Petition for Writ of Certiorari — Weston v. Federal Express Corp.

Supreme Court, U.S.

UJ FILED

011866 JUN 1 9 2002

No. 01- OFF'CE OF THE CLERK

IN THE

Supreme Court of the United States

H. LLOYD WESTON,

Petitioner,

v.

FEDERAL EXPRESS CORPORATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

—

Paut J. PAciFIco

PaciFico & FiLan, LLP

Attorneys for Petitioner

25 Ford Road

Westport, CT 06880

(203) 221-8066

174524 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859 ~ .

to

QUESTIONS PRESENTED

Whether the Second Circuit erred in affirming the

District Court’s grant of summary judgment, thereby

limiting Petitioner’s claim under the Warsaw Convention

and pre-empting Petitioner’s state law claim by finding

that there was no evidence that raised an inference that

Respondent Federal Express’s actions constituted willful

misconduct or reckless behavior.

Whether the Petitioner had an affirmative duty to plead

reliance on false assurances from Respondent Federal

Express Corporation in order to prevail on a claim of

willful misconduct exception under Article 25 of the

Warsaw Convention.

Whether under the Warsaw Convention, Petitioner had

a duty to ameliorate the damages and whether failure to

ameliorate excuses willful misconduct.

li

TABLE OF CONTENTS

Questions Presented .........cccccccscccccecs

Table of Comeeett.. .4..s4sknbeecen eee

Table of Cited Authorities ............0..0.00005

Table of AppemdiGes ......s0ccusscaeveanewaus

Opinions Below . ...:.<2i+<400s058ee

Statement of Jurisdiction ..............00 0000.

Statutory Provisioms ......scseseuaueeuepeeeee

Statement of the Case .... issdss0eeouee ee

Reasons for Granting the Writ .................

I.

II.

Il.

Petitioner’s Claim Under the Warsaw

Convention ......ssecuccese dane

The Second Circuit Erred in Affirming

Summary Judgment for Respondent Since a

Finding of Willful Misconduct is a Question

of Fact and Requires a Determination by the

Tries of Fact .......0s000808e eee

Certiorari is Warranted Because the Decision

Below Conflicts with Pnor Decisions of the

Second Circuit and with Decisions From

Other Ciremits .. 2... .ccuacuueeeeee

Conclusion ........scscsanuneeeeeeee

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TABLE OF CITEDAUTHORITIES

Page

.S:

njamins v. British European Airways,

$72 F.2d 913 (2d Cir. 1978) ...--------- hea 9

Berner v. British Commonwealth Pacific

Airlines, Lid,

346 F.2d 532 (2d Cir. 1965) .....--- +--+ +5202 9

Carriage Bags, Ltd. v. Aerolinas Argentinas,

521 F. Supp. 1363 (D. Colo. 1981) ....------> 5

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ....--- cece cere tert: 3,8

Distribuidora Dimsa y. Linea Aerea

Del Cobre S.A.,

976 F.2d 90 (2d Cir. 1992) .....--- eee e rere: 5

El al Israel Airlines, Ltd. v. Tsui Yuan Tseng,

§25 U.S. 155 (1999) ...---- cece eter rte: 9

Ewig Intern. Marine Corp. v. American Airlines, Inc.,

914 F. Supp. 1543 (N.D. Ill. 1995) ...--. ee 5

Fishman vy. Delta Airlines, Inc.,

132 F.2d 138 (2d Cir. 1998) .....-------+-+:: 9

In Re: Pago Pago Aircrash of January 30, 1974,

419 F. Supp. 1158 (C.D. Cal. 1976) ...-------- 6, 7,9

iv

Cited Authorities

Page

Johnson v. American Airlines, Inc.,

834 F.2d 721 (9th Cir. 1987) ................ 5

Koninklijke Luchtvaart Maatschappij N.V. KLM

Royal Dutch Airlines v. Tuller,

292 F.2d 775 (D.C. App. 1961) .............. 8,9

Korean Air Lines Co., Ltd. v. State,

TTS 0.4 353 CAlomie USED) nw. oon ccccacccccs 5

Onyeanusi v. Pan Am,

ee ee Te is + i)

