Petition for Writ of Certiorari — Federal Express Corp. v. Fujitsu Ltd.
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IN THE
Supreme Court of the Anited States
FEDERAL EXPRESS CORPORATION,
FUJITSU LIMITED,
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
PETITION FOR WRIT OF CERTIORARI
R. JEFFERY KELSEY
Managing Director,
Litigation
FEDERAL EXPRESS
CORPORATION
3620 Hacks Cross Road
Building B, 3rd Floor
Memphis, TN 38125
(901) 434-8563
Counsel for Petitioner
Federal Express Corporation
PAULL NG ALS SPILT ALES ESL SIE TTI ELL LEB IEE OES ALLEN TLE LLLE DE LAL ELBE ABEL IES ABER ELE EEE LEI
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001
Petitioner,
Respondent.
WARREN L. DEAN, JR.
Counsel of Record
PATRICIA N. SNYDER
THOMPSON COBURN LLP
1909 K Street, N.W.
Washington, D.C. 20006-1167
(202) 585-6900
JORDAN B. CHERRICK
THOMPSON COBURN LLP
One Firstar Plaza
St. Louis, Missouri 63101-1693
(314) 552-6000
Counsel for Petitioner
Federal Express Corporation
a = —
QUESTIONS PRESENTED
The documentation and liability rules of a treaty system
known as the Warsaw Convention govern the approximately
$600 billion of goods annually that enter and depart the
United States by air. The now-archaic rules of the original
1929 Warsaw Convention were in force for the United States
from October 29, 1934 until March 4, 1999. On the latter
date, amendments contained in Montreal Protocol No. 4 of
1975, which incorporates The Hague Protocol of 1955,
entered into force for the United States. The Second Circuit’s
decision below reflects the confusion in the lower courts
about the application of these amendments. Among the ques-
tions presented is a question of treaty jurisdiction resolved by
this Court two hundred years ago.
The questions presented are:
1) Whether the entry into force of treaty amendments
that repeal remedies available under the original treaty
extinguishes those repealed remedies with respect to
transactions that occurred before their entry into force,
absent a transition rule or savings clause that preserves
the application of those remedies.
2) Whether the 1969 Vienna Convention on the Law
of Treaties, a treaty that the United States has not
ratified, creates a rule of law that supersedes this Court’s
consistent rulings.
3) Whether a court may impose duties and obliga-
tions on a carrier that conflict with both the original and
amended Warsaw Convention and are also not
authorized by any other law, and then set aside the
Convention’s liability limits because the carrier did not
properly fulfill those duties and obligations.
ii
PARTIES TO THE PROCEEDING
Petitioner Federal Express Corporation is a wholly owned
subsidiary of FedEx Corporation. The stock of FedEx Corpo-
ration is publicly traded on the New York Stock Exchange.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED. .00......cssesscssssssssscsssssssesscone
PARTIES TO THE PROCEEDING .....-.ssssessccccsssseessose i
TABLE OF AUTHORITIES ........ccsscsscccssssesscccssssesesooses iv
I NUN iin ciccehsnanaisssinackuaSsnandosane
ET Sean ea nana
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED. .........ccsssscessssssssssssssssssees
STATEMENT OF THE CASE .Qu.e..scssecssccsssssssssssssssesece 2
REASONS FOR GRANTING THE WRIT .oeecccsssssseesco 8
I. Certiorari Should be Granted Because the
Decision Below Conflicts Directly with the
Decisions of this Court and the Common Law
Doctrine of Abatement.................ccccccccseeeceseceees 10
Il. Certiorari Should be Granted Because the
Decision Below Legislates New International
Law in Conflict with the Common Law and
this Court’s Consistent Rulings, Thereby
Circumventing the Constitution’s Ratification
RITE nora en Ee 16
Ii. Certiorari Should be Granted Because the
Decision Below Not Only Applied the Wrong
Treaty, But in Doing So, Improperly Applied
the Terms Of that Treaty ..............0.cscccccceseccssccsees 17
Sean iA dsiictisacrndilbniicihdnesdsidissdbcubasathentsisbideslne 21
(iii)
iv
TABLE OF AUTHORITIES
CASES Page
Asher v. United Airlines, 70 F. Supp. 2d 614
CBR. EE, FRED csttcncsienitsecaeennincbinstnniiabaitinenainaicin 14
Bayer Corp. v. British Airways, LLC, 210 F.3d
SIO CGR CAs, Te ccersscnenessattnscncinncssmenninnminnes 14
Brandt v. American Airlines, No. C 98-2089SI,
1999 WL 1269187 (N.D. Cal. March 13,
TIED cscssisnsiiaenicihendilaaiciniaaicisuaseampibesiationhetiiinaaieheiiiatie 13
Bruner v. U.S., 343 U.S. 112 (1952)......ccsccccssseees 12-13
Carey v. United Airlines, Inc. No. 00-35069,
2001 WL 740793 (9th Cir. July 3, 2001)........... 14
Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d
301 (2d Cir. 2000), cert. denied, 2001 WL
Fe I Mnisdsciehinsctinsennsnchiabitii teceaccnsnttiihicenciniitanien 5, 13, 15
Cruz v. American Airlines, Inc., 193 F.3d 526
(D.C. Cir. 1999), cert denied, 529 U.S. 1144
CBee icincaisissiticdibininaiacbieititdilaaicsiinitadinsdascactinataplitndilias 13
D’ Alessandro v. American Airlines, Inc., 139 F.
Supp. 2d 305 (E.D.N.Y. 2001).........csccsssssseseees 14
Ex parte McCardle, 74 U.S. 506 (1868)............00+. 12
Fireman’ s Fund Ins. v. El Al Israel Airlines, Ltd.,
No. 99 C 3801, 2001 WL 32847 (N.D. Ill. Jan.
ED, ZEEE sncsaniegpctiietcineiablandaminitiaabdieblamdguvarialae 13
Franklin Mint Corp. v. TWA, 690 F.2d 303 (2d
Cir. (1982), aff d on other grounds, 466 U.S.
eg BE ch ininisiesicninnnstitijsiiabisiciuatalidepidbiaannts 5
Fujitsu Ltd. v. Federal Express Corp., 247 F.3d
Be Ee le AEE Weitcisinccidcenitvieneeininasincinnieaeadiniaaie passim
Fujitsu Ltd. v. Federal Express Corp., 76 F.
Supp. 2d 474 (S.D.N.Y. 1999).......ccscssssssseersees passim
Hamm v. City of Rock Hill, 379 U.S. 306 (1964) .. 13
Hermano v. United Airlines, No. C 99-0105SI,
1999 U.S. Dist. LEXIS 19808 (N.D. Cal. Dec.
Vv
TABLE OF AUTHORITIES—Continued
Page
Hertz v. Woodman, 218 U.S. 205 (1910) veccccccsoseses.-. 2,12
In re Air Crash off Point Mugu, MDL Docket
No. 00-1343-Cal, 2001 U.S. Dist. LEXIS 7931
CED. Cal, May 1, 2008). ..ccccccesescsnosoccnasscscoedeoses 13
In Re: American Airlines, Inc. F light 869
Turbulence Incident Of January 17, 1996, 128
F. Supp. 2d 1367 (S.D. Fla. Jan. 16, 2001)........ 14
Intercargo Ins. Co. v. China Airlines, Ltd., 208
IO OO 26 Clr, Bais isiisesccssissscccececcsssscececss, 5
Maritime Ins. Co., Ltd. v. Emery Air Freight
Corp., 983 F.2d 437 (2d Cir. 1993) v.cccccccccoocssses 5
McDowell v. Continental Airlines, 54 F. Supp. 2d
EPSP GR WOM. EPO csccrorsssatrenesdscasnrsancinrsiccce.: 14
Merchants’ Insurance Co. v. Ritchie, 72 U.S. 541
(Soe ithinininietisniiiiminiicec eS 12
Perri v. Delta Air Lines, Inc., 104 F. Supp. 2d
164 (E.D.N.Y. 2000)............. adapennepbiecsemsiobaheaesé 13
Piamba Cortes v. American Airlines, 177 F.3d
ie hbd See... nn ene he Lome 14
Republic Nat'l Bank v. Delta Airlines, 98 Civ.
8729, 2000 U.S. Dist. LEXIS 8652 (S.D.N.Y.
FN EE PO cicasisescctllttinnisteastisinini crepe od 13
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749
(SUP sigiccisnisiniwenlinshleijunbedivnlaieschiackcsnnassat toe 8
Sotheby's v. Federal Express Corp., 97 F. Supp.
2d 491 (S.D.N.Y. 2000)........ccccccocecosossesesessssesees 14
In re The AMIABLE ISABELLA, 19 U.S. 1 (1821)....... 17
The GENERAL PICKNEY, 9 U.S. 281 (1809) .......000.0. 12
The SCHOONER PEGGY, 5 U.S. 103 (1801) ..e.ces00.0. 3, 8, 11
Thorpe v. Housing Auth. of City of Durham, 393
FER. Se CO cab biitsiencigrictinicnieessii ngs gl 13
Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99
(2d Cir. 1997), rev'd, 525 U.S. 155 (1999)......5, 17-18
U.S. v. Chambers, 291 U.S. 217 (1934)...ccccccecsssee. 12, 16
vi
TABLE OF AUTHORITIES—Continued
Page
Weiss v. American Airlines, Inc., No. 01 C-5026,
2001 WL 766896 (N.D. Ill. July 3, 2001).......... 14
Ziffrin, Inc. v. U.S., 318 U.S. 73 (1943) ..cccccceceesees 12
CONSTITUTIONAL PROVISIONS
AND STATUTES
D CRE Bi aetnctniniininesitiiiiinnititieeen 2, 3, 16
ee Ses OE See ictrcitcienninetinduntivsndiiinminnuiis l
y LE FT ot F.C ener e mE Cnr TEN 3
UF os FR RES 5 eee 1,17
TREATIES
Warsaw Convention: Convention for the Unifi-
cation of Certain Rules Relating to Interna-
tional Transportation by Air done at Warsaw,
Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11,
T.S. No. 876 (1934) reprinted in 49 U.S.C.
§ SDIGS GND CED OD cecccrcncnsnsnneccnveccceseccnnqeencessnees passim
The Hague Protocol of 1955: Protocol to Amend
the Convention for the Unification of Certain
Rules Relating to International Carriage by
Air, signed at Warsaw on 12 October 1929,
done at The Hague, Sept. 28, 1955, 478
OJIN, Bie BT 8 cunsisrenenteinernenspetegeseniainiagneiionnes passim
Montreal Protocol No. 4 of 1975: Montreal
Protocol No. 4 to Amend the Convention for
the Unification of Certain Rules Relating to
International Carriage by Aijr, signed at
Warsaw on October 12, 1929, as amended by
the Protocol done at The Hague on September
28, 1955, Sept. 25, 1975, TIAS No. __.,
reprinted in, CAO Doc. No. 9148 (1975)........ passim
vii
TABLE OF AUTHORITIES—Continued
Page
Montreal Convention of 1999: The Convention
for the Unification of Certain Rules for
International Carriage by Air, done at Mon-
treal on May 28, 1999, S. TREATY Doc. No.
PO GN inietentiiitiieariinanicinitaci hints 2)
Vienna Convention: Vienna Convention on the
Law of Treaties, 1155 U.N.T.S. 33] (May 23,
SEE: ee RIOR Wie I i, 7, 14-15, 16
Amendment to the London Convention: Protocol
of 1996 to Amend the Convention on
Limitation of Liability for Maritime Claims,
1976, 35 LL.M. 1406 (1996)......cccccccsssesseooeee--.. 16
MISCELLANEOUS
CONGRESSIONAL RESEARCH SERVICE LIBRARY OF
CONGRESS, 98TH CONG., TREATIES AND OTHER
INTERNATIONAL AGREEMENTS: THE ROLE OF
THE UNITED STATES SENATE, S. PRT. 98-205
Cea aeiaarintintitaiiiataiatibiecnteeiiai ce 14, 15
RELATIONS LAW OF THE UNITED STATES
tl gt TET EIS So tare 15
S. Exec. Rep. No. 105-20 (1998) ........ccccccccscesesses 3,4
1A SUTHERLAND STATUTORY CONSTRUCTION,
(Norman J. Singer ed., Sth ed. 1993)................. 13
CHANDISE TRADE SELECTION HIGHLIGHTS,
ce i ”__ | te 3
MARJORIE M. WHITEMAN, DIG OF INT’L L.
a EE) iy ae Oe FT eT eT 15
14 SAMUEL WILLISTON, A TREATISE ON THE LAW
OF CONTRACTS (Richard A. Lord ed., 4th ed.
ep cbcihcidicedidcllbinissiaiteetinilainis tects al < 19
PETITION FOR A WRIT OF CERTIORARI
Federal Express Corporation hereby petitions 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 opinion of the court of appeals is reported at 247 F.3d
423. App., la-2la. The district court’s order and memoran-
dum granting respondent partial summary judgment based on
its decision that the Warsaw Convention’s liability limits
were inapplicable is reported at 76 F. Supp. 2d 474. App.,
22a-25a. Thereafter, a bench trial was held in which
respondent prevailed. App., 26a.
JURISDICTION
The court of appeals entered its judgment on April 20,
2001. Fujitsu at 243. App., la. The jurisdiction of this Court
is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Because this case involves matters of treaty interpretation,
it necessarily implicates the President’s “Power, by and with
the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present occur.” U.S.
COoNnsT. art. II, § 2, cl. 2. The specific treaty involved in this
case is the Warsaw Convention and its amending instruments,
the full texts of which are being lodged with the Court for its
convenience. These instruments are:
1) The original 1929 Warsaw Convention. Convention
for the Unification of Certain Rules Relating to
International Transportation by Air, done at Warsaw on
Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11, T.S. No.
876 (1934), reprinted in 49 U.S.C. § 40105 note (1994).
2
2) The Hague Protocol of 1955. Protocol to Amend the
Convention for the Unification of Certain Rules Relating
to International Carriage by Air, signed at Warsaw on 12
October 1929, done at The Hague, Sept. 28, 1955, 478
U.N.T.S. 371.
3) Montreal Protocol No. 4 of 1975. Montreal Protocol
No. 4 to Amend the Convention for the Unification of
Certain Rules Relating to International Carriage by Air,
signed at Warsaw on October 12, 1929, as amended by
the Protocol done at The Hague on September 28, 1955,
Sept. 25, 1975, TIAS No. __., reprinted in ICAO Doc.
No. 9148 (1975).
The consolidated text of the amended Warsaw Convention
and certain relevant unamended provisions from the original
1929 Warsaw Convention are in the Appendix at 27a-5S la.
The statute governing the repeal of statutes, 1 U.S.C.
§ 109, states in relevant part:
The repeal of any statute shall not have the effect to
release or extinguish any penalty, forfeiture, or liability
incurred under such statute, unless the repealing Act
shall so expressly provide, and such statute shall be
treated as still remaining in force for the purpose of
sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability.
STATEMENT OF THE CASE
This case presents a question fundamental to the
jurisdiction of United States courts. The courts have no
inherent authority to enforce remedies that have been
repealed, a principle now reflected in the well-established
doctrine of abatement. Hertz v. Woodman, 218 U.S. 205
(1910). The Court has consistently applied this principle
throughout its history. The court of appeals contradicted that
principle and unilaterally rewrote the international liability
regime for the transportation of air cargo.
ir
Se ee ee eT ae
ee
3
In 1817, Congress passed a statute that has become known
as the General Savings Statute, now codified at 1 U.S.C.
