The opinion of the court was delivered by: THOMAS P. GRIESA
Plaintiffs in this action seek to recover damages caused by Northwest's loss of a cargo that Northwest had agreed to transport from Chicago to Hong Kong by air. Northwest concedes liability for the loss, but has asserted as an affirmative defense that its liability is limited by the Warsaw Convention. Plaintiffs dispute that Northwest is entitled to the protection afforded by the treaty on grounds that the air waybill failed to state the scheduled stopping places as required by the Convention.
Plaintiffs move for summary judgment seeking an award of $ 232,156 for the lost cargo and striking Northwest's liability limitation defense. Northwest opposes, and cross-moves for partial summary judgment limiting its liability to $ 20 per kilogram of lost cargo in accordance with the Convention, for a total of $ 1,320 for the 66 kilograms of cargo lost.
Plaintiffs' motion is denied. Northwest's cross-motion is granted.
All of the essential facts are conceded by the parties. Plaintiffs, The Tai Ping Insurance Company, Ltd. and Jetergar Ltd., are corporations organized under the laws of a foreign country, with their principal place of business in Hong Kong. They sue, respectively, as the subrogated insurer and the consignee of the shipment at issue. Defendant Northwest Airlines Inc. d/b/a/ Northwest Orient Cargo (referred to as "Northwest") is a Minnesota corporation with offices in Minnesota and New York. The court has jurisdiction over the action because of the diversity of citizenship of the parties, and because the controversy arises under a treaty of the United States.
The scheduled flight route between Chicago and Hong Kong included two stopping places -- Anchorage, Alaska and Narita, Japan.
The stopping places were not printed on the air waybill. Only "Chicago" and "Hong Kong" were printed on the waybill. However, Northwest's timetable, which did include the stopping places Anchorage and Narita, were "made part" of the air waybill. The relevant provisions in the waybill are:
2. (b) To the extent not in conflict with the foregoing carriage hereunder and other services performed by each Carrier are subject to:
(iii) Applicable tariffs, rules conditions of carriage, regulations and timetables (but not the times of departure and arrival therein) of such carrier, which are made part hereof and which may be inspected at any of its offices and at airports from which it operates regular service. . . .
3. ... The agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and the place of destination, set forth on the face hereof or shown in Carrier's timetables as scheduled stopping places for the route. . . . (emphasis supplied).
Northwest's published timetable, the Westbound Transpacific Freighter Schedule, was sent in the ordinary course of business to AEI, and was readily available at Northwest's offices and at airports used by Northwest. In addition, the relevant flight schedule with the ...