The opinion of the court was delivered by: MCLAUGHLIN
McLAUGHLIN, District Judge.
Plaintiff, Railroad Salvage of Conn., Inc. ("Railroad Salvage"), has moved before trial, for an order declaring that the Warsaw Convention ("the Convention"), 49 Stat. 3000, 49 U.S.C. § 1502 note (1976), does not apply to this action for conversion, negligence and breach of contract. More particularly, Railroad Salvage contends that defendant Japan Freight Consolidators (U.S.A.) ("JFC") may not avail itself of the Convention's limitations on liability, as delineated in Article 22 (2) of the Convention. For the reasons stated below, the motion is granted, and the Convention will not apply to this action.
Railroad Salvage authorized a licensed importer, Venus Communications, Ltd. ("Venus"), to procure a quantity of cordless telephones. Venus subsequently purchased three hundred telephones in Tokyo from Mike Trading Corporation ("Mike"), a Japanese company. Mike, in turn, arranged shipment to New York through Japan Freight Consolidators of Japan ("JFC Japan"), a freight forwarder, which consolidates small quantities of goods into bulk form in order to render such shipments economically feasible.
Because the goods were transported in two shipments, JFC Japan issued a separate air waybill for each. The first waybill (JFC-II-332255), dated December 11, 1978, covered one hundred of the telephones; the second bill (JFC-II-332274), dated the following day, covered the other two hundred telephones. Except for the differences in the number of phones and corresponding freight rates, the terms of the two bills were identical.
Both bills named the Hartford National Bank and Trust Company ("the Bank") as consignee, Mike as shipper, and Railroad Salvage as an "also notify" party. Both bills stated that carriage was subject to the terms of the Warsaw Convention. In addition, the letters "N.V.D." (indicating "no value declared") appeared on both bills in the space reserved for declaration of value for purposes of carriage.
The goods were transported by Flying Tiger Airlines (not a party to this action) and were received at John F. Kennedy International Airport by defendant JFC, a break bulk agent for JFC Japan, whose task it was to break up the bulk shipment and distribute its component parcels to the proper parties.
Payment had been arranged by letter of credit issued by the Bank which, as previously noted, was listed as consignee on the air waybill. Upon receipt of the shipping documents, JFC telephoned the Bank and was given permission to release the goods. After clearing Customs, the goods shipped under air waybill number 332274 were taken to JFC's temporary storage facility, while the goods shipped under bill number 332255 remained at Flying Tiger's freight dock.
JFC asserts that, in addition to telephoning the Bank, it notified only Venus, the buyer, of the arrival of the goods and that Venus stated that its trucker, Caputo Trucking, would call for the goods. Railroad Salvage, on the other hand, insists that JFC notified it of the arrival and that it instructed JFC to hold the goods until further notice.
At any rate, it is undisputed that JFC released all the goods to Caputo Trucking and that the goods mysteriously vanished.
Railroad Salvage makes two arguments to demonstrate that JFC may not invoke the Warsaw Convention to limit its potential liability for the lost goods. First, Railroad Salvage alleges that JFC is not a "carrier" within the meaning of Article 18 (1) of the Convention. Second, Railroad Salvage claims that the goods were lost subsequent to the termination of "transportation by air" as defined by Article 18 (2).
JFC counters that its principal, JFC Japan, is a "carrier" within the meaning of Article 18 (1)
and even if it is not, the stipulation of Warsaw Convention Liability on the face of the air waybills would still be binding upon Railroad Salvage. JFC conceded during oral argument, however, that the Convention would not limit its potential ...