The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
This is an action to recover for the loss of an air cargo as a result of an armed robbery at John F. Kennedy International Airport in New York City. In these cross-motions for summary judgment, the Court is called upon to determine whether the defendants' liability for the lost cargo is limited under the Warsaw Convention
(the "Convention"). Plaintiff American Home Assurance Company ("American Home") contends that the defendants lost their liability limitations because the air waybill did not contain the particulars required by the Convention. Defendants Singapore Airlines, Ltd. ("Singapore"), the carrier, and Contact Air Cargo Services ("Contact"), from whose facility the goods were stolen, disagree and seek partial summary judgment limiting their liability.
The essential facts are largely undisputed. Suppliers of plaintiff's subrogor, Bulova Corporation ("Bulova"), delivered 47 cartons of watches to defendant Jacky Maeder (Hong Kong) Ltd. ("Maeder"), the consignor, in Hong Kong for shipment to New York. Maeder prepared a master air waybill for the transport and delivered the cargo to Singapore for shipment. The master air waybill space denominated "flight/date - for carrier use only" bore the typewritten entry "SQ001/04/AUG."
The parties agree that this was a reference to Singapore Airlines flight number 1 on August 4, 1995. In fact, however, the shipment left Hong Kong for Singapore on Singapore Airlines flight number 865 some hours later than the departure of flight number 1 and from Singapore traveled to New York, via Frankfurt, aboard Singapore Airlines flight number 26. Defendants Singapore and Contact contend that this was because Maeder never booked the cargo on flight 1 but instead booked the shipment on flights 865 and 26.
Maeder disputes this and contends that Singapore confirmed to it that space was available on flight 1 for the watches.
The parties agree that the air waybill contained no references to either flight number 865 or flight number 26. Nor did the waybill refer to any stops in Frankfurt or Singapore. The reverse side of the waybill, however, did contain the following language:
"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."
"Carrier may substitute alternative carriers or aircraft and may without notice and with due regard to the interests of the shipper substitute other means of transportation. Carrier is authorized to select the routing or to change or deviate from the routing shown on the face hereof."
Singapore's timetables in effect in August 1995 reveal several possible routes for shipments from Hong Kong to New York.
Flight number 2 was scheduled to fly to New York via San Francisco. Flight numbers 1, 865 and 866 were scheduled from Hong Kong to Singapore, and flight number 26 was scheduled from Singapore to New York via either Frankfurt or Amsterdam, depending upon the day of the week. Routes through San Francisco or Los Angeles also were available.
Upon arrival of the shipment in New York, Singapore delivered the cargo to Contact to await pickup. While the cargo was in Contact's custody, armed robbers entered the warehouse, tied up the security guard, and stole the watches at issue here. Plaintiff paid Bulova $ 304,981.85, which included a total claim of loss of $ 277,256.23 plus a $ 27,725.62 insurance mark-up,
and was subrogated to Bulova's rights.
The Summary Judgment Motions
Defendant Maeder contends that there were no "agreed stopping places" to include on the waybill. All of the defendants argue that the waybill complies with Article 8(c) because Frankfurt was a regularly scheduled stop and the waybill referred to Singapore's timetables in which the regularly scheduled stops were listed. The defendants argue further that the plaintiff has failed to prove that they engaged in wilful conduct and that Article 25 therefore of the Convention does not preclude a limit on their liability.
Apart from their defenses under Articles 20 and 25 of the Convention, however, the defendants did not contest the fact of liability or the amount of damages.
Thus, the only issue for resolution on summary ...