United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN UNITED STATES DISTRICT JUDGE.
Montreal Convention imposes liability on air carriers for
“destruction . . . of . . . cargo, ” “loss
of . . . cargo, ” or “damage to . . .
cargo.” In this case, a carrier transported a jet
engine on the wrong type of truck. That mistake required the
recipient to do a costly inspection, which ultimately
revealed no transport-related damage. This raises the novel
question of whether the Montreal Convention allows recovery
of inspection costs even though there was no physical damage
to any cargo. For the reasons that follow, the answer is no.
Indemnity Insurance Company of North America is an insurance
company. Defendant Agility Logistics Corp. is a shipping
suit concerns a jet engine shipped from Florida to Germany.
GE Capital Aviation Services arranged for Agility to
transport the engine, which GE Capital had just refurbished.
Agility does not ship anything itself; rather, it arranges
shipment with various carriers along the shipping route.
(Dkt. No. 45 ¶ 71.) The parties dispute who exactly
contracted with whom, but the basic chronology is as follows:
• GE Capital sends an “engine shipment
request” to Agility, asking for the engine to be
shipped from a company called LCI in Tamarac, Florida, to
Lufthansa Technic in Alzey, Germany. (Dkt. No. 29-2.)
• Agility sends a “spot quote” to GE
Capital, listing LCI as the “shipper of record”
and Lufthansa Technik as the recipient/consignee. (Dkt. No.
• The engine begins its journey. The air waybill
exhorts: “All ground transportation must be full air
ride.” (Dkt. No. 29-6.) This means that every axle of
the truck must have an air-ride suspension.
• The engine arrives safely in Frankfurt Airport. (Dkt.
No. 45 ¶ 9.)
• The engine is loaded onto a tractor-trailer in
Frankfurt Airport. The tractor-trailer is arranged by
Agility's German affiliate, Agility Germany. (Dkt. No. 45
¶ 12.) But while the trailer has an air-ride suspension,
the tractor does not. (Dkt. No. 45 ¶ 16.)
• The engine arrives in Alzey. Lufthansa Technik is not
• Lufthansa Technik takes apart the engine to check for
transport-related defects. The inspection turns up several
defects unrelated to transport. There is no evidence that
improper transport caused any damage. (Dkt. No. 45
• Lufthansa Technik bills GE Capital $177, 450.07 for
the inspection cost. (Dkt. No. 45 ¶ 21; Dkt. No. 29-12
• Indemnity—GE Capital's insurer—pays GE
Capital $127, 450.07 for the inspection bill. (Dkt. No.
• Indemnity sues Agility for the inspection costs.
asserts subject matter jurisdiction under 28 U.S.C. §
1331, because its claims arise under the Montreal Convention,
a United States treaty. Both parties now move for summary
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is material if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “On summary
judgment, the party bearing the burden of proof at trial must
provide evidence on each element of its claim or
defense.” CohenLans LLP v. Naseman,
No. 14 Civ. 4045, 2017 WL 477775, at *3 (S.D.N.Y. Feb. 3,
2017) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)). “If the party with the burden of
proof makes the requisite initial showing, the burden shifts
to the opposing party to identify specific facts
demonstrating a genuine issue for trial, i.e., that
reasonable jurors could differ about the evidence.”
Clopay Plastic Prods. Co. v. Excelsior Packaging Grp.,
Inc., No. 12 Civ. 5262, 2014 WL 4652548, at *3 (S.D.N.Y.
Sept. 18, 2014). The court views all “evidence in the
light most favorable to the non-moving party, ” and