§ 109. That statute ensures generally that statutory remedies
continue to apply to events occurring before their amendment
or repeal. The General Savings Statute, however, does
not apply to treaties, as the court of appeals below held.
Fujitsu at 431-34. App., 12a-18a. Treaties continue to be
governed by the rule that courts must apply treaties in effect
at the time of decision, handed down by this Court two hun-
dred years ago in The SCHOONER PEGGY, 5 U.S. 103 (1801).
This case involves the application of the Court’s precedent
on the abatement doctrine to the Warsaw Convention, one of
the most widely adhered to and important treaties in exis-
tence. The district court had jurisdiction under 28 U.S.C.
§ 1331.
1. Air Cargo and the Warsaw Convention. Air cargo
issues are extremely important because nearly $600 billion of
goods annually enter and depart the United States by air.
U.S. DEPARTMENT OF COMMERCE, U.S. MERCHANDISE
TRADE SELECTION HIGHLIGHTS, REPORT FT 920 (2000).
Those goods are carried under the documentation and liability
rules of the Warsaw Convention, and this commerce depends
on the uniform and predictable application of those rules.
The original 1929 Warsaw Convention contains now-
archaic documentation requirements incompatible with the
modern realities of international air transportation of cargo.
Those archaic requirements were deleted in amendments to
the Convention contained in both The Hague Protocol of
1955 and Montreal Protocol No. 4 of 1975. The United
States, however, failed to adopt either of those amendments
until it ratified Montreal Protocol No. 4 in 1998. Montreal
Protocol No. 4 incorporates The Hague Protocol of 1955.
S. Exec. REP. No. 105-20 at 8 (1998), Lodging, at 51.
4
Until Montreal Protocol No. 4 and The Hague Protocol
entered into force for the United States on March 4, 1999, the
United States was the last major air cargo market in the world
that continued to be subject to the original 1929 Warsaw
Convention’s archaic documentation rules. Those rules
created nearly $1 billion in unnecessary costs annually.
S. EXEC. REP. No. 105-20 at 5 (1998), Lodging, at 48.
2. The Second Circuit and the Warsaw Convention. The
case law of the Second Circuit has elevated the form of the
original 1929 Warsaw Convention’s requirements over the
substance of the Convention and its goals. These cases
reflect that court’s erroneous assumption that limited liability
under the Convention’s rules is a “significant benefit” to
carriers and is not otherwise enforceable. Fujitsu, at 429.
App. 7a. Accordingly, its decisions have consistently held
that the carrier cannot enforce cargo liability limits if it
accepts goods in circumstances where the shipper fails to
comply with the Warsaw Convention’s archaic documen-
tation rules.
The Second Circuits rulings are out of step with law and
economic policy. In all other contexts, cargo liability limits
are fully enforceable, including transportation subject to the
Warsaw Convention’s rules as amended by either The Hague
Protocol or Montreal Protocol No. 4 (or both), and air
transportation not governed by the Convention’s rules at all.
In fact, liability limits for cargo are generally enforceable in
all other modes of transportation. Unlike the case with
passengers, these limits are enforceable because cargo trans-
actions, particularly shipments of valuable freight, generally
involve sophisticated shippers that insure the value of their
shipments above the widely known liability limit. Shippers
are in the best position to determine the insurable value of
their goods.
This case is the most recent in a line of Second Circuit
decisions that fundamentally disturb the operation of the
‘S
Warsaw system.' These decisions create confusion among
the lower courts, threatening the uniform application of the
Convention’s rules.
3. The Shipment in Question. The initial shipment that
gave rise to this dispute began on May 30, 1996. FedEx
accepted for shipment a container of valuable silicon wafers
for Fujitsu Limited (Fujitsu), the consignor, at Narita, Japan.
The shipment was consigned to a now-defunct affiliate of
Fujitsu, Ross Technologies, Inc. (Ross), in Austin, Texas.
Accompanying the shipment was an air waybill, designated
as AWB 369]. It was in all respects complete, as the court of
appeals found. Fujitsu at 429. App., 7a.
An air waybill is a contract for carriage of goods by air
made out by the consignor on forms supplied by the carrier.
App., 46a. As such, it is comparable to a bill of lading, which -
is a contract for the shipment of goods by surface, including
water transportation. Modern air waybills, however, also
contain computer bar codes that express air carriers, like
FedEx, use to monitor or track the movement of a shipment
electronically.
On May 31, 1996, the shipment arrived at its destination in
Austin and was placed in a FedEx bonded facility to await
customs clearance by Ross’ customs agent. However, Ross’
customs agent faxed a notification to FedEx rejecting the
'See, e.g., Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99 (2d Cir.
1997), rev'd, 525 U.S. 155 (1999); Franklin Mint Corp. v. TWA, 690 F.2d
303 (2d Cir. 1982), aff'd on other grounds, 466 U.S. 243, 246 (1984)
(rejecting the Second Circuit's “declaration that the Convention is
prospectively unenforceable”): Intercargo Ins. Co. v. China Airlines, Ltd.,
208 F.3d 64 (2d Cir. 2000) (refusing to enforce cargo liability limits even
after finding agreed stopping places had been incorporated effectively);
Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000)
(requiring bilateral treaty relations, a test not found in this multilateral
treaty and that conflicts with its express terms), cert. denied, 2001 WL
703956 (2001); Maritime Ins. Co., Ltd. v. Emery Air Freight Corp., 983
F.2d 437 (2d Cir. 1993).
6
shipment without inspecting it. Subsequently, FedEx re-
ceived oral instructions from Fujitsu and written instruc-
tions from Ross to return the shipment to Fujitsu in Japan.
Ross agreed to pay the costs of the return. Fujitsu at 426.
App., 3a.
ie container was returned to FedEx’s hub in Memphis,
where FedEx used a new air waybill form to ensure and track
its return to Japan. The new air waybill form was not made
out by either Fujitsu or Ross. It was therefore not a
completed air waybill. It did contain the legend “RETURN
OF [AWB 3691],” listed Ross as shipper, and indicated that
the goods were to be shipped from Austin to Narita. Fujitsu
at 427. App., 3a. The cargo was damaged during the return.
Fujitsu at 427. App., 4a.
4. The Proceedings Below. Fujitsu filed this action against
FedEx in the United States District Court for the Southern
District of New York. That court recognized that “an air
waybill, like all contracts, acknowledges an agreement of the
parties.” App., 24a.
The District Court allowed Fujitsu to assert successfully
that the incomplete air waybill form used by FedEx internally
to facilitate the return of the goods was an incomplete
contract of carriage that rendered the Warsaw Convention’s
liability limits unenforceable, even though neither Fujitsu iior
Ross was a party to it. The asserted deficiency was the
failure to complete the archaic documentation requirements
for air waybills specified in the original unamended Warsaw
Convention, i.e., to comply with the particulars of Article 8,
including by specifying the agreed stopping places.” But the
completion of those particulars is the responsibility of the
? Article 8 of the original 1929 Warsaw Convention requires that an air
waybill contain seventeen particulars, the vast majority of which are
commercially insignificant. Article 8 of the Convention, as amended by
The Hague Protocol, retains only three of these. App., 31a-32a.
a ee a ee
7
consignor (shipper) under Article9. In effect, the court
allowed Fujitsu to avoid the liability rules it had agreed to
contractually in the original air waybill based on the
incompleteness of the second air waybill form. The second
form, however, was never actually executed by either the
shipper or the carrier as an air waybill, or contract of Carriage.
On March 4, 1999, eight months before the District Court
granted Fujitsu’s motion for partial summary judgment and a
year before amended judgment was entered against FedEx for
unlimited damages of $908,296.14 (including interest), the
law of the Warsaw Convention changed. The changes
repealed the archaic requirement that the consignor list the
particulars specified in Article 8, as well as the remedy of
unlimited liability under Article 9 where the carrier accepts
goods with an incomplete air waybill unless the waybill omits
notice of the Convention’s applicability entirely. On that
date, Montreal Protocol No. 4 of 1975, which incorporates
The Hague Protocol of 1955, entered into force for the United
States. The Hague Protocol had entered into force for Japan
on August 11, 1967. Montreal Protocol No. 4, in turn,
entered into force for Japan on September 18, 2000. Unlike
some other international treaties amending pre-existing
instruments, neither instrument contains a savings clause or
transition rule limiting the effect of its changes to events
occurring after its entry into force.
On April 20, 2001, the Second Circuit affirmed the District
Court’s holding. Fujitsu Ltd. v. Federal Express Corp., 247
F.3d 423 (2d Cir. 2001). It relied upon customary interna-
tional law as “enunciated” in the 1969 Vienna Convention on
the Law of Treaties, an instrument never ratified by the
United States, to find treaty jurisdiction to apply and enforce
the repealed provisions of the original 1929 Warsaw
Convention, i.e., the required particulars of Article 8 and the
remedy of unlimited liability under Article 9. The court
apparently overlooked the fact that the 1969 Vienna
Convention (as well as the rules of customary international
8
law it reflects) does not by its terms apply to treaties that
predate it, such as The Hague Protocol of 1955. In dicta, the
court declared its “view” that FedEx would not prevail under
the amended Convention “apparently” because a new air
waybill was not made out for the return. Fujitsu at 434.
App., 17a.
REASONS FOR GRANTING THE WRIT
Petitioner seeks review because the decision below
(1) conflicts directly with this Court’s decision in The
SCHOONER PEGGY and with this Court’s later decisions on the
abatement doctrine; (2) legislates new international law in
conflict with the common law of the United States, thereby
circumventing the ratification procedures of the Constitution;
and (3) imposes duties and obligations on air carriers not
authorized by the Warsaw Convention or any other law.
Recent amendments to the Warsaw Convention entered
into force for the United States without any savings clause or
transition rule to preserve the jurisdiction of courts to enforce
the remedies they repeal. In an effort to avoid applying those
amendments, the decision below creates new international
law that conflicts with this Court’s decisions and the common
law. In essence, the Second Circuit simply refused to apply
this Court’s precedents, much like the Ohio Supreme Court
did in Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995).
Moreover, it is not the Second Circuit’s role to determine the
effective date of new law. Its role is to declare and apply the
law as it exists at the time of its decision. Only the executive
and legislative branches have the right, either by legislation or
the making of treaties, to give the judicial branch the
authority to continue enforcing remedies otherwise abated by
amendment or appeal.
The question of the entry into force of the amendments to
the Warsaw Convention will be a recurring one. Currently,
Montreal Protocol No. 4 has entered into force for only
fifty-one countries. Its provisions apply principally to cargo
9
and take effect for shipments moving between countries party
to that instrument. Lodging, at 42. As more countries be-
come party to Montreal Protocol No. 4, the correct applica-
tion of its amendments will be a recurring issue. Further, on
May 28, 1999, the United States signed a comprehensive
revision and restatement of the Warsaw Convention, the Con-
vention for the Unification of Certain Rules for International
Carriage by Air, done at Montreal on May 28, 1999 (known
as the Montreal Convention of 1999). S. TREATY Doc. No.
106-45 (2000). That new instrument, which is pending in the
United States Senate for its advice and consent to ratification,
also contains no savings clauses or transition rules. Its provi-
sions will provide significant benefits to the United States
upon its entry into force, especially to passengers who are
U.S. domiciliaries. Resolution of the questions presented
here, therefore, will provide needed guidance to the courts
and all affected by these treaties—passengers, shippers and
Carriers.
The Second Circuit not only applied the wrong treaty
provisions, but it applied even those repealed provisions
incorrectly. Because of its apparent hostility to liability
limits, even between a highly sophisticated shipper and
carrier, it expanded the remedy of unlimited liability set forth
in the original 1929 Warsaw Convention to circumstances
where it clearly does not apply. It grafted onto the
Convention a requirement that the carrier prepare a new air
waybill for returns, even though neither the Warsaw Con-
vention nor carrier conditions of carriage governing returns so
require. Under the Warsaw Convention and those conditions,
FedEx has no duty or right to require the execution of a new
air waybill for a return movement. Accordingly, FedEx
lawfully cannot be deprived of its right to limit its liability
because it failed to insist on a second, properly completed air
waybill. The Second Circuit’s holding to the contrary is
improper. The holding of the Second Circuit will generate
new law inconsistent with the worldwide operation of the
10
Warsaw Convention, and confusion concerning the proper
handling of international shipments by air worth billions of
dollars.
I. Certiorari Should be Granted Because the Decision
Below Conflicts Directly with the Decisions of this
Court and the Common Law Doctrine of
Abatement.
At the time of the transportation at issue, the original 1929
Warsaw Convention was in effect for the United States.
However, the specific language of Article 9 of the original
1929 Convention, upon which the District Court below relied,
was “deleted and replaced” by the entry into force of The
Hague Protocol. In other words, it was repealed.’ Spe-
cifically, as of March 4, 1999, Fujitsu’s remedy under- Article
9 of the original 1929 Convention to break the carrier’s
liability limit was abated because the carrier accepted goods
despite an incomplete air waybill.*
* Article VII of The Hague Protocol states:
Article 9 of the Convention shall be deleted and replaced by the
following:
“If with the consent of the carrier, cargo is loaded on board the
aircraft without an air waybill having been made out, or if the air
waybill does not include the notice required by Article 8, paragraph
(c), the carrier shall not be entitled to avail himself of the provisions
of Article 22, paragraph 2.”
Protocol to Amend the Converition for the Unification of Certain Rules
Relating to International Carriage by Air, signed at Warsaw on 12 October
1929, done at The Hague, Sept. 28, 1955, art. VII, 478 U.N.T.S. 371.
Lodging, at 24-36.
“ On September 18, 2000, Montreal Protocol No. 4 entered into force
for Japan. Article II] of Montreal Protocol No. 4 deletes and replaces
Section III (Articles 5-16) of the Convention (as amended by the Hague
Protocol) in its entirety. Lodging, at 38. New Article 9 of the
Convention, provides:
The seminal case regarding the abatement of a remedy
due to the entry into force of a treaty is The SCHOONER PEGGY,
5 U.S. 103 (1801). In that case, the court of appeals had
ordered condemnation of a vessel, but while the case was on
appeal to this Court, the United States and France entered into
a treaty providing for the restoration of captured property.
This Court ruled that the new treaty should be applied:
where a treaty is the law of the land, and as such affects
the rights of parties litigating in court, that treaty as
much binds those rights and is as much to be regarded
by the court as an act of congress.
Id. at 110. Finding that a court must decide an appeal accord-
ing to existing law, this Court set aside the capture judgment.
The Hague Protocol, unlike some other protocols amending
treaties, does not contain any transition rule or savings clause
preserving the jurisdiction of courts to enforce remedies
available under the original 1929 Warsaw Convention for
events that take place before the Protocol enters into force.
Nor does any Congressional enactment so provide, as
discussed below. Therefore, the remedies repealed by The
Hague Protocol are abated and extinguished on the date it
enters into force.” This Court has explained the principle of
abatement as follows:
“Non-compliance with the Provisions of Articles 5 to 8 shall not
affect the existence or the validity of the contract of Carriage, which
shall, none the less, be subject to the rules of this Convention
including those relating to limitation of liability.”
