Document Type

Article

Publication Date

9-24-1992

Abstract

Plaintiff-appellant Distribuidora Dimsa S.A. ("Dimsa") appeals from an order entered February 26, 1992 in the United States District Court for the Southern District of New York (Mukasey, J.) denying Dimsa's motion for partial summary judgment. Distribuidora Dimsa S.A. v. Linea Aerea Del Cobre S.A., 785 F.Supp. 49 (S.D.N.Y.1992) ("Dimsa II"). In its complaint, Dimsa alleged damage to and loss of goods transported by defendant-appellee Linea Aerea Del Cobre S.A. ("Ladeco") and 92*92 sought money damages. Ladeco denied the allegations and asserted several affirmative defenses. Dimsa made the motion for partial summary judgment resulting in the order giving rise to this appeal for the purpose of striking one of Ladeco's affirmative defenses. The defense was based on the limitation of liability provided in Article 22 of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in, 49 U.S.C. app. § 1502 note (hereinafter "Warsaw Convention" or "Convention"). Dimsa argued that Ladeco should not be entitled to avail itself of the liability limitation because the air waybills completed for the shipments did not conform to the Convention's requirements and that the affirmative defense therefore should be stricken. The district court disagreed, concluding that the Convention did not impose an absolute requirement that the particulars omitted from the air waybills be included and hence that the affirmative defense should not be barred. Dimsa II, 785 F.Supp. at 51.

The district court had earlier denied the motion for summary judgment. Distribuidora Dimsa S.A. v. Linea Aerea Del Cobre S.A., 768 F.Supp. 74 (S.D.N.Y.1991) ("Dimsa I"). In its earlier ruling on the motion the court refused to strike the affirmative defense of limited liability, citing as authority our determination in Exim Indus., Inc. v. Pan American World Airways, Inc., 754 F.2d 106 (2d Cir.1985), that omissions from waybills destroy the liability limitation only when the omissions are commercially substantial or significant and prejudicial to the consignor. The district court rejected Dimsa's argument that several recent decisions had overruled Exim, but did not rule on whether the omitted particulars in issue were commercially insubstantial or insignificant and nonprejudicial. Dimsa I, 768 F.Supp. at 77.

The district court then certified for interlocutory appeal the question of Exim's continued vitality. We denied Dimsa's motion for permission to appeal, but granted leave to renew the motion upon a ruling from the district court as to whether the omitted particulars were commercially insubstantial or insignificant and nonprejudicial. Pursuant to our order, the district court reconsidered the summary judgment motion in light of the Exim standard and concluded that the omissions were commercially insubstantial or insignificant and nonprejudicial. Dimsa II, 785 F.Supp. at 51. Based on this conclusion, the district court confirmed its earlier denial of Dimsa's motion for summary judgment and issued the order appealed from.

On appeal, Dimsa argues that, in light of several more recent decisions, the district court erred in concluding that Exim is still good law. Dimsa principally contends that these newer decisions require a "plain language" interpretation of the Warsaw Convention and that the portion of the Warsaw Convention relevant to this appeal unambiguously requires inclusion of certain particulars in each waybill, regardless of their commercial significance. The waybills at issue did not include some of the particulars Dimsa asserts are mandatory. Dimsa also claims that Exim was wrongly decided because the decision flouted the plain meaning of the Convention by adding a requirement that omissions must be commercially substantial or significant and prejudicial to the consignor in order to destroy the liability limitation. Dimsa alternatively disputes the district court's holding that the omissions from the waybills were commercially insubstantial or insignificant and nonprejudicial omissions within the meaning of Exim.

Ladeco counters that nothing in the more recent decisions casts doubt on Exim's holding, that Exim remains good law, and that the district court properly determined that the omitted particulars were without commercial significance or prejudice to Dimsa. We hold that no intervening case has overruled Exim, which remains the law of this circuit, and that the district court did not err in concluding that the omissions from the air waybills were commercially insubstantial or insignificant and nonprejudicial.

Comments

976 F.2d 90 (1992)

DISTRIBUIDORA DIMSA, Plaintiff-Appellant,

v.

LINEA AEREA DEL COBRE S.A., doing business as Ladeco, Defendant-Appellee.

No. 1755, Docket 92-7341.

United States Court of Appeals, Second Circuit.

Argued June 19, 1992.

Decided September 24, 1992.

New York Law School location: File #1503, Box #130

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