United States District Court,

N.D. Texas,

Dallas Division.

CHATELAINE, INC., Plaintiff,

v.

TWIN MODAL, INC. and R & A Carriers, Inc., Defendants.

Civil Action No. 3:10-CV-676.

 

Aug. 20, 2010.

 

MEMORANDUM OPINION AND ORDER

 

SAM A. LINDSAY, District Judge.

 

Before the court is Defendant Twin Modal, Inc.’s Motion to Dismiss Counts I-IV of Plaintiff’s First Amended Complaint, filed May 27, 2010. After consideration of the motion, response, reply, briefs, record, and applicable law, the court grants in part and denies in part Defendant Twin Modal, Inc.’s Motion to Dismiss Counts I-IV of Plaintiff’s First Amended Complaint in that it dismisses Counts II, III, and IV of the amended complaint.

 

I. Factual and Procedural Background

 

Chatelaine, Inc. (“Chatelaine” or “Plaintiff”) filed Plaintiff’s Original Petition against Defendant Twin Modal, Inc. (“Twin Modal”) and Defendant R & A Carriers, Inc. (“R & A Carriers”) on February 5, 2010, in the 298th Judicial District Court, Dallas County, Texas. Twin Modal and R & A Carriers removed the case to this court on April 7, 2010, contending that a federal question existed pursuant to 49 U.S.C. § 14706. Chatelaine amended its Original Petition on April 26, 2010, to add a claim under the Carmack Amendment and clarify its state law claims. See Plaintiff’s First Amended Complaint (the “Complaint”). The Complaint alleges five causes of action: (I) breach of contract; (II) negligence; (III) violation of the Texas Deceptive Trade Practices Act (“TDTPA”); (IV) negligent hiring; and (V) a claim for the actual loss to the shipment under the Carmack Amendment. Chatelaine also seeks to recover its attorney’s fees.

 

In its motion to dismiss, Twin Modal contends that Counts I, II, III, and IV of the Complaint should be dismissed for failure to state a claim upon which relief can be granted. It argues that these claims and the alleged entitlement to attorney’s fees are preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. Plaintiff asserts that Twin Modal’s motion to dismiss should be denied because Chatelaine’s state law claims against Twin Modal are based upon Twin Modal’s actions as a transportation broker, rather than a carrier, under the Carmack Amendment. Because the Carmack Amendment only applies to carriers, Plaintiff argues that its claims are not preempted. Twin Modal maintains that the Interstate Commerce Act nevertheless preempts all of Plaintiff’s claims, except Count I, even if Twin Modal acted as a broker. Twin Modal further maintains that, as a carrier, the Carmack Amendment preempts all of Plaintiff’s claims except Count V. Therefore, Twin Modal asserts that regardless of whether the court finds that Twin Modal acted as a broker or a carrier, Counts II, III, and IV should be dismissed.

 

The court sets forth the facts as alleged in the Complaint. This action arises from a shipment of over 1,000 cases of wine in interstate commerce from California to Texas. Chatelaine placed an order with Popcorn Wine Group for 618 cases of Chardonnay and 448 cases of Cabernet Sauvignon (collectively, the “Product”). Chatelaine then retained Twin Modal as a transportation broker, or alternatively as a carrier, to make the delivery. The Product needed to be delivered on time for a promotion starting on Monday, April 20, 2009. Chatelaine specified that time was of the essence in delivering the Product and instructed Twin Modal to “baby sit” the order. Twin Modal agreed to deliver the cases by Monday and hired R & A Carriers to carry the Product. Because Twin Modal anticipated a rapid delivery, it elected not to use a refrigerated truck. The truck carrying the Product arrived two days late on Wednesday morning. The Product was destroyed by overexposure to heat during the delay.

 

Chatelaine alleges that Twin Modal’s conduct, as a transportation broker, creates claims for: (I) breach of contract; (II) negligence; (III) violation of TDTPA; and (IV) negligent hiring. Alternatively, Chatelaine claims that Twin Modal violated the Carmack Amendment as a carrier by causing the Product to be damaged during transport. Plaintiff alleges that because its state law claims against Twin Modal are not preempted, Twin Modal’s motion to dismiss must be denied.

