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WILLIAMS DENTAL CO. v. AIR EXPRESS INTL.

June 23, 1993

WILLIAMS DENTAL CO., INC., Plaintiff,
v.
AIR EXPRESS INTERNATIONAL, Defendant.



The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 Plaintiff sues to recover the $ 23,474.50 value of a shipment of dental gold and equipment which plaintiff alleges defendant lost during transport from New York to Sweden, and moves for summary judgment as to that value. Defendant moves for summary judgment dismissing plaintiff's complaint, or, in the alternative, limiting its liability to $ 1,262.93. Jurisdiction is based on 28 U.S.C. § 1331, the case being one that arises under the Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. 876, reprinted in 49 U.S.C. § 1502 note (1976) (the "Warsaw Convention"). For the reasons stated below, plaintiff's motion for summary judgment is granted in the amount of $ 20,370, and defendant's motion is denied.

 I.

 Plaintiff Williams Dental Co., Inc. supplies dental equipment. (Compl. PP 1-3) Defendant Air Express International transports property as a common carrier, pursuant to a permit issued by the United States Department of Transportation. 49 U.S.C. § 1372. (Compl. PP 4-5)

 Plaintiff alleges that on or about August 14, 1990, it received an order for 50 ounces of dental gold and equipment. *fn1" Plaintiff's employees obtained and double-checked the gold, packaged and sealed it in a pail, and boxed the pail for shipment. (Nelson Aff. P 8; Wolski Aff. P 8; Weber Aff. P 9; Wilson Aff. P 8)

 On August 21, 1990 defendant picked up plaintiff's shipment and put it on a flight from New York to Sweden. (Pl. Mem. Ex. D; Root Tr., Ex. C. at 75-77) The shipment was delivered on August 28, 1990, (Pl. Mem. Ex. E) but the safety seals on the pail were broken and the gold was missing. (Fleming Aff. Ex. 6, P 14) *fn2" Plaintiff submitted a claim for the value of the missing gold on August 31, 1990, but defendant denied the claim. (Fleming Aff. Ex. 7) Plaintiff commenced this action on July 18, 1991, claiming (1) breach of contract, (2) negligence, and (3) breach of a bailment. (Compl. PP 11, 15, 20)

 Defendant claims that during August 1990 it had a valid tariff which included under the heading "SHIPMENTS NOT ACCEPTABLE" the following entry:

 
4. Gold and silver bullion, dust, concentrates, alloys, cyanides, precipitates, or any form of uncounted gold or silver, dore bullion; Gallium; Iridium, Osrium, Palladium, Phodium, Puthenium, Platinum.

 (Thompson Aff. Ex. C., at 14) The tariff stated that its primary purpose was "to document the general rules which govern the transportation of [shipments]." (Id. at 6) In addition to listing unacceptable items for shipment, the tariff provided that the shipper "shall not be liable for loss of money, negotiable instruments, bullion . . . when shipped as personal effects . . . worn by an individual, used, not for resale." (Id. at 45)

 Although the parties previously had requested additional discovery as to certain issues and witnesses, in a letter dated May 23, 1993 counsel for both parties stipulated that:

 
1. The plaintiff's witnesses would have testified that the "Will Ceram Y" was packed and sealed in the container destined for Sweden; and
 
2. The defendant's witness would have testified that the tariff attached as an exhibit to defendant's affidavit was defendant's tariff on the date of the loss.

 (Pl. 5/23/93 Let.)

 The parties each move for summary judgment. Plaintiff argues that defendant should pay $ 23,474.50 to plaintiff, the amount plaintiff declared the shipment was worth; defendant argues that under the Warsaw Convention plaintiff should recover substantially less.

 II.

 Fed. R. Civ. P. 56(c) requires a summary judgment if the evidence demonstrates 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." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 8 ...


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