in the waybill." Id. (citations omitted).
In the instant case, Emery's waybill omitted the
identification of the first carrier, the place of execution of
the waybill, intermediate stopping places, and the dimensions
or volume of the goods. The airbill listed the weight of the
shipment as 222 kilograms. In Exim, the Court of Appeals
rejected the argument that failure of a waybill to list the
volume and dimensions of goods was of little commercial
significance where the waybill listed the weight of the cargo.
It further cited the decisions of foreign courts for the
proposition that the requirement of Article 8(i) for a carrier
to list weight, volume and dimensions of the goods was to be
read disjunctively. Exim, 754 F.2d at 108 (citations omitted).
Therefore, Emery's omission of the dimension or volume of the
goods does not preclude it from claiming the limitation of
liability provided in Article 22.
With respect to the omissions of the name of the carrier, the
place of execution of the waybill and the intermediate stopping
points, Maritime in its moving papers has not come forward with
any facts showing that such omissions would be prejudicial to
the shipper. Therefore, Maritime has not met his burden of
showing the absence of any genuine issues of material fact for
the purposes of a summary judgment motion.
Maritime cites Chan v. Korean Air Lines, Ltd., 490 U.S. 122,
109 S.Ct. 1676, 104 L.Ed.2d 113 (1989) for the proposition that
where the text of the Warsaw Convention is clear, courts have
no power to alter or amend the text so as to avoid application
of the sanctions of unlimited liability contained in the
treaty. As applied to the interpretation of Articles 8 and 9 of
the Warsaw Convention, however, Chan has been held to be
dictum. Victoria Sales Corp. v. Emery Air Freight, Inc.,
917 F.2d 705, 711 (2d Cir. 1990) (Van Graafeiland, J., concurring
in part and dissenting in part).
In Chan, the Court considered whether the carrier's failure
to provide notice in 10-point type of limited personal injury
recovery as required by the Montreal Agreement precluded the
carrier from relying on the limitation for personal injury
liability. The opinion held that the Warsaw Convention
contained no sanction for failure to print the notice on
10-point type. Justice Scalia, writing for the majority,
refused to "insert an amendment" in the Convention by adding a
sanction that the Convention did not contain. Chan, 490 U.S. at
134, 109 S.Ct. at 1684. The opinion, in order to emphasize the
difference between personal injury claims and claims for
property damage, contrasted Section I (relating to personal
injury), which does not contain a provision precluding the
limitation of liability, with Sections II and III (relating to
checked baggage and air freight, respectively), which contains
The opinion did not, however, address the interpretation of
the provision precluding the limitation of liability in the
context of claims based on checked baggage or air freight, nor
did the opinion address what omissions would constitute
violations of Article 8. In sum, the opinion did not "attempt
to reverse the traditional canon of liberal treaty construction
that permits courts to go beyond the written words and look
into `the history of the treaty, the negotiations, and the
practical construction adopted by the parties.'" Victoria
Sales, 917 F.2d at 711 (Van Graafeiland, J., concurring in part
and dissenting in part) (citing Air France v. Saks,
470 U.S. 392, 396, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985) (quoting
Choctaw Nation of Indians v. United States, 318 U.S. 423,
431-32, 63 S.Ct. 672, 87 L.Ed. 877 (1943))).
Maritime cites two Court of Appeals opinions issued since
Chan, Buonocore v. Trans World Airlines, 900 F.2d 8 (2d Cir.
1990) and Victoria Sales, supra, 917 F.2d at 705 for the
proposition that since Chan, the Second Circuit has engaged in
a strict construction of the Warsaw Convention. In Buonocore,
the court considered whether a provision holding the carrier
liable for injuries or accidents sustained "in the course of
any of the operations of embarking" required holding the
carrier liable for the death of a passenger in a terrorist
attack that occurred in the airport's public
areas after the passenger had checked in but was waiting for
the flight to board. The court declined to hold the carrier
liable. In Victoria Sales, the question before the court was
the construction of a provision in Article 18 extending the
carrier's liability to any damage to bags or goods sustained
during "transportation by air." The court held that the Warsaw
Convention's limitations on liability extended to damage
occurring anywhere within the airport, but not to damage
occurring on the ground in an area outside the airport. Neither
case considered the proper interpretation of Articles 8 and 9.
Moreover, neither opinion engaged in a literal construction of
the Warsaw Convention.
Nor does Arkin v. New York Helicopter Corp., 149 A.D.2d 5,
544 N.Y.S.2d 343 (1st Dep't 1989), govern the question
presented by the instant case. Arkin held that the defendant
carrier was precluded from claiming limited liability under
Article 4 of the Warsaw Convention relating to checked
passenger baggage. In reaching this result, the court
distinguished Exim on the grounds that that decision involved
air freight, and not checked passenger baggage. Arkin, 544
N.Y.S.2d at 344. As the instant dispute concerns air freight
governed by an air waybill, Arkin therefore does not apply.
As nothing in the cases decided since Chan indicates that the
Court of Appeals has changed its position of a commercial-based
interpretation of Articles 8 and 9 of the Warsaw Convention,
summary judgment in the instant case is not required as a
matter of law.
For the reasons set forth above, Maritime's motion for
summary judgment is denied.
It is so ordered.
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