Saba v. Compagnie Nationale Air France,

78 F.3d 664 (D.C. Cir. 1996) ................ 5

St. Paul Ins. Co. of Illinois v. Venezuelan

Intern. Airways, Inc.,

807 F.2d 1543 (11th Cir. 1987) .............. 5

Tokio Marine & Fire Ins. Co., Ltd.

v United Airlines, Inc.,

933 F. Supp. 1527 (C.D. Cal. 1996) .......... 5

Ulen v. American Airlines, Inc.,

BOO F.26 S29 GDL. TOG icc ook tctacsbanes 9

Cited Authorities

Page

Statutes:

8 U.S.C. § 1254(1) 0... cece eee eee eens l

CC. 8 T5RS 5 5 i ein TEST TOOT CTT TE 1,4

A wR. Caw, Poe, SIG) occ ccc ccntvnwsceneeas 3

Other Authorities:

Warsaw Convention:

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Patel TD) ok cakes cectacavensuasnenevas -

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IBEST

vi

TABLE OF APPENDICIES

Appendix A — Summary Order Of The United States

Court Of Appeals For The Second Circuit Dated

And Filed March 22, 2002 ..................

Appendix B — Ruling On Defendant’s Motion For

Summary Judgment Of The United States District

Court For The District Of Connecticut Dated

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Appendix C — Relevant Provisions Of Convention For

The Unification Of Certain Rules Relating To

International Transportation By Air (“Warsaw

ow eee ee

Page

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6a

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Petitioners respectfully petition for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINIONS BELOW

The district court’s opinion granting Respondent’s

summary judgment motion (Appendix (“Pet. App.” la-5a)

is not otherwise published. The court of appeals’ order

(Pet. App. 6a-11a) affirming the district court’s grant of

summary judgment is also not otherwise published.

STATEMENT OF JURISDICTION

The court of appeals entered its summary order on

March 22, 2002. Petitioner’s invoke this Court’s jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

The provisions of the Warsaw Convention, 49 U.S.C.

§ 1502, relevant to this petition are reprinted in the Appendix

at 12a-14a.

STATEMENT OF THE CASE

Petitioner is a professional artist who contracted with

Respondent Federal Express to ship paintings to an art

exhibition. Petitioner brought an action against Respondent

for failure to deliver paintings from the United States to an

important art exhibition in Rome, Italy in time for display,

thus causing substantial economic loss. Petitioner maintains

that Respondent knew of the urgency of the delivery and

informed Petitioner that Federal Express was aware of the

2

situation and that the paintings would be delivered on time.

Respondent admits it knew of the urgency of the delivery.

Petitioner also maintains that Respondent received

the paintings at the terminal in Milan, Italy and is guilty of

willful misconduct in the handling of the shipment in Milan.

Such misconduct is an exception to the recovery limitation

provision of the Warsaw Convention.

Respondent admits receiving the paintings, but denies

the assurances given to Petitioner, maintaining that it was

impossible to make the delivery on time due to the inspection

schedule of the Italian Authorities. Respondent maintains that

its liability is limited by the provisions of the Warsaw

Convention.

Therefore, the issue arises as to whether or not the

paintings left the airport terminal, thereby removing the case

from the jurisdiction of the Warsaw Convention. Additionally,

there is an issue as to whether or not Respondent was guilty

of willful misconduct if:

(a) The paintings were lost, recklessly, within the

terminal;

(b) Respondent ignored the urgency of delivery,

either willfully or recklessly; or

(c) Whether lost or ignored, Respondent knew

or should have known the urgency of delivery

and its inability to deliver on time, willfully

or recklessly giving false assurances to

Petitioner.

Any of the above instances would satisfy the exception to

limitation of liability within the Warsaw Convention.

3

The Respondent made a Motion for Summary Judgment

arguing that the Warsaw Convention controlled and

that Petitioner was limited to $4,652.91 in recovery.

The Petitioner maintained that material issues of fact existed

to warrant a jury trial on two issues:

(a) Whether the Warsaw Convention applied

at all since the paintings could have been

lost outside the Italian airport (if so, the

Convention would not apply); and

(b) Whether the Respondent was guilty of

reckless misconduct or willful misconduct

(an exception within the Convention)

REASONS FOR GRANTING THE WRIT

The petition should be granted for two reasons.