Montreal Protocol No. 4 is now in effect for both Japan and the United
States. Its amendments also eliminate Fujutsu’s remedy, but the
differences between The Hague Protocol and Montreal Protocol No. 4
versions of Article 9 are not relevant to this Case.
* As the court of appeals noted, this case is not about the retroactive
application of new treaty amendments. F ujitsu at 432. App. 14a. Rather,
it is about the jurisdiction of a court to apply a remedy that has been
rescinded.
12
There are cases which go so far as to say that the
unqualified repeal of a law as effectually destroys rights
and liabilities dependent upon it, not past and concluded,
as if the statute had never existed. It is, however, putting
it strongly enough to say that an unqualified repeal
operates to destroy inchoate rights, as a release of
imperfect obligations, and as a remission of penalties
and forfeitures dependent upon the destroyed statute.
Hertz v. Woodman, 218 U.S. 205, 216 (1910) (citations
omitted).
Fujitsu’s right to break the liability limits that are specified
both in the Warsaw Convention and in its contract of carriage
(i.e., the air waybill) is inchoate. Fujitsu has no right under
the Convention to recover unlimited damages—for which it
has not contracted—until and unless an action is brought and
a final judicial determination is made that the carrier is not
“entitled to avail himself’ of those liability limits under
Article 9 of the unamended Convention.
The abatement doctrine is a well-settled canon of statutory
construction. This Court has consistently found that “after
the expiration or repeal of a law, no penalty can be
enforced.” The leading treatise in this area describes the
doctrine as follows:
* The GENERAL PICKNEY, 9 U.S. 281, 283 (1809); see also, Merchants’
Ins. Co. v. Ritchie, 72 U.S. 541, 544 (1866) (holding that “when the
jurisdiction of a cause depends upon a statute the repeal of the statute
takes away the jurisdiction”); Ex parte McCardle, 74 U.S. 506, 514
(1868) (citations omitted) (dismissing petition for want of jurisdiction
because “when an act of the legislature is repealed, it must be considered,
except as to transactions past and closed, as if it never existed”); Hertz v.
Woodman, 218 U.S. 205, 216 (1910); U.S. v. Chambers, 291 U.S. 217
(1934) (holding that repeal of the National Prohibition Act terminated the
court’s authority to enforce the Act); Ziffrin, Inc. v. U.S., 318 U.S. 73, 78
(1943) (holding that a “change in the law between a nisi prius and an
appellate decision requires the appellate court to apply the changed law.”);
Bruner v. U.S., 343 U.S. 112 (1952) (dismissing overtime compensation
LLL
13
The effect of the repeal of a statute having neither a
saving clause nor a general saving statute to prescribe
the governing rule for the effect of the repeal, is to
destroy the effectiveness of the repealed act in futuro
and to divest the right to proceed under the statute.
Except as to proceedings past and closed, the statute is
considered as if it had never existed.
1A SUTHERLAND STATUTORY CONSTRUCTION, § 23.33, at 424
(Norman J. Singer ed., Sth ed. 1993) (citations omitted).
The decision below conflicts directly with these prece-
dents. Morec-ver, it will exacerbate the confusion that already
exists among the lower courts in this area, threatening the
uniform application of the Convention’s rules. Eighteen
courts have considered the Protocol’s applicability to events
that occurred before its entry into force until the date of this
filing. Three courts have applied Montreal Protocol No. 4.’
In addition to the Fujitsu court, six courts have decided not to
apply the treaty amendments." Eight courts, recognizing the
claim where district court jurisdiction was withdrawn after certiorari was
granted); Hamm v. City of Rock Hill, 379 U.S. 306 (1964) (vacating
convictions and dismissing prosecutions when 1964 Civil Rights Act
decriminalized peaceful attempts to be served on an equal basis): Thorpe
v. Housing Auth. of City of Durham, 393 U.S. 268 (1969) (refusing to
enforce an eviction where housing authority had failed to comply with
administrative regulation adopted after eviction proceeding started).
” In re Air Crash off Point Mugu, MDL Docket No. 00-1343-Cal, 2001
U.S. Dist. LEXIS 7931 (N.D. Cal. May 1, 2001); Brandt v. American
Airlines Inc., No. C 98-2089SI, 1999 WL 1269187 (N.D. Cal. Mar. 13,
2000); Hermano v. United Airlines, No. C 99-O105SI, 1999 U.S. Dist.
LEXIS 19808 (N.D. Cal. Dec. 21, 1999).
* Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 314 n.4 (2d Cir.
2000), cert. denied, 2001 WL 703956 (2001): Cruz v. American Airlines,
Inc., 193 F.3d $26, 530 n.4 (D.C. Cir. 1999), cert. denied, 529 U.S. 1144
(2000); Fireman's Fund Ins. v. El Al Israel Airlines, Ltd., No. 99 C 3801,
2001 WL 32847 (N.D. Ill. Jan. 12, 2001); Perri v. Delta Air Lines, Inc.,
104 F. Supp. 2d 164 (E.D.N.Y. 2000); Republic Nat'l Bank v. Delta
Airlines, 98 Civ. 8729 (JSM), 2000 U.S. Dist. LEXIS 8652, at *7
14
Protocol’s potential relevance, have held that in the
circumstances presented, the amendments would not change ©
the outcome.’ Most courts in the latter category were dealing
with an amendment that clarified a prior treaty provision,
and could thus avoid resolving the applicability question.
Numerous other courts apparently have been unaware of the
changes.
The Second Circuit also relied improperly on customary
international law which, according to the court, was “enun-
ciated” in the Vienna Convention on the Law of Treaties,
1155 U.N.T.S. 331 (May 23, 1969). The United States has
not ratified that treaty.
The court erred by relying on the law reflected in the 1969
Vienna Convention to determine the effectiveness of The
Hague Protocol of 1955 for four additional reasons. First,
Article 4 of that Convention specifically prohibits giving
retroactive effect to the rules of that Convention. The Vienna
Convention applies “only to treaties concluded after the entry
into force of the Convention with regard to such States.”
CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS,
98TH CONG., TREATIES AND OTHER INTERNATIONAL AGREE-
MENTS: THE ROLE OF THE UNITED STATES SENATE, S. PRT.
98-205, at 273-74 (1984). Then-Secretary of State Rogers
stated that the “non-retroactivity feature (Article 4) is of
(S.D.N.Y. June 22, 2000) (following Chubb); Sotheby's v. Federal Exp.
Corp., 97 F. Supp. 2d 497 n.3 (S.D.N.Y. 2000).
° Piamba Cortes v. American Airlines Inc., 177 F.3d 1272 (11th Cir.
1999); Carey v. United Air Lines, Inc. No. 00-35069, 2001 WL 740793
(9th Cir. July 3, 2001); Bayer Corp. v. British Airways, LLC, 210 F.3d
236 (4th Cir. 2000); Weiss v. American Airlines, Inc., No. 01 C-5026,
2001 WL 766896 (N.D. Ill. July 3, 2001); D’Alessandro v. American
Airlines, Inc. 139 F. Supp. 2d 305 (E.D.N.Y. 2001); In Re: American
Airlines, Inc. Flight 869 Turbulence Incident Of January 17, 1996, 128 F.
Supp. 2d 1367 (S.D. Fla. Jan. 16, 2001); Asher v. United Airlines, 70 F.
Supp. 2d 614, 617 (S.D. Md. 1999); McDowell v. Continental Airlines, 54
F.Supp. 2d 1313 (S.D. Fla. 1999).
15
substantial importance because it avoids the possibility of
reopening old international disputes.” Jd. Second, the rules
of the Vienna Convention are important guides not only to the
construction but also to the drafting of treaties. Their appli-
cation to pre-existing instruments is therefore inappropriate.
Third, as the Second Circuit itself has previously noted,
“where [the State Department] has not recognized the Vienna
Convention as codifying customary international law, it has
adopted it as customary law going forward”—not for treaties
adopted years before it was drafted. Chubb & Son v. Asiana
Airlines, 214 F.3d 301, 308 (2d Cir. 2000), cert. denied 2001
WL 703956 (2001) (citation omitted).'° Fourth, it has been
recognized specifically that Article 28 of the Vienna
Convention, concerning the so-called “non-retroactivity” of
treaties, applies only to treaties concluded after its entry into
force. 14 MARJORIE M. WHITEMAN, Dic. OF INT’L L. § 31, at
330-31 (1970). Thus, the Second Circuit erred in applying
the rules of the Vienna Convention as a guide to interpreting
the 1955 Hague Protocol."
'° Moreover, the Vienna Convention differs from U.S. foreign relations
law in other significant ways, including in the ability to use
supplementary means, such as Executive branch views, as an aid to
interpretation. See, e.g., CONGRESSIONAL RESEARCH SERVICE, LIBRARY
OF CONGRESS, 98th CONG., TREATIES AND OTHER INTERNATIONAL
AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, S. PRT. 98-205,
at 135-36 (1984).
'' The court also relied on § 322 of the Restatement of U.S. Foreign
Relations Law. Since the Restatement is based principally on the Vienna
Convention, the court also erred in relying on the Restatement. 1 RE-
STATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES, § 322 and cmt. a (1987).
16
II. Certiorari Should be Granted Because the Decision
Below Legislates New International Law _ in
Conflict with the Common Law and this Court’s
Consistent Rulings, Thereby Circumventing the
Constitution’s Ratification Procedures.
Neither The Hague Protocol of 1955 nor Montreal Protocol
No. 4 of 1975 contains a savings clause or other transition
rule limiting their effectiveness to events that take place after
their entry into force. In this respect, they differ from other
liability treaties. For example, a 1996 amendment to a multi-
lateral maritime liability treaty states:
The Convention as amended by this Protocol shall apply
only to claims arising out of occurrences which take
place after the entry into force for each state of this
Protocol.
Protocol of 1996 to Amend the Convention on Limitation of
Liability for Maritime Claims, 1976, art. 9(3), 35 IL.M.
1406, 1435 (1996). Nor has Congress enacted a statute
applicable to treaties comparable to the General Savings
Statute. 1 U.S.C. § 109. That statute was enacted “in
recognition of the principle that, unless the statute is so
continued in force by competent authority, its repeal
precludes further enforcement.” U.S. v. Chambers, 291 U.S.
217, 224 (1934). The statute does not apply to treaties, as the
court of appeals conceded. Fujitsu at 433, App. 14a-15a.
In an area unambiguously the province of the other
branches of government, the court of appeals effectively
legislated its own resolution of this issue. It declared that
principles of international taw set forth in the Vienna
Convention govern the effectiveness of treaties, and hence
the court’s own treaty jurisdiction, even though the United
States has never ratified that Convention. /d. The court of
appeals effectively created its own treaty jurisdiction, which
encroaches on the powers of the executive and legislative
17
branches and violates the doctrine of separation of powers.
U.S. Const. art. II, § 2, cl. 2; In re The AMIABLE ISABELLA,
19 U.S. 1 (1821).
That is not the proper role of the courts. The courts of the
United States have no inherent power to enforce statutes or
treaties that have been repealed or amended. That is the func-
tion of the General Savings Statute, savings clauses contained
in: individual treaties, and perhaps in appropriate circum-
stances the Vienna Convention itself, were it to be ratified by
the United States. It has not been ratified, however, and its
entry into force is the province of the other two branches of
government, not this one. Absent its entry into force for the
United States, the court of appeals could not properly rely
upon it to create a rule of law that Supersedes this Court’s
consistent rulings. However, even if the Vienna Convention
were in effect, as previously noted, it would not apply to the
amendments made by The Hague Protocol of 1955.
III. Certiorari Should be Granted Because the Decision
Below Not Only Applied the Wrong Treaty, But in
Doing So, Improperly Applied the Terms of that
Treaty.’
Because the court of appeals improperly applied the
original 1929 Warsaw Convention’s express terms, its
holding will have commercial implications far beyond the
limits of this case. Moreover, its holding creates yet another
artful device for avoiding the application of the War-
saw Convention’s liability limits, and in that respect is
comparable to its decision in Tseng v. El Al Israel Airlines,
'2 In this section, all references unless otherwise noted are to the
unamended original 1929 Warsaw Convention, which is what the court of
appeals improperly applied. For the Court’s convenience, relevant
provisions of the original 1929 Warsaw Convention, as they appeared
before amendment, are reprinted in the Appendix at 46a-5la. The entire
text of the unamended 1929 Warsaw Convention appears in the
Lodging, at 6-19.
18
122 F.3d 99 (2d Cir. 1997) (allowing relief under state law),
rev'd, 525 U.S. 155 (1999). In El Al, this Court overruled the
Second Circuit’s holding that a claim falling within the
purview of the Warsaw Convention could nonetheless be
pursued under state law. To preserve the Convention’s
uniformity, this Court held that the Convention’s rules are
exclusive in cases involving international air transportation.
Consistent with standard commercial practice, article 6 of
the Warsaw Convention makes the consignor (shipper)
responsible for making out the air waybill. An air waybill is
a contract between the parties for the transportation of goods,
as the District Court below acknowledged. App., 24a, Ar-
ticle 11; Lodging, at 9. The consignor, not the carrier, is
responsible for the correctness of the particulars relating
to the goods. App., 48a, Article 10; Lodging, at 9.
The carrier may not accept the goods unless a complete
air waybill is first made out. App., 48a, Article 9;
Lodging, at 9.
Nearly everyone in the country is now familiar with the
procedures for completing FedEx express air waybills. These
express air waybill forms do not differ substantially from the
industry standard air waybill forms. A FedEx courier will not
accept an express or other cargo shipment, whether it be a
letter or container, without an air waybill completed by the
shipper.
Under the Convention, the consignor has the absolute right
to control and dispose of the goods. He may do so “by
requiring them to be returned to the airport of departure.”
App., 49a, Article 12; Lodging, at 9-10. If the consignee
rejects the goods, Article 12 specifically authorizes the
consignor to assert his right of disposition, including return.!%
'? Article 12 of the original Convention states that if the consignee
“declines to accept” the goods, the consignor “shall resume his righi of
19
Against this background, FedEx had no right under the
Warsaw Convention to require either consignor or consignee
to make out a new air waybill before the consignor could
exercise its right of disposition by requiring the return of the
goods. In fact, the consignor’s right of disposition and
FedEx’s possession of the goods were governed at all times
by the terms of the air waybill that originally authorized that
Possession.
Thus, the court of appeals had no basis under the Warsaw
Convention to impose on FedEx a duty to require a new air
waybill before returning the shipment. It fundamentally mis-
construed the fact that FedEx had used, for its own internal
convenience, the form of an air waybill to assist it in effecting
and tracking the return. FedEx handles approximately 3.2
million packages daily worldwide and tracks them all
electronically. Since the original air waybill, as prepared by
Fujitsu, showed only a destination of Austin, FedEx needed a
form containing computer codeable tracking data to return it
to Fujitsu in Japan. The air waybill form is the most reliable
way for FedEx to track a shipment."
That form was neither a contract of Carriage nor an air
waybill reflecting such a contract, because it is black letter
law that there is no such thing as a unilateral contract. 14
SAMUEL WILLISTON, A TREATISE ON THE LAW OF CONTRACTS
§ 43.1 (Richard A. Lord ed., 4th ed. 2000). Therefore,
contrary to the Court’s conclusions below, FedEx as the
carrier does not have the unilateral authority to:
disposition.” Neither The Hague Protocol nor Montreal Protocol No. 4
substantively changed this language.
