The opinion of the court was delivered by: Leisure, District Judge:
This is an action asserting a claim for $20,000 arising from
the loss of plaintiff's baggage during the course of his
journey from New York City to Lagos, Nigeria. Defendant has now
moved for summary judgment, seeking an order limiting its
liability to $20 per kilogram of lost baggage pursuant to the
Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49
Stat. 3000, T.S. No. 876 (1934) (the "Warsaw Convention" or the
"Convention"). Plaintiff pro se has cross-moved for
summary judgment, seeking the full $20,000 sought in his
On May 1, 1989, Compagnie Nationale Air France ("Air
France")*fn1 issued an Air France passenger ticket for air
transportation from New York to Lagos, Nigeria and back.
Plaintiff departed John F. Kennedy International Airport in New
York on December 21, 1989, aboard Air France flight number 026.
At the time of check-in, plaintiff was given a "Passenger
Coupon and Baggage Check" indicating that he had checked in two
bags weighing a total of 38 kilograms. This document (the
"Contract") also contained a "Notice of Baggage Liability
Limitations," that read in pertinent part as follows:
Liability for loss, delay or damage to baggage is
limited unless a higher value is declared in
advance and additional charges are paid. For most
international travel (including domestic portions
of international journeys) the liability limit is
approximately US $9.07 per pound (US $20 per kilo)
for checked baggage. . . . Excess valuation may be
declared for some types of articles. Some carriers
assume no liability for fragile, valuable or
perishable articles. Further information may be
obtained from the carrier.
Affidavit of Stacey Athans Demas, Esq., sworn to on March 20,
1991, ("Demas Aff."), Exhibit G. Plaintiff claims, and
defendant disputes, that plaintiff also checked in a third item
— a "hand trolley" — at the insistence of Air
France flight attendants at the time plaintiff actually boarded
the aircraft. Plaintiff claims he was not given a proper
baggage check for the hand trolley.
Plaintiff arrived at Charles DeGaulle Airport in Paris on
December 22, 1989, and connected with UTA flight number 861,
arriving at Murtala Muhammed International Airport in Lagos
later that day. Upon his arrival in Lagos, plaintiff discovered
that some of his baggage, which had been checked through to
Lagos, had not arrived. Specifically, plaintiff reported on a
"Property Irregularity Report" that one of his suitcases and
the hand trolley were missing, and that one suitcase, weighing
8 kilograms, had been properly delivered. Demas Aff., Exhibit
D. Plaintiff's missing suitcase was subsequently located by UTA
in Paris and transported to Lagos, where it arrived on or about
December 29, 1989. Plaintiff returned to the airport in Lagos
on December 29 and recovered this suitcase, which he found to
have been damaged and pilfered. Plaintiff thereupon completed
a "Damaged Baggage Report" indicating that the total weight of
the damaged suitcase on arrival at Lagos was 13 kilograms.
Demas Aff., Exhibit F. Thus, 17 kilograms of contents were
missing from the suitcase.*fn2 The hand trolley was never
delivered to plaintiff. Plaintiff's damaged suitcase was
returned to Paris for replacement
by the UTA Station Manager in Lagos, but plaintiff has not
received a new suitcase.
Plaintiff commenced this action on September 27, 1990, in the
Civil Court of the City of New York, Bronx County, seeking to
recover $20,000 for "Personal damage; failure to provide proper
services; loss of luggage; loss of time from work; ruined
vacation." Demas Aff., Exhibit A. The action was thereafter
removed to this Court, and the parties have now cross-moved for
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247,
106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). "Summary judgment
is appropriate if, `after drawing all reasonable inferences in
favor of the party against whom summary judgment is sought, no
reasonable trier of fact could find in favor of the non-moving
party.'" United States v. All Right, Title & Interest in
Real Property, etc., 901 F.2d 288, 290 (2d Cir. 1990)
(quoting Murray v. National Broadcasting Co.,
844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109
S.Ct. 391, 102 L.Ed.2d 380 (1988)).