First, there is a substantial question of fact regarding whether

or not Federal Express, whether intentionally or recklessly,

misled Petitioner as to Federal Express’s ability to delivery

the paintings in question within the necessary time constraints

made known to Respondent. Summary judgment should only

be granted when there is no genuine issue as to any material

fact. See Fed. R. Civ. Pro. 56(c), Celotex Corp. v. Catrett,

477 U.S. 317 (1986). Here there are several material

questions of fact and a grant of summary judgment was

inappropriate in this particular case. In addition, the Court

of Appeals for the Second Circuit seems to suggest that

Petitioner had a duty to claim reliance on Respondent’s

assurances. Petitioner asserts that he did not have to rely on

the assurances in order to prevail and that simply willful

misconduct is enough to remove this particular case from

the jurisdiction of the Warsaw Convention.

4

Second, the Second Circuit’s decision to affirm the

Respondent’s motion for summary judgment conflicts with

established case law. The case law supports the proposition

that if Federal Express is guilty of willful misconduct, the

limitation of liability in the Warsaw Convention does not

apply.

I. Petitioner’s Claim Under the Warsaw Convention

The Warsaw Convention is a treaty of the United States

involving Italy and covers damages arising out of the

“international transportation of persons, baggage or goods

performed by aircraft for hire.” 49 U.S.C. § 1502.

Chapter Three of the treaty contains Articles 17 through

30 concerning the liability of the carrier. Article 22 provides

for limitations of liability. In particular, Article 22(2) provides

as follows:

In the transportation of checked baggage and of

goods, the liability of the carrier shall be limited

to a sum of 250 francs per kilogram, unless the

consignor has made, at the time when the package

was handed over to the carrier, a special

declaration of the value at delivery

Article 25 of the Warsaw Convention provides:

1. The carrier shall not be entitled to avail himself

of the provisions of this convention which exclude

or limit his liability if the damages caused by his

willful misconduct or by such default on his part

as, in accordance with the law of the court to

which the case is submitted, is considered to be

equivalent to willful misconduct.

5

2. Similarly, the carrier shall not be entitled to

avail himself of the said provisions, if the damages

caused under the same circumstances by any agent

of the carrier acting within the scope of his

employment.

Thus the limitation of liability clause does not apply to

_ the conduct of the carrier that is willfully or grossly negligent.

See Saba v. Compagnie Nationale Air France, 78 F.3d 664

(D.C. Cir. 1996); Distribuidora Dimsa v. Linea Aerea Del

Cobre S.A., 976 F.2d 90 (2d Cir. 1992); St. Paul Ins. Co. of

Illinois v. Venezuelan Intern. Airways, Inc., 807 F.2d 1543

(11th Cir. 1987); Johnson v. American Airlines, Inc., 834 F.2d

721 (9th Cir. 1987); Tokio Marine & Fire Ins. Co. Ltd. v.

United Air Lines, Inc., 933 F. Supp. 1527 (D. Cal. 1996);

Ewig Intern. Marine Corp. v. American Airlines, Inc., 914

F. Supp. 1543 (N.D. Ill. 1995); Carriage Bags, Ltd. v.

Aerolinas Argentinas, 521 F. Supp. 1363 (D. Colo. 1981);

Korean Air Lines Co., Ltd. v. State, 779 P.2d 333 (Alaska

1989). Article 25, therefore, provides for an exception to the

limits of liability provided for in Article 22.

II. The Second Circuit Erred in Affirming Summary

Judgment for Respondent Since a Finding of Willful

Misconduct is a Question of Fact and Requires a

Determination by the Trier of Fact

Determination of whether or not anyone is guilty of

willful misconduct within the meaning of Article 25 of the

Warsaw Convention is a question of fact, to be decided by

the trier of fact. Hence, the appropriate procedure would be

to permit evidence to be presented to a jury, instruct the jury

as to what constitutes willful misconduct, and allow the jury

to make a separate determination, by separate verdict, as to

6

whether or not there has been willful misconduct on the part

of the carrier or any agency of the carrier, acting within the

scope of employment. See Jn Re: Pago Pago Air Crash of

January 30, 1974, 419 F. Supp. 1158 (C.D. Cal. 1976).

