St. Paul Ins. Co. of Illinois v. Venezuelan Intern. Airways, Inc.

• Decision Date: 20 January 1987
• Docket Number: No. 85-6048,85-6048
• Citation: 807 F.2d 1543
• Parties: The ST. PAUL INSURANCE CO. OF ILLINOIS, as Subrogee of First Wisconsin Corp., Plaintiff-Appellant, v. VENEZUELAN INTERNATIONAL AIRWAYS, INC., a/k/a Viasa Airlines, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

807 F.2d 1543

The ST. PAUL INSURANCE CO. OF ILLINOIS, as Subrogee of First Wisconsin Corp., Plaintiff-Appellant, v. VENEZUELAN INTERNATIONAL AIRWAYS, INC., a/k/a Viasa Airlines, Defendant-Appellee.

No. 85-6048.

United States Court of Appeals, Eleventh Circuit.

Jan. 20, 1987.

William R. Boeringer, Hayden & Milliken, P.A., Miami, Fla., Stephen C. Veltman, Tribler & Marwedel, P.C., Wendy J. Muchman, Warren J. Marwedel, Dion J. Sartorio, Chicago, Ill., for plaintiff-appellant.

John W. Thornton, Thonton, Herndon, Mastrucci & Ferrington, Michael E. Wargo, Miami, Fla., for Venezuelan Intern. Airways, Inc.

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

Before FAY and JOHNSON, Circuit Judges, and HOFFMAN, ^* Senior District Judge.

WALTER E. HOFFMAN, Senior District Judge:

The plaintiff, St. Paul Insurance Co. of Illinois (St. Paul), appeals from a grant of summary judgment in favor of the defendant, Venezuelan International Airways, Inc. (Viasa), on its claim for lost goods. ¹ The district court held that the tariff which Viasa had filed with the Civil Aeronautics Board, in compliance with the Federal Aviation Program, 49 U.S.C. Sec. 1373(a), controlled the time for notice of claim and that the notice requirements of Viasa's air waybills did not control. The district court stated that St. Paul's notice of shortage or pilferage was untimely as a matter of law and that St. Paul's claim against Viasa was barred. In determining which document set forth the controlling notice provision, the district court found it unnecessary to decide whether a shortage or pilferage of goods constitutes a loss, a partial loss, damage, or non-delivery of goods.

We AFFIRM the holding of the district court.

BACKGROUND Facts

The pertinent facts of this case are undisputed. The controversy focuses on the central issue of which notice provision is applicable. St. Paul's authorized agent gave written notice of the shortage of goods to Viasa on July 21, 1983. That date is respectively 67 and 77 days subsequent to the issuance of the two air waybills in question. July 21, 1983, is also 52 days subsequent to May 31, 1983, and 49 days after June 3, 1983; the latter two dates are arrival dates for the shipments and could presumably be set as the dates upon which the agents of St. Paul became aware of the shortages. Each of the time spans here calculated clearly exceeds any 7-, 14- or 30-day notice requirement but falls securely within a 120-day notice requirement.

This action arises out of the alleged pilferage or shortage of spare tractor parts sent in two separate shipments from Caracas, Venezuela, to Miami, Florida. The First Wisconsin Corporation held an ownership interest in the cargo and acted through various agents as shipper of the cargo and arranged for transportation of the cargo. St. Paul is subrogated to the rights of recovery of First Wisconsin Corporation by virtue of payments made in accordance with an insurance policy which bound the entities. The first shipment, sent pursuant to Viasa Air Waybill No. 164-11648615, dated May 16, 1983, consisted of 18,458 pounds of tractor parts in 79 boxes on two pallets. On June 3, 1983, the first shipment arrived in Miami. Inter-American Moving Services delivered the goods to Transamerican Transcontinental (Transamerican), a tractor parts distributor acting as agent for the plaintiff-appellant. The agent inspected the goods and found a shortage of 6,521.47 pounds of tractor parts.

The second shipment consisted of 145 boxes on three pallets, which weighed 15,457.20 pounds. This shipment was sent pursuant to Viasa Air Waybill No. 164-11648486, dated May 26, 1983, and arrived in Miami on May 31, 1983. A different trucker, Equipsa, Inc., delivered the goods to Transamerican on June 10, 1983. Approximately 1,790.30 pounds of tractor parts were missing from this shipment. Transamerican gave written notice of the shortages to Viasa on July 21, 1983.

Notice Requirements

Several sources of written notice of claim provisions are applicable to international The first notice requirements appear in the Convention for the Unification of Certain Rules Relating to International Transportation by Air (Warsaw, October 12, 1929; adhered to by the United States June 27, 1934), 49 Stat. 3000, 49 U.S.C. Sec. 1502 (Warsaw Convention). Article 13(3) of the Warsaw Convention provides for lost goods as follows:

air transportation. We must decide which notice requirement governs the length of time available to St. Paul in which to give timely notice of its claim to Viasa regarding the shortage or pilferage of portions of each of two shipments.

