The opinion of the court was delivered by: Sweet, District Judge.
Plaintiff Maritime Insurance Company Limited ("Maritime") has
moved pursuant to Rules 12(f) and 56, Fed.R.Civ.P., for an
order granting summary judgment of its action arising out of an
alleged failure to deliver goods shipped by defendant Emery Air
Freight Corporation ("Emery"). For the reasons set forth below,
the motion is denied.
Maritime, a Canadian corporation based in Toronto, brings
this action arising under a treaty of the United States as
subrogee of Continent-Wide Enterprises, Ltd. ("Continent"), the
purchaser and owner of the shipment.
Emery is a New York corporation engaged in the air freight
Pan American World Airways, Inc. ("Pan Am"), a New York
corporation, is the carrier engaged by Emery to perform the
initial leg of carriage of the shipment.
Maritime filed this action on October 16, 1990. Emery's
answer asserted affirmative defenses based on the limitation of
liability pursuant to the governing treaty to $9.07 per pound
or $20.00 per kilogram.
On January 7, 1991, Emery filed a third-party complaint
against Pan Am. By order of February 12, 1991, the court
dismissed the third-party complaint on the grounds that Pan Am
had filed in the Southern District of New York a petition for
under Chapter 11 of the Bankruptcy Code.
On February 27, 1991 Emery filed a motion for forum non
conveniens. On March 6, 1991, Maritime filed this cross motion
for summary judgment. At oral argument on March 26, 1991, the
court denied Emery's motion for forum non conveniens and
reserved decision on the summary judgment motion.
This action arises out of the alleged failure to deliver a
shipment of Canon photographic materials moving in
international air carriage from Panama to Toronto under an air
waybill issued by Emery.
Continent delivered the goods for shipment by Emery on
October 28, 1988.
Emery issued air waybill PTY-71060 which acknowledged that
the goods were "received in good condition" and described the
consignee as Continent-Wide Enterprises, Ltd. The Emery waybill
is signed by R. Mancilla and is dated October 28, 1988.
Under the terms of the waybill, Emery contracted to transport
the shipment by air and deliver it to Continent in Toronto in
consideration of a prepaid freight charge.
Emery routed the shipment through the United States and
engaged Pan Am to perform the initial leg of the carriage.
The goods were not delivered.
The Emery waybill states that it incorporates the Convention
for the Unification of Certain Rules Relating to International
Carriage by Air signed at Warsaw, Poland on October 12, 1929
(the "Warsaw ...