 

II. Standard for Rule 12(b)(6)-Failure to State a Claim

 

To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir.2007). A claim meets the plausibility test “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”   Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). While a complaint need not contain detailed factual allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The “[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative level … on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (quotation marks, citations, and footnote omitted).

 

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir.2007); Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999), cert. denied, 530 U.S. 1229 (2000). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.2000). Likewise, “ ‘[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the plaintiff’s] claims.’ “ Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993)).

 

The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir.2002). While well-pleaded facts of a complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.” Iqbal, 129 S.Ct. at 1950 (citation omitted). Further, a court is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (citations omitted). The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines whether the plaintiff has pleaded a legally cognizable claim.   United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004).

 

III. Analysis

 

A. Twin Modal’s Contentions

 

Twin Modal seeks dismissal of Chatelaine’s claims on the basis of federal preemption pursuant to two statutes: the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.S. § 14706, and the Interstate Commerce Act governing motor carriers and brokers, 49 U.S .C.S. § 14501. Twin Modal argues that the Carmack Amendment preempts each of the state law claims-Counts I, II, III, and IV-if it is classified as a “carrier” within the meaning of the statute. Under the Carmack Amendment, state law claims against carriers are barred. Alternatively, Twin Modal argues that if it is classified as a “broker,” all claims except that for breach of contract are barred by the Interstate Commerce Act. Plaintiff contends that Counts II, III, and IV, which are based on state statutory and common law, are not preempted by the Interstate Commerce Act governing transportation brokers or by the Carmack Amendment. The court will address each argument in turn.

 

B. Federal Preemption under the Carmack Amendment

 

The Carmack Amendment preempts state law claims against interstate motor carriers and provides the exclusive cause of action for loss or damages to goods arising from interstate transportation. Moffit v. Bekins Van Lines Co., 6 F.3d 305, 307 (5th Cir.1993). It also preempts any common law remedy that increases a motor carrier’s liability beyond “the actual loss or injury” to the property. Morris v. Covan World Wide Moving, 144 F.3d 377, 382 (5th Cir.1998). Further, the Carmack Amendment preempts all state claims that seek to recover damages to, or for loss of, goods during shipment, and for misdelivery or untimely delivery of goods. See Sam L. Major Jewelers v. ABX, Inc., 117 F.3d 922, 926 (5th Cir.1997) (“[V]ia the Carmack Amendment, Congress had totally preempted state regulation of liability of common carriers.”). Under the Carmack Amendment, a “motor carrier” is a “person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(12).

 

On the face of the Complaint, it is clear Twin Modal did not act as a motor carrier. Based on the allegations, Twin Modal hired R & A Carriers to carry or transport the Product and merely arranged for such carrying or transport; Twin Modal did not provide transportation for the Product. At most, the Complaint alleges that Twin Modal only facilitated the delivery by hiring a carrier. Based on these allegations, the court determines that Twin Modal is not a carrier, and thus is not covered by the Carmack Amendment. As the Carmack Amendment does not apply, there can be no preemption under the Carmack Amendment for the state law claims of breach of contract, negligence, negligent hiring practices, and violation of the TDTPA.

 

C. Federal Preemption under the Interstate Commerce Act

 

The Interstate Commerce Act provides that “a State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … or any … broker, … with respect to the transportation of property.” 49 U.S.C.S. § 14501(c) (1). A transportation “broker” is a person, “other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C.S. § 13102(2).

 

Here, the court determines that Twin Modal is a broker because it hired R & A Carriers to actually transport the Product, while it only held itself out to arrange for transportation and facilitated the transaction between the buyer Chatelaine and the carrier. Twin Modal arranged for R & A Carriers to physically transfer the Product to its destination and, beyond being in communication with R & A Carriers’s driver, had no connection to its actual transportation. As the court has determined that Twin Modal is a broker, it must now determine whether Plaintiff’s state claims for negligence, negligent hiring, and violation of the TDTPA are preempted.

