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MARITIME INS. CO. v. EMERY AIR FREIGHT

July 2, 1991

MARITIME INSURANCE COMPANY, LIMITED, AS SUBROGEE OF CONTINENT-WIDE ENTERPRISES, LTD., PLAINTIFF,
v.
EMERY AIR FREIGHT CORPORATION, A/K/A EMERY WORLDWIDE, DEFENDANT.



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

OPINION

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.

The Parties

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 business.

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.

Prior Proceedings

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 reorganization 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.

The Facts

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 ...


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