Clevo Co. v. Hecny Transportation, Inc.
715 F.3d 1189
9th Cir.2013Background
- Clevo, a Taiwan manufacturer, ships computer parts to Amazon in Brazil under a multi-shipment contract.
- Clevo retains original bills of lading to secure Amazon’s final payment of 70% after delivery.
- Hecny Group handles shipments as broker/forwarder, with entities in Hong Kong, Miami, Shanghai, and Brazil.
- Clevo sent a Guarantee Letter in December 2007 guaranteeing shipments unless Clevo provided notice, which created direct privity with Hecny Transportation.
- October 2008 shipment: two bills of lading issued; Himalaya Clause and Terms/Conditions included; Section 21 of the Terms set a one-year suit period for misdelivery.
- January 2009 misdelivery occurs when Amazon receives goods, Clevo sues December 2009, beyond one year from delivery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Guarantee created privity with no limitations. | Clevo and Hecny formed a contract ab initio. | No enforceable contract without statute of limitations. | Yes, ab initio privity established. |
| Whether Bills of Lading supplemented the Guarantee with an express statute of limitations. | Bills did not alter the Guarantee’s lack of a limitations period. | Bills provide a one-year limit for misdelivery actions. | Bills added a one-year limit. |
| Whether Himalaya Clause extended the one-year limit to Hecny Transportation. | Himalaya clause does not extend to agent. | Clause extends to servants/agents like Hecny Transportation. | Yes, extended to Hecny Transportation. |
| Whether Clevo’s claims were timely under the one-year limit. | Misdelivery timely under governing contract. | Time-barred under Section 21(1 year). | Time-barred; claims barred. |
Key Cases Cited
- Mori Seiki USA, Inc. v. M/V Alligator Triumph, 990 F.2d 444 (9th Cir. 1993) (Himalaya clause interpretation and carrier liability scope)
- Kirby v. Kirby, 543 U.S. 14 (2004) (carrier liability limitations extended via Himalaya clause)
- C-ART, Ltd. v. Hong Kong Islands Lines Am., S.A., 940 F.2d 530 (9th Cir. 1991) (misdelivery liability and timing under bills of lading)
- Mori Seiki USA, Inc. v. M.V. Alligator Triumph, 990 F.2d 444 (9th Cir. 1993) (Himalaya clause and extending carrier defenses)
- Kirby v. Regal-Beloit Corp., 130 S. Ct. 2433 (2010) (application of Himalaya clauses to broad liability limitations)