 

In a recent case involving an interstate delivery from Florida to Texas, a district court determined that breach of contract claims are not preempted by section 14501. Huntington Operating Corp v. Sybonney Express, Inc., No. H-08-781, 2009 U.S. Dist. LEXIS 67561, at(S.D. Tex. Aug. 3 2009). Plaintiff argues that the Huntington court’s consideration of preemption under § 14501 is irrelevant because the section is titled “Federal authority over intrastate transportation,” and this case is not about intrastate transportation issues. The court determines, however, that section 14501, titled, “Title 49 Transportation, Subtitle IV. Interstate Transportation,” applies to both interstate and intrastate transportation and specifically mentions each in its language.

 

The Huntington court, in support of finding preemption of all state law claims except that of breach of contract, further explains that section 14501 closely parallels the Airline Deregulation Act of 1978 (“ADA”), 49 U.S.C. § 41713(b)(4)(A) and 49 U.S.C. § 41713(b)(4)(B)(I). Id. Courts have interpreted the preemptive scope of 49 U.S.C. § 14501(c) in accordance with case law addressing the ADA. Id. at(collecting cases). This circuit has held that the ADA broadly preempts all state law claims except those for breach of contract. Lyn-Lea Travel Corp. v. American Airlines, 283 F.3d 282, 287 (5th Cir.2002); see Sam L. Major Jewelers, 117 F.3d at 931 (holding that claims for violation of TDTPA against an air carrier for loss of packages was preempted by the ADA). The Supreme Court held that the phrase “relating to rates, routes, or services” in the ADA was “deliberately expansive” and preempted any “[s]tate enforcement action having a connection with or reference to airline ‘rates, routes, or services.’ “ Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992). The ADA does not preempt “state-law-based court adjudication of routine breach-of-contract claims” as long as there is “no enlargement or enhancement [of the contract] based on state laws or policies external to the agreement.” American Airlines, Inc. v. Wolens, 513 U.S. 219, 232-233 (1995). The terms and conditions between airlines and passengers are privately ordered obligations and therefore “do not amount to a State’s ‘enactment or enforcement [of] any law, rule, regulation, standard, or other provision having the force and effect of law.’ “ Id. at 230. The ADA was designed to promote “maximum reliance on competitive market forces, and “market efficiency requires effective means to enforce private agreements.” Id. “The stability and efficiency of the market depend fundamentally on the enforcement of agreements freely made, based on needs perceived by the contracting parties at the time.” Id. For these reasons, the Supreme Court exempted breach of contract claims from preemption.

 

Finding the Huntington court’s analysis illustrative and persuasive, the court determines that the preemptive effect of the Interstate Commerce Act parallels that of the ADA. Likewise in this case, as in Huntington, there was a contractual agreement between two private parties. That agreement detailed the obligations of the parties concerning the transportation of goods and in no way implicated any state enforcement of law or regulation related to price, route, or service, as contemplated under the preemption statute. The Court’s analysis is clear that such preemption is not to interfere with contractual obligations between two private parties. Accordingly, the court determines that 49 U.S.C. § 14501 broadly preempts state law claims regulating interstate transportation of goods, and Chatelaine’s state law claims other than breach of contract against Twin Modal are preempted under the Interstate Commerce Act. Counts II, III, and IV of the Complaint against Twin Modal are dismissed for failure to state a claim upon which relief can be granted.

 

IV. Conclusion

 

For the reasons stated herein, the court grants in part and denies in part Defendant’s Motion to Dismiss Counts I, II, III, and IV of Plaintiff’s First Amended Complaint. The motion is granted to the extent that Counts II, III, and IV against Twin Modal are dismissed with prejudice. Defendant’s Motion to Dismiss Counts I, II, III, and IV of Plaintiff’s First Amended Complaint is denied in all other respects.

 

It is so ordered.

United States District Court,

D. Maryland.

Dennis DANNER, et al., Plaintiffs,

v.