When one reads the depositions together with their

attachments, there is no question that the jury should

determine whether or not Federal Express was guilty of

willful misconduct. First, there is the issue of whether or not

the paintings were indeed lost. The affidavit of petitioner’s

agent contains allegations that the paintings were received

by Federal Express and that on October 8, 1996 Federal

Express contacted the gallery stating that the paintings had

arrived. This is consistent with the testimony of Federal

Express employees concerning the fax notations in the

documents and Federal Express’s standard operating

procedure. The Warsaw Convention requires that this contact

be made with the shipping customer in Article 13. It is also

alleged that on several occasions, Petitioner’s agent was

assured that the paintings would be delivered in enough time

for the October 14, 1996 exhibition. This did not occur.

More importantly, a substantial question of fact also

exists as to whether Federal Express personnel intentionally

misled the customer as to Federal Express’s ability to deliver

the paintings in a timely manner. Evidence of the testimony

of a Federal Express employee regarding the fact that he

was aware of the urgency of the shipment, which was

communicated to him by the customer service personnel,

but that he could not recollect that he knew the exact date

that the shipment had to be delivered, should be presented

to the jury. The credibility of that statement, taken in

conjunction with the fact that the Federal Express employee

-

called the gallery concerning the delivery of the paintings 1s

a fact to be determined by a jury, and not an issue that can be

decided on summary judgment.

Moreover, it is also a question of fact for a jury as to

whether Federal Express intentionally gave false information

concerning the ability to deliver. If the goods were not lost,

it is a question of fact as to whether or not the shipment was

mishandled. Regardless of whether the shipment was lost or

ignored, if the allegations are true, then Federal Express is

guilty of willful misconduct. In Jn Re Pago Pago Aircrash

of January 30, 1974, 419 F. Supp. 1158 (C.D. Cal. 1976),

the court recognized that

there is an insurmountable threshold question of

fact to be determined by the trier of the fact, i.e.,

the jury, or the Court if a jury is waived, as to

whether or not there was “wilful misconduct” on

the part of the defendant as one of the proximate

causes of said crash which would exclude the

carrier, from taking advantage of the limitations

of liability of the Warsaw Convention.

Id. at 1160. Moreover, “there can be no doubt that the

determination of whether or not any one is guilty of ‘willful

misconduct’ is a fact question and can only be decided by

the trier of fact.” Id. (emphasis added).

In considering a motion for summary judgment, the court

should consider the evidence in the light most favorable to

the plaintiff and should only grant summary judgment

“if the pleadings, depositions, answers to interrogatories, and

admissions, together with the affidavits show that there is

no genuine issue as to any material fact and that the moving

8

party is entitled to a judgment as a matter of law”. Ce/lotex at

322. Here Petitioner has not failed to make a sufficient

showing on any essential element of the case.

In addition, the Second Circuit has suggested that

Petitioner had an affirmative duty to plead reliance on false

assurances by FedEx of on-time delivery in order to prevail

under the Warsaw Convention. However, Petitioner filed this

case in state court, only to have it later removed by

Respondent to federal court. The state court action was not

initiated under the Warsaw Convention, but rather the Answer

filed by Respondents raised the application of the Warsaw

Convention as an affirmative defense. Therefore, Petitioner

had neither the opportunity to plead based on the Warsaw

Convention, nor did Petitioner seek redress under the Warsaw

Convention. Therefore, the Second Circuit erred in placing

the burden on Petitioner to plead reliance in order to prevail.

III. Certiorariis Warranted Because the Decision Below

Conflicts with Prior Decisions of the Second Circuit

and with Decisions From Other Circuits

The Second Circuit’s holding which affirms the District

Court grant of summary judgment conflicts with settled law

in this area. Well established case law supports the

proposition that if a company is guilty of willful misconduct,

then the limitation of liability does not apply. Koninklijke

Luchtvaart Maatschappij N.V. KLM Royal Dutch Airlines v.

Tuller, 292 F.2d 775 (D.C. App. 1961) sets forth the definition

of willful misconduct under the Warsaw Convention as

“the intentional performance of an act with knowledge that

the act will probably result in injury or in some manner as to

imply reckless disregard of the consequences of its

performance; and likewise, it also means failure to act’ in

9

such circumstances.” /d. at 778. Here it is alleged that Federal

Express knew of the urgency of the matter and continued to

assure the customer that the goods would arrive on time for

the exhibition. See also, Ulen v. American Airlines, Inc.,

186 F.2d (D.D.C. 1949); Berner v. British Commonwealth

Pacific Airlines, Ltd., 346 F.2d 532 (2d Cir. 1965).

