United States District Court,

S.D. New York.

ELI LILLY DO BRASIL, LTDA., Plaintiff,

v.

FEDERAL EXPRESS CORPORATION, Defendant.

Sept. 21, 2005.

OPINION AND ORDER

LYNCH, J.

Plaintiff Eli Lilly Do Brasil, Ltda. (“Eli Lilly”) sues defendant Federal Express Corporation (“FedEx”) for losses incurred when a shipment of pharmaceuticals belonging to plaintiff and en route from its factory in Sao Paolo, Brazil, to a customer in Iwate, Japan, was hijacked and stolen during land transportation in Brazil while under the care of defendant’s subcontractor. Plaintiff initially moved for partial summary judgment dismissing defendant’s second affirmative defense limiting defendant’s liability in accordance with provisions of the Warsaw Convention. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934). Defendant now concedes that the Warsaw Convention is inapplicable, but cross-moves for partial summary judgment limiting its liability in accordance with federal common law. Plaintiff opposes the application of federal common law and cross-moves for a determination that Brazilian law governs defendant’s liability, presenting the Court with a sharply defined dispute over the appropriate choice of law. Plaintiff’s original motion for partial summary judgment dismissing defendant’s second affirmative defense will be granted on consent. Partial summary judgment on the choice-of-law issue will be granted in favor of defendant and the application of federal common law, and against plaintiff and the application of Brazilian law.