INTERNATIONAL FREIGHT SYSTEMS OF WASHINGTON, LLC, et al., Defendants.

Civil Action No. RDB-09-3139.

 

Aug. 20, 2010.

 

MEMORANDUM OPINION

 

RICHARD D. BENNETT, District Judge.

 

Plaintiffs Dennis Danner, his son Alex Danner, and his son-in-law Michael Coletta (collectively, “Plaintiffs”) bring this action against, inter alia, Defendants Cargolux Airlines International S.A. d/b/a Cargolux Airlines International, Inc. (“Cargolux”) and its ground handling agent, Cargo Airport Services USA, Inc. (“Cargo Airport”) (collectively, “Defendants”), for alleged negligence and breach of duty and contract regarding the temporary loss of two crates containing lion skins and skulls acquired during Plaintiffs’ hunting trip in South Africa. Plaintiffs bring suit in this Court based on diversity of citizenship. See 28 U.S.C. § 1332. Pending before this Court is Cargolux and Cargo Airport’s Motion to Dismiss Plaintiffs’ Amended Complaint (Paper No. 14). Defendants’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D.Md.2010). For the reasons stated below, Defendants’ Motion to Dismiss (Paper No. 14) is DENIED.

 

BACKGROUND

 

In ruling on a motion to dismiss, the factual allegations in the plaintiff’s complaint must be accepted as true and all reasonable factual inferences must be drawn in the plaintiff’s favor. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). All three plaintiffs, Dennis Danner, his son Alex Danner, and his son-in-law Michael Coletta, reside in Highland, Maryland. Am. Compl. ¶¶ 1-3. In June, 2007, they traveled to South Africa on a safari hunting trip, where each killed a “trophy quality” lion. Id. ¶ 9. The lions were subsequently skinned, salted, and packed in two crates in preparation for transport. Id. Plaintiffs hired Defendant Cargolux in November, 2007 to transport the two crates from Port Elizabeth, South Africa to Seattle, Washington, and hired Defendant International Freight Systems of Washington, LLC (“International Freight”), a freight forwarder and customs broker, to transport the crates from Seattle to Acheson Taxidermy in Butte, Montana. Id. ¶¶ 10, 12.

 

International Freight entered Answers to Plaintiffs’ Amended Complaint (Paper Nos. 12, 13) and to Cargolux and Cargo Airport’s Crossclaim (Paper No. 16), but it has not joined in the present Motion.

 

The two crates arrived in Seattle on November 23, 2007. Id. ¶ 11. On November 28, 2007, the United States Department of Homeland Security and the U.S. Fish and Wildlife Service cleared the crates through customs. Id. ¶ 12. It appears that Defendant Cargo Airport, Cargolux’s cargo handler, transported the crates from the Seattle airport to Cargolux’s warehouse that same day. Id. ¶ 11; Compl. Ex. 3. On November 30, 2007, International Freight contracted for Even Rock, Inc. d/b/a Seattle Air Cargo, a cartage company, to deliver the crates from the Cargolux warehouse to Acheson Taxidermy. Id. ¶ 13; Paper No. 19.

 

Plaintiffs allege that Seattle Air Cargo signed for the crates’ release from Cargolux’s warehouse and thereby accepted delivery of the crates via Cargo Airport on November 30, 2007. Am. Compl. ¶ 13; Compl. Ex. 3. Plaintiffs also allege that none of the Defendants could account for the location of the two crates after November 11, 2007. Id. ¶ 16. The crates were found over six months later in Vancouver, British Columbia, a point along one of Cargolux’s trucking routes. Id. ¶ 16. Plaintiffs allege that Cargolux and Cargo Airport were responsible for the crates’ mistakenly being transported to British Columbia, rather than to Montana. Id. ¶ 16; Pl.’s Opp. at 4. In September, 2008, Canadian Customs returned the crates to Cargolux’s warehouse in Washington, at which point Plaintiffs were notified of the crates’ whereabouts. Id. ¶ 17. Plaintiffs allege that Cargolux refused to release the crates to Plaintiffs for a period of time because of “pending notices of claim[s]” against Cargolux and Cargo Airport. Id. ¶¶ 17-18. On or about September 10, 2008, Conway Trucking delivered the crates to their original destination, Acheson Taxidermy, in Montana. Id. After the lion skins arrived there, a tanning company determined that the skins had a buildup of moisture and bacteria, which had caused the skin hair to “slip,” damaging the lion skins nearly beyond repair. Id. ¶ 19.