In In Re: Pago Pago Aircrash of January 30, 1974,

419 F. Supp. 1158 (C.D. Cal. 1976), the court held that

“if there was willful misconduct on the part of the carrier or

any agent acting within the scope of his employment,

the carrier is precluded from limiting his liability to the

amount set forth in the Warsaw Convention.” /d. at 1160.

See also, El al Israel Airlines, Ltd. v. Tsui Yuan Tseng,

525 U.S. 155 (1999); Fishman v. Delta Airlines, Inc.,

132 F.3d 138 (2d Cir. 1998); Benjamins v. British European

Airways, 572 F.2d 913 (2d Cir. 1978). Berner v. British

Commonwealth Pacific Airlines, Ltd., 346 F.2d 532 (2d Cir.

1965). These cases reinforce the concept that the Warsaw

Convention shall not be preempted upon a finding of

willful misconduct on the part of the carrier. Article 25 of

the Warsaw Convention explicitly states that a carrier shall

not be entitled to avail itself of the provisions of the

Convention that limit liability if its misconduct is willful.

El al Israel Airlines at 676.

Specifically, in Onyeanusi v. Pan Am, 952 F.2d 788

(3d Cir. 1992), the Third Circuit, citing Warsaw Convention

Article 25(1), held that if an international carrier was guilty

of any intentional misconduct, such misconduct would permit

the plaintiff to recover damages in excess of the Warsaw

Convention’s limitations on monetary liability (intentional

misconduct was not found in that case). Jd. at 794. Thus, the

Third Circuit has reached an entirely different conclusion

on the same issue, meriting review and reversal by this Court.

10

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Paut J. PACIFICO

Pacifico & Firan, LLP

Attorneys for Petitioner

25 Ford Road

Westport, CT 06880

(203) 221-8066

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APPENDIX

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APPENDIX A— SUMMARY ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT DATED AND FILED MARCH 22, 2002

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS

OR ANY OTHER COURT, BUT MAY BE CALLED TO

THE ATTENTION OF THIS OR ANY OTHER COURT

IN A SUBSEQUENT STAGE OF THIS CASE, IN A

RELATED CASE, OR IN ANY CASE FOR PURPOSES

OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 22nd day of

March, Two Thousand Two.

PRESENT: HONORABLE FRED I. PARKER

HONORABLE ROSEMARY S. POOLER

HONORABLE BARRINGTON D. PARKER, JR.

Circuit Judges.

No. 01-7472

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2a

Appendix A

H. LLOYD WESTON,

Plaintiff-Appellant,

V.

FEDERAL EXPRESS CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court for the

District of Connecticut (Warren W. Eginton, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the decision

of said District Court be and it hereby is AFFIRMED.

Plaintiff-appellant H. Lloyd Weston (“Weston”) appeals

from the judgment of the district court entered March 2, 2001

granting the motion for partial summary judgment of

defendant-appellee Federal Express Corporation (“FedEx”),

limiting FedEx’s liability in accordance with Article 22 of

the Warsaw Convention (the “Convention”).

It is undisputed that Weston contracted with FedEx to

ship artwork from Danbury, Connecticut on October 2, 1996

to arrive in Rome, Italy, where the artwork was to be displayed

in an art exhibition on October 14, 1996. The artwork arrived

at Malpensa Airport in Milan, Italy on October 5, 1996.

The artwork could not clear customs and be shipped to Rome,

3a

Appendix A

its final destination, until after the Italian Art Ministry

(“BRERA”) inspected it. At the time, BRERA only conducted

inspections at Malpensa Airport on the first and third Wednesday

of the month — October 2 and October 16 of the month in

question. The artwork was inspected on October 16, 1996,

but plaintiff refused delivery in Rome on the ground that the

artwork was too late for its intended exhibition.

Taking Weston’s allegations as truc, his agents repeatedly

telephoned FedEx after the paintings had arrived in Milan

and were falsely informed that “things were being properly

handled” and the artwork would arrive in Rome in time for

the exhibition. Also, plaintiff’s agent Prince George of Serbia

avers that: (1) on October 11, 1996, a FedEx representative

told Prince George that the artwork had already been shipped

to Rome, and (2) on October 14, 1996, Ms. Sabina of

FedEx told Prince George that FedEx was unable to locate

the artwork.