The substantive law governing the case will identify those
facts which are material, and "[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). "[T]he judge's
function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there does indeed
exist a genuine issue for trial." Anderson, supra, 477
U.S. at 249, 106 S.Ct. at 2511; see also R.C. Bigelow, Inc.
v. Unilever N. V., 867 F.2d 102, 107 (2d Cir.), cert.
denied, ___ U.S. ___, 110 S.Ct. 64, 107 L.Ed.2d 31 (1989).
The party seeking summary judgment "bears the initial
responsibility of informing the district court of the basis for
its motion," and identifying which materials "it believes
demonstrate the absence of a genuine issue of material fact."
Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2553;
see also Trebor Sportswear Co. v. Limited Stores,
Inc., 865 F.2d 506, 511 (2d Cir. 1989).
Once a motion for summary judgment is properly made, however,
the burden then shifts to the non-moving party, which "'must
set forth specific facts showing that there is a genuine issue
for trial.'" Anderson, supra, 477 U.S. at 250, 106
S.Ct. at 2511 (quoting Fed.R.Civ.P. 56(e)). "[T]he mere
existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no
genuine issue of material fact."
Anderson, supra, 477 U.S. at 247-48, 106 S.Ct. at 2509
(emphasis in original). "Conclusory allegations will not
suffice to create a genuine issue. There must be more than a
`scintilla of evidence,' and more than `some metaphysical doubt
as to the material facts.'" Delaware & Hudson Railway Co.
v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.
1990) (quoting Anderson, supra, 477 U.S. at 252, 106
S.Ct. at 2512 and Matsushita Electric Industrial Co., Ltd
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
1355-56, 89 L.Ed.2d 538 (1986)); see also Carey v.
Crescenzi and Harenzy Realty Corp., 923 F.2d 18, 21 (2d
Cir. 1991). "The non-movant cannot `escape summary judgment
merely by vaguely asserting the existence of some unspecified
disputed material facts,' or defeat the motion through `mere
speculation or conjecture.'" Western World Insurance Co. v.
Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting
Borthwick v. First Georgetown Securities, Inc.,
892 F.2d 178, 181 (2d Cir. 1989) and Knight v. U.S. Fire
Insurance Co., 804 F.2d 9, 12 (2d Cir. 1986), cert.
480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)).
Because the Contract and the Warsaw Convention provide for
the same $20 per kilogram liability limitation,*fn3 and,
moreover, because the provisions of the Contract cannot
contravene the Convention,*fn4 the central issue to be decided
is whether the liability limitation contained in Article 22 of
the Convention is applicable to the case at bar. As a threshold
matter, the parties agree that plaintiff's trip to Nigeria
constituted "international transportation" as that term is
defined by Article 1 of the Convention,*fn5 and that the
damage to plaintiff's baggage occurred "during the
transportation by air" within the meaning of Article 18.*fn6
Plaintiff contends, however, that defendant is unable to invoke
Article 22's limitation of liability because defendant
allegedly failed to comply with Article 4 of the
Convention,*fn7 and because defendant's behavior constituted
within the meaning of Article 25.*fn8 In addition, plaintiff
argues that, pursuant to Article 19 of the Convention,
defendant's liability for damage caused by delay in the
transportation of plaintiff's baggage is not limited by Article
22.*fn9 Defendant, in contrast, argues that Article 22 is
fully applicable in the instant action.
Plaintiff's Article 19 argument may be dealt with first and
need not delay the Court long. Article 24(1) of the Convention
explicitly provides that "[i]n the cases covered by article[ ]
19 any action for damages, however founded, can only be brought
subject to the conditions and limits set out in this
convention." Accordingly, to the extent Article 22 limits
defendant's liability, that limitation applies equally to
damage caused by delay. See Deere & Company v. Deutsche
Lufthansa Aktiengesellschaft, No. 81 C. 4726, ...