Inclusion of Stopping Places by Reference to Timetables
Compliance with Article 8(c) by way of reference to a carrier's regularly published timetables was approved of by the Second Circuit in Brink's Limited v. South African Airways.27 Mere reference to the carrier's timetables does not necessarily satisfy Article 8(c), however. The timetable reference is sufficient "only if the incorporation effectively reveals the agreed stopping places" by "including the information necessary to apply those timetables to the contract of carriage."
As the Second Circuit noted in Tai Ping, "effective incorporation depends on the accuracy of other information in the waybill."
The Tai Ping court examined a waybill similar to the one at issue here and found that it did not effectively incorporate the regularly scheduled stops. In that case, the waybill noted that the shipment was from Chicago to Hong Kong but failed to include the stops in Anchorage, Alaska, and Narita, Japan, en route. The waybill contained, moreover, an incorrect flight number and an incorrect date of flight and it failed to include any information regarding the transfer of the shipment to a new flight in Narita. The court found that "transfer information is necessary when an air waybill incorporates regularly scheduled stops in satisfaction of Article 8(c) by reference to its timetables. Without notice of the transfer, the shipper could not track its shipment and discover the scheduled stops from the timetables."
In light of all the errors and omissions contained on the waybill, the Tai Ping court found that the waybill did not incorporate or "contain" the agreed stopping places.
The waybill in this case also did not contain the correct flight number. Nor did it contain any information about the transfer of the goods to a new flight in Singapore. Without the correct flight number or information about the transfer of the goods to a new flight in Singapore, the waybill did not provide sufficient information for the shipper to discover the stopping places by looking in the carrier's timetables.
Defendants respond that despite the incorrect flight number and transfer information, the timetables nevertheless revealed that the cargo was to travel aboard Singapore flight number 26 because that was the only direct flight indicated for the route from Singapore to New York. The defendants' argument, however, is misplaced. First, under the terms of the contract as described on the back of the waybill, the carrier had the right to transfer the cargo to another carrier in Singapore, which would render any reference to Singapore's timetables meaningless.
Second, Singapore's August 1995 timetable reveals that flight number 26 stopped in either Frankfurt or Amsterdam depending on the day of the week. Because nothing in the contract required the goods to be shipped on a particular day, reference to the timetable would not assist the shipper in determining which of the two cities was on the shipment's itinerary even if the possibility of transfer to another carrier were ignored. Finally, there apparently were other routes, albeit less direct, by which Singapore could have transported the goods from Singapore to New York apart from flight 26. Singapore's Michael Christiansen admitted in his deposition that at that time the goods could have been shipped to New York on Singapore through San Francisco or Los Angeles.
Accordingly, the Court holds that the waybill did not incoporate or contain the agreed stopping places. Defendants failed to comply with Article 8(c) of the Convention.
Loss of Liability Limitations Under Article 9
Article 9 of the Convention provides that "the carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability" if the air waybill does not contain the agreed stopping places. This loss of the limitation on liability applies with equal force to both the exclusion of limitation founded on Article 20 and the monetary cap on liability
provided for in Article 22(2).
Because the waybill in this case did not contain the agreed stopping places, the defendants are not entitled to the limits provided for in Articles 20 and 22. And because the carrier is not entitled to the limitations of liability, the Court need not reach the issue of whether or not proof of wilful misconduct existed to satisfy at Article 25.
Although defendants Singapore and Contact make much of the fact that it was Maeder who prepared the waybill and that, on their view of the facts, it was Maeder who booked the cargo on flights 865 and 26, these facts have no bearing on the application of Article 9 to limit liability as Article 9 makes no allowance for whose fault it is that the waybill is incomplete. Article 9 simply deprives the carrier of liability limitations "if the carrier accepts goods without an air waybill having been made out, or if the air waybill does not contain" the agreed stopping places. Additionally, as the Court earlier wrote, "Singapore necessarily knew when it placed the shipment on a different flight that the route implicitly designated by Maeder would not be adhered to.... If Singapore lost limitation by virtue of the change, it has only itself to blame."
The Second Circuit recognized in Tai Ping that this result may seem harsh for the mere omission of agreed stopping places.
The plain language of Article 9, however, is clear with respect to omissions. Altering the requirements of the Convention to suit the fairness of its results would be "an impermissible judicial amendment."
Because the defendants accepted goods under a waybill that failed to include the agreed stopping places, they are not entitled to limit their liability under the Warsaw Convention. As the defendants have not otherwise disputed liability or the amount of damages, plaintiff's motion for summary judgment is granted and plaintiff is entitled to judgment in the amount of $ 277,256.23 plus interest. The motion of Singapore and Contact for partial summary judgment is denied.
Dated: April 29, 1998
Lewis A. Kaplan
United States District Judge