Weston argues on appeal that partial summary judgment

should not have been granted because there are disputed,

material questions regarding (1) whether FedEx acted with

willful misconduct under Article 25 of the Convention,

thereby fitting within an exception to the liability limitation

of Article 22, and (2) whether the artwork was temporarily

lost outside of the grounds of the Malpensa Airport, therefore

taking this dispute outside of the Warsaw Convention because

Article 18 does not apply to damage or loss that occurs

outside of airport grounds.

44

Appendix A

We find plaintiff’s claims are without merit. Article 25

would only render the Convention’s liability limitation

inapplicable if the defendant’s willful misconduct caused

plaintiff’s injury. Regardless of whether FedEx’s allegedly

false and misleading statements constitute willful misconduct,

Weston’s injury.or damage was not “caused by [FedEx’s

alleged] willful misconduct.” Article 25(1). Plaintiff was

injured because his artwork did not arrive in Rome in time

for the planned exhibition, an injury that was inevitable once

the artwork shipped from Connecticut on October 2, 1996.

The delay of the artwork was not caused by FedEx’s alleged

misrepresentations. Weston did not allege that he relied on

false assurances by FedEx of delivery in time for the

exhibition when deciding to ship the artwork via FedEx on .

October 2, 1996, willful misconduct that would have resulted

'n the injurious delay. Nor does Weston allege that he could

have done anything to ameliorate the delay had he been

informed of its inevitability once the artwork had arrived in

Milan. Accordingly, the willful misconduct exception of

Article 25 does not apply.

Weston’s next argument also fails, even assuming

that his artwork was temporarily lost off airport grounds

(a proposition for which he provides scant evidence), because

the argument is predicated on the applicability of the

inapplicable Article 18. Article 18 provides that carriers are

liable for “damage sustained in the event of the destruction

or loss of, or of damage to, any checked baggage or any goods,

if the occurrence which caused the damage so sustained took

place during the transportation by air.” Article 18(1)

(emphasis added). Thus, hypothetically, if Weston’s paintings

had been permanently lost after being placed in FedEx’s

5a

Appendix A

warehouse facility outside of airport grounds, FedEx’s liability

would not be governed by the Warsaw Convention. See Victoria

Sales Corp. v. Emery Air Freight, Inc., 917 F.2d 705 (2d Cir.

1990). Yet Weston does not claim damages for “destruction

or loss of, or of damage to” his paintings within the meaning

of Article 18. Instead, Weston seeks damages for the delay of

his paintings within the meaning of Article 19, which provides

that a “carrier shall be liable for damages occasioned by delay

in the transportation by air of passengers, baggage, or goods.”

Article 19 (emphasis added). Since Article 19 applies,

the limitation of liability provision also applies. The Article

18 definition of “transportation by air” on which Weston

predicates his argument only applies to Article 18. Therefore,

even if we were to stretch Weston’s proffered facts beyond

reasonable inference to conclude that the paintings may have

been temporarily lost off airport grounds, this conclusion

bears no impact on the applicability of the Warsaw

Convention to his claim.

For the reasons set forth above, the judgment of the

district court is AFFIRMED.

FOR THE COURT,

Roseann B. MacKechnie, Clerk

By: s/ Lucille Carr

Lucille Carr, Operations Manager

6a

APPENDIX B — RULING ON DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

CONNECTICUT DATED MARCH 2, 2001

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

3:97cv1285(WWE)

H. LLOYD WESTON

Ws

FEDERAL EXPRESS CORP.

RULING ON DEFENDANT?’S MOTION FOR

SUMMARY JUDGMENT

The plaintiff, H. Lloyd Weston, alleges that the defendant,

Federal Express Corporation (“FedEx”), failed to deliver a

shipment of his paintings on time, and therefore is liable for

breach of contract and negligence.

Defendant has filed for partial summary judgment.

Specifically, defendant argues that its liability is limited in

accordance with the Warsaw Convention. For the following

reasons, the motion for partial summary judgment as to the

limitation of liability will be granted.

7a

Appendix B

Background

Plaintiff and defendant have both submitted statements

of facts in compliance with Local Rule 9(c) and rely upon

evidentiary materials, including exhibits and affidavits. These

submissions and the pleadings reveal the following

undisputed facts.

