Motorola, Inc. v. Msas Cargo Intern., Inc.

• Decision Date: 18 November 1998
• Docket Number: No. C 98-0370 SI.,C 98-0370 SI.
• Court: U.S. District Court — Northern District of California
• Parties: MOTOROLA, INC., et al., Plaintiffs, v. MSAS CARGO INTERNATIONAL, INC., et al., Defendants.

42 F.Supp.2d 952

MOTOROLA, INC., et al., Plaintiffs, v. MSAS CARGO INTERNATIONAL, INC., et al., Defendants.

No. C 98-0370 SI.

United States District Court, N.D. California.

November 18, 1998.

Christopher J. Enge, Gibson & Robb, San Francisco, CA, for plaintiffs.

Arthur A. Leonard, Sands, Norwitz, Forgie, Leonard & Lerner, Los Angeles, CA, for MSAS Cargo, defendant.

David T. Condra, Condon & Forsythe, Los Angeles, CA, for Asiana Airlines, defendant.

ORDER GRANTING ASIANA AIRLINES' MOTION FOR SUMMARY JUDGMENT

ILLSTON, District Judge.

On October 30, 1998, the Court heard argument on defendant Asiana Airlines, Inc.'s ("Asiana's") motion for summary judgment pursuant to Fed.R.Civ.P. 56. Having carefully considered the moving and opposing papers and the arguments of counsel, and for the reasons set out below, Asiana's motion is hereby GRANTED, based both on the applicable limitations period as set forth by Article 29 of the Warsaw Convention¹ and on the notice of claim requirements in Article 26 of the Warsaw Convention.

BACKGROUND

This action arises from the alleged damage to a "consignment" of computer equipment shipped from San Francisco, California, and arriving in Tokyo, Japan, on February 10, 1996. (Declaration of Kevin R. Sutherland (Sutherland Decl.) ¶ 3, Exhibit A ¶ 5; Declaration of Kevin P. Cummisky (Cummisky Decl.) ¶ 4). Plaintiffs are Motorola, Inc. and Nippon Motorola Ltd., the owners of the cargo, and American Home Assurance Co., Ltd, the subrogated insurer of the consignment. (Sutherland Decl. ¶ 3, Exhibit A ¶ 7). No facts are in dispute.

Motorola retained defendant MSAS Cargo International, Inc. ("MSAS") to arrange for transportation of the consignment from San Francisco to Tokyo. Pursuant to its agreement with Motorola, MSAS issued air waybill No. SFO 02 113388 to Motorola, Inc., with Nippon Motorola as the consignee. (Declaration of Alexandra Smith (Smith Decl.) ¶ 5, Exhibit A). MSAS then arranged for Asiana to transport the consignment. (Cummisky Decl. ¶ 3, Exhibit E). The MSAS/Asiana arrangement is the subject of Asiana air waybill No. 988-9806 1960. (Cummisky Decl. ¶ 4).

When the consignment was picked up by Nippon Motorola at the MSAS warehouse on February 12, 1996, damage to the consignment was noted on the front of the MSAS air waybill. (Smith Decl. ¶ 9, Exhibit A). There is no indication or allegation that Asiana was ever informed or knew of the damage to the consignment prior to commencement of this suit. (Cummisky Decl. ¶ 5).

On January 30, 1998, plaintiffs filed a complaint against MSAS alleging that MSAS damaged the consignment. On March 16, 1998, MSAS filed a third-party complaint for indemnity and contribution against Asiana. Plaintiffs subsequently filed an amended complaint on April 2, 1998, adding Asiana as a defendant. On October 2, 1998, Asiana filed the instant motion for summary judgment with respect to all claims against it in the current action.

LEGAL STANDARD

A motion for summary judgment may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any 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).

The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, the nonmoving party must then set forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

"[O]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Pub. Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

The evidence presented by the parties in support of or opposition to a motion for summary judgment must be admissible. See Fed.R.Civ.P. 56(e). In evaluating this evidence, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991).