 

Plaintiffs do not explain the significance of the November 11 date or what prompted Defendants to allegedly lose track of the two crates after that point.

 

There is no indication whether Cargolux hired Conway Trucking at the Plaintiffs’ request or on its own initiative.

 

Plaintiffs filed their original Complaint on November 23, 2009, and filed their Amended Complaint on December 18, 2009. Plaintiffs bring claims for breach of contract and negligence against Defendants International Freight and Cargolux and breach of duty and negligence against Defendants Seattle Air Cargo and Cargo Airport. Plaintiffs demand a total judgment in the amount of $111,820.00. On February 12, 2010, Defendants Cargolux and Cargo Airport filed the instant Motion to Dismiss.

 

Defendant Seattle Air Cargo was dismissed from this case for lack of personal jurisdiction on June 15, 2010. See Paper No. 37.

 

STANDARD OF REVIEW

 

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted, and a Rule 12(b)(6) motion therefore tests the legal sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999).

 

A complaint must be dismissed if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action” in order to survive a motion to dismiss. Id. at 555. Thus, a court considering a motion to dismiss “can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). Well-pleaded factual allegations contained in the complaint are assumed to be true “even if [they are] doubtful in fact,” but legal conclusions are not entitled to judicial deference. See Twombly, 550 U.S. at 570 (stating that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation’ “ (citations omitted)). Thus, even though Rule 8(a)(2) “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, … it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”   Iqbal, 129 S.Ct. at 1950.

 

To survive a Rule 12(b)(6) motion, the legal framework of the complaint must be supported by factual allegations that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The Supreme Court has explained recently that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a claim. Iqbal, 129 S.Ct. at 1949. The plausibility standard requires that the pleader show more than a sheer possibility of success, although it does not impose a “probability requirement.” Twombly, 550 U.S. at 556. Instead, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1937; see also Arista Records LLC v. Doe, 604 F.3d 110, 120-21 (2d Cir.2010) (noting that while Twombly and Iqbal “require factual amplification [where] needed to render a claim plausible” the cases do not “require the pleading of specific evidence or extra facts beyond what is needed to make the claim plausible”) (internal quotations omitted). Thus, a court must “draw on its judicial experience and common sense” to determine whether the pleader has stated a plausible claim for relief. Id.

 

DISCUSSION

 

I. Applicability of the Montreal Convention

 

Defendants argue that the Montreal Convention, which governs international airline liability, applies in this case and completely preempts Plaintiffs’ state law breach of contract and negligence claims. Plaintiffs argue that the Montreal Convention does not apply because Defendants’ alleged misconduct did not happen during “international carriage” or “carriage by air” as the terms are defined in the Convention.

 

A. Montreal Convention Background

 

The Convention for the Unification of Certain Rules for International Carriage by Air was signed on May 28, 1999 and is known as the Montreal Convention. See S. Treaty Doc. No. 106-45 (2000). The Montreal Convention supersedes the Convention for the Unification of Certain Rules Relating to International Transportation by Air, which was signed on October 12, 1929 and is known as the Warsaw Convention. See 49 Stat. 3000, T.S. No. 876 (1934), 49 U.S.C. § 40105 (2008). Although there is relatively little case law interpreting the Montreal Convention’s, there are a substantial number of cases interpreting similar provisions in the Warsaw Convention. See, e.g., El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 175 (1999); Karfunkel v. Compagnie Nationale Air France, 427 F.Supp. 971, 977 (S.D.N.Y.1977). In the past, this Court has looked to cases analyzing the Warsaw Convention to supplement the existing case law on the Montreal Convention. Knowlton v. Am. Airlines, Inc., No. 06-854, 2007 WL 273794, at(D.Md. Jan. 31, 2007) (citation omitted).