Plaintiff H. Lloyd Weston, a Ridgefield resident, is a

professional artist whose work includes sculptures and

paintings. He was engaged to have his artwork exhibited in

a one-man art show in Rome, Italy, on October 14, 1996.

Plaintiff and his agents arranged to shi artwork to

Rome via FedEx through a Pak Mail Center.

On October 3, 1996, Pak Mail and FedEx entered into a

contract of carriage whereby FedEx agreed to ship plaintiff’s

paintings. The shipment comprised four pieces weighing

513 pounds.

The shipper declared that the shipment of artwork had a

value of $500 for customs and was liable only to pay duties

on $500. The contract of carriage was embodied in the FedEx

air waybill under which the shipment traveled.

The shipment arrived in Italy at the Malpensa Airport

on October 5, 1996. On October 11, 1996, a request was sent

to the Italian Customs Office of Malpensa requesting

authorization to import the shipment. That day, Italian

Customs, which generally refers such inspections to the

Italian Art Ministry (“BRERA”), requested that BRERA make

an inspection of the shipment.

8a

Appendix B

In 1996, BRERA conducted inspections at the Malpensa

Airport only the first and third Wednesday of each month.

In October, 1996, the first and third Wednesday of the month

fell on October 2, 1996, and October 16, 1996.

On October 17, 1996, FedEx received confirmation on

behalf of BRERA that the requested inspection had been

conducted. The shipment was later refused and sent back to

the United States.

This litigation ensued.

Discussion

A. Standard of Review

A motion for summary judgment will be granted where

there is no genuine issue as to any material fact and it is

clear that the moving party is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). “Only when reasonable minds could not differ as to

the import of the evidence is summary judgment proper.”

Bryant v. Maffucci, 923 F. 2d 979, 982 (2d Cir.), cert. denied,

502 U.S. 849 (1991).

The burden is on the moving party to demonstrate the

absence of any material factual issue genuinely in dispute.

American International Group, Inc. v. London American

International Corp., 664 F. 2d 348, 351 (2d Cir. 1981).

In determining whether a genuine factual issue exists, the court

must resolve all ambiguities and draw all reasonable inferences

against the moving party. Anderson v. Liberty Lobby, Inc.,

9a

Appendix B

477 U.S. 242, 255 (1986). If anonmoving party has failed to

make a sufficient showing on an essential element of his case

with respect to which he has the burden of proof, then summary

judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the

nonmoving party submits evidence which is “merely colorable,”

legally sufficient opposition to the motion for summary

judgment is not met. Anderson, 477 U.S at 249.

FedEx argues that plaintiff’s claims against it are

governed by the provisions of the Warsaw Convention, which

is a treaty that governs claims for damages arising out of the

international transportation of goods by aircraft.

Where, as in the instant case, the air waybill provides

for transportation by air between certain designated terminals,

the provisions of the Warsaw Convention apply. See Benjamins

vy. British European Airways, 572 F. 2d 913, 914 (2d Cir.

1978), cert. denied, 439 U.S. 1114 (1979).

Article 22(2) of the Convention states:

In the transportation of checked baggage and of -

goods, the liability of the carrier shall be limited

to a sum of 250 francs per kilogram, unless the

consignor has made, at the time when the package

was handed over to the carrier, a special

declaration of the value at delivery and has paid a

supplementary sum if the case so requires. In that

case, the carrier will be liable to pay a sum not

exceeding the declared sum, unless he proves that

the sum is greater than the actual value to the

consignor at delivery. |

10a

Appendix B

As plaintiff points out, a carrier is not entitled to avail

itself of the Convention’s limitation on liability in the event

that the carrier has acted with willful misconduct or gross

negligence. Article 25, Warsaw Convention.

Proof of willful misconduct requires a showing that

the carrier, or its servants or agents, acted with intent to

cause damage, or acted recklessly with knowledge that

damage would probably result. Piamba Cortes v. American

Airlines, 177 F. 3d 1272, 1290 (11th Cir. 1999), cert. denied,

528 U.S. 1136 (2000).

After review of the evidence, the Court finds no evidence

that raises an inference that FedEx’s actions constitute

willful misconduct.

Plaintiff argues further that summary judgment is not

appropriate because a question of fact exists as to whether or

not the goods left the terminal after their arrival, in which case

the Warsaw Convention would not apply. However, the evidence

in the record demonstrates that the shipment remained in the

custody of FedEx at Malpensa Airport during the relevant

period of time.