DISCUSSION

Asiana has moved for summary judgment on two alternative theories: (1) plaintiffs failed to bring their claim against Asiana within the applicable two-year time limit set forth in Article 29 of the Warsaw Convention, and (2) Asiana did not receive timely notice of a claim for the alleged damage to the consignment as required by Article 26 of the Warsaw Convention. Each argument will be examined separately below.

1. The Two-year Limitation Bars Suit

It is undisputed that this action is governed by the provisions of a multilateral treaty of the United States known as the Warsaw Convention. (Sutherland Decl. Exhibit A ¶ 3). As a treaty of the United States, the Warsaw Convention is the supreme law of the land. U.S. Const. art. VI, cl. 2; Air France v. Saks, 470 U.S. 392, 406, 105 S.Ct. 1338, 1346, 84 L.Ed.2d 289 (1985). Article 29(1) of the Warsaw Convention provides a two-year statute of limitations as follows:

[t]he 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 aircraft ought to have arrived, or from the date on which the transportation stopped.

Warsaw Convention, art. 29(1), 49 Stat. 3021.

Asiana argues that suit against it arising from this incident was time-barred as of February 10, 1998, two years from the date of arrival of the consignment. Since no action against Asiana was brought by MSAS until March 16, 1998, and by plaintiffs until April 2, 1998, both actions are time barred under the two year statute of limitations of the Warsaw Convention. Asiana presents a long line of cases that confirm an air carrier is entitled to dismissal where, as here, the action has not been commenced within the two-year period prescribed by the Warsaw Convention. Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143-145 (2nd Cir.1998); Sassouni v. Olympic Airways, 769 F.Supp. 537, 541 (S.D.N.Y.1991).

In response, plaintiffs and MSAS make two arguments. First, both plaintiffs and MSAS argue that application of the relation back doctrine under Fed.R.Civ.P. 15(c) allows them to relate the admittedly untimely filing of their respective claims against Asiana back to the date of the filing of the original complaint. Second, MSAS separately argues that the two year limitations period under the Warsaw Convention does not apply to indemnity claims of one carrier against another. Each argument will be addressed separately below.

A. The Relation Back Argument

Plaintiffs and MSAS contend that the amended complaint relates back per F.R.C.P. 15(c) to the initial filing date of this action, which was within the two-year period. Courts applying Rule 15(c), since its amendment in 1991, have consistently held that the new defendant need only receive knowledge of the complaint within the 120 day period for service of the original summons and complaint. See Hill v. United States Postal Service, 961 F.2d 153, 155 (11th Cir.1992); Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 545 (5th Cir.1992). Here, plaintiffs' amended complaint and summons on Asiana were filed within 120 days of the initial filing. Therefore, plaintiffs contend that the relation back doctrine applies and the action against Asiana is timely.

Asiana responds that the two year limitations period set forth in Article 29 of the Warsaw Convention is not subject to extensions under the laws of the local forum states. Referencing the draft minutes of the Convention, Asiana argues that the original drafters of the Convention specifically considered and rejected a proposed provision that would have allowed exceptions to the limitations period according to the law of the forum court. See Kahn v. Trans World Airlines, Inc., 82 A.D.2d 696, 443 N.Y.S.2d 79, 85-87 (1981) (examining legislative history and concluding that Warsaw Convention bars tolling of the two year limitations period). A majority of courts have followed Kahn and refused to allow exceptions to the Convention's two year limitations period. See Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir.1998) (citing list of cases following Kahn).

The Court agrees with Asiana that statutes that extend the limitations period, such as Rule 15(c), may not be applied to the Warsaw Convention's limitations period under Article 29(1). The preamble to the Convention states that its purpose is to provide uniformity in the field of international air transportation. Royal Ins. Co. v. Emery Air Freight Corp., 834 F.Supp. 633, 636 (S.D.N.Y.1993). The objective of uniformity would be frustrated were the Court to allow plaintiffs and MSAS to apply F.R.C.P. 15(c) to the limitations period under Article 29(1). Following an examination of the minutes of the Warsaw Convention, Kahn concludes that "the delegates to the Warsaw Convention expressly desired to remove those actions governed by the Convention from the uncertainty that would attach were they to be subjected to the various tolling provisions of the laws of the member states.... [T]he two-year time limitation specified in Article 29 was intended to be absolute — barring any action...