The opinion of the court was delivered by: Mukasey, District Judge.
This motion for summary judgment raises one issue: whether
the defendant is barred from raising the liability limitation
of the Warsaw Convention ("the Convention") under Article 9 of
the Convention because the two air waybills accepted by
defendant do not comply precisely with the requirements of
Article 8. Plaintiff's motion to bar defendant's Affirmative
Defense based on Article 9 of the Warsaw Convention is denied.
This case arises out of two shipments of electronic
equipment from Florida to Chile. Plaintiff DIMSA was the
consignee of the shipments, transported by defendant LINEA
AEREA DEL COBRE S.A. d/b/a LADECO. Plaintiff alleges that the
shipments were partially missing and damaged, and sues
defendant for the full value of its consequent loss. The
parties agree that the shipments in dispute moved by air from
the United States to Chile, both of which are signatories to
the Convention, and, accordingly, liability is governed by the
Article 8 states in relevant part:
The air waybill shall contain the following
particulars: . . .
(h) The number of packages, the method of
packing, and the particular marks or numbers upon
(i) The weight, the quantity, the volume, or
dimensions of the goods;
Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676,
1682 n. 4, 104 L.Ed.2d 113 (1989). Article 9 provides that:
If the carrier accepts goods without an air
waybill having been made out, or if the air
waybill does not contain all the particulars set
out in article 8(a) to (i), inclusive, and (q),
the carrier shall not be entitled to avail
himself of the provisions of this convention
which exclude or limit liability.
Id., 109 S.Ct. at 1682-83 n. 4.
It is undisputed that although the air waybills governing
the shipments at issue showed the weight of the two shipments
and the number of pieces, there was no indication on either
waybill as to the method of packing or as to particular marks
or numbers on the packages. The air waybills also lacked
information about the volume or dimensions of the shipments.
The issue here is how, following the recent Supreme Court
decision in Chan, supra, Article 8 is to be interpreted.
Prior to Chan, the law of the Second Circuit was clear that
failure to comply with Article 8 did not prevent a carrier from
limiting liability where the omissions were commercially
insubstantial and non-prejudicial. Exim Industries, Inc. v. Pan
America World Airways, Inc., 754 F.2d 106, 108 (2d Cir. 1985);
Republic National Bank v. Eastern Airlines, Inc., 815 F.2d 232
(2d Cir. 1987). The air waybills in question in Exim were
missing the method of packing, the numbers on the packages and
a properly worded notice of the Warsaw Convention's
applicability. Nevertheless, the Circuit held that the
Convention applied to limit the defendant's liability. The
Court reasoned that the omissions were technical and
non-prejudicial to the plaintiff under the facts of the case.
The plaintiff there, like plaintiff here, received adequate
notice of the applicability of the Convention and its
limitation on recovery for losses, and accordingly had an
opportunity to pay a higher shipping rate in order to insure
itself to the full value of the shipment. Having chosen not to
do so and paid a lower rate, a plaintiff may not later claim
that the waybills were technically defective in order to evade
the loss limitations of the Convention.
The Second Circuit in Exim relied on the reasoning of an
English case in the House of Lords to support its commercial
interpretation of Article 8 of the Convention. The English
interpreted Article 8, sections (h) and (i), using two
different texts, the official French text and the English
translation. Determining that both texts were ambiguous, and
that neither the English nor the French version, literally
translated, made sense, the House of Lords relied on
commercial reasonableness to fix the meaning of both sections.
It held that "weight" is the measure that is generally most
important, and therefore necessary whenever appropriate, and
that so long as weight is given, the other particulars in
section (i) need be listed only if they are necessary or
useful in a particular case. The air waybill must include only
those particulars in Article 8 which are "necessary or useful
to determine the amount of the freight, or to determine any
other condition upon which the parties were prepared to enter
into the contract." Corocraft Ltd. v. Pan American Airways,
Inc.,  1 Q.B. 616. The law Lords specifically
acknowledged that they were not applying a literal
interpretation of either the French or the English text. Id. at
672; see also id. at 675 (Widgery, L.J., concurring). The
Second Circuit adopted this approach in Exim, 754 F.2d at 108,
and reaffirmed it in Republic National, 815 F.2d at 238.
In Chan, the Supreme Court resolved a conflict in circuit
decisions over whether air carriers must give their passengers
clearly legible notice that the Convention applies before those
carriers may limit their liability under Article 3 ...