... (3) if the carrier admits the loss of 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.

The reference to the contract of carriage in Article 13(3) means that if this Article applies, the terms of the Viasa air waybill are relevant. A copy of Air Waybill No. 164-11648486, marked Exhibit I, appears in the Record. ² Paragraph 12 of that waybill sets forth additional notice provisions and states in full:

(12)(a) the person entitled to delivery must make a complaint to the Carrier in writing in the case of (i) visible damage to the goods, immediately after discovery of the damage and at the latest within 14 days from receipt of the goods, (ii) of other damage to the goods, within 14 days from the date of receipt of the goods, (iii) of delay, within 21 days of the date the goods are placed at his disposal, and (iv) of non-delivery of the goods, within 120 days from the date of the issue of the Air Waybill;

Read together, Article 13(3) and the Viasa Air Waybill clearly indicate that notice of non-delivery of goods must be given to the carrier within 120 days of the date of issue of the air waybill.

A second article of the Warsaw Convention also governs certain notice provisions regarding claims. Article 26 states:

(1) Receipt by the person entitled to delivery of baggage or goods without complaint shall be prima facie evidence that the same had been delivered in good condition and in accordance with the document of transportation.

(2) In the case of damages, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and at the latest, within 3 days from the date of receipt in the case of baggage and 7 days from the date of receipt in the case of goods. In case of delay the complaint must be made at the latest within 14 days from the date on which the baggage or goods have been placed at his disposal.

(3) Every complaint must be made in writing upon the document of transportation or by separate notice in writing dispatched within the time aforesaid.

(4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part. ³

Article 26 clearly applies to damaged goods. If a shipment, short from pilferage or other reason, is construed to be damaged, Article 26, and not Article 13(3) of the Warsaw Convention must apply.

In addition to the notice provisions of the Warsaw Convention and the air waybills, on the dates in question Viasa had filed certain tariffs with the Civil Aeronautics Board. Viasa tariff Rule 23(b) and Exception (6) also provide for notice, as follows:

Rule No. 23: Time Limitations on Claims and Actions,

(A) Receipt by the person entitled to the delivery of the cargo without complaint (B) No action shall be maintained in the case of damage to or partial loss of cargo unless a written notice, sufficiently describing the cargo concerned, the approximate date of the damage, and the details of the claim is presented to an office of Carrier within 7 days from the date of receipt thereof, in the case of delay, unless presented within 14 days from the date the cargo is placed at the disposal of the person entitled to delivery of the consignment, and in the case of loss (including non-delivery) unless presented within 120 days from the date of issue of the air waybill.

is prima facie evidence that the same has been delivered in good condition and in accordance with the contract of carriage.

Exception 6: (applicable only to VA) ⁴ No action shall be maintained in the case of loss (including NON-DELIVERY) unless presented within 30 days from the date of issuance of the air waybill.

Neither the tariff nor the exception is specifically incorporated into the air waybill; however, the air waybill states that to the extent that a tariff is not in conflict with the Warsaw Convention, the air waybill is subject to that tariff.

DISCUSSION

Applicable Notice Provision

The district court has ruled and the parties agree that the Warsaw Convention governs the rights and liabilities to this action. Highlands Insurance Company v. Trinidad and Tobago (BWIA International) Airways Corporation, 739 F.2d 536 (11th Cir.1984). The Warsaw Convention creates the cause of action upon which St. Paul relies and is the exclusive remedy against international air carriers for lost or destroyed cargo. Warsaw Convention Arts. 18, 21, 24, 24(2), 28(2), 49 U.S.C. Sec. 1502 note; Boehringer-Mannheim Diagnostics, Inc. f/k/a Hycel, Inc. v. Pan American World Airways, Inc., 737 F.2d 456, 458 (5th Cir.1984), cert. denied, 469 U.S. 1186, 105 S.Ct. 951, 83 L.Ed.2d 959 (1985). The Warsaw Convention, an international treaty accepted by the United States, is absolutely binding upon the parties. Dalton v. Delta Airlines, Inc., 570 F.2d 1244, 1246 (5th Cir.1978).

The function of this court is to construe the Convention, determine its meaning, and to apply it fairly. Dalton, 570 F.2d at 1246; Kelley v. Societe Anonyme Belge D'Exploitation de la Navigation Aerienne, 242 F.Supp. 129, 136 (E.D.N.Y.1965). The predecessor to this court has previously set forth rules...