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Kesel v. United Parcel Service

339 F.3d 849 (2003)

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Kesel v. United Parcel Service

United States Court of Appeals for the Ninth Circuit

339 F.3d 849 (2003)

Facts

Mark Kesel (plaintiff) asked a Ukrainian artist, Sergei Belik, to ship seven paintings from the Ukraine to the United States to be shown and sold. The Ukrainian customs authority assigned the paintings a value of $558, based on the cost of the materials used to make them rather than on their market value. Belik then took the paintings to United Parcel Service, Inc. (UPS) (defendant) to ship them. UPS provided a default amount of $100 in liability coverage for a shipment. Although Kesel estimated that the paintings’ current total value was $13,500, he asked Belik to insure the shipment for $60,000 because Kesel believed that he could sell the paintings for that amount in the United States. But the UPS clerk refused to insure the shipment for more than the assigned customs value of $558. The airbill, including the provision limiting the shipment’s coverage to $558, was written in English, which Belik could not read. Further, part of the airbill was smudged. Although Belik later claimed confusion about whether he thought the airbill provided coverage of $558 or the paintings’ current value of $13,500, he admitted that he was aware that UPS had refused to provide the requested $60,000 in insurance when he signed the airbill and shipped the paintings. The paintings were lost in transit. UPS argued that its liability for the paintings was limited to the $558 on the airbill. Kesel argued that UPS could not rely on the airbill’s stated limitation because UPS had not given Kesel a fair opportunity to insure the paintings for more than $558. The district court granted summary judgment to UPS, finding that its liability was limited to $558. Kesel appealed.

Rule of Law

Issue

Holding and Reasoning (McKeown, J.)

Dissent (Ferguson, J.)

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