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DISTRIBUIDORA DIMSA v. LINEA AEREA DEL

June 27, 1991

DISTRIBUIDORA DIMSA S.A., PLAINTIFF,
v.
LINEA AEREA DEL COBRE S.A., D/B/A LADECO, DEFENDANT.



The opinion of the court was delivered by: Mukasey, District Judge.

OPINION AND ORDER

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 Warsaw Convention.

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
  them;
  (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.

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 ...


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