Accordingly, the Warsaw Convention is the exclusive

remedy in this case. EJ al Israel Airlines, Ltd. v. Tsui Yuan

Tseng, 525 U.S. 155 (1999)(Warsaw Convention creates the

exclusive remedy in cases involving the international

transportation of goods). Plaintiff’s state law claims are

preempted, and his damages are limited to the amount of

250 francs per kilogram.

lla

Appendix B

Conclusion

For the foregoing reasons, defendant’s Motion for Partial

Summary Judgment as to the limitation of liability [doc. # 34]

is GRANTED. Defendant’s liability is limited in accordance

with Article 22 of the Warsaw Convention.

Within 14 days of this ruling’s filing date, the parties

are instructed to file a stipulation as to the amount owed

pursuant to Article 22(2) of the Warsaw Convention for this

Court’s approval.

SO ORDERED.

s/ Warren W. Eginton

Warren W. Eginton

Senior United States District Judge

Dated the 2nd day of March, 2001 in Bridgeport,

Connecticut.

12a

APPENDIX C — RELEVANT PROVISIONS OF _

CONVENTION FOR THE UNIFICATION OF

CERTAIN RULES RELATING TO INTERNATIONAL

TRANSPORTATION BY AIR

(“WARSAW CONVENTION”).

Concluded At Warsaw October 12, 1929. And Entered Into

Force For The United States October 29, 1934, Subject To A

Reservation.

CHAPTER I - SCOPE - DEFINITIONS

ARTICLE 1

(1) This Convention shall apply to all international

transportation of persons, baggage, or goods performed by

aircraft for hire. It shall apply equally to gratuitous

transportation by aircraft performed by an air transportation

enterprise.

ARTICLE 13

(1) Except in the circumstances set out in the preceding

article, the consignee shall be entitled, on arrival of the goods

at the place of destination, to require the carrier to hand over

to him the air waybill and to deliver the goods to him, on

payment of the charges due on and complying with the

conditions of transportation set out in the air waybill.

sR Na NS AES OORT LEN ILENE LE SET IM LLIN TE EE ILE NG EF

ey ARTS RN ne O PE ae MMe ED ERS OSE Ae GE SR WEP Cate VOLE De

La wr = bs PARTE ds “4

13a

Appendix C

(2) Unless it is otherwise agreed, it is the duty of the

carrier to give notice to the consignee as soon as the goods

arrive.

(3) If the carrier admits the loss of the goods, or if the

goods have not arrived at the expiration of seven days after

the date on which they ought to have arrived, the consignee

shall be entitled to put into force against the carrier the rights

which flow from the contract of transportation.

* cd *

ARTICLE 22

(1) In the transportation of passengers the liability of

the carrier for each passenger shall be limited to the sum of

125,000 francs. Where, in accordance with the law of the

court to which the case is submitted, damages may be

awarded in the form of periodical payments, the equivalent

capital value of the said payments shall not exceed 125,000

francs. Nevertheless, by special contract, the carrier and the

passenger may agree to a higher limit of liability.

(2) In the transportation of checked baggage and of

goods, the liability of the carrier shall be limited to a sum of

250 francs per kilogram, unless the consignor has made, at

the time when the package was handed over to the carrier, a

special declaration of the value at delivery and has paid a

supplementary sum if the case so requires. In that case the

carrier will be liable to pay a sum not exceeding the declared

sum, unless he proves that that sum is greater than the actual

value to the consignor at delivery.

l4a

Appendix C

(3) As regards objects of which the passenger takes

charge himself the liability of the carrier shall be limited to

5,000 francs per passenger.

(4) The sums mentioned above shall be deemed to refer

to the French franc consisting of 65 1/2 milligrams of gold

at the standard of fineness of nine hundred thousandths. These

sums may be converted into any national currency in round

figures.

ARTICLE 25

(1) The carrier shall not be entitled to avail himself of

the provisions of this convention which exclude or limit his

liability, if the damage is caused by his wilful misconduct or

by such default on his part as, in accordance with the law of

the court to which the case is submitted, is considered to be

equivalent to wilful misconduct.

(2) Similarly the carrier shall not be entitled to avail

himself of the said provisions, if the damage is caused under

the. same circumstances by any agent of the carrier acting

within the scope of his employment.

»* * *