'* The trial court’s conclusion that the consignee (Ross) “engaged”
Federal Express to return the merchandise begs the question. It is not
whether Ross so engaged FedEx, but rather in what capacity. This
question is fully reviewable by this Court on review of the trial court’s
grant of summary judgment and the court of appeals’ disposition of it.
App., 23a.
20
¢ “create” an air waybill—Fujitsu at 430. App., 8a.
° “prepare a complete” air waybill—/d. App., 9a.
¢ “issue a complete” air waybill—/d. App., 9a.
Nothing in the Warsaw Convention prohibits the consignee
(Ross) from acting as the consignor’s agent in exercising the
latter’s right of disposition and return. Article 14 merely
provides:
The consignor and the consignee can respectively
enforce all the rights given them by Articles 12 and 13,
each in his own name, whether he is acting in his own
interest or in the interest of another, provided that he
carries out the obligations imposed by the contract.
In this case, the record before the trial court shows that FedEx
confirmed the return instructions with Fujitsu. Fujitsu at 426;
App., 3a. The inescapable legal reality of this transaction
remains, however, that FedEx and Ross, acting on their own
behalf, had no right to create a new contract of carriage for
these goods. Article 12 of the Convention was not amended
by the Hague Protocol. The Court’s dicta to the effect that
FedEx’s second “acceptance” of the goods (for return) in
Austin required the creation of a new air waybill (by Ross)
was manifestly in conflict with the rules of both the original
Convention and the amended Convention. Because Ross had
rejected the shipment, the goods simply did not belong to
Ross, nor were they at any time under Ross’ custody and
control, legal or physical. The only right Ross could have
had with respect to these goods was to assert on Fujitsu’s
behalf the latter’s right to a return of the goods under Article
12 of the Convention and the original air waybill.
The court of appeals’ decision will create chaos in the
international air commerce of the United States. The decision
would require carriers to demand that persons with no author-
ity to contract for the shipment of goods make out unen-
forceable air waybills before the consignor can dispose of the
goods under the air waybill it executed when it surrendered
21
the goods to the carrier. This precedent may have unintended
consequences for the operation of The Hague Protocol itself,
which retains the requirement that an air waybill be made
out. Hague, Article XII. Lodging, at 28-29. Thus, well-
understood rights and obligations under the Warsaw system
will be trampled. Carriers will no longer be able to comply
with the consignor’s instructions regarding the disposition of
the goods, and consignors (shippers) will no longer be able to
make efficient arrangements for the return of goods rejected
by their consignees. Most importantly, these new rules will
apply only to the United States, and will conflict with
worldwide custom and practice for air Cargo moving under
the Convention’s rules.
CONCLUSION
For the above reasons, the petition should be granted.
Respectfully submitted,
R. JEFFERY KELSEY WARREN L., DEAN, JR.
Managing Director, Counsel of Record
Litigation PATRICIA N. SNYDER
FEDERAL EXPRESS THOMPSON COBURN LLP
CORPORATION 1909 K Street, N.W.
3620 Hacks Cross Road Washington, D.C. 20006-1167
Building B, 3rd Floor (202) 585-6900
Memphis, TN 38125 JORDAN B. CHERRICK
(901) 434-8563 THOMPSON COBURN LLP
Counsel for Petitioner One Firstar Plaza
Federal Express Corporation St. Louis, Missouri 63101-1693
(314) 552-6000
Counsel for Petitioner
Federal Express Corporation
APPENDICES
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 00-7343
FUJITSU LIMITED,
Plaintiff-Appellee,
V.
FEDERAL EXPRESS CORPORATION,
Defendant-Appellant.
November 8, 2000, Argued
April 20, 2001, Decided
JUDGES: BEFORE: STRAUB, SOTOMAYOR, Circuit
Judges, and SPATT, District Judge.!
SPATT, District Judge:
This case primarily concerns interpretation of the Warsaw
Convention treaty governing the liability of international
cargo shippers for damage to returned goods while in their
possession. We find that the shipment at issue was not a
return as defined by Article 12 of the Warsaw Convention and
that the carrier’s shipment of the goods back to the departure
destination at the consignee’s direction involved a second
acceptance under Article 9, requiring the carrier to create a
complete and correct air waybill in order to avail itself of the
Convention’s limited liability provisions. Because the carrier
failed to furnish a complete and correct air waybill upon
' The Honorable Arthur D. Spatt of the United States District Court,
Eastern District of New York, sitting by designation.
CO TR ONE, CEs SEE LY EIEIO ADEE eR
OO EE Ye
2a
acceptance of the goods, we affirm the district court’s grant of
partial summary judgment in favor of the Plaintiff on the
carrier’s defense of limited liability. We also reject the
carrier’s argument that the entry into force of the Hague
Protocol, which amended the Warsaw Convention, during the
pendency of this case (but after the events giving rise to this
case) precludes the application of the unamended Warsaw
Convention. We find that the district court correctly applied
the unamended provisions of the Warsaw Convention.
Finally, we affirm the district court’s assessment of damages
and determination that spoliation sanctions were not
warranted.
BACKGROUND
On May 30, 1996, Plaintiff-Appellee Fujitsu Limited
(“Fujitsu”) shipped a container of silicon wafers from Narita,
Japan to Ross Technologies, Inc. (“Ross”) in Austin, Texas,
using Defendant-Appellant Federal Express (“FedEx”) as the
cargo carrier. Accompanying the container was an air
waybill—a document serving as a bill of lading for goods
transported by air, BLACK’S LAW DICTIONARY 70 (6th
ed. 1990)—designated as “AWB3691,” specifying the consig-
nor and consignee, weight, contents, destination, and route of
the container.
On May 31, 1996, the container arrived in Austin and was
placed in a bonded cargo cage to await clearance through
customs by the Customs Agent for Ross. FedEx does not
release goods to their consignees until the goods actually have
cleared customs and all import and customs duties have been
paid. In this case, Ross’ Customs Agent faxed a notification
to FedEx that Ross was rejecting the shipment. Pursuant to
FedEx’s procedures, it contacted Fujitsu and Ross to
determine what should be done with the cargo. FedEx policy
provided that cargo refused by the consignee would not be
moved without written instructions and a guarantee of
payment.
3a
According to a June 3, 1996 comment in the FedEx
computer tracking system concerning a telephone call, Fujitsu
orally instructed FedEx to return the goods to Japan.
However, a separate document in the record, on Ross
letterhead and dated June 4, 1996, indicates that Ross issued
written instructions to FedEx to return the goods to Fujitsu in
Japan and informed FedEx that Ross would incur all shipping
charges. On July 27, 1996, after the return shipment was
completed, FedEx sent an invoice billing Ross $493.00 for
the return of the shipment to Japan. The trial court found that
“[Ross] decided not to accept the merchandise, and engaged
Federal Express to return the merchandise to the consignor in
Tokyo at the consignee’s expense.”
FedEx proceeded to prepare the goods for shipment back
by re-labeling and moving the cargo from the customs Cage to
an outbound staging area. The goods were flown from Austin
to the main FedEx hub in Memphis. No air waybill was
created in Austin, but in Memphis, FedEx created a new air
waybill, designated AWB 3010, listing Ross as the shipper
and indicating that the goods were to be shipped from Austin
to Narita. AWB 3010 was not completely filled out, but did
specifically contain a legend stating “RETURN OF [AWB
3691]” typed across the middle right-hand side of the air
waybill form. Fujitsu contends that this legend appeared only
on one copy of AWB 3010, not all of them. FedEx asserts
that it issued a new air waybill only to accommodate the
needs of its computerized package tracking system, not
because a new shipping contract was created for the return
shipment.
FedEx air waybill numbers also serve as package tracking
numbers, which appear on the air waybills in both numerical
and barcode form. That tracking number is scanned into the
FedEx computer system at various points during transit, in
order to track the status of particular shipments. However,
when a shipment is retumed by FedEx, the computer system
gE, “STL GO VERO ETE PO
BDA SORT AD a VIET BUN ROM COU DI Ly We B®,
4a
requires that a new tracking number (and, therefore, a new air
waybill number) be issued. The computer system does not
permit the use of the original air waybill number to track the
return of the cargo to the original shipper, and as a result of
this technological requirement, FedEx’s standard policies for
return of international shipments require that new air waybills
be issued.
The goods apparently left Austin in good condition, but sat
in Memphis for a week before being shipped to Japan. On
June 24, 1996, the shipment arrived in Japan. At that time,
Fujitsu observed that the outer container was broken and
covered with an oily substance which had permeated into
some of the interior boxes. Fujitsu opened one of the interior
boxes and discovered that the oily substance was also on the
exterior of the sealed aluminum bags containing the wafers.
Fujitsu did not open any of the bags to determine whether the
oily substance had penetrated any of-the bags.
Fujitsu reported-the damage to FedEx immediately. FedEx
eventually acknowledged that the damage occurred to the
container while in its possession. At some point in July 1996,
upon instructions from its insurance carrier, Fujitsu disposed
of the container and wafers. FedEx had not requested an
opportunity to inspect the wafers prior to that time.
Fujitsu then brought this action against FedEx grounded in
breach of contract and negligence. FedEx raised the defense
that, under the Warsaw Convention treaty governing inter-
national cargo shipments, it carried the cargo with a proper air
waybill and was thus entitled to a limitation on its liability to
$9.07 per pound, or a total of about $1,200 for the entire
shipment. On November 30, 1999, Judge Hellerstein granted
partial summary judgment to Fujitsu, finding that air waybill
AWB3010 did not comply with the requirements of the treaty,
and that the shipment from Austin to Japan could not be
considered to be covered by AWB3691, the initial air waybill.
A bench trial on damages was held on February 22 and 23,
Sa
2000, and at the close of the trial, Judge Hellerstein found
FedEx liable to Fujitsu for damages in the amount of
$726,640.
FedEx appeals, claiming (i) that the trial court erred in
finding that the return shipment was not covered by the
waybill of the originating shipment; (ii) that the court
improperly found that an amendment to the Warsaw
Convention known as the Hague Protocol was inapplicable;
(iii) that the court’s findings regarding damages were
incorrect; and (iv) that the court erred in denying FedEx’s
request for a finding of spoliation relating to Fujitsu’s
destruction of the container and wafers.
DISCUSSION
This Court reviews the District Court’s grant of summary
judgment de novo. While all factual ambiguities must be
resolved in favor of the nonmoving party, “the nonmoving
party may not rely on conclusory allegations or unsub-
Stantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114
(2d Cir. 1998). The court “is not to weigh the evidence but is
instead required to view the evidence in the light most
favorable to the party opposing summary judgment, to draw
all reasonable inferences in favor of that party, and to eschew
credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996). Summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits . . . show that there
is nO genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
A. The Warsaw Convention’s limitation of liability
International transportation of persons, baggage, and goods
by air are governed by the series of laws, treaties, and
individual contracts collectively referred to as the Warsaw
Convention “system,” deriving that name from the inter-
6a
national agreement commonly referred to as the “Warsaw
Convention.” Convention for the Unification of Certain
Rules relating to International Transportation by Air, opened
for signature Oct. 12, 1929, 49 Stat. 3000 (1934), 137
L.N.T.S. 11, reprinted in note following 49 U.S.C.A. § 40105
(“Original Warsaw Convention’); see El Al Israel Airlines,
Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 160, 142 L. Ed. 2d ©
576, 119 S. Ct. 662 (1998); Chubb & Son, Inc. v. Asiana
Airlines, 214 F.3d 301, 306 (2d Cir. 2000), petition for cert.
filed, 121 S. Ct. 1223, 149 L. Ed. 2d 134, 69 U.S.L.W. 3591
(2001). The Warsaw Convention sets forth uniform rules of
liability for loss, damage, or delay of international shipments
by air, and embodies a tradeoff between the interests of
carriers and shippers. Among its provisions is the rule that
cargo carriers are entitled to a limitation of liability based on
the weight of the shipment, presently established by the
Government at $9.07 per pound. See Trans World Airlines,
Inc. v. Franklin Mint Corp., 466 U.S. 243, 255, 80 L. Ed. 2d
273, 104 S. Ct. 1776 (1984); Warsaw Convention art. 22.
The carrier’s right to limited liability revolves around the
document called an “air waybill,” which contains details
including the origin, itinerary, and destination of the cargo,
and the weight, dimensions, and content of the containers.
Specifically, Article 8 of the treaty states that The air waybill
shall contain the following particulars:
(a) the place and date of its execution;
(b) the place of departure and of destination;
(c) the agreed stopping places, provided that the carrier
may reserve the right to alter the stopping places in case
of necessity. . .;
(d) the name and address of the consignor;
(e) the name and address of the first carrier;
(f) the name and address of the consignee . . .;
Ta
(g) the nature of the goods;
(h) the number of packages, the method of packing, and
the particular marks or numbers upon them;
(i) the weight, the quantity, the volume, or dimensions
of the goods;
(q) A statement that the transportation is subject to the
rules relating to liability established by this convention.
Warsaw Convention art. 8(a)-8(q). According to Article 9 of
the treaty, “if the carrier accepts goods without an air waybill
having been made out, or if the air waybill does not contain
all the particulars set out in article 8(a) to (i)... the carrier
shall not be entitled to avail himself of the provisions of this
convention which exclude or limit his liability.”
Due to the significant benefit that limited liability confers
upon cargo carriers, the courts have generally required
Carriers to comply strictly with the terms of Article 8, and the
omission of any required item from the air waybill, with
exceptions not applicable here, will result in the loss of
limited liability regardless of the commercial significance of
the omission. See Intercargo Ins. Co. v. China Airlines, Ltd.,
208 F.3d 64, 67 (2d Cir. 2000) (citing Brink’s Ltd. v. South
African Airways, 93 F.3d 1022, 1033-34 (2d Cir.1996)); Tai
Ping Ins. Co. v. Northwest Airlines, Inc., 94 F.3d 29, 31 (2d
Cir. 1996).
It is undisputed that AWB 3691, the first waybill for the
shipment from Tokyo to Austin, contained all of the
information for that shipment required by Article 8. It is also
undisputed that the goods were shipped from Austin to
Memphis without the issuance of a new air waybill, and that
the air waybill created in Memphis for the return flight to
Tokyo did not include the “agreed stopping places” for that
return shipment as required by Article 8(c).
8a
FedEx argues that the shipment from Austin to Japan was a
return shipment pursuant to Article 12 of the Warsaw
Convention, rather than a shipment pursuant to a new contract
of carriage. Thus, FedEx contends it was not required to
issue an amended or second air waybill for the return, but
rather, coujg rely on AWB 3691, the air waybill issued for the
shipment from Japan to Austin. Article 12 grants the
consignor of the shipment the right to “dispose of the goods
by withdrawing them at the airport of departure or
- destination, or by stopping them in the course of the journey
on any landing . . . or by requiring them to be returned to the
airport of departure.” Article 12, however, does not address
whether the issuance of a second or amended waybill is
required when a consignor orders the carrier to return the
goods to the airport of departure. We need not resolve that
question today, because, as discussed below, FedEx’s
shipment of the wafers from Austin to Japan was not a return
of goods as defined by Article 12 but rather was a separate
shipment based on a new contract of carriage.
