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MARTIN MARIETTA CORP. v. HARPER GROUP

January 6, 1997

MARTIN MARIETTA CORPORATION as successor to GENERAL ELECTRIC COMPANY, GENERAL ELECTRIC COMPANY, and INSURANCE COMPANY OF NORTH AMERICA, Plaintiffs, against THE HARPER GROUP as successor to CIRCLE AIRFREIGHT CORPORATION, CIRCLE FREIGHT INTERNATIONAL (USA, INC.) and CIRCLE FREIGHT INTERNATIONAL, LTD., HARPER FREIGHT INTERNATIONAL as successor to CIRCLE AIRFREIGHT CORPORATION, CIRCLE FREIGHT INTERNATIONAL (USA, INC.) and CIRCLE FREIGHT INTERNATIONAL, LTD., CIRCLE AIR FREIGHT CORPORATION, CIRCLE FREIGHT INTERNATIONAL (USA, INC.), CIRCLE FREIGHT INTERNATIONAL, LTD. and KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V. (KLM-ROYAL DUTCH AIRLINES), Defendants.


The opinion of the court was delivered by: CARTER

 I. Background

 This matter was referred to Magistrate Judge Michael Dolinger for consideration of plaintiff's motion to strike defendants' affirmative defenses of limited liability and, in the alternative, for partial summary judgment dismissing said affirmative defenses. Defendants have filed a cross-motion for partial summary judgment on the same question of whether they are entitled to assert limited liability as an affirmative defense. In his report, the magistrate judge recommended that the court grant defendants' motion for partial summary judgment, to the extent of determining that defendants' shipping waybills complied with Article 8 of the Warsaw Convention. Plaintiff has filed written objections to the magistrate's proposed findings pursuant to Rule 72, F.R. Civ. P, requiring the court to give the matter de novo consideration. Only these objections are before the court. For the reasons given below, the court adopts the findings of the magistrate.

 II. Facts *fn2"

 In 1988, GE and Circle entered into a Corporate Transportation Agreement, under which Circle was to serve as GE's international air freight carrier. The agreement, which topped off a longstanding, twenty year commercial relationship between the two companies, was renewed for a second, three-year term in 1990. In November of 1991, GE arranged with Circle, pursuant to its transportation contract, to have a certain body of minehunting sonar equipment shipped from John F. Kennedy ("JFK") International Airport in New York to its buyer, Plessey Naval Systems, Ltd., in England. On GE's instructions, (Circle's Notice of Mot. for Summ. J., Ex. 9, Tichenor Dep. 76-77), Circle in turn contracted with KLM to transport the equipment from JFK to Heathrow Airport in London. A Circle employee executed the air waybill for its transaction with GE at Circle's office, located at 1 Johnson Road, Lawrence, New York. This waybill listed Circle's name as "the issuing carrier" and its Lawrence address and included the scheduled date of departure, KLM's name as the airline responsible for transporting the shipment, and two flight numbers marking the cargo's two-stage route from New York to Amsterdam and then to London. The waybill also included two additional addresses, one indicating Circle's corporate headquarters and the other indicating its mailing address.

 GE independently arranged with a separate company, Roberts Express, to have the cargo that is the subject of this dispute delivered from GE's storage facility in New York directly to KLM at JFK. (See Pl.'s Notice of Mot., Ex. G., Roberts Express waybill) This cargo was consolidated with another GE shipment under a master waybill, which had been supplied by KLM and prepared by another Circle employee. (Pl.'s Notice of Mot., Peterson Dep. at 26-27, 30.) The KLM waybill included all the necessary particulars except for certain items under Articles 8(h) and (i) of the Convention which were overlooked. Pursuant to Circle's agreement with GE, the consolidated shipment was flown aboard KLM to Schiphol Airport in Amsterdam where it was transported to Heathrow. (Circle's Notice of Mot. for Summ. J., Ex. 4, McCann Dep. [hereinafter McCann Dep.] at 42.) Apparently, both stages of the shipment occurred on dates different from the ones scheduled on Circle's waybill. At Heathrow, the cargo was damaged when it fell while being unloaded into KLM's warehouse.

 III. Discussion

 A. Circle's Compliance with Articles 8(a), (c), and (e)

 Plaintiff principally asserts that the Circle waybill omitted essential items under Articles 8(a), (c), and (e), respectively requiring the waybill to "contain . . . the place and date of its execution; . . . the agreed stopping places . . . [and]; the name and address of the first carrier . . . ." The court considers the adequacy of the waybill with respect to each of these items in turn.

 1). Article 8(a)

 Article 8(a) of the Warsaw Convention requires the waybill to contain the "place and date of its execution." Id., Art. 8(a). It is not disputed that the date of Circle's transaction with GE was properly included on the waybill. (See Pl.'s Objections to Report and Recommendation [hereinafter Pl.'s Objections] at 9, 17.) What plaintiff contests is the ambiguity as to which of the three Circle addresses mentioned on the face of the waybill was the actual place of execution.

 The court finds that the waybill conveys the information required under 8(a). The waybill's place of execution is clearly indicated by the appearance of the Lawrence address in the box marked "name and address of issuing carrier/agent." The fact that it is not literally identified as the "place of execution" or that the waybill contains ...


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