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RECUMAR INC. v. KLM ROYAL DUTCH AIRLINES

January 29, 1985

RECUMAR INC., as agents for LA LIBERTAD, CIA. GENERAL DE SEGUROS S.A., SEGUROS, LA COMMERCIAL, S.A., WEAREVER DE MEXICO, S.A. POPULAR Y PROVENIR COMPANIA DE SEGUROS, IMPORTACIONES, REPRESENTATCIONES, I.O., ISAAC SHEINBERG K., Plaintiffs, against KLM ROYAL DUTCH AIRLINES, KONINKLIJKE LUCHTVARRT MAATSCHAPPIJ, Defendants


The opinion of the court was delivered by: MOTLEY

Motley, Ch. J.

This is an action to recover money damages in the amount of $11,553.98 for the alleged loss of three consignments of goods shipped by defendant. Defendant KLM Royal Dutch Airlines (hereinafter "KLM") has moved for summary judgment to dismiss two of the three claims brought by plaintiffs on the ground that the court is without subject matter jurisdiction over these claims under the Warsaw Convention. KLM also seeks dismissal of all three claims on the grounds of forum non conveniens. For the reasons stated below, defendant's motion for summary judgment is granted in part.

 FACTS

 Plaintiffs, Recumar Inc., et al. (hereinafter "RECUMAR"), the foreign owners or authorized representative of the foreign owners or underwriters of the cargo allegedly shipped and lost by defendant, bring this action to recover money damages in the amount of $11,553,98. Plaintiffs' claims arise from the alleged loss of three separate consignments of goods shipped on KLM between different countries at different times.

 Consignment "A" was shipped pursuant to a KLM air waybill (#074-4001-2442) issued in Zurich, Switzerland, which provided for transportation with Zurich, the place of origin and Mexico City, Mexico, the destination. Consignment "B" was shipped pursuant to a KLM air waybill (#074-8645-0136) issued in Bombay, India, which provided for transportation with Bombay the place of origin and Mexico City, the destination Consignment "C" was shipped pursuant to a KLM air way bill (#074-8715-2063) issued in Curacao, Netherlands, which provided for transportation with the place of origin listed as Curacao and Lima, Peru, the destination.

 Defendant KLM, a corporation organized and existing under the laws of The Netherlands with its corporate headquarters and principle place of business in Amstelveen, The Netherlands, brings this motion for summary judgment to dismiss this action on the grounds of lack of subject matter jurisdiction with respect to Consignments "A" and "B", and forum non conveniens with respect to all three of RECUMAR's claims. RECUMAR asserts as the basis for New York being the proper forum that New York is the only place in which both RECUMAR and KLM have offices and conduct business.

 DISCUSSION

 A. Subject Matter Jurisdiction

 KLM contends that RECUMAR's claims concerning Consignments "A" and "B" are governed exclusively by provisions of a treaty of the United States commonly known as the Warsaw Convention. *fn1" The United States has been a party to the Warsaw Convention since October 29, 1934. 49 Stat. 3000 (1934). The Warsaw Convention, as a treaty of the United States, is the supreme law of the land. U.S. Const. Art. VI; Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801(2d Cir. 1971).

 The Warsaw Convention applies "to all international transportation of persons, baggage or goods performed by aircraft for hire." 49 Stat. 3014. Article 1(2) defines "international transportation" as:

 
any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to the convention.

 49 Stat. 3014.

 The relevant contract of transportation and reference to the provisions of the Warsaw Convention determine the applicability of the Convention. Therefore, where the air waybill provides for transportation by air between certain designated terminals, the provisions of the Warsaw Convention apply to the transportation and determine the rights of the parties. Benjamins v. British European Airways, 572 F.2d 913, 914 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 59 L. Ed. 2d 72, 99 S. Ct. 1016 (1979).

 With respect to Consignment "A", since Switzerland, the place of origin, is an original signatory to the Warsaw Convention, *fn2" and Mexico, the country of destination, ratified the COnvention on February 14, 1983, *fn3" it is clear that "the place of departure and the place of destination . . . are situated . . . within the territory of two High Contracting Parties." Article 1(1), ...


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