Article 12 addresses the right of the consignor to have a
carrier return the goods. Article 12 is inapplicable here
because it was the consignee, Ross, not the consignor, Fujitsu,
who ordered FedEx to return the goods to the airport of
departure. FedEx Service Agent Cherri Field testified in a
deposition that once goods in its possession were rejected,
FedEx would not move the goods anywhere without written
instructions and a guarantee of payment for the return
shipping costs. Although FedEx asserts that instructions to
return the shipment came from Fujitsu, the record indicates
that FedEx treated the return shipment as having originated
from Ross. After reviewing FedEx’s computer records, Field
testified at her deposition that authorization to return the
goods came from Ross, not Fujitsu. When FedEx created the
second waybill, AWB 3010, it listed Ross, not Fujitsu, as
“Shipper.” An Air Cargo Manifest produced by FedEx dated
9a
June 18, 1996 also appears to list Ross as the shipper and
Fujitsu as the consignee. Further, following the completion
of the shipment to Japan, FedEx invoiced Ross, not Fujitsu,
for payment of the return’ shipping charges and payment was
made by Ross. Under these circumstances, we find that the
trial court correctly determined that the instruction to return
the goods to Japan was given by Ross, not Fujitsu.
Because it was Ross, not Fujitsu, that instructed FedEx to
return the goods, we find that the shipment of the goods from
Austin to Japan was not a return as defined by Article 12, but
rather. was a shipment based on a new contract of Carriage.
Under the provisions of Articles 8 and 9, if FedEx wanted to
avail itself of the Warsaw Convention’s limited liability
provisions for this second, separate shipment, it was required
to prepare a complete air waybill when it accepted the goods
for shipment from Austin to Japan. As previously discussed,
FedEx did not create a second air waybill in Austin, and the
air waybill it created en route was incomplete.
Our determination that FedEx was required to issue a
complete and correct air waybill in order to gain the
Convention’s liability limitation for the shipment from Austin
to Japan is not affected by FedEx’s contention that pursuant
to Article 9, limited liability is either gained or lost by the
carrier at the time it initially “accepts” the goods for shipment
and that there was only one acceptance of the goods in this
case. Specifically, FedEx argues that at the time it accepted
the goods in Japan for shipment to Austin, it secured the valid
waybill AWB 3691, and thus, obtained the protection of the
Convention for limited liability with regard to the shipment at
issue. FedEx claims that a second acceptance did not occur in
Austin because the shipment never left FedEx’s custody and
control, and thus, could not have been accepted by it from
Ross in Austin.
The Warsaw Convention does not define “accepts,” and
this Court has uncovered no cases interpreting that term in the
10a
context it is used in Article 9. While the notion of
“acceptance” does appear to contemplate a receiving of an
item by the person making the acceptance, BLACK’S LAW
DICTIONARY 12 (6th ed. 1990), nothing in that definition
warrants a conclusion that transfer must involve a physical
delivery of the property. Here, FedEx entered into a new
contract of carriage with Ross on or about June 4, 1996 to
ship the goods from Austin back to Narita. In doing so, Ross
implicitly assumed authority to direct and control the
movement of the goods, and FedEx appears to have accepted
the authority of Ross to do so. Under these circumstances,
requiring Ross to physically receive and re-present the goods
to FedEx to complete the transaction seems needlessly
formalistic. By that logic, upon receiving notice that an
inbound shipment was arriving, a consignee wishing to
redirect the shipment to a third-party would have to travel to
the receiving airport to accept the shipment and physically re-
tender it to the carrier before the carrier could “accept” it for
shipment to the third-party.
Accordingly, we find that the record supports the
determination by the trial court that a new contract of carriage
was created in Austin and, by extension, a constructive
acceptance took place there for purposes of Article 9.
Because FedEx failed to obtain a proper air waybill in Austin
for the return shipment by Ross, it is not entitled to the
limited liability protection of the Warsaw Convention, and the
decision of the trial court granting partial summary judgment
to Fujitsu on Fed Ex’s defense of limited liability is affirmed.
B. The Hague Protocol
FedEx also contends that this case is not governed by the
Original Warsaw Convention, but rather by the Warsaw
Convention as modified by the international agreement
referred to as the “Hague Protocol.” See Protocol to Amend
the Convention for the Unification of Certain Rules Relating
lla
to International Carriage by Air signed at Warsaw on 12
October 1929, Sept. 28, 1955, 478 U.N.TS. 371 (“Hague
Protocol’). The Hague Protocol, which eliminates some of
the formalities required urider Articles 8 and 9 of the Original
Warsaw Convention, was ratified by Japan on November 8,
1967, but did not enter into force for the United States until
another international agreement, Montreal Protocol No. 4,
was ratified by the Senate on September 28, 1998 and became
effective on March 4, 1999. See Montreal Protocol No. 4 to
Amend the Convention for the Unification of Certain Rules
Relating to International Carriage by Air Signed at Warsaw
on 12 October 1929 as amended by the Protocol done at the
Hague on 28 September 1955, Sept. 25, 1975, Message
Transmitting Two Related Protocols, reprinted in S. Exec.
Rep. No. 105-20, art. XVII(2); Chubb, 214 F.3d at 307 n.4.
As amended by the Hague Protocol, Article 9 deprives
carriers of the Convention’s limited liability protections only
if “cargo is loaded on board the aircraft without an air waybill
having been made out” or if “the air waybill does not include
the notice required by Article 8, paragraph (c).” The revised
version of Article 8(c) requires the carrier to give the
consignor notice
to the effect that, if the Carriage involves an ultimate
destination or stop in a country other than the country of
departure, the Warsaw Conveiition may be applicable
and that the Convention governs and in most cases limits
the liability of carriers in respect of loss of or damage to
Cargo.
Warsaw Convention, art. 8(c) (as amended by the Hague
Protocol). FedEx argues that the adoption of the Hague
Protocol prior to the decision of the trial court in this case
effectively abated the operation of the provisions of the
Original Warsaw Convention, or that, in the alternative, it
would be able to avail itself of the liability limitations of the
12a
Convention under the terms as amended by the Hague
Protocol.
In response, Fujitsu argues that applying the Hague
Protocol to facts that took place almost two years before that
agreement’s entry into force for the United States would
conflict with our recent conclusion in Chubb that the Hague
Protocol not be given retroactive effect. See Chubb, 214 F.3d
at 307 n. 4 (“Because the actions giving rise to this suit
occurred in 1995, Montreal Protocol No. 4 does not affect this
case.”) (citing 1 RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 322(1) (1987)).
However, FedEx’s principal argument is not that the Hague
Protocol should be given retroactive effect, but rather that the
Original Warsaw Convention cannot prospectively be
enforced following the Hague Protocol’s entry into force.
This theory is advanced under the common law doctrine of
abatement, in which a court is without power to enforce
inchoate rights or imperfect obligations under statutes that
have been repealed or amended, but not explicitly saved or
preserved at the time of repeal or amendment. See Hertz v.
Woodman, 218 U.S. 205, 217-18, 54 L. Ed. 1001, 30 S. Ct.
621 (1910); United States v. Mechem, 509 F.2d 1193,
1194-95 & n.3 (10th Cir. 1975); see also 1A SUTHERLAND
STAT. CONST. § 23.33, at 424-25 (Norman J. Singer ed., 5th
ed. 1993) (“Under common-law principles, all rights,
liabilities, penalties, forfeitures and offences which are of
purely statutory derivation and unknown to the common law
are eliminated by the repeal of the statute which granted them,
irrespective of the time of their accrual.’’).
In order to avoid the potentially disruptive implications of
this common law rule, Congress has enacted a general savings
statute, 1 U.S.C. § 109, which provides that
[t]he repeal of any statute shall not have the effect to
release or extinguish any penalty, forfeiture, or liability
13a
incurred under such statute, unless the repealing Act
shall so expressly provide, and such statute shall be
treated as still remaining in force for the purpose of
Sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability.
1 U.S.C. § 109. This provision operates to preserve both civil
and criminal statutory liabilities. See Hertz, 218 U.S. at 217-
18. Whether the earlier statute has been amended or repealed
outright is of no consequence; the general Savings statute
applies in either instance. See Mechem, 509 F.2d at 1194-95
& n. 3. Therefore, if the Hague Protocol and Montreal
Protocol No. 4 were statutes rather than treaties, the
provisions of the Original Warsaw Convention would remain
_ applicable under the general savings statute in 1 U.S.C. § 109
to conduct that took place prior to the Hague Protocol’s entry
into force for the United States in March 1999. This is so
notwithstanding the fact that neither the Hague Protocol nor
Montreal Protocol No. 4 contains its own Savings provision.
However, FedEx maintains that treaties do not fall within
the ambit of 1 U.S.C. § 109, arguing that as a statutory
exception to a traditional common law rule, the general
Savings Clause must be interpreted narrowly so as not to apply
to “treaties” but only to “statutes.” See e.g. Rodgers v. United
States, 158 F.2d 835, 836-37 (6th Cir. 1947) (since
predecessor to | U.S.C. § 109 “prescribes a rule differing
from that of the common law,” it cannot be interpreted to
include repealed regulations, but “must be strictly construed
and limited to repealed statutes”). FedEx argues that because
courts cannot enforce any statutory or treaty remedy that is no
longer in effect and has not been saved, the remedy under
Article 9 of the Original Warsaw Convention, which provides
for unlimited liability for clerical omissions in air waybills,
was abated and extinguished upon entry into force of the
Hague Protocol and Montreal Protocol No. 4 (and the
l4a
concurrent repeal of the Original Warsaw Convention) on
March 4, 1999.
While we resolved the retroactivity of the Hague Protocol
in Chubb, this case presents a distinct issue of first
impression: whether the rights and liabilities of the Original
Warsaw Convention were abated and extinguished-by entry
into force of the Hague Protocol. As FedEx correctly argues,
the answer to that question does not logically depend upon
whether the Hague Protocol is to be given retroactive effect.
Indeed, while FedEx does urge us to overrule our recent
holding in Chubb and to give limited retroactive effect to the
Hague Protocoi to fill the gap it perceives to have been left by
the repeal of the Original Warsaw Convention, it would be
just as possible for us to fill that gap with a rule derived from
the law that governed before the Warsaw Convention. C f.
Ruston Gas Turbines, Inc. v. Pan American World Airways,
757 F.2d 29, 30 (2d Cir. 1985) (holding that “deregulation of
certain common carriers” following enactment of the Airline
Deregulation Act of 1978, 92 Stat. 1705, “returns us to the
common law”). Fujitsu’s mere recitation of our non-
retroactivity holding in Chubb, therefore, is not sufficient to
refute FedEx’s abatement argument.
However, FedEx’s enticing argument suffers a crucial flaw:
the issue of whether the provisions of a treaty have been
abated or extinguished following the entry into force of a
subsequent treaty is governed by neither the common law
doctrine of abatement nor the general savings statute codified
at 1 U.S.C. § 109. Rather, when resolving that question, we
apply the rules of customary international law enunciated in
the Vienna Convention on the Law of Treaties, May 23, 1969,
1155 U.N.T.S. 331 (“Vienna Convention”). As we did in
Chubb, we rely upon the Vienna Convention here “as an
authoritative guide to the customary international law of
treaties.” Chubb, 214 F.3d at 309. Because the United States
“recognizes the Vienna Convention as a codification of
15a
customary international law,” it “considers the Vienna
Convention ‘in dealing with day-to-day treaty problems’” and
acknowledges the Vienna Convention as, in large part, “the
authoritative guide to current treaty law and practice.’” Jd. at
308; see 1 RESTATEMENT (THIRD) OF FOREIGN RELATIONS
LAW OF THE UNITED STATES, pt. III, intro. note, at 144-45
(discussing Vienna Convention’s codification of the
customary international law governing international agree-
ments and the acceptance of the Convention by the United
States).
The ongoing effect of treaties under Customary inter-
national law is not governed by the same rule governing the
ongoing effect of statutes under the common law. Rather,
customary international law, as_ recited by the Vienna
Convention in some detail, Supplies its own distinct set of
rules concerning the amendment, modification, suspension,
and termination of international agreements. See Vienna
Convention arts. 39-41, 54-64. Unlike the common law
relating to statutes, customary international law contains no
baseline presumption that the provisions of a new agreement
automatically abate and extinguish any prior treaty relating to
the same subject matter. To the contrary, customary
international law governing the effect of treaties furnishes
almost the opposite baseline norm, pacta sunt servanda,
which provides that a treaty in force is “binding upon the
parties to it and must be performed by them in. good faith”
unless the treaty has been affirmatively terminated or
suspended.Vienna Convention art. 26; see 1 RESTATE-
MENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES § 321 & cmt. a, at 190 (stating that the doctrine of
pacta sunt servanda, though subject to international law rules
concerning the validity and termination of agreements, “lies at
the core of the law of international agreements and is perhaps
the most important principle of international law”); see also
Vienna Convention art. 27 (“A party may not invoke the
16a
provisions of its internal law as justification for its failure to
perform a treaty.”).
This contrary presumption is particularly relevant with
respect to multilateral treaties such as the Warsaw Conven-
tion, because such treaties frequently are modified-but not
thereby terminated—by
amending agreements binding only those parties that
were willing to accept the amendment while leaving the
original or earlier amended agreement still in force to
govern relations between the other parties, as well as
between the other parties and the amending group. As a
result, it has become fairly common for several versions
of a multilateral treaty to exist simultaneously, with
different sets of provisions operating between various
groups of states.
Maria Frankowska, The Vienna Convention on the Law of
Treaties Before United States Courts, 28 VA. J. INT’L L. 281,
361-62 (1988).
Under Article 59 of the Vienna Convention, an
international agreement is deemed to have been “terminated”
by conclusion of a later treaty only if all of the parties to the
first agreement conclude a later agreement relating to the
same subject matter and either
(a) it appears from the later treaty or is otherwise
established that the parties intended that the matter
should be governed by that treaty; or
‘(b) the provisions of the later treaty are so far
incompatible with those of the earlier one that the two
treaties are not capable of being applied at the same
time.
Vienna Convention art. 59. In this case, while the Hague
Protocol and Original Warsaw Convention clearly relate to
the same subject matter, it is equally clear that the Original
Warsaw Convention was not terminated by enactment of the
17a
Hague Protocol. Not only were all of the parties to the
Original Warsaw Convention not parties to the Hague
Protocol, but we have already concluded that (a) the parties to
the Hague Protocol did not intend for that treaty to govern
conduct taking place before entry into force of that agreement,
see Chubb, 214 F.3d at 307 n. 4; 1 RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 322(1);
and (b) the two treaties are not “so far incompatible” that they
“are not capable of being applied at the same time.” Vienna
Convention art. 59(1)(b). To the fullest extent possible, treaty
language is to be interpreted so as to avoid inconsistency. See
| RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF
THE UNITED STATES § 332 cmt. f, at 211. By giving effect to
the Original Warsaw Convention for conduct taking place
before entry into force of the Hague Protocol and effect to the
Hague Protocol for conduct taking place after entry into force
of that agreement, we easily avoid any possible inconsistency
between the two agreements.
It is therefore not necessary for us to consider whether
FedEx still would be able to invoke the liability limitation
under the terms of the Amended Warsaw Convention, for
notwithstanding the entry into force of the Hague Protocol in
March 1999, we retain the authority to enforce the terms of
the Original Warsaw Convention for conduct taking place
prior to that date. We do, however, note our view that FedEx
would not prevail even under the terms of the Amended
Warsaw Convention. Upon its acceptance of the goods for
shipment in Austin, FedEx permitted those goods to be
loaded onto the aircraft for shipment without a new air
waybili, apparently in violation of the requirements of even
the amended version of Article 9. It was only upon arrival of
the goods for shipment in Memphis that a new air waybill
was generated for the return shipment to Narita.
