January 28, 2016
Mas & Sons Jardiniers, Ltd. v. Florida West International Airways, Inc. (Fla. 3d DCA Oct. 7, 2015). The shipper/plaintiff alleged that it had sustained damages because Florida West failed to timely release fresh vegetables it had transported by air from Guatemala and Costa Rica to Miami. Due to logistical problems involving payment for the cargo, its release was delayed. The plaintiff then had a USDA inspection performed, which showed that the vegetables were “exhibiting signs of early stages of decay.” As a result, when the drivers of the trucking company hired by the plaintiff picked up the cargo, they signed the air waybills “Receive/Protest.”
The plaintiff alleged that some of the vegetables had to be destroyed and that it had to sell the remainder at a reduced price. The plaintiff sent the first written notice of its claim to Florida West 28 days after the cargo was released to the trucking company, although the plaintiff had given verbal notice of its claim to the carrier prior to that time.
Florida West moved for summary judgment on the grounds that the plaintiff had failed to comply with Article 31 of the Montreal Convention, which required that the plaintiff submit its damage claim “in writing” within “fourteen days from the date of receipt” of the cargo. The plaintiff argued that fact issues pertaining to the “Receive/Protest” air waybill notations and its verbal claim notice precluded summary judgment. The court disagreed. Consistent with well-established caselaw, the court strictly construed Article 31, ruling that the “Receive/Protest” notations were insufficient because they failed to adequately inform the carrier of the nature of the damage and that timely written notice was required even if the carrier had actual knowledge of the damage.
September 30, 2007
Muoneke v. Air France (5th Cir. Tex. Sept. 17, 2007). The day after her flight from Texas arrived in Nigeria, the passenger went to the airline’s lost baggage office at the airport and claimed that several items were missing from her checked baggage. The passenger alleged that she submitted a written claim regarding the missing items during her visit to the baggage office, but the airline alleged that it had no record of having received such claim.
The passenger filed a state court lawsuit against the airline, which removed the case to federal court. The passenger moved that the case be remanded because the amount in controversy did not exceed $75,000. The Fifth Circuit affirmed the trial court’s denial of the remand motion, holding that because the passenger’s complaint involved the interpretation and application of a treaty – the Warsaw Convention – the trial court had federal question jurisdiction, which has no dollar-amount requirement.
After the trial court denied the passenger’s remand motion, the airline moved for summary judgment on the grounds that the passenger had failed to submit a timely written claim under Article 26 of the Warsaw Convention and the airline’s contract of carriage, both of which required submission of a written claim within seven days of the passenger’s receipt of her baggage. The Fifth Circuit vacated the trial court’s summary judgment for the airline, holding that the passenger’s submissions in opposition to the airline’s motion were sufficient to create a genuine issue of material fact as to whether she had submitted a written claim.
Note: The Warsaw Convention and its successor, the Montreal Convention, impose time limits for submitting written claims for baggage and cargo damage and delay but not for loss. However, neither Convention prohibits airlines from imposing their own time limits for submitting written loss claims (see, e.g., Khan v. Singapore Airlines, Ltd. (9th Cir. 1997)), and airlines typically impose such limits through their conditions of carriage. Courts usually regard the delivery of baggage with some items missing, as occurred in the above case, as baggage damage rather than loss for purposes of Article 26. See Maro Leather Co. v. Aerolineas Argentinas (N.Y.A.D. 1988).
May 19, 2007
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.”