739 F.2d 536 (11th Cir. 1984), 82-6033, Highlands Ins. Co. v. Trinidad and Tobago (BWIA Intern.) Airways Corp.

Docket Nº:82-6033.
Citation:739 F.2d 536
Case Date:August 15, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 536

739 F.2d 536 (11th Cir. 1984)




CORPORATION, Defendant-Appellee.

No. 82-6033.

United States Court of Appeals, Eleventh Circuit

August 15, 1984

Page 537

Hayden & Milliken, John D. Kallen, William Boeringer, Miami, Fla., for Highlands.

Stephen J. Fearon, Condon & Forsyth, Wendy A. Grossman, Lawrence Mentz, New York City, for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CLARK, Circuit Judges, and GOLDBERG [*], Senior Circuit Judge.


Plaintiff Highlands brought this subrogation action against BWIA, an air carrier, claiming money damages for destruction of cargo. 1 Highlands presented three theories of recovery: bailment, negligence, and breach of a contract of carriage. BWIA answered, asserting various defenses, including the defense that Highlands' claim was barred because its subrogor, Mr. Bajnath Ramgoolam, failed to meet the timely notice requirements contained in Article 26 of the Warsaw Convention, as set out in 49 U.S.C. Sec. 1502 note (1976). 2 The court subsequently granted BWIA summary judgment on the basis of that defense. Highlands appeals, contending that material issues of fact remained in dispute. We reject this contention and affirm.

Page 538


  1. The Facts

    On March 4, 1980, Ramgoolam received a shipment of "fly back transformers" and "twist locks," which are television parts, transported by BWIA from Miami, Florida, to Port-of-Spain, Trinidad. Ramgoolam came to BWIA's warehouse, where, according to his summary judgment affidavit, he saw employees throwing his goods from a storage rack to the floor approximately 18 feet below. Assuming there was damage to his goods, he discussed the problem with a BWIA employee at the warehouse but left with a clean delivery receipt. Ramgoolam then drove to a BWIA office in downtown Port-of-Spain, where a BWIA employee informed him that no one at that office could make a notation of the damage on the delivery receipt 3 as they had not seen the goods. Ramgoolam says in his affidavit that the employee at the downtown office told him that the only notation that could be made on the delivery receipt was "lift inoperative," indicating that the goods could not be moved by mechanical means to the floor and had to be brought down some other way. The employee apparently could make such a notation because he had personal knowledge that the lift was broken. Such a notation was made.

    Three days after Ramgoolam received the goods, he hired a firm of cargo surveyors to conduct an examination of the goods; their survey showed that the entire shipment was severely damaged. Ramgoolam gave BWIA notice of the survey but BWIA did not attend. On March 20, BWIA received an undated letter from Ramgoolam giving notice of his claim. BWIA apparently rejected the claim without stating its reasons. Highlands paid Ramgoolam for its loss and brought this subrogation action.

  2. Notice Requirements Under the Warsaw Convention

    The Warsaw Convention recognizes that air cargo may be lost, destroyed, or damaged, 4 but requires an express notice only for damaged goods. The Convention explicitly states that there is no notice requirement for lost goods; 5 it is silent, however, as to a notice requirement for totally destroyed goods. See Maschinenfabrik Kern, A.G. v. Northwest Airlines, Inc., 562 F.Supp. 232, 237 (N.D.Ill.1983); Hughes-Gibb & Co., v. Flying Tiger Line, Inc., 504 F.Supp. 1239, 1242 (N.D.Ill.1981).

    The notice requirement for damaged goods, found in article 26(2), requires written notice within seven days. 6 Failure to comply with this provision defeats an otherwise valid damage claim; an absence of a timely complaint is prima facie evidence of delivery in good condition.

    Page 539


    Material Issues of Fact Allegedly Remaining in Dispute

    Highlands asserts that the "destroyed goods" exception to article 26 applies, so that Ramgoolam was under no duty to give BWIA notice. This exception to the notice requirement was...

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