Accordingly, we find that the entry into effect of the Hague
Protocol during the pendency of this case did not preclude the
18a
application of the Original Warsaw Convention to the facts at
issue here.
C. Damages
With regard to provable damages, FedEx argues that
Fujitsu produced no evidence showing that the wafers, which
had been sealed inside impermeable aluminum bags, had been
damaged in any way. It further contends that the trial court
incorrectly determined the market value of the wafers to be
the equivalent of the invoice price, when the testimony
established that there was no real market for the wafers.
Finally, FedEx challenges the court’s findings on the
mitigation of damages by Fujitsu.
Fed R. Civ. P. 52(a) states that a trial court’s findings of
fact shall not be set aside unless they are clearly erroneous,
and the appellate court must give due regard to the trial
judge’s opportunity to observe the witnesses as to their
credibility.
While FedEx is correct that the record contains no evidence
that the wafers themselves were damaged, there was sufficient
evidence adduced to support a finding by the court that the
shipment was a total loss because the residue on the outer
packaging made it impossible to access the wafers.
According to the testimony, the bags containing the wafers
could only be opened in a specially designed and maintained
“clean room” so as to prevent dust contamination. However,
because the bags themselves were coated with the oily
residue, they could not be brought into a clean room for
inspection, as the residue itself would contaminate the clean
room. Consequently, the trial court found that even if the
wafers were undamaged, Fujitsu was unable to extract them
from the bags in an operable condition. This Court can
discern no difference between damage rendering the wafers
inoperable and damage that prevents otherwise operable
wafers from being used or salvaged.
19a
While there was competing testimony on the issue of
whether cleaning the residue from the bags in order to permit
inspection and salvage of the wafers inside was economically
' reasonable, the trial court resolved this conflict by expressly
choosing to credit the testimony of Fujitsu’s expert.
Specifically, the trial court held that “on issues of credibility
and the importance of his testimony, I believe that Mr.
Abend’s [Fujitsu’s expert] testimony is the more credible
[than Mr. Chevrier, FedEx’s expert] and it should be
accepted.” Credibility determinations are the province of the
trial judge, and should not be overruled on appeal unless
clearly erroneous. Tenenbaum v. Williams, 193 F.3d 581, 606
(2d Cir. 1998); Donato v. Plainview-Old Bethpage Cent. Sch.
Dist., 96 F.3d 623, 634 (2d Cir.1996). This factual
determination by the trial court will stand.
In addition, with regard to mitigation, the trial court’s
factual finding that efforts to salvage the wafers would have
been prohibitively expensive also suffices to reject FedEx’s
argument that Fujitsu failed to mitigate its damages.
Finally, the appropriate measure of damages to cargo is the
difference between the market value of the shipment at its
destination and the value of the shipment as damaged. Gulf,
C. & S.F. Ry. Co. v. Texas Packing Co., 244 U.S. 31, 37, 61
L. Ed. 970, 37 S. Ct. 487 (1917): Seguros Banvenez, S.A. v.
S/S Oliver Drescher, 761 F.2d 855, 860-61 (2d Cir. 1985).
Here, the trial court found that the market value of the wafers
was $ 726,400, and the value of the damaged shipment was
zero. While FedEx argues that the wafers, once rejected by
Ross, had no value to any other potential buyer because they
had been custom-made for Ross, this Court agrees with the
trial court’s calculation of damages. The record reflects that
Ross placed an order for a similar shipment of wafers after
the events at issue here. Accordingly, the trial -court’s
assessment of damages is affirmed.
20a
D. Spoliation
FedEx sought a sanction against Fujitsu for spoliation
based on the destruction of the wafers in July 1996. The
record reveals that Fujitsu informed FedEx of the damage to
the container immediately upon its arrival in Japan on June
24, 1996. According to the parties, on an undetermined date
in July, after receiving instructions from its insurance
company, Fujitsu destroyed the container and wafers. FedEx
admits that it never contacted Fujitsu to seek an opportunity
- to inspect the container or otherwise request that the container
or wafers should be retained.
The obligation to preserve evidence arises when the party
has notice that the evidence is relevant to litigation or when a
party should have known that the evidence may be relevant to
future litigation. See Kronisch v. United States, 150 F.3d 112,
126 (2d Cir. 1998). Once a court has concluded that a party
was under an obligation to preserve the evidence that it
destroyed, it must then consider whether the evidence was
intentionally destroyed, and the likely contents of that
evidence. See id. at 127. The determination of an appropriate
sanction for spoliation, if any, is confined to the sound
discretion of the trial judge, see West v. Goodyear Tire &
Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999), and is assessed
on a case-by-case basis. See United States v. Grammatikos,
633 F.2d 1013, 1019-20 (2d Cir. 1980). We have recently
observed that “[our] case-by-case approach to the failure to
produce relevant evidence seems to be working.” Reilly v.
Natwest Mkts. Group, Inc., 181 F.3d 253, 267 (2d Cir. 1999).
In this case, the trial court found that FedEx had failed to
demonstrate that Fujitsu’s action was an intentional attempt to
destroy evidence. Jn Thiele v. Oddy’s Auto and Marine, Inc.,
906 F. Supp. 158, 160 (W.D.N.Y. 1995), the court sanctioned
the plaintiff for destroying an allegedly defective boat before
the third-party defendant could inspect it, but denied a
spoliation sanction requested by the main defendant who had
2la
been given the opportunity to inspect the boat prior to its
destruction. See also indemnity Ins. Co. of N. Am. v. Liebert
Corp., 1998 U.S. Dist. LEXIS %475, 96 Civ. 6675 (DC), 1998
WL 363834 (S.D.N.Y. June 29, 1998) (denying spoliation
sanction where defendant had an opportunity to inspect
evidence prior to its destruction). It is undisputed that FedEx
did not request to inspect the damaged shipping container
after Fujitsu notified it of the damage, nor at any time other
than prior to it making the summary judgment motion in
August 1999. Accordingly, the trial court did not abuse its
discretion in finding that, under the particular facts of this
case, no sanction for spoliation was required.
CONCLUSION
We hold that (1) because the return shipment from Austin
to Narita constituted a new shipment that was constructively
accepted by FedEx without the tender of a valid waybill,
FedEx is not entitled to avail itself of the limitation of liability
contained in the Original Warsaw Convention; (2) the entry
into effect of the Hague Protocol does not abate the effect of
the Original Warsaw Convention on events occurring prior to
March 4, 1999; (3) the trial court was not clearly erroneous in
finding that Fujitsu suffered damages in the amount of
$726,400; and (4) the trial court did not abuse its discretionin
refusing to sanction Fujitsu for spoliation.
AFFIRMED.
22a
APPENDIX B
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
97 Civ. 5451 (AKH)
FUJITSU LIMITED,
Plaintiff,
-against-
FEDERAL EXPRESS CORPORATION,
Defendants.
November 30, 1999, Decided
December 2, 1999, Filed
ORDER and MEMORANDUM
JUDGES: ALVIN K. HELLERSTEIN, United States
District Judge.
ALVIN K. HELLERSTEIN, U.S.D.J.:
The issue put to me is whether an air carrier, asked to
return rejected merchandise and performing the air carriage
without a duly issued airway bill, is entitled to the damage
limitation of the Warsaw Convention, (“the Convention”), for
goods damaged during the air carriage. The issue was put to
me for decision by Defendant Federal Express Corporation's
motion for partial summary judgment and Plaintiff Fujitsu
Limited’s cross-motion for partial summary judgment. I hold
that the air carrier is not entitled to the damage limitation and
must respond to the plaintiff for the diminished value of the
merchandise.
i oo
CL SSESSSSS'S
23a
Plaintiff Fujitsu Limited, as consignor, engaged defendant
Federal Express, through an affiliate, to transport by air a
shipment of silicon wafers from Tokyo, Japan, to the
consignee, Ross Technology, in Austin, Texas. Fujitsu
caused airway bill 023-3665-3691 to be completed and
executed, conforming to the requirements of the Warsaw
Convention, modified by the Hague Protocol, 49 U.S.C.
§ 40105.
The consignee decided not to accept the merchandise, and
engaged Federal Express to return the merchandise to the
consignor in Tokyo at the consignee’s expense. No new
airway bill was created. Federal Express brought the
merchandise back to its terminal in Memphis, Tennessee, for
reshipment back to Japan. The silicon wafers were acci-
dentally damaged in Memphis, causing approximately a
$900,000 loss.
In Memphis, Federal Express created an airway bill,
number 023-3682-3010, claiming that it did so to facilitate
tracking of the merchandise. The airway bill did not provide
all the details specified in the Warsaw Convention. It did not,
for example, specify the place and date of its execution or the
agreed stopping places of the shipment, as required by
Articles 8(a) and 8(c) of the Convention.
Article 5 of the Convention provides for a consignor to
complete an airway bill, and to require a carrier to transport
merchandise covered by such airway bill. Articles 6 through
8 specify the details that are to be provided. Article 9
provides that if an air carrier transports merchandise covered
by a conforming airway bill, the carrier is entitled to a limited
liability of $9.07 per pound of transported merchandise; if
there is no airway bill, or if the airway bill omits required
details, a contract of carriage may still exist, but the carrier is
not entitled to the limited liability provided by the
Convention.
24a
The question at issue is whether the return of rejected
merchandise is covered by the same airway bill that covered
the original passage. Counsel represent to the court that no
case treats this question, and that the issue is of first
impression. I hold that the original airway bill does not cover
the return of rejected merchandise.
An airway bill, like all contracts, expresses an agreement of
the parties. Jn re Alleged Food Poisoning Incident, March,
1984, 770 F.2d 3 (2d Cir. 1985). The consignor and the air
carrier agree, and set out in the airway bill, “the place and
date of its execution,” “the place of departure and of
destination,” and “the agreed stopping places, “ among other
things. 49 U.S.C. § 40105, Art. 8. Airway bill “3691” set out
Tokyo, Japan as “the place and date of its [the airway bill’s]
execution” and “the place of departure,” and set out Austin,
Texas as “the place of . . . Destination.” Nothing was said
with respect to the possibility of return of merchandise.
Federal Express represents that the consignee, upon
rejecting the shipment, engaged Federal Express to return the
merchandise, at the consignee’s expense. Thus, the consignee
became the consignor of the return carriage. But no new
airway bill was created. Although Federal Express had the
right to insist that the consignor create a new airway bill, /d.,
Art. 5, Federal Express failed to do so. Thus, a contract of
carriage was effected between Federal Express and the
consignee, but Federal Express failed to create the mechanism
giving it limited liability under the Convention. Federal
Express’ late creation of an airway bill did not conform to the
Convention and was ineffective to give it limited liability.
Without conforming provisions and procedures, the limita-
tions of liability provided by Article 9 of the Convention for
an air Carrier cannot be invoked. Federal Ins. Co. v. Yusen
Air & Sea Serv., No. 97 Civ. 3830, 1998 WL 4779897 at *2 ©
(S.D.N.Y. Aug. 14 1998) (Article 9 precludes reliance on
Article 22, limiting liability, if party failed to comply with
particulars of Article 8).
2Sa
At oral argument, I commented that custom and usage
might be relevant to show that a return Carriage may be
covered by the original airway bill. It appears, however, that
custom and usage may not modify a clear provision of a
contract, Hunt v. Lifschultz Fast Freight, Inc., 889 F.2d 1274,
1277 (2d Cir. 1989), and airway bill “3691” is clear and
unambiguous as to the places of departure and destination of
the goods in question. |
Accordingly, I grant Fujitsu’s cross-motion.
The parties shall attend a conference on December 16,
1999, at 4:00 p.m., to discuss such proceedings as may be
necessary finally to resolve this case.
SO ORDERED.
Dated: New York, New York
November 30, 1999
ALVIN K. HELLERSTEIN
United States District Judge
26a
APPENDIX C
UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF NEW YORK
97 Civ. 5451 (AKH)
FUHITSU LIMITED
Plaintiff,
v.
FEDERAL EXPRESS CORPORATION
Defendant.
ALVIN K. HELLERSTEIN, USDJ.:
On November 30, 1999, I issued an opinion in this case
holding that Federal Express Corporation was not entitled to
the damage limitation of the Warsaw convention and ordering
further proceedings to resolve this case. The parties appeared
for a bench trial on February 22 and 23, 2000 to determine
the extent of Defendant’s liability. For the reasons stated on
the record, I rule that Defendant Federal Express Corporation
is liable to Plaintiff for $726,640 plus interest from the date of
breach, June 25, 1996, until the date of judgment, February
23, 2000, and from the date of judgment forward, as
calculated pursuant to 28 U.S.C. §1961.
SO ORDERED.
Dated: New York, New York
February 24, 2000
ALVIN K. HELLERSTEIN
United States District Judge
a
27a
APPENDIX D
EXCERPT FROM SENATE COMMITTEE ON FOREIGN
RELATING, S. Exec. Rep. 105-20 AT 21-32:
THE PROVISIONS OF THE REVISED WARSAW CONVENTION
APPLICABLE TO THE UNITED STATES IN THE EVENT OF
RATIFICATION OF MONTREAL PROTOCOL NO, 4!
CHAPTER I. SCOPE—DEFINITIONS
Article ]
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. (W-Art. 1)
2. For the purposes of this Convention, the expression
international carriage means any Carriage in which,
according to the agreement between the parties, the place of
departure and the place of destination, whether or not there be
a break in the carriage or a transshipment, are situated either
within the territories of two High Contracting Parties or
within the territory of a single High Contracting Party if there
is an agreed stopping place within the territory of another
State, even if that State is not a High Contracting Party.
Carriage between two points within the territory of a single
High Contracting Party without an agreed stopping place
within the territory of another State is not international
carriage for the purposes of this Convention. (H-Art. I)
3. Carriage to be performed by several successive air
carriers is deemed, for the purposes of this Convention, to be
one undivided carriage if it has been regarded by the parties
as a single operation, whether it had been agreed upon under
the form of a single contract or of a series of contracts, and it
' Margin notes give the source of the provision (W = Warsaw Con-
vention; H=The Hague Protocol; M4 = Montreal Protocol No. 4).
28a
does not lose its international character merely because one
contract or a series of contracts is to be performed entirely
within the territory of the same State. (H-Art. I)
Article 2
1. This Convention shall apply to transportation performed
by the State or by legal entities constituted under public law
provided it falls within the conditions laid down in Article 1.
(W-Art. 2)
2. In the carriage of postal items the carrier shall be liable
only to the relevant postal administration in accordance with
the rules applicable to the relationship between the carriers
and the postal administrations. (M4-Art. ID)
3. Except as provided in paragraph 2 of this Article, the
provisions of this Convention shali not apply to the carriage
of postal items. (M4-Art. II)
CHAPTER II. TRANSPORTATION DOCUMENTS
SECTION I.—PASSENGER TICKET.
