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ROYAL INS. CO. v. EMERY AIR FREIGHT CORP.

September 27, 1993

ROYAL INSURANCE COMPANY, as subrogee of Corning, Inc., Plaintiff,
v.
EMERY AIR FREIGHT CORPORATION, d/b/a EMERY WORLDWIDE, Defendant. EMERY AIR FREIGHT CORPORATION, d/b/a EMERY WORLDWIDE, Plaintiff, v. SINGAPORE AIRLINES, LTD., Third-Party Defendant.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 Plaintiff Royal Insurance co. ("Royal") as subrogee of Corning, Inc. brings this action pursuant to the Convention for the Unification of Certain Rules Relating to International Transportation by Air ("Warsaw Convention"), 49 U.S.C. App. § 1502, for negligence and breach of contract resulting in damage to an air shipment of ceramic substrate. Royal alleges that defendant Emery Air Freight Corp. ("Emery") damaged the ceramic substrate while transporting it from the United States to South Korea. Emery moves pursuant to Rule 12(b)(6) Fed. R. Civ. P. to dismiss the claim on the ground that Royal failed to meet the time restrictions imposed by Articles 26 and 29 of the Warsaw Convention for commencing an action and notifying defendant of the alleged damage. Emery has also filed a third-party action against Singapore Airlines, Ltd. ("SIA") seeking contribution or indemnification for any damages arising from Royal's suit. SIA in turn has moved to dismiss Emery's complaint for having exceeded the Convention's time limitations.

 I conclude that plaintiff Royal fulfilled the Article 26 and 29 requirements of the Warsaw Convention, and therefore deny Emery's 12(b)(6) motion; at the same time, I grant SIA's motion to dismiss on the ground that Emery commenced its third-party action after the Article 29 time limitation had expired.

 BACKGROUND

 Plaintiff alleges that on November 16, 1989, Corning, Inc. delivered a number of pallets of ceramic substrate in Roanoke, Virginia to defendant Emery, a common carrier for shipment by air, to Kimpo International Airport in the Republic of Korea. Emery accepted the pallets and agreed to ship them, consigned to Corning Korea. According to Royal, when the ceramic substrate was delivered by truck to Corning Korea on November 21, 1989, the wooden pallets had been removed in violation of the shipping agreement and the goods had been loaded upside down, thus causing damaged to the ceramic substrate.

 Defendant denies the alleged damage took place and further argues that Corning did not complain of any damage until well after one week had passed from the time of the delivery of the goods in Korea. Plaintiff, however, has produced an internal memo dated November 23, 1989 from an employee of Corning Korea discussing the alleged damage to the ceramic substrate. Corning claims that this memo was then faxed to Emery, and that Corning Korea further notified Emery of the problem by telephone on November 27, 1989.

 After failing to resolve the dispute amicably, Royal filed its summons and complaint on November 11, 1991 and served the summons and complaint on one of defendant's vice-presidents the following day. Emery filed its response on January 6, 1992, denying the allegations, setting forth various affirmative defenses, and also initiating the third-party action against SIA.

 DISCUSSION

 Both parties agree that the case is governed by the Warsaw Convention (the "Convention"). The Convention governs "international transportation of persons, baggage, or goods performed by aircraft for hire." Article 1(1). At issue in this case are the interpretation and application of Convention Articles 26 and 29.

 Article 29 provides time limitations for the filing of suits under the Convention. Article 29 states:

 
(1) The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped.
 
(2) The method of calculating the period of limitation shall be determined by law of the court to which the case is submitted.

 Article 29 thus requires that actions pursuant to the Warsaw Convention be brought within two years from the time that the ...


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