decided by the Court of Appeals for the Second Circuit. The parties have
made cross-motions for summary judgment. Oral argument was held on
January 27, 1999.
The facts of this case are largely undisputed.
The action arises from the partial loss of a shipment of goods carried
by CAL from Los Angeles to Hong Kong via Taipei, Taiwan, on or about June
29, 1996, pursuant to CAL Air Waybill No. 297 6300 8595. CAL's waybill
was issued by Express Line Corporation ("Express"), the
shipper/consignor. Express filled out the information on the waybill and
issued its House Air Waybill No. ELC-030338. The shipment contained
eleven cartons of computer parts weighing 193 pounds. CAL Air Waybill
No. 297 6300 8595 and Express House Air Waybill No. ELC-030338 list Los
Angeles and Hong Kong as the cities of departure and destination,
respectively. These waybills also list CAL Flight No. CI317 under the
caption "Flight/Date." Neither waybill lists Taipei (or any other
location) by name as a stopping place.
Paragraph 3 of the Conditions of Contract set forth on the reverse side
of CAL's Air Waybill provides, in part, "[t]he agreed stopping places
. . . are those places, except the place of departure and the place of
destination, set forth on the face hereof or shown in the Carrier's
timetables as scheduled stopping places for the route." CAL Flight No.
CI317 is listed in CAL's timetables as operating from Los Angeles to
Taipei, Taiwan. After CAL Flight No. CI317 arrived in Taipei, the
shipment in question was transferred to CAL Flight No. CI607 and carried
to Hong Kong. CAL Flight No. CI607 was a nonstop flight from Taipei to
Hong Kong. No mention is made, either directly or by reference, to Flight
No. CI607 on either waybill.
Intercargo alleges that when the shipment arrived in Hong Kong, five of
the eleven cartons were missing. Intercargo further alleges that CAL did
not satisfy Articles 8(c) and 9 of the Warsaw Convention which require
designation of agreed stopping places. Specifically, Intercargo asserts
that because CAL's air waybill makes no direct mention of Taipei;
identifies only CAL Flight No. CI317; and does not make reference to
transfer CAL Flight No. CI607 which moved the shipment from Taipei to
Hong Kong, the waybill is defective and CAL's liability is not limited
under the Warsaw Convention.
CAL asserts that, in accordance with its Conditions of Contract and
timetables, the agreed stopping place of Taipei was incorporated by
reference into the CAL air waybill by the listing of flight CI317. This,
according to CAL, fully satisfied the requirements of Articles 8(c) and 9
of the Warsaw Convention. CAL further argues that a reference to transfer
Flight No. CI607 is not required by the Convention or by case law.
Thus, the (narrow) issue before the Court is whether or not CAL's air
waybill had to include reference to transfer Flight No. CI607. If this
question is answered affirmatively, the Court must also decide whether
Intercargo's claims are barred by the alleged negligence of its
A. Air Waybill
In general, Article 18 of the Warsaw Convention provides for air
carrier liability for loss or damage to goods in transit, while Article
22(2) limits liability for such loss to approximately $9.07 per pound.
Article 9 of the Warsaw Convention, however, removes the carrier's
limited liability protection if the air waybill does not contain certain
"particulars" as set forth in Article 8. See Warsaw Convention, Art. 9.
Northwest Airlines, Inc., 94 F.3d 29, 31 (2d Cir. 1996).
Among the requisite particulars is a statement of any "agreed stopping
places."*fn1 See Warsaw Convention, Art. 8(c). See also American Home
Assurance Co. v. Jacky Maeder (Hong Kong) Ltd., 999 F. Supp. 543, 545
(S.D.N.Y. 1998). Even where an air waybill does not specify the agreed
stopping places by name, a waybill that incorporates readily available
timetables (which in turn adequately reflect the agreed stopping places)
can satisfy the Article 8(c) requirement that it contain the "agreed
stopping places" and does not deprive the air carrier of limited
liability protection. See Brink's Ltd. v. South African Airways,
93 F.3d 1022, 1035 (2d Cir. 1996), cert. denied, 519 U.S. 1116, 117
S.Ct. 959, 136 L.Ed.2d 845 (1997). See also Tai Ping, 94 F.3d at 32.
CAL asserts that, under Brink's, it complied with Article 8(c) of the
Warsaw Convention because the agreed stopping place of Taipei, although
not mentioned by name, was referenced by the mention of Flight No. C1317
and incorporated in the air waybill by way of the Conditions of Contract
set forth on the reverse side of the air waybill. The Conditions of
Contract state, in part, "[t]he agreed stopping places are those places
. . . set forth on the face hereof or shown in the Carrier's timetables
as scheduled stopping places for the route." The argument is that were
one to review the timetables for Flight No. C1317, one could ascertain
that the cargo would stop in Taipei because Flight No. C1317 would be
shown to originate in Los Angeles and terminate in Taipei.
The Court does not accept this argument. That is, while Brink's held
that an air waybill that incorporates readily available timetables may
sometimes satisfy Article 8(c) of the Warsaw Convention, the Second
Circuit has further explained the law of agreed stopping places in Tai
Ping, where it ruled that "transfer information is [also] 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." Tai Ping, 94 F.3d at 33. (emphasis
added). See also American Home Assurance Company, 999 F. Supp. at 547.
Here, CAL Air Waybill 297 6300 8595 failed to list either Taipei by
name or to include "transfer information" reflecting that CAL Flight No.
C1607 moved the cargo from Taipei to Hong Kong. Under Tai Ping, these
omissions are fatal to CAL's position. Tai Ping, 94 F.3d at 33.*fn2
B. Consignor Negligence
CAL also argues that Intercargo should be denied relief because "its
claims are barred by the negligence of its insured/subroger, Express Line
Corporation . . ." CAL Reply Mem. at 4. That is, CAL asserts that
assuming, arguendo, CAL's air waybill did not comply with Article 8(c)
of the Warsaw Convention because it did not contain agreed stopping place
information, "the failure to include that information was caused solely
by the negligence of Express in filling out the waybill incorrectly."
Id. at 4-5. CAL asserts that, under Article 10 of the Warsaw Convention,
"Express was responsible for the correctness of the information in the
waybill concerning the stopping places, and is liable for all damages
suffered by CAL . . . by reason of the incorrectness or incompleteness of
such information." Id. at 5.
CAL's argument is without merit. Article 10(1) of the Warsaw
Convention provides that "[t]he consiguor shall be responsible for the
correctness of the particulars and statements relating to the goods which
he inserts in the air waybill." (emphasis added). In American Home
Assurance Company v. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184, 189
(S.D.N Y 1997), the Court observed that a "leading work" on the Warsaw
Convention explains that "only statements of the type required by Article
8(g)-(j), `e.g. specifications relating to the nature, packing, weight
and the external conditions of the goods,' can give rise to consignor
liability under Article 10." (citation omitted).*fn3 Here, the error
relates to "agreed stopping places," not to the goods themselves.
Express, the consignor, cannot be held liable in this instance.
For the foregoing reasons, Intercargo's motion for summary judgment is
granted and CAL's motion for summary judgment is denied.