Article 3
1. In respect of the carriage of passengers a ticket shall be
delivered containing:
(a) an indication of the places of departure and
destination;
(b) if the places of departure and destination are
within the territory of a single High Contracting Party,
one or more agreed stopping places being within the
territory of another State, an indication of at least one
such stopping place;
(c) a notice to the effect that, if the passenger’s
journey involves an ultimate destination or stop in a
country other than the country of departure, the Warsaw
Convention may be applicable and that the Convention
3
ner ne re
29a ;
governs and in most cases limits the liability of carriers
for death or personal injury and in respect of loss of or
damage to baggage.
2. The passenger ticket shall constitute prima facie
evidence of the conclusion and conditions of the contract of
carriage. The absence, irregularity or loss of the passenger
ticket does not affect the existence or the validity of the
contract of carriage which shall, none the less, be subject to
the rules of this Convention. Nevertheless, if, with the
consent of the carrier, the passenger embarks without a
passenger ticket having been delivered, or if the ticket does
not include the notice required by paragraph 1(c) of this
Article, the carrier shall not be entitled to avail himself of the
provisions of Article 22. (H-Art. II)
SECTION IIl.—BAGGAGE CHECK
Article 4
1. In respect of the carriage of registered baggage, a
baggage check shall be delivered, which, unless combined
with or incorporated in a passenger ticket which complies
with the provisions of Article 3, paragraph 1, shall contain:
(a) an indication of the places of departure and
destination;
(b) if the places of departure and destination are
within the territory of a single High Contracting Party,
one or more agreed stopping places being within the
territory of another State, an indication of at least one
such stopping place;
(c) a notice to the effect that if the Carriage involves
an ultimate destination or stop in a country other than the
country of departure, the Warsaw Convention may be
applicable and that the Convention governs and in most
cases limits the liability of carriers in respect of loss of
or damage to baggage.
30a
2. The baggage check shall constitute prima facie evidence
of the registration of the baggage and of the conditions of the
contract of carriage. The absence, irregularity or loss of the
baggage check does not affect the existence or the validity of
the contract of carriage which shall, none the less, be subject
to the rules of this Convention. Nevertheless, if the carrier
takes charge of the baggage without a baggage check having
been delivered or if the baggage check (unless combined with
or incorporated in the passenger ticket which complies with
the provisions of Article 3, paragraph I(c)) does not include
the notice required by paragraph 1(c) of this Article, he shall
not be entitled to avail himself of the provisions of Article 22,
paragraph 2. (H-Art. IV)
SECTION IlL—
DOCUMENTATION RELATING TO CARGO
Article 5
1. In respect of the carriage of cargo an air waybill shall be
delivered.
2. Any other means which would preserve a record of the
Carriage to be performed may, with the consent of the
consignor, be substituted for the delivery of an air waybill. If
such other means are used, the carrier shall, if so requested by
the <onsignor, deliver to the consignor a receipt for the cargo
permitting identification of the consignment and access to the
information contained in the record preserved by such other
means.
3. The impossibility of using, at points of transit and
destination, the other means which would preserve the record
of the carriage referred to in paragraph 2 of this Article does
not entitle the carrier to refuse to accept the cargo for
carriage. (M4-Art. III)
3la
Article 6
1. The air waybill shall be made out by the consignor in
three original parts.
2. The first part shall be marked “for the Carrier”; it shall
be signed by the consignor. The second part shall be marked
“for the consignee”; it shall be signed by the consignor and
by the carrier. The third part shall be signed by the carrier
and handed by him to the consignor after the cargo has been
accepted.
3. The signature of the carrier and that of the consignor
may be printed or stamped.
4. If, at the request of the consignor, the carrier makes out
the air waybill, he shall be deemed, subject to proof to the
contrary, to have done so on behalf of the consignor.
(M4-Art. Il)
Article 7
When there is more than one package:
a) the carrier of cargo has the right to require the
consignor to make out separate air waybills;
b) the consignor has the right to require the carrier to
deliver separate receipts when the other means referred
to in paragraph 2 of Article 5 are used. (M4- Art. Il)
Article 8
The air waybill and the receipt for the cargo shall contain:
a) an indication of the places of departure and
destination; .
b) if the places of departure and destination are within
the territory of a single High Contracting Party, one or
more agreed stopping places being within the territory of
another State, an indication of at least one such stopping
place; and
32a
c) an indication of the weight of the consignment.
(M4-Art. Ii)
_
Article 9
Non-compliance with the provisions of Articles 5 to 8 shall
not affect the existence or the validity of the contract of
carriage, which shall, none the less, be subject to the rules of
this Convention including those relating to limitation of
liability. (M4-Art. Il)
Article 10
1. The consignor is responsible for the correctness of the
particulars and statements relating to the cargo inserted by
him or on his behalf in the air waybill or furnished by him or
on his behalf to the carrier for insertion in the receipt for the
cargo or for insertion in the record preserved by the other
means referred to in paragraph 2 of Article 5.
2. The consignor shal! indemnify the carrier against all
damage suffered by him, or by any other person to whom the
carrier is liable, by reason of the irregularity, incorrectness or
incompleteness of the particulars and statements furnished by
the consignor or on his behalf.
3. Subject to the provisions of paragraphs | and 2 of this
Article, the carrier shall indemnify the consignor against all
damage suffered by him, or by any other person to whom the
consignor is liable, by reason of the irregularity, incorrectness
or incompleteness of the particulars and statements inserted
by the carrier or on his behalf in the receipt for the cargo or in
the record preserved by the other means referred to in
paragraph 2 of Article 5S. (M4-Art. Il) .
Article 1]
1. The air waybill or the receipt for the cargo is prima facie
evidence of the conclusion of the contract, of the acceptance
Rete
ieee ceed
PRN, wet ine
RE PRR TE eee, EI AS
WADLER
TRIP AR Ra a ae
33a
of the cargo and of the conditions of Calriage mentioned
therein.
2. Any statements in the air waybill or the receipt for the
cargo relating to the weight, dimensions and packing of the
Cargo, as well as those relating to the number of packages, are
prima facie evidence of the facts stated; those relating to the
quantity, volume and condition of the cargo do not constitute
evidence against the carrier except so far as they both have
been, and are stated in the air waybill to have been, checked
by him in the presence of the consignor, or relate to the
apparent condition of the cargo. (M4-Arrt. II)
Article 12
1. Subject to his liability to carry out all his obligations
under the contract of carriage, the consignor has the right to
dispose of the cargo by withdrawing it at the airport of
departure or destination, or by stopping it in the course of the
journey on any landing, or by calling for it to be delivered at
the place of destination or in the course of the journey to a
person other than the consignee originally designated, or by
requiring it to be returned to the airport of departure. He must
not exercise this right of disposition in such a way as to
prejudice the carrier or other consignors and he must repay
any expenses occasioned by the exercise of this right.
2. If it is impossible to carry out the orders of the
consignor the carrier must so inform him forthwith.
3. If the carrier obeys the orders of the consignor for the
disposition of the cargo without requiring the production of
the part of the air waybill or the receipt for the cargo
delivered to the latter, he will be liable, without prejudice to
his right of recovery from the consignor, for any damage
which may be caused thereby to any person who is lawfully
in possession of that part of the air waybill or the receipt for
the cargo.
34a
4. The right conferred on the consignor ceases at the
moment when that of the consignee begins in accordance
with Article 13. Nevertheless, if the consignee declines to
accept the cargo, or if he cannot be communicated with, the
consignor resumes his right of disposition. (M4-Art. IIT)
Article 13
1. Except when the consignor has exercised his right under
Article 12, the consignee is entitled, on arrival of the cargo at
the place of destination, to require the carrier to deliver the
cargo to him, on payment of the charges due and on
complying with the conditions of carriage.
2. Unless it is otherwise agreed, it is the duty of the carrier
to give notice to the consignee as soon as the cargo arrives.
3. If the carrier admits the loss of the cargo, or if the cargo
has not arrived at the expiration of seven days after the date
on which it ought to have arrived, the consignee is entitled to
enforce against the carrier the rights which flow from the
contract of carriage. (M4-Art. IID)
Article 14
The consignor and the consignee can respectively enforce
all the rights given them by Articles 12 and 13, each in his
own name, whether he is acting in his own interest or in the
interest of another, provided that he carries out the obligations
imposed by the contract of carriage. (M4-Arrt. III)
Article 15
1. Articles 12, 13 and 14 do not affect either the relations
of the consignor and the consignee with each other or the
mutual relations of third parties whose rights are derived
either from the consignor or from the consignee.
2. The provisions of Articles 12, 13 and 14 can only be
varied by express provision in the air waybill or the receipt
for the cargo. (M4-Art. Ill)
35a
Article 16
1. The consignor must furnish such information and such
documents as are necessary to meet the formalities of
Customs, Octroi or police before the cargo can be delivered to
the consignee. The consignor is liable to the carrier for any
damage occasioned by the absence, insufficiency or
irregularity of any such information or documents, unless the
damage is due to the fault of the carrier, his servants or
agents.
2. The carrier is under no obligation to enquire into the
correctness or sufficiency of such information or documents.
(M4-Art. III)
CHAPTER II]. LIABILITY OF THE CARRIER
Article 17
The carrier shall be liable for damage sustained in the event
of the death or wounding of a Passenger or any other bodily
injury suffered by a passenger, if the accident which caused
the damage so sustained took place on board the aircraft or in
the course of any of the operations of embarking or
disembarking. (W-Art. 17)
Article 18
1. The carrier is liable for damage sustained in the event of
the destruction or loss of, or damage to, any registered
baggage, if the occurrence which caused the damage so
sustained took place during the Carriage by air.
2. The carrier is liable for damage sustained in the event of
the destruction or loss of, or damage to, cargo upon condition
only that the occurrence which caused the damage so
sustained took place during the Carriage by air.
3. However, the carrier is not liable if he proves that the
destruction, loss of, or damage to, the cargo resulted solely
from one or more of the following:
36a
a) inherent defect, quality or vice of that cargo;
b) defective packing of that cargo performed by a
person other than the carrier or his servants or agents;
c) an act of war or an armed conflict;
d) an act of public authority carried out in connection
with the entry, exit or transit of the cargo.
4. The carriage by air within the meaning of the preceding
paragraphs of this Article comprises the period during which
the baggage or cargo is in che charge of the carrier, whether in
an airport or on board an aircraft, or, in the case of a landing
outside an airport, in any place whatsoever.
5. The period of the carriage by air does not extend to any
carriage by land, by sea or by river performed outside an
airport. If, however, such carriage takes place in the
performance of a contract for carriage by air, for the purpose
of loading, delivery or transshipment, any damage is
presumed, subject to proof to the contrary, to have been the
result of an event which took place during the carriage by air.
(M4-Art. IV)
Article 19
The carrier shall be liable for damage occasioned by delay
in the transportation by air of passengers, baggage, or goods.
(W-Art. 19)
Article 20
In the carriage of passengers and baggage, and in the case
of damage occasioned by delay in the carriage of cargo, the
carrier shall not be liable if he proves that he and his servants
and agents have taken all necessary measures to avoid the
damage or that it was impossible for them to take such
measures. (M4-Art. V)
ee
47a
Article 2]
| I (he earridge al paniengers and hageage, it ihe carrier
ANAVER THAT Ihe damage Wak GAHWed FY AF BARHIRUIed (a hy
HE HOBIIBEHEE AF The PerNan MUerNE the HWHiMBe Ihe Fane
HAY, TH HEBHFHAHEE WI TNE BRAVIRIGHA AF Ile AW LAW,
BAUHEHIIE THe GHEHEF WHET) GE BAHL) FHI Hie Hability,
2. TH the GHHHape BF eaHBE, If the eMHHer prsves that the
UHHApe Was Calised by GF COHLHBULEd tB by the Heplipeee uF
other wronghil act oF oiission of the person claiming
compensation, or the person from whorm he detives his rights,
the carrier shall be wholly or partly exonerated from his
liability to the claimant to the extent that such negligence or
wrongful act or omission caused or contributed to the
damage. (M4-Art, VI)
Article 22
I, In the carriage of persons the liability of the cartier for
each passerper is limited to the suri of two hundred and fifty
thotisand frahes, Where, ih aeeordanee with the law of the
COUM seived UF IKE Base, daiiapes Hay be Awarded iH (he NaH
UF PeHBdieM PAYHEHIA, (he equivalent CABAL Vale af the
AHI PAYOHIA ANAT] Het @keeed Hwa hindeed and Filly
HAHAH Feanee, Neverhelaws, 4) AHEEIAT AHH HER He Barres
ANH THe PANNENBOR MAY ABeE 1A a Higher HM al Habiliiy, (A
AW AN
2, A) In the carriage af registered hABBAge, Whe lability
af the earvier is limiled ta the sum af iwe hundred and
fifty franes per kilogram, unless the passenger or
consignor has made, at the time when the package was
handed over to the carrier, a special declaration of
interest in delivery at destination 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 passenger's or consignor's actual interest in
delivery at destination, (H-Art, XI; M4-Art, VID
48a
hi Ii the carriage al area, the Hahiliiy al the carrier
li Hiiied faa aH APT? Speed Prawing Bighie per
RAMPANT, HTARN THe BAHTBTe Tae Hee, aE He Hie
whe (he pace Wid Adee aver TA Te CAETIER, 4
AHOEIUT HOE THAAHION GE THIEHERE TH AeTIWeRY AE HeAHAHAH
AH His faut i MUBBIEIHENIMEY AU TP THE Gib ae
reqiiiee, TH HHA eee THe cartier Will Be Table te pay a
BU Hot exceeding the declared suit, Uiless He proves
that the sui is preater tha the consignors actual
interest in delivery at destination, (M4-Art, VID)
c) In the case of loss, damage or delay of part of
registered baggage or cargo, or of any object contained
therein, the weight to be taken into consideration in
determining the amount to which the carrier's liability is
limited shall be only the total weight of the package or
packages concerned, Nevertheless, when the loss, dam-
age or delay of a part of the registered baggage or cargo,
uf Of aH Object contained thereih, aMfeets the value of
Hiher Puekapes Covered Ky the sae bappage cheek vt
(he ane HP WAYBITT (he total WelBht UF alien PaekABe UF
Hiehabed AHA Ale Be TakeH Tila BAATHeRAHAH HH
HelHHAB THe THE AE TABI, CHAR AB
1, AN (RBAPHA @ljeee AF WHEN (he pannenper Hikes eharpe
Hiniiell (he TARINIY AL The earriey ia Hiviied ta five Heuiand
Hyanes per passenger, (PA, AD
4, The limits preseribed in this Article shall nat prevent the
court from awarding, in aceardance with its awn law, in
addition, the whole or part of the court costs and of the other
expenses of the litigation incurred by the plaintiff, The
foregoing provision shall not apply if the amount of the
damages awarded, excluding court cost and other expenses
of the litigation, does not exceed the sum which the carrier
has offered in writing to the plaintiff within a period of six
months from the date of the occurrence causing the damage,
494
AF hefare ihe commencement af the aetion, if that is later, (H
A AN
*. THe WHA MeHHAHed IN Maned IH le Avtiele ahall be
HOBHIEd (6 PATER 18 A BLVOHEW HI CHHAIAHE AF ALALVe He anid
WHAT HTB AUHN® OF Bald GE HVTTTONIHHAT FINGH@ WN MING Hinelie,
THONG SUNNY HAY Be GORVEHOH THI HMHBNAL BUHBHEIBN IN
HOUHE FipUHed, CONVERT GF THE RUHKe (AIG HAHGHAL elif
reHieles Uther thal Bold shall, iH ease UF judicial proceediips,
be tude according to the gold Value Of such CuEFEHEIES at the
date of the judgment, (H-Art, XI)
6. The sums mentioned in terms of the Special Drawing
Right in this Article shall be deemed to refer to the Special
Drawing Right as defined by the International Monetary
Fund. Conversion of the sums into national currencies shall,
in case of judicial proceedings, be made according to the
value of such currencies in terms of the Special Drawing
Right at the date of the judgment, The value of a national
curreticy, in terns of the Special Drawitg Right, of 4 High
ache | Partly whieh i a Menber of the tteriational
