The opinion of the court was delivered by: Berman, District Judge.
This is an action by Intercargo Insurance Company ("Intercargo" or
"Plaintiff") against China Airlines, Ltd. ("CAL" or "Defendant") seeking
damages in the amount of $22,600 for the non-delivery of five cartons of
computer parts shipped from Los Angeles to Hong Kong via Taipei, Taiwan,
on or about June 29, 1996, and pursuant to CAL Air Waybill No. 297 6300
The parties agree that the Convention for Unification of Certain Rules
Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat.
3000, T.S. 876 (1934), reprinted in the note following 49 U.S.C.A. §
40105 ("Warsaw Convention"), applies to this shipment and to Intercargo's
CAL. asserts that, pursuant to Article 22(2) of the Warsaw Convention,
its liability, if any, for the non-delivered goods is limited to the
maximum sum of $9.07 per pound of cargo lost by CAL. Thus, based upon the
weight of the non-delivered goods, its liability to Intercargo is limited
to the maximum sum of $795.69.
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