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August 2, 1996


The opinion of the court was delivered by: MARTIN

 JOHN S. MARTIN, Jr., District Judge:

 I. Background

 Plaintiff New Pentax Film, an Italian film production and distribution company, is the owner of the film "La Ballata di Ren Ham" ("La Ballata"), which was scheduled to be shown at the Fort Lauderdale Film Festival on November 20, 1991. On November 18, 1991, the president and other representatives of plaintiff (collectively, "plaintiff") boarded a Trans World Airlines ("TWA") flight from Rome, Italy to Fort Lauderdale, Florida to attend the festival. The flight stopped at JFK airport in New York City. In Rome, plaintiff checked four suitcases and one film canister, which contained the copy of La Ballata to be shown at the film festival.

 Defendant gave plaintiff four baggage checks for the luggage, but did not issue a separate check for the film canister. The checks did not include the weight of the luggage. Upon arrival at JFK, plaintiff was informed that defendant could not locate one suitcase and the film canister. Plaintiff's representatives proceeded to Fort Lauderdale, where they filed a lost luggage report with defendant on November 19, 1991, and notified defendant of their plans to show La Ballata at the film festival on the next day. Defendant did not locate the film canister until November 23, 1991, and plaintiff was therefore unable to show the film at the festival.

 On January 31, 1992, defendant filed for relief under Chapter 11 of the Bankruptcy Code, after which all pre-petition claims against defendant were automatically stayed pursuant to 11 U.S.C. 362. The deadline for filing a proof of claim against defendant in bankruptcy court was May 15, 1992. On July 30, 1992, the bankruptcy court entered an order establishing the procedure for processing requests to modify the automatic stay against defendant with respect to litigation of insured claims (the "July lift-stay order").

 In March 1992, after defendant filed for bankruptcy but before the deadline for filing proofs of claim, plaintiff wrote defendant and informed it that plaintiff had incurred damages as a result of defendant's temporary loss of La Ballata. Defendant responded on May 11, 1992, four days before the proof of claims deadline, by requesting further information from plaintiff. Defendant's letter did not mention defendant's bankruptcy or the proof of claim deadline. After plaintiff provided the requested information, followed several months later by a letter requesting a response from defendant, defendant's insurance representatives made a December 1992 settlement offer of $ 634.90 to plaintiff. In that letter offer, defendant informed plaintiff that TWA had filed for bankruptcy and that any settlement was thus subject to approval by the bankruptcy court.

 In June 1993, defendant informed plaintiff about the bankruptcy court's July lift-stay order and told plaintiff that it would stipulate to a lifting of the automatic stay in accordance with that order. On August 30, 1993, after the parties negotiated the wording of the stipulation, plaintiff's counsel sent signed copies to defendant for its signature. However, in August 1993 the bankruptcy court had confirmed defendant's Second Amended Plan of Reorganization and, on September 22, 1993, had entered an order establishing the procedure concerning post-confirmation litigation of pre-petition fully insured claims (the "September lift-stay order"), thereby necessitating a new stipulation between plaintiff and defendant before the automatic stay could be lifted to allow plaintiff to file its claim.

 On October 20, 1993, defendant forwarded a copy of the September lift-stay order to plaintiff so that the parties could enter into a new stipulation. On November 22, 1993, plaintiff returned a signed copy of the stipulation to defendant for defendant's signature. After defendant signed, plaintiff submitted the stipulation to this Court, and the Court signed it on December 17, 1993, thereby lifting the bankruptcy stay and allowing plaintiff's to file this action. Plaintiff did so on the same day.

 The complaint seeks damages caused by defendant's temporary loss of the film. In its answer, defendant asserted various affirmative defenses. These included the arguments that: 1) defendant's liability is limited by applicable provisions of the Warsaw Convention; 2) this action is time-barred by the two-year statute of limitations in the Warsaw Convention and by plaintiff's failure to file a proof of claim in defendant's bankruptcy proceeding before the bar date; and 3) plaintiff failed to file a timely notice of claim with defendant as required by the Warsaw Convention.

 Plaintiff now moves for summary judgment on the issues of limited liability and statute of limitations. Defendant moves to dismiss plaintiff's complaint for failure to file a proof of claim in bankruptcy court and failure to provide proper written notice of claim as required by the Warsaw Convention.

 II. Discussion

 Federal Rule of Civil Procedure 56 provides that summary judgment "shall be rendered forthwith 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c).

 In a motion for summary judgment, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 993, 8 L. Ed. 2d 176 (1962). In order to defeat a motion for summary judgment, the nonmoving party must demonstrate that there is a genuine dispute of material fact. Thus, the party opposing the motion may not rest on the allegations or denials of its pleadings but must set forth specific facts, by affidavit or otherwise, showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). These facts must go to a material matter, and must be sufficient to satisfy the Court that enough evidence exists so that the finder of fact could reasonably find for the party opposing the motion. Anderson v. Liberty Lobby, 477 U.S. 242, 248-52, 106 S. Ct. 2505, 2510-12, 91 L. Ed. 2d 202 (1986).

 A. Statute of Limitations

 The parties agree that the Warsaw Convention, which governs the international transport of good by air, see Distribuidora Dimsa v. Linea Aerea Del Cobre, 976 F.2d 90, 93 (2d Cir. 1992), generally applies to plaintiff's delayed luggage claim. It is also undisputed that the Warsaw Convention contains a two-year statute of limitations for damages actions. Article 29, which sets the limitations period, 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 the law of the court to which the case is submitted.

 Convention for Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reported at 49 U.S.C. § 40105 note, Warsaw Convention, Article 29 (the "Warsaw Convention").

 Plaintiff filed this action on December 17, 1993, some two years and one month after the temporary loss of the film on November 19, 1991. Defendants thus argue that this action is time-barred for failure to file within the Warsaw Convention's two year statute of limitations.

 Plaintiff argues that, pursuant to Article 29(2), the Court should toll the two-year limitations period because a provision of New York law tolls actions that have been stayed by a court or statutory prohibition. Here, the prohibition would be the automatic stay in defendant's bankruptcy proceeding. However, in Royal Insurance Co. v. Emery Air Freight Corp., 834 F. Supp. 633 (S.D.N.Y. 1993), Judge Haight rejected such a reading of Article 29(2), holding that "the legislative history shows that the drafters of the [Warsaw] Convention specifically considered and rejected a proposed provision that would have allowed the statute of limitations to be tolled according to the law of the forum ...

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