 

The Warsaw Convention was drafted during the airline industry’s early years to give a measure of uniformity to claims resulting from international air travel. See O’Gray Import & Export v. British Airways PLC, No. 06-1020, 2007 WL 1378391, at(D.Md. May 4, 2007). The Montreal Convention contains many of the same clauses as its predecessor and was created primarily to unify the disjointed “hodgepodge” of provisions in the Warsaw Convention. Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n. 4 (2d Cir.2004). In contrast to the Warsaw Convention, however, the Montreal Convention shows “increased concern for the rights of passengers and shippers” and is less favorable to airlines in general. Knowlton, No. 06-854, 2007 WL 273794, at *4.

 

B. “International Carriage”

 

The Montreal Convention applies to all international carriage of cargo, baggage, and passengers done for hire. Montreal Convention, art. 1(2). Plaintiffs argue as a threshold issue that Defendants’ alleged misconduct did not occur during “international carriage” and therefore the Convention is inapplicable. The Montreal Convention defines international carriage as carriage originating and terminating in countries that are a party to the treaty. Montreal Convention, art. 1(2). Whether a particular flight constitutes international carriage is determined solely by reference to the “agreement between the parties.” Montreal Convention, Art. 1(2); see e.g. Karfunkel v. Compagnie Nationale Air France, 427 F.Supp. 971, 977 (S.D.N.Y.1977) (interpreting similar language in the Warsaw Convention). In this case, this Court may take judicial notice that the crates’ departure and destination points listed on the Air Waybill are cities located in South Africa and the United States, both of which are parties to the Montreal Convention. See U.S. Department of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2010, available at: http://www.state.gov/documents/organization/143863.pdf (last visited July 23, 2010). Although the cargo was ultimately found in Vancouver, British Columbia, the Montreal Convention explains that international carriage includes all segments of an international journey contained in the agreement or contract between the parties, “whether or not there be a break in the carriage or a transshipment .” Id. Thus, it appears that the alleged misconduct meets the definition of “international carriage.”

 

Plaintiffs nonetheless argue that because the destination city listed on Cargolux’s Air Waybill is Seattle, Washington, and not Vancouver, British Columbia, where the cargo was eventually located, Defendants’ alleged misconduct did not happen during international carriage. Though Plaintiffs’ argument on this point is not entirely clear, Plaintiffs emphasize the following language from the Montreal Convention in support of their claim: “Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.” Montreal Convention art. 1(2). Plaintiffs appear to misinterpret this language. To phrase the Convention’s language another way, “transportation between two points in the same state without the ‘agreed stopping place in the territory of another State’ is not international carriage.” Gustafson v. Am. Airlines, Inc., 658 F.Supp.2d 276, 284 (D.Mass.2009) (quoting the Montreal Convention, art. 1(2)). Since Plaintiffs do not allege that the damage to the crates containing the lion skins happened during transportation within one country, but instead happened at some point after the crates left Seattle and before they arrived in Vancouver, this language is not at all applicable to the situation at bar. Thus, the fact that the Waybill does not list Vancouver as the destination city has no effect on whether the Montreal Convention applies in this case. Accordingly, since Defendants’ purported misconduct appears to have happened during “international carriage,” this Court must next determine whether it also happened during “carriage by air.”

