Court rules that shipper waited too long before raising stink about spoiled fish

O’gray Import & Export v. British Airways PLC (D. Md. May 4, 2007).  The shipper engaged British Airways to transport smoked fish from Ghana to BWI.  On September 8, 2005, the U.S. Food and Drug Administration released the cargo to the shipper but also placed a hold on the fish due to a suspicion of mold; the FDA subsequently denied entry of the shipment.  Despite being on “clear notice of potential problems” with the cargo, the shipper did not note any complaint when it signed the air waybill on September 8.  On October 19, the shipper mailed a claim for damages to British Airways.  British Airways denied the claim because it did not comply with the air waybill’s requirement that any claim for cargo damage be made in writing to the airline within 14 days “from receipt of the goods.”

The shipper filed a lawsuit against British Airways seeking as damages the value of the cargo.  British Airways moved for summary judgment on the grounds that the shipper had failed to comply with the notice requirements of Article 26 of the Warsaw Convention, which had been adopted by the air waybill.  (Ghana is a party to the Warsaw Convention but not to the Montreal Convention, which succeeded the Warsaw Convention in 2003.)  The shipper, knowing that the Warsaw Convention’s notice requirements do not apply to “destroyed” cargo, argued in response that the cargo was “destroyed” as of September 8 rather than “damaged” as of that date.

The court granted British Airways’s motion.  The court explained that for cargo to be considered “destroyed,” the destruction must be “total and obvious.”  The court found that it was not “obvious” on September 8 that the fish were spoiled, reasoning that if the spoilage had been “obvious” that day, the FDA would have denied the cargo’s entry rather than holding the fish for further testing.  Thus, the court held that Article 26 of the Warsaw Convention and the air waybill imposed a duty on the shipper to provide notice of its claim with 14 days of September 8 and that the shipper had failed to meet this deadline.

Note:  Article 26(2) of the Warsaw Convention provides as follows:  “In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of 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 been placed at his disposal.”


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