The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
Plaintiff, the Watkins Syndicate of Lloyd's of London
("Watkins"), sues defendant Tampa Airlines under the Warsaw
Convention*fn1 for damage to a shipment owned by Watkins's
subrogor, Apparel Contractors Association ("Apparel"). Tampa in
turn sues third-party defendant Dynamic Express for damages.
Watkins moves for partial summary judgment under Fed.R. Civ. P.
56(c), and Tampa cross-moves for summary judgment on the same
grounds. For the reasons discussed below, both motions are
The facts in this case are as follows, and are undisputed
except as otherwise noted. Defendant Tampa shipped 123 cartons of
garment cutwork and trim owned by Apparel from Cali, Colombia to
Miami, Florida. When the shipment arrived in Miami, Allen
Klinger, president and principal owner of Apparel, contracted
Dynamic to transport the cargo by truck to Dynamic's warehouse in
New Jersey. Klinger had been told that the cargo had been
"sitting outside" at the airport. (Klinger Dep. at 9) Because he
feared the boxes might have been damaged by the elements while
sitting outside, Klinger instructed Dynamic to "make sure everything [was] okay" when shipment was picked
up.*fn2 (Klinger Dep. at 9, 33) On September 6, 2002,
Dynamic sent one of its drivers, Carlos Hernandez, to pick up the
shipment at Miami International Airport.
At the airport, Hernandez met Benjie Rios, who was responsible
for signing over the Apparel shipment from Tampa to Dynamic.
(Rios Dep. at 17) Rios was an employee of Worldwide Flight
Service,*fn3 a company that breaks down and distributes
cargo for Tampa and other airlines. (Rios Dep. at 6) When he saw
the shipment, Hernandez noted that the boxes were "swollen up and
. . . wet with spots." (Hernandez Dep. at 11) Rios and Hernandez,
both native Spanish speakers, conversed in Spanish and agreed
that the shipment was damaged. Rios later testified that the
boxes looked as if "there was too much weight inside" and that
they were "exploding [open] inside" (Rios Dep. at
20-21).*fn4 Hernandez radioed his supervisor Levine to tell him about the
damage, and Levine instructed Hernandez "to make the proper
notations." (Levine Dep. at 30)
Rios signed the pickup form under the notation "cargo came with
improper package," (Hernandez Dep. Exh. 1), although Rios and
Hernandez dispute who wrote the notation itself.*fn5
(Hernandez Dep. at 14; Rios Dep. at 25) Hernandez testified that
Rios told him that the notation on the pickup form was
"complete," and that Hernandez could not make any exceptions to
the shipment "other than what was obvious." (Hernandez Dep. at
24; Levine Dep. at 38)
After the damage notation was made and Rios had signed the
form, Hernandez took the top copy of the pickup form with him and
left Rios with the bottom two copies. Rios's copies did not have
any notation of damage on them, because the notation had been
made only on the top copy, and the pickup order did not have
carbon paper between its sheets. Both Hernandez and Rios knew
that Hernandez had the only annotated copy of the form.
(Hernandez Dep. at 29-30; Rios Dep. at 29-30) Hernandez and Rios
agreed that Hernandez needed the notation of damage to show the trucking company he worked for, Dynamic, and that the annotated
pickup form was for Dynamic, not for Rios's company, Worldwide.
(Hernandez Dep. at 29; Rios Dep. at 25, 29, 32)
Hernandez drove the damaged cargo to the Dynamic facility in
Miami. (Hernandez Dep. at 19) At that point, Dynamic employee
Jeffry Levine told Klinger about the poor condition of the boxes,
and Klinger instructed Levine to transport the shipment to the
Dynamic warehouse in New Jersey so that he could examine it.
(Klinger Dep. at 10-11) When Klinger inspected the shipment upon
its arrival in New Jersey, he determined it to be a "disaster;"
the boxes were "broken open, smelly, [and] wet." (Id. at 13;
see also plaintiff's Exh. 6, (survey report describing
extensive damage to the shipment)) Klinger and his insurers
independently determined that the goods were unsalvageable.
Apparel then shipped all 123 boxes to Mexico, where the cutwork
and trim was either "given away or put in the garbage." (Klinger
Dep. at 53; see also id. at 27)
On October 1, 2002, Apparel sent Tampa a letter noting the
damage and stating that it would hold Tampa fully responsible for
its monetary losses. (Furman Decl., Exh. C) In February 2003,
plaintiff insurers paid Apparel $96,286.11 as compensation for
its losses (plaintiff's Exh. 7), and subsequently brought this
action for damages against Tampa.
When two parties in a case have cross-moved for summary judgment, both asserting an absence of a genuine issue of
material fact, a court must examine each motion separately, and
in each instance, draw all inferences against the moving party;
the reviewing court need not enter a judgment for either party.
Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir.
2001); Heublein, Inc. v. United States, 996 F.2d 1455, 1461
(2d Cir. 1993); Padberg v. McGrath-McKechnie,
203 F. Supp. 2d 261, 274 (E.D.N.Y. 2002).
The court has subject matter jurisdiction over this case
pursuant to the Warsaw Convention, which provides an exclusive
federal remedy for all claims brought against international air
carriers for damaged goods. If the Convention applies, it
preempts all state law claims arising out of international air
transportation. El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng,
525 U.S. 155, 174-75 (1999); Lokken v. Fed. Express Corp.,
No. 99-0585, 2000 WL 193121, at *3 (S.D.N.Y. Feb. 16, 2000).
Therefore, this court will not consider any supplemental state
law claims arising from this incident.
The Warsaw Convention governs claims arising from "all
international transportation of persons, baggage, or goods
performed by aircraft for hire." Warsaw Convention, art. 1(1).
Article 26 of the Convention provides that receipt of goods
without complaint is "prima facie evidence that the same have
been delivered in good condition. . . ." Id. art. 26(1). If
goods have been damaged in transit, "the person entitled to
delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, . . . within 14 days
from the date on which the baggage or goods have been placed at
his disposal." Id. art. 26(2). The Convention further provides
that "[e]very complaint must be made in writing upon the document
of transportation or by separate notice in writing dispatched
within the times aforesaid." Id. art. 26(3). If the above
requirements are not followed, "no action shall lie against the
carrier, save in the case of fraud on his part." Id. art.
Plaintiff Watkins moves for partial summary judgment on the
ground that the notation "cargo came with improper package" on
the Apparel shipment pickup form constituted adequate written
notice for the purposes of the Warsaw Convention. Plaintiff
alternatively claims that if notice was not adequate, defendant's
conduct was sufficiently fraudulent to convince plaintiff that
sufficient notice had been provided. Defendant Tampa cross-moves
for summary ...