Freight Corp., 128 Misc. 2d 12, 488 N.Y.S.2d 547 (Sup.Ct.N.Y. 1985). Because of the precedent in this district, and because no language in the treaty supports Emery's position, I hold that the Article 29 limitations apply to this action.
Emery next claims that Corning failed to provide timely notice of the damage to the goods and exceeded the two-year filing limitation. Royal, however, presents evidence in its affidavit that it fulfilled the time restrictions. It is undisputed that the delivery of the ceramic substrate took place on November 21, 1989. According to a letter written by an employee of Corning Korea, Emery was notified both by phone and by writing transmitted via fax of the alleged problems surrounding the shipment on November 27, 1989. See plaintiff's affidavit, Exhibits A & B. As for the two-year limitation, the action has been shown to have commenced with filing of the summons and complaint on November 11, 1991, see third-party defendant's Notice of Motion, Exhibit A, with service of summons and complaint occurring the following day. See plaintiff's Affidavit, Exhibit C. Drawing all inferences in favor of the nonmoving party, I conclude that Royal has met the Warsaw Convention time limitations for its action against Emery.
Third-party defendant SIA moves to dismiss Emery's complaint on the ground that Emery violated Article 29(1) by filing the third-party complaint on January 6, 1992, more than two years after the delivery of the shipment to Corning Korea. This motion raises the question of whether and how the two-year limitation of 29(1) applies to third-party actions. The Second Circuit has not addressed this question, and this court has expressed conflicting interpretations of Article 29. Compare Data General Corp. v. Air Express International, 676 F. Supp. 538, 540-41 (S.D.N.Y. 1988) (holding that Article 29 is a condition precedent to suit, and thus bars absolutely all claims after two years have elapsed) with Joseph v. Syrian Arab Airlines, 88 F.R.D. 530, 532 (S.D.N.Y. 1980) (holding that Article 29 allows court to toll the two-year limit whenever the state law would toll the state statute of limitation).
Courts in this country and abroad are divided on whether Article 29 constitutes a condition precedent to suit which would bar all claims after two years, or a statute of limitations which courts may apply flexibly in accordance with local law. See Lawrence B. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook, 155-56 (1988) (hereinafter "Goldhirsch, The Warsaw Convention Annotated"). Article 29(2) is the primary cause of the confusion, because its language, "the method of calculating the period of limitation shall be determined by the law of the court to which the case is submitted," could be interpreted as allowing local statutes of limitations to modify the two-year limitations contained in Article 29(1).
In Joseph, the Court relied on California case, Flanagan v. McDonnell Douglas Corp., 428 F. Supp. 770 (C.D.Cal 1977), in holding that under the Convention the court must toll the two-year limitation whenever state law tolls the state statute of limitation. See Joseph, 88 F.R.D. at 532. In Flanagan, which involved a wrongful death action brought in the aftermath of a plane crash, the court held that Article 29 was a statute of limitations and interpreted Article 29(2) to mean that "the method of calculating the period of limitation is under [local] law," Flanagan, 428 F. Supp. at 776. The Flanagan court concluded that California law allowed the tolling of the two-year statute of limitations.
In addition to relying on Flanagan as precedent, the Joseph court justified its decision by emphasizing the general function of statutes of limitations under domestic law. Statutes of limitations serve to "give timely notice to the defendant of a claim against him. Also statutes of limitations are designed to spare the courts from litigation on stale claims and to avoid surprising the parties after the facts may have been obscured, witnesses become unavailable, or the evidence is lost." Joseph, 88 F.R.D. at 532 (citations omitted). The court then concluded that in order to apply the limitations faithfully to their overarching function of notice and fairness, the local court may be allowed flexibility in applying the statute of limitations.
I agree with the Data General decision and the weight of New York case law that the local court may not toll the two-year limitation even for third-party plaintiff suits. The Flanagan and Joseph line of argument advanced by Emery is not convincing, because it sacrifices the unambiguous legislative history of an international treaty in favor of a few general goals of statues of limitations.
The legislative history shows that the drafters of the Convention specifically considered and rejected a proposed provision that would have allowed the statue of limitations to be tolled according to the law of the forum court. See R.C. Horner and D. Legrez, Minutes of the Second International Conference on Private Aeronautical Law, 110-113 (1975); Kahn v. Trans World Airlines, Inc., 82 A.D.2d 696, 443 N.Y.S.2d 79, 85-87 (1981) (examining legislative history and concluding that Warsaw Convention bars tolling of the two-year limitation); L.B. Smith v. Circle Air Freight Corp., 488 N.Y.S.2d at 549; see also Split End Ltd. v. Dimerco Express, Inc., 19 Av. Cas. (CCH) 18,364 (S.D.N.Y. 1986) [available on WESTLAW, 1986, WL 2199) (Article 29 bars third-party actions brought more than two years after date of delivery). According to the legislative history, the purpose of Article 29(2) is to allow courts to determine in accordance with local law when an action has been "brought" as required by Article 29(1). See Kahn, 443 N.Y.S.2d at 87; see also Goldhirsch, The Warsaw Convention Annotated, at 154-55. Thus, courts should be use local law to determine what events mark the bringing of an action, but not whether or not to enforce absolutely the two-year limitation.
It is a well established tenet of treaty interpretation that courts should construe a treaty's terms liberally in order to give effect to the intention of the high contracting parties. Because the legislative history of Article 29 of the Warsaw Convention indicates that the framers did not intend any tolling of the two-year limitation, I conclude that this Court may not extend the limitation for third-part actions.
In the instant case, Emery does not contest that its third-party action did not begin until January 6, 1992, more than two years after the original delivery date of November 21, 1989. Given these facts, I conclude that SIA's motion to dismiss for failure to commence a timely suit should be granted.
There being no just cause for delay, the Clerk of the Court is directed to dismiss the third-party complaint with prejudice. See Rule 54(b), Fed.R.Civ.P.
Counsel for the remaining parties are directed to attend a status conference in Room 307 on November 12, 1993 at 3:00 p.m.
It is SO ORDERED.
Dated: New York, New York
September 27, 1993
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE
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