The opinion of the court was delivered by: John G. Koeltl, District Judge
The plaintiff, Meteor AG, brings this action against the defendant, Federal Express Corporation d/b/a FedEx Express ("FedEx"), for water damage in the amount of $58,828.40 to a coil winding machine allegedly damaged during shipment from Basle, Switzerland to El Paso, Texas while it was in the defendant's charge. The defendant moves for summary judgment.
The plaintiff purports to assert its claim under the Warsaw Convention,*fn1 a multilateral treaty regulating international air commerce. However, the plaintiff's claim is actually governed by the Montreal Convention,*fn2 a more recent treaty that "unifies and replaces the system of liability that derives from the Warsaw Convention." Ehrlic v. Am. Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004); see also Vigilant Ins. Co. v. World Courier, Inc., No. 07 Civ. 194, 2008 WL 2332343, at *4 (S.D.N.Y. June 4, 2008). The applicability of the Montreal Convention, rather than the Warsaw Convention, does not change the analysis in this case.
The following facts are undisputed unless otherwise noted. On or around June 27-28, 2006, the plaintiff, a business located in Switzerland and existing under foreign law, shipped a coil winding machine from Basle, Switzerland to El Paso, Texas. (Defendant's Local Rule 56.1 Statement of Undisputed Material Facts ("Deft.'s 56.1 Stmt.") ¶¶ 2, 3, 6; Plaintiff's Local Rule 56.1 Statement of Undisputed Material Facts ("Pl.'s 56.1 Stmt.")
¶¶ 2, 3, 6.) The defendant, a federally certified all-cargo air carrier based in the United States and operating under authority granted to it by the Federal Aviation Administration, transported the shipment from Basle, Switzerland to Dallas-Fort Worth, Texas. (Deft.'s 56.1 Stmt. ¶¶ 1, 4; Pl.'s 56.1 Stmt. ¶ 4.) After the shipment cleared Customs, another transportation company was responsible for its carriage to El Paso, Texas. (Deft.'s 56.1 Stmt. ¶ 5; Pl.'s 56.1 Stmt. ¶ 5.)
According to the plaintiff, the coil winding machine suffered water damage during shipment for which the defendant is liable in contract and tort. On July 13, 2006, the plaintiff, through Eunsuk Won, the import/export manager for TNT Freight Management (USA) Inc., (see Won Decl. ¶¶ 1, 4), sent written notice of a damage claim to a street address for a FedEx facility at the Dallas-Fort Worth Airport. The document, entitled "Preliminary Claim," was addressed to "FED-EX; DFW Airport, Texas; ATTN -- CLAIM DEPARTMENT." (Deft.'s 56.1 Stmt. ¶¶ 7-8; Pl.'s 56.1 Stmt. ¶¶ 7-8.)
According to the defendant, it never received the "Preliminary Claim" document because it did not receive any mail at the street address for its Dallas-Fort Worth facility, although the plaintiff denies that allegation. (Deft.'s 56.1 Stmt. ¶¶ 9-10; Pl.'s 56.1 Stmt. ¶¶ 9-11.) The defendant represents that it maintained a claims department in Pittsburgh, Pennsylvania where FedEx customers could send their claims with respect to international shipments, and that the address for the claims department was listed in the terms and conditions of the defendant's Service Guide. Those terms and conditions were also available online through the defendant's website, at www.fedex.com/us/services/terms. (Deft.'s 56.1 Stmt. ¶¶ 12-13.)
The plaintiff does not dispute that the defendant maintained a claims department in Pittsburgh where customers could send their claims, or that the address for the claims department was listed in the defendant's Service Guide and online at www.fedex.com/us/services/terms, but the plaintiff disputes the legal significance of those facts. (Pl.'s 56.1 Stmt. ¶¶ 12-13.) The plaintiff also alleges in its opposition papers that in addition to sending written notice of the damage claim to the Dallas-Forth Worth address, Mr. Won emailed notice of the claim by the plaintiff to Vanessa Whiten, an employee in the defendant's sales department. The defendant acknowledges this email in its reply papers. On July 24, 2006, Ms. Whiten responded to Mr. Won's email by instructing him to call a certain hotline telephone number if he wished to initiate a claim. She provided the telephone number in her response. (See Pl.'s Ex. C.)
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is appropriate if it appears that the nonmoving party cannot prove an element that is essential to the nonmoving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or ...