Motorola manufactured cell phones for Nextel of Mexico at its facility in Plantation, Florida. Nextel used Westwind International to arrange transportation of the cell phones. Westwind utilized Transpro Logistics to administer the transportation process and Transpro entered a Broker Transportation Agreement (BTA) with Werner Enterprises, a common carrier, to transport the phones from Florida to Texas on a regular basis. The BTA incorporated Werner’s tariff giving shippers the option of selecting Carmack Liability fullvalue coverage or the carrier’s limitation of liability of a maximum of $200,000 per truckload shipment. In its contract with Nextel, Westwind notified Nextel that third-party carriers might limit their liability for loss, and stated that it would request excess valuation coverage only upon specific written instructions from Nextel. Nextel simply relied on Westwind to handle shipping issues. On October 8, 2004, a shipment of 7,958 cell phones valued at $1,251,673 was stolen from one of Werner’s trucks. Werner contended it owed a maximum liability of $200,000 under its tariff. Nextel’s insurer, Ace Seguros SA, sued Werner for the full value of the shipment, contending that contracts downstream by Westwind and Transpro cannot be imputed back to Nextel—and that the cargo owner Nextel had not been give the opportunity to choose between two or more levels of liability as required by the Carmack Amendment.

Can intermediaries like Westwind and/or Transpro negotiate an enforceable agreement with a carrier it engages? Was Nextel given a reasonable opportunity to choose between two or more levels of liability? Decide. [Werner Enterprises, Inc. v Ace Seguros SA, 554 F3d 1319 (11th Cir)]