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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 826

## Text

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
eee ETE ee

Appendix C — Relevant Provisions Of Convention For
The Unification Of Certain Rules Relating To
International Transportation By Air (“Warsaw
ow eee ee

Page

la

6a

l

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

re
aad

eS a Sete Pe
ie, Re EE Ac

APPENDIX

la

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.

»* * *

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1374%3A1. Public record. Not legal advice.