgment in favor of Federal Express.
The court concluded that "Federal Express fully complied with its
contractual obligations by collecting a cashier's check in an amount
sufficient to cover the specified C.O.D. Amount." McCall-Thomas
timely filed its notice of appeal.
II.
Summary judgments are reviewed de novo on appeal. Higgins v.
E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988);
Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir.
1987). Summary judgment is appropriate in cases in which "there is
no genuine issue as to any material fact and the moving party is enti-
tled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Both parties agree that forms such as Federal Express's Airbill may
constitute the contract between the shipper and the carrier. See
Southern Pac. Transp. Co. v. Commercial Metals Co. , 456 U.S. 336,
342-43 (1982). McCall-Thomas argues that Federal Express breached
the contract by collecting an invalid cashier's check and failing to
verify the check in light of suspicious circumstances. We do not
believe the contract imposes any such duty. See, e.g., Caporicci Foot-
wear, Ltd. v. Federal Express Corp, 894 F. Supp. 258, 261 (E.D. Va.
1995) ("To impose such a requirement [of investigating suspicious
circumstances surrounding delivery] would make Federal Express
plaintiff's agent for purpose of completing the transaction between it
and the recipient. The Service Guide clearly states that no such
agency relationship exists.").
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*Claims involving shipments in interstate commerce by air carriers are
governed by federal law. See Arkwright-Boston Mfrs. Mut. Ins. Co. v.
Great W. Airlines, Inc., 767 F.2d 425, 427 (8th Cir. 1985); First Pa.
Bank v. Eastern Airlines, Inc., 731 F.2d 1113, 1115 (3d Cir. 1984).
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Federal Express's only duty under this contract was to collect a
facially valid cashier's check. See, e.g., National Diamond Syndicate,
Inc. v. United Parcel Serv., Inc., 897 F.2d 253, 264 (7th Cir. 1990)
(where it was established that carrier was acting as shipper's agent in
collecting a C.O.D. payment, carrier did not breach its duty of reason-
able care by not verifying facially valid cashier's checks in the
absence of suspicious circumstances); Comark, Inc. v. United Parcel
Serv., Inc., 701 F. Supp. 641 (N.D. Ill. 1988) (in case decided on other
grounds, court observed that carrier which accepted what appeared to
be a cashier's check, later determined to be forged, would be within
its authority; "to hold otherwise would call on UPS drivers to be
moonlighting law students, skilled in the arcane mysteries of the
UCC"). The check in this case appeared to fit the definition of a cash-
ier's check: its drawer was a bank and the check was drawn upon the
bank's own account. See Ross v. Peck Iron & Metal Co., 264 F.2d
262, 269 (4th Cir. 1959).
McCall-Thomas assumed all risk of fraud in connection with Fed-
eral Express's C.O.D. service. The Restatement of Agency's rule that
"[u]nless otherwise agreed, an agent employed to collect . . . has a
duty of using reasonable care and skill," Restatement 2d of Agency
§ 426 (1957), does not apply because Federal Express expressly
declined to act as McCall-Thomas's agent for the purpose of this
C.O.D. delivery. See Littleton Stamp & Coin Co. v. Delta Airlines,
Inc., 778 F.2d 53, 57 (1st Cir. 1985) ("A shipper which decides to
gamble by accepting other than cash should not be able to simply shift
the increased risk to the carrier--particularly if the evidence shows
that the carrier specifically declined such a burden."). Even if some
duty were found to exist, Federal Express satisfied that duty by col-
lecting a facially valid cashier's check. We do not believe that the
nonexistence of the bank on which the cashier's check was suppos-
edly drawn and the fact that the check was for greater than the amount
specified by McCall-Thomas compel a different conclusion.
Federal Express's unambiguous contractual provisions are to be
given effect. Here, as in the usual case, the shipper was in a far better
position to verify the honesty and creditworthiness of its customers;
if questions had arisen, the shipper could have insisted on advance or
cash payment. Federal Express was contractually obligated to collect
a facially valid and authorized form of payment, but not to take inde-
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pendent steps to verify the instrument. Federal Express performed its
end of the bargain, and is not liable for losses that McCall-Thomas
sustained because of the Medicomp fraud.
III.
Because Federal Express fully performed under the terms of its
C.O.D. contract with McCall-Thomas, we affirm the district court's
entry of summary judgment in favor of Federal Express.
AFFIRMED
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