 

C. “Carriage By Air”

 

The Montreal Convention applies to “damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.” Montreal Convention, art. 18. Plaintiffs claim that the Montreal Convention does not apply because the damage to the lion skins did not occur during “carriage by air.” The Montreal Convention defines carriage by air as the “period during which the cargo is in the charge of the carrier.” Montreal Convention, art. 18(3). Typically, the carriage by air period does not extend to ground transportation of cargo that occurs off the airport premises. If ground transportation of cargo occurs pursuant to a contract for carriage by air, however, “damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.” Id. art. 18(4). Thus, an air waybill functions as an agreement or contract between parties, and the length of the period of presumptive “carriage by air” typically depends on the language in the air waybill. When an air waybill provides for door-to-door delivery from a foreign country to a recipient’s premises in the United States, the period of carriage by air generally lasts until the recipient receives the goods. In those instances, the waybill contains provisions for the entire contract of carriage, which generally includes both air and land transportation. See Jaycees Patou, Inc. v. Pier Air Int’l, Ltd., 714 F.Supp. 81, 84 (S.D.N.Y.1989) (quoting Magnus Electronics, Inc. v. Royal Bank of Canada, 611 F.Supp. 436, 440 (N.D.Ill.1985)). Accordingly, “[s]o long as the goods remain in the air carrier’s actual or constructive possession pursuant to the terms of the carriage contract, the period of ‘transportation by air’ does not end.”   Jaycees Patou, 714 F.Supp. at 84.

 

Sometimes, though, an air waybill only provides for transportation from one airport to another and contains no provisions regarding land transportation. The period of carriage by air in such cases generally ends before delivery to the recipient is effectuated. More specifically, proof that the carrier “has entrusted the delivery of goods to a trucker or other independent agency may be sufficient” to end the period of carriage by air, especially if that agency was not party to the original carriage contract.   Victoria Sales Corp. v. Emery Air Freight, Inc., 917 F.2d 705, 710 (2d Cir.1990); see also R.R. Salvage of Conn. V. Japan Freight Consolidators, 556 F.Supp. 124 (E.D.N.Y.1983), aff’d 779 F.2d 38 (2d Cir.1985) (holding that the loss of cargo, which occurred after the goods were released from a freight forwarder to a trucking company, did not occur during “transportation by air”). In summary, whether the period of carriage by air lasts until the goods in question are delivered to the recipient or terminates at an earlier point depends upon the cities of departure and destination listed in the waybill and any other provisions for transportation noted in the waybill itself.

 

In this case, the Waybill lists the airport of departure as Port Elizabeth, and the destination airport as Seattle. Am. Compl. Ex. 3. The record is unclear, however, regarding the whereabouts of the skins and who possessed them after they were cleared through Customs on November 28, 2007. Thus, in order to determine whether the damage to the crates happened during “carriage by air,” this Court must make factual findings regarding the many facts that are in dispute. For example, both Seattle Air Cargo and International Freight deny taking possession of the skins after they cleared customs on November 30, 2007. Cargolux and Cargo Airport also deny any misconduct on their parts but do not offer an explanation regarding how the crates were transported from Seattle to Vancouver. Because of these factual disputes, it is impossible to determine at this point whether the damage to the lion skins occurred while the skins were in the charge of Defendants Cargolux and Cargo Airport and thus during the presumptive period of “carriage by air.” Accordingly, this Court cannot make a finding at this time regarding whether the alleged misconduct happened during “carriage by air,” and must await discovery to determine whether the Montreal Convention applies and preempts Plaintiffs’ claims against Defendants.

 

II: Terms of Cargolux’s Air Waybill and Notice Requirements

 

Defendants allege that even if the Montreal Convention does not apply to this case, Plaintiffs’ claims are nonetheless barred by the notice provisions in Cargolux’s Air Waybill (“Waybill”). Although the Montreal Convention draws distinctions between air and ground transport and limits the period of “carriage by air,” the Waybill states that a carrier is liable for goods “during the period they are in its charge or the charge of its agent.” Paper No. 14, Exhibit 1 ¶ 9 (“Waybill”). Thus, this contention, however, depends upon the same factual dispute referenced above. Accordingly, a factual issue remains with respect to whether the crates were damaged while they were “in the charge of” Cargolux or Cargo Airport.

 

CONCLUSION

 

For the reasons explained above, Defendants Cargolux and Cargo Airport’s Motion to Dismiss Plaintiffs’ Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Paper No. 14) is DENIED.