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GE v. HARPER ROBINSON & CO.

April 1, 1993

GENERAL ELECTRIC COMPANY, Plaintiff,
v.
HARPER ROBINSON & CO., TRI-STATE MOTOR CO., J.H. ROSE TRUCK LINE CO. and AIR FRANCE, Defendants.



The opinion of the court was delivered by: STERLING JOHNSON, JR.

 Johnson, District Judge:

 Plaintiff General Electric Company commenced this action against Defendants Air France, Harper Robinson & Co., Tri-State Motor Transit Co., and J.H. Rose Truck Line Co. to recover damages sustained by a jet engine during shipment. Defendant Air France moves for an Order pursuant to Fed. R. Civ. P. 56 granting summary judgment in its favor and dismissing the Complaint and the cross-claims of all co-defendants on the ground that there is no triable issues of fact. Defendant Harper Robinson & Co. also moves for summary judgment dismissing the complaint or in the alternative for partial summary judgment limiting its liability to $ 50.00. *fn1" For the reasons stated below, Air France's motion for summary judgment is granted and Harper Robinson's motion for partial summary judgment is granted in part and denied in part.

 I. BACKGROUND

 On or about June 21, 1988, Air India issued airway bill No. 09853621772 covering the transportation of one jet engine from Bombay, India to General Electric in Ohio. Air France transported the jet engine from Bombay to John F. Kennedy International Airport ("JFK") in New York. On or about June 24, 1988, the jet engine arrived at JFK where it was to be shipped to Evansdale, Ohio. Defendant Harper Robinson & Co. ("Harper Robinson") prepared the customs documents for the jet engine's clearance through U.S. Customs. The engine cleared U.S. Customs without incident. Harper Robinson also arranged for Defendant Tri-State to transport the engine from JFK to Ohio.

 The terms and conditions of the agreement between Harper Robinson and General Electric is set forth two invoices (Nos. 272749736 ADDL and 272749736). The first invoice covered Harper Robinson's services for preparing and filing customs documents for entry. The second invoice covered Harper Robinson's services for arranging inland freight transportation. The terms and conditions of service included that following provision on the reverse side of each invoice:

 This provision appeared on the back of every invoice submitted by Harper Robinson to General Electric from 1980 onward.

 On or about June 29, 1988, Tri-State arrived with a flatbed trailer to pick up the jet engine. The engine was loaded on the flatbed trailer by a fork lift. Plaintiff General Electric alleges that Air France personnel told the Tri-State driver that the engine was not overweight. The driver failed to measure the engine before loading it onto the truck. Tri-State left JFK and proceeded to take the Van Wyck Expressway in route to Ohio. After travelling approximately twenty minutes, the engine struck an overpass causing damage to the engine. The engine struck an overpass a second time when the driver returned the engine to the Air France terminal. Tri-State was transporting the engine pursuant to transportation contract (No. 0904) between General Electric and Tri-State. The contract limited Tri-State's liability to $ 100,000.

 II. ANALYSIS

 A. Standard for Summary Judgment

 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. ("Rule") 56(c). The court's function is not to resolve disputed genuine issues of material fact, but only to determine whether there is such an issue in dispute. Anderson. v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Eastman Machine Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). The mere existence of factual issues which are not material to the outcome of the litigation will not defeat a motion for summary judgment. Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11-12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987).

 B. Air France's Motion for Summary Judgment

 General Electric argues that the Warsaw Convention is inapplicable to its negligence claim against Air France because the damage to its engine occurred after Tri-State left the airport with the engine. ...


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