Monetary Pune) shall be ealeulited in deeOraHee Wi the
HOI HF VAIHAHAH Applied Ay the Iiteniatanal Minetity
Pues 1H effet wt The dite aF The JWABHeNE, far ita HPeHAT ANA
Wie THAHAHEHANY, "The valle Af a RAHARAT BHIVeRey, IN lene
WE He Apeelal Drawite Right ala High HAHHHEHE Party
Whieh 8 Hala Member af ihe Inienatianal Maneiwry Pune,
‘hall be ealeulaied in a manner devermined by tal bligh
Contacting Party,
Nevertheless, those States which are not Members of the
Intemational Monetary Fund and whose law does not permit
the application of the provisions of paragraph 2 b) of Article
22 may, at the time of ratification or accession or at any time
thereafter, declare that the limit of liability of the carrier in
judicial proceedings in their territories is fixed at a sum of
two hundred and fifty monetary units per kilogramme, This
monetary unit corresponds to sixty-five and a half milli-
40a
grannies al Bald al MUN@SINAl Fneness nine hundred. This
BHI HAY iy eHVeried Hite Nie hational currency concerned
i HAM Hpiiee Hie FHUVEI bn of this sum into national
CUHEHEY AHall We HME HeEMMing to the law of the State
bHHeBHIBH, (MaAR, VIN
Attiete 24
1, Aly provisiol teHdiie té felieve the carrier of liability
or to fix a lower limit tha that which is laid down in this
convention shall be null and void, but the nullity of any such
provision shall not involve the nullity of the whole contract,
which shall remain subject to the provisions of this
convention, (W-Art, 23, designated as para. 1 by H-Art. XID)
2. Paragraph | of this Article shall not apply to provisions
governing loss or damage resulting from the inherent defect,
quality or vice of the cargo carried. (H-Art. XII)
Article 24
1, Ih the cAriage UF Passelipers and baggage, any action
hit datinpes, HWwever Muiteee, can only be brought subject
| iH) THE PHHHHHAHA AHH THEE set out in this Convention,
| witht Hie iiitiee i He iiiPellon as to who are the persons
WH) Have (he HBNE 1 WAAR Slt and what are their respective
Bh,
2, Wy the earrlage at *1Bb, any action for damages,
however founded, whether Wiger this Convention or in
CONLACE OF IN TOF OF OLNEPWIS®, Can only be brought subject to
the conditions and limits of liabitity set out in this Convention
without prejudice to the questiG, “as to who are the persons
who have the right to bring suit 4.4 what are their respective
rights, Such limits of liability CG, ctitute maximum limits and
may not be exceeded whatever the circumstances which gave
rise to the liability, (M4-Art, Vip
Se
Bile Ma
4la
Article 25
In the carriage of passengers and baggage, the limits of
liability specified in Article 22 shall not apply if it is proved
that the damage resulted from an act or omission of the
carrier, his servants or agents, done with intent to «cause
damage or recklessly and with knowledge that damage would
probably result; provided that, in the case of such act or
omission of a servant or agent, it is also proved that he was
acting within the scope of his employment. (M4-Art. IX)
Article 25A
1. If in action is brought against a servant or agent of the
carrier arising out of damage to which this Convention
relates, such servant or agent, if he proves that he acted
within the scope of his employment, shall be entitled to avail
himself of the limits of liability which that carrier himself is
entitled to invoke under Article 22. (H-Art. XIV )
2. The aggregate of the amounts recoverable from the
carrier, his servants and agents, in that case, shall not exceed
the said limits. (H-Art. XIV)
3. In the carriage of passengers and baggage, the pro-
visions of paragraphs 1 and 2 of this Article shall not apply if
it is proved that the damage resulted from an act or omission
of the servant or agent done with intent to cause damage or
recklessly and with knowledge that damage would probably
result. (M4-Art. X)
Article 26
1. Receipt by the person entitled to the delivery of baggage
or goods without complaint shall be prima facie evidence that
the same have been delivered in good condition and in
accordance with the document of transportation. (W-Art. 26)
2. In the case of damage, the person entitled to delivery
must complain to the carrier forthwith after the discovery of
42a
the damage, and, at the latest, within seven days from the date
of receipt in the case of baggage and fourteen days from the
date of receipt in the case of cargo. In the case of delay the
complaint must be made at the latest within twenty-one days
from the date on which the baggage or cargo have [has] been
placed at his disposal. (H-Art. XV)
3. Every complaint must be made in writing upon the
document of transportation or by separate notice in writing
dispatched within the times aforesaid. (W-Art. 26)
4. Failing complaint within the times aforesaid, no action
shall lie against the carrier, save in the case of fraud on his
part. (W-Art. 26)
Article 27
In the case of the death of the person liable, an action for
damages lies in accordance with the terms of this convention
against those legally representing his estate. (W-Art. 27)
Article 28
1. An action for damages must be brought, at the option of
the plaintiff, in the territory of one of the High Contracting
Parties, either before the court of the domicile of the carrier or
of his principal place of business, or where he has a place of
business through which the contract has been made, or before
the court at the place of destination.
2. Questions of procedure shall be governed by the law of
the court to which the case is submitted. (W-Art. 28)
Article 29
1. The right to damages shall be extinguished if an action
is not brought within 2 years, reckoned from the date of
arrival at the destination, or from the date on which the
aircxaft ought to have arrived, or from the date on which the
transportation stopped.
43a
2. The method of calculating the period of limitation shall
be determined by the law of the court to which the case is
submitted. (W-Art. 29)
Article 30
1. In the case of transportation to be performed by various
successive carriers and falling within the definition set out in
the third paragraph of Article 1, each carrier who accepts
passengers, baggage or goods shall be subject to the rules set
out in this convention, and shall be deemed to be one of the
contracting parties to the contract of transportation insofar as
the contract deals with that part of the transportation which is
performed under his supervision.
2. In the case of transportation of this nature, the passenger
or his representative can take action only against the carrier
who performed the transportation during which the accident
or the delay occurred, save in the case where, by express
agreement, the first carrie: nas assumed liability for the whole
journey.
3. As regards baggage or goods, the passenger or con-
signor shall have a right of action against the first carrier, and
the passenger or consignee who is entitled to delivery shall
have a right of action against the last carrier, and further, each
may take action against the carrier who performed the
transportation during which the destruction, loss, damage, or
delay took place. These carriers shall be jointly and severally
liable to the passenger or to the consignor or consignee.
(W-Art. 30)
Article 30A
Nothing in this Convention shall prejudice the question
whether a person liable for damage in accordance with its
provisions has a right of recourse against any other person.
(M4-Art. XI)
44a
CHAPTER IV.
PROVISIONS RELATING TO COMBINED TRANSPORTATION
Article 31
1. In the case of combined transportation performed partly
by air and partly by any other mode of transportation, the
provisions of this convention shall apply only to the
transportation by air, provided that the transportation by air
falls within the terms of Article 1.
2. Nothing in this convention shall prevent the parties in
the case of combined transportation from inserting in the
document of air transportation conditions relating to other
modes of transportation, provided that the provisions of this
convention are observed as regards the transportation by air.
(W-Art. 31)
CHAPTER V. GENERAL AND FINAL PROVISIONS
Article 32
Ary clause contained in the contract and all special
agreements entered into before the damage occurred by which
the parties purport to infringe the rules laid down by this
convention, whether by deciding the law to be applied, or by
altering the rules as to jurisdiction, shall be null and void.
Nevertheless for the transportation of goods arbitration
clauses shall be allowed, subject to this convention, if the
arbitration is to take place within one of the jurisdictions
referred to in the first paragraph of Article 28. (W-Art. 32)
Article 33
Except as provided in paragraph 3 of Article 5, nothing in
this Convention shall prevent the carrier either from refusing
to enter into any contract of carriage or from making
regulations which do not conflict with the provisions of this
Convention. (M4-Art. XII)
45a
Article 34
The provisions of Articles 3 to 8 inclusive relating to
documents of carriage shall not apply in the case of Carriage
performed in extraordinary circumstances outside the normal
Scope of an air carrier’s business. (M4-Art. XIII)
Article 35
The expression “days” when used in this convention means
current days, not working days. (W-Art. 35)
Articles 36 to 402
Article 40A
1. In Article 37, paragraph 2 and Article 40, paragraph 1,
the expression High Contracting Party shall mean State. In
all other cases, the expression High Contracting Party shall
mean a State whose ratification of or adherence to the
Convention has become effective and whose denunciation
thereof has not become effective.
2. For the purposes of the Convention the word territory
means not only the metropolitan territory of a State but also
all other territories for the foreign relations of which that
State is responsible. (H-Art. XVII)
Article 41
Any High Contracting Party shall be entitled not earlier
than two years after the coming into force of this convention
to call for the assembling of a new international conference to
consider any improvements which may be made in this
convention. To this end it will communicate with the Gov-
ernment of the French Republic which will take the neces-
Sary measures to make preparations for such conference.
(W-An. 41)
* Articles 36 to 40 govern participation in and withdrawal from the
Convention. Montreal Protocol No. 4 would largely supersede these
clauses for the United States and they are therefore omitted here.
46a
APPENDIX E
RELEVANT PROVISIONS OF ORIGINAL
WARSAW CONVENTION
Section III - Air Waybill
Article 5
1. Every carrier of goods has the right to require the
consignor to make out and hand over to him a document
called an “air waybill”; every consignor has the right to
require the carrier to accept this document.
2. The absence, irregularity, or loss of this document shall
not affect the existence or the validity of the contract of
transportation which shall, subject to the provisions of Article
9, be none the less governed by the rules of this Convention.
Article 6
1. The air waybill shall be made out by the consignor in three
original parts and be handed over with the goods.
2. The first part shall be marked “for the carrier”, and shall
be signed by the consignor. The second part shall be marked
“for the consignee”; it shall be signed by the consignor and
by the carrier and shall accompany the goods. The third part
shall be signed by the carrier and handed by him to the
consignor after the goods have been accepted.
3. The carrier shall sign on acceptance of the goods.
4. The signature of the carrier may be stamped; that of the
consignor may be printed or stamped.
5. If, at the request of the consignor, the carrier makes out the
air waybill, he shall be deemed, subject to proof to the
contrary, to have done so on behalf of the consignor.
47a
Article 7
The carrier of goods has the right to require the consignor to
make out separate waybills when there is more than one
package.
Article 8
The air waybill shall contain the following particulars:
a. The place and date of its execution;
b. The place of departure and of destination;
c. The agreed stopping places, provided that the carrier
miay reserve the right to alter the stopping places in
case of necessity, and that if he exercises that right the
alteration shall not have the effect of depriving the
transportation of its international character;
d. The name and address of the consignor;
e. The name and address of the first carrier:
f. The name and address of the consignee, if the case so
requires;
g. The nature of the goods;
h. The number of packages, the method of packing and
the particular marks or numbers upon them;
i. The weight, the quantity, the volume, or dimensions
of the goods;
j. The apparent condition of the goods and of the
packing;
k. The freight, if it has been agreed upon, the date and
place of payment, and the person who is to pay it;
1. If the goods are sent for payment on delivery, the
price of the goods, and, if the case so requires, the
amount of the expenses incurred;
m. The amount of the value declared in accordance with
Article 22 (2); "
n. The number of parts of the air waybill;
48a
o. The decuments handed to the carrier to accompany
the air waybill;
p. The time fixed for the completion of the transportation
and a brief note of the route to be followed, if these
matters have been agreed upon;
q. A statement that the transportation is subject to
the rules relating to liability established by this
Convention.
Article 9
If the carrier accepts goods without an air waybill having
been made out, or if the air waybill does not contain all the
particulars set out in Article 8(a) to (i), inclusive, and (q), the
carrier shall not be entitled to avail himself of the provisions
of this Convention which exclude or limit his liability.
Article 10
1. The consignor shall be responsible for the correctness of
the particulars and statements relating to the goods which he
inserts in the air waybill.
2. The consignor shall be liable for all damages suffered by
the carrier or any other person by reason of the irregularity,
incorrectness or incompleteness of the said particulars and
statements.
Article 11
1. The air waybill shall be prima facie evidence of the
conclusion of the contract, of the receipt of the goods and of
the conditions of transportation.
2. The statements in the air waybill relating to the weight,
dimensions, and packing of the goods, as well as those
relating to the number of packages, shall be prima facie
evidence of the facts stated; those relating to the quantity,
volume, and condition of the goods shall not constitute
evidence against the carrier except so far as they boin lave
been, and are stated in the air waybill to have been, checked
49a
by him in the presence of the consignor, or relate to the
apparent condition of the goods.
Article 12
1. Subject to his liability to carry out all his obligations under
the contract of transportation, the consignor shall have the
right to dispose of the goods by withdrawing them at the
airport of departure or destination, or by stopping them in the
course of the journey on any landing, or by calling for them
to be delivered at the place of destination, or in the course of
the journey to a person other than the consignee named in the
air waybill, or by requiring them to be returned to the airport
of departure. He must not exercise this right of disposition in
such a way as to prejudice the carrier or other consignors, and
he must repay any expenses occasioned by the exercise of this
right.
2. If it is impossible to carry out the orders of the consignor
the carrier must so inform him forthwith.
3. If the carrier obeys the orders of the consignor for the
disposition of the goods without requiring the production of
the part of the airway bill delivered to the latter, he will be
liable, without prejudice to his right of recovery from the
consignor, for any damage which may be caused thereby to
any person who is lawfully in possession of that part of the air
airway bill.
4. The right conferred on the consignor shall cease at the
moment when that of the consignee begins in accordance
with Article 13, below. Nevertheless, if the consignee
declines to accept the waybill or the goods, or if he cannot be
communicated with, the consignor shall resume his right of
disposition.
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
50a
to him the air waybill and to deliver the goods to him, on
payment of the charges due and on complying with the
conditions of transportation set out in the air waybill.
2. Unless it is otherwise agreed, it shall be 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.
Article 14
The consignor and the consignee can respectively enforce all
the rights given them by Articles 12 and 13, each in his own
name, whether he is acting in his own interest or in the
interest of another, provided that he carries out the obligations
imposed by the contract.
Article 15
1. Articles 12, 13, and 14 shall not affect either the relations
of the consignor and the consignee with each other or the
relations of third parties whose rights are derived either from
the carrier or from the consignee.
2. The provisions of Articles 12, 13, and 14 can only be
varied by express provision in the air waybill.
Article 16
1. The consignor must furnish such information and attach to
the air waybill such documents as are necessary to meet the
formalities of customs, octroi, or police: before the goods can
be delivered to the consignee. The consignor shall be liable
to the carrier for any damage occasioned by the absence,
Sla
insufficiency, or irregularity of any such information or
documents, unless the damage is due to the fault of the carrier
or his agents,
2. The cartier is under no Obligation to enquire into the
correctness or sufficiency of such information or documents.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.