Appellate Court of Connecticut.

Armando SALGADO et al.

v.

COMMISSIONER OF TRANSPORTATION et al.

 

Argued Jan. 2, 2008.

Decided March 25, 2008.

 

BISHOP, HARPER and WEST, Js.

 

HARPER, J.

In this defective highway action, the defendants, two former commissioners of transportation, appeal from the judgment of the trial court denying their motion to dismiss the property damage and indemnification claims of the plaintiff Arrow Trucking Company, Inc. The defendants maintain that, given the notice requirements of the state defective highway statute, General Statutes § 13a-144, the court improperly concluded that the plaintiff had provided adequate notice of its claims. The defendants also maintain that, because the plaintiff failed to provide notice under this exclusive statutory remedy, its indemnification claim is barred by the doctrine of sovereign immunity. We agree with the defendants and reverse the judgment of the trial court.

 

The record reveals the following undisputed facts and procedural history. On the morning of January 17, 2003, Armando Salgado was operating a tractor trailer truck in the northbound lanes of Interstate 95 in Fairfield. An initial accident occurred in which the tractor trailer crashed into and partially over the concrete median barrier separating the northbound and southbound lanes. The trailer portion of the rig, which was registered to the plaintiff, came to rest in a northbound lane. Shortly thereafter, a second accident occurred in which a northbound sport-utility vehicle crashed into the trailer. Salgado and the occupants of the sport-utility vehicle suffered personal injuries.The plaintiff’s trailer suffered property damage.

 

Salgado, represented by counsel, provided written notice of his personal injury claim to the commissioner of transportation within ninety days of the accidents, indicating the general nature of his personal injuries and the time and place of the accidents. This notice did not describe the extent of the property damage to the plaintiff’s trailer, nor did it indicate that the plaintiff intended to file a claim against the state.

 

On February 7, 2005, Salgado and the plaintiff jointly filed a thirteen-count complaint against the defendants. The fifth count of the complaint set forth the plaintiff’s defective highway action, pursuant to § 13a-144. The ninth count set forth a common-law indemnification action by both Salgado and the plaintiff, seeking indemnification for their settlement with the occupants of the sport-utility vehicle.The indemnification claim was based on a legal theory that the negligence of Salgado and the plaintiff, if any, was passive, while the state’s negligence was active.

 

The defendants moved to dismiss the plaintiff’s claims, asserting that, pursuant to the doctrine of sovereign immunity, the court lacked subject matter jurisdiction over (1) the defective highway claim because the plaintiff had failed to comply with the statutory notice requirements of § 13a-144 and (2) the plaintiff’s common-law indemnification claim because § 13a-144 provided the exclusive remedy for injuries resulting from a defective road or bridge.

 

On October 10, 2006, the court heard oral arguments on the defendants’ motion to dismiss and denied their motion in an oral ruling.The court concluded that, because Salgado and the plaintiff shared the same legal representative and because inferences could be drawn from Salgado’s notice that the plaintiff’s trailer also had been damaged, there had therefore been adequate notice of the plaintiff’s intent to file its claims. In denying the motion, the court did not specifically address the legal merits of the common-law indemnification claim. The defendants have appealed.

 

We begin by setting forth the applicable standard of review. “A motion to dismiss … properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court…. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction…. [Appellate] review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo…. Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”(Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

 

We also reiterate our well established principle that a defective highway action is an exception to the state’s common-law sovereign immunity from suit. Although the defendants are former state highway commissioners, “[a defective highway] action is, in effect, one against the state as a sovereign…. It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued…. The legislature waived the state’s sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144…. [T]he state’s sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication…. There being no right of action against the sovereign state at common law, the plaintiff must prevail, if at all, under § 13a-144.”(Citations omitted; internal quotation marks omitted.) Baker v. Ives, 162 Conn. 295, 297-98, 294 A.2d 290 (1972).

 

I

 

The defendants claim that the plaintiff failed to provide adequate notice under § 13a-144, and, therefore, the court lacked subject matter jurisdiction over the plaintiff’s defective highway action. In effect, the defendants assert that each injured party must provide its own written notice of its intent to file an injury claim within ninety days of the accident in order to comply with the statutory requirements of § 13a-144, and that the plaintiff, in failing to do so, was barred by the doctrine of sovereign immunity from suing the defendants. The plaintiff contends that the court, in concluding that the plaintiff had provided adequate notice, properly relied on inferences reasonably drawn from Salgado’s written notice and the observation that Salgado and the plaintiff shared joint representation. We reject the court’s conclusion as a matter of law and agree with the defendants that the plaintiff failed to provide the requisite notice of its intent to file a claim.

 

Our Supreme Court’s decision in Warkentin v. Burns, 223 Conn. 14, 610 A.2d 1287 (1992), controls. There, the court observed: “Section 13a-144 provides in relevant part that ‘[n]o such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.’The statute created a cause of action wholly unauthorized by the common law…. Thus, the statutorily required notice is a condition precedent to the cause of action…. If this requirement is not met, no cause of action exists…. Moreover, [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed….

 

“The requirement as to notice was not devised as a means of placing difficulties in the path of an injured person. The purpose [of notice is] … to furnish the commissioner with such information as [will] enable him to make a timely investigation of the facts upon which a claim for damages [is] being made…. The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit…. Sufficiency of the notice is to be tested with reference to the purpose of the notice, i.e., that a claim is being made….

 

“We conclude that injured parties, to meet the requirements of the statute, must either individually or through a representative, notify the commissioner that they have filed or intend to file a claim against the state for damages caused by a defective condition.”(Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 17-18, 610 A.2d 1287.

 

The Warkentin court further noted: “We do not decide that the notice must conform to any particular format. It must, however, reasonably construed, indicate (1) it is given by or on behalf of an injured party (2) who intends to claim damages.”Id., at 19 n. 6, 610 A.2d 1287; see Murray v. Commissioner of Transportation, 31 Conn.App. 752, 757 n. 2, 626 A.2d 1328 (1993); Greene v. Ives, 25 Conn.Supp. 356, 358-60, 204 A.2d 412 (1964). Therefore, in order to satisfy the § 13a-144 notice requirement, notifying the commissioner that an accident has occurred and that injuries have been sustained is necessary but insufficient. Each injured party must also place the commissioner on notice that it intends to claim damages, complying with the requirements of § 13a-144.

 

Our review of the record in this case reveals that the plaintiff failed to provide the commissioner with adequate notice of its claim. We disagree with the court’s conclusion that the defendants reasonably could have inferred the plaintiff’s intent to file a claim on the basis of clues in Salgado’s notice and the fact that the plaintiff and Salgado shared legal representation.

 

The record reveals that Salgado’s written notice consisted of a letter to the commissioner, dated April 17, 2003, and an attachment. In the letter, Salgado manifested his intent to pursue a personal injury claim under § 13a-144, describing the time and location of the accident, and listing his physical injuries. The letter, however, did not describe property damage to the plaintiff’s trailer, and it failed to mention the plaintiff’s name. The attachment, a report by the public information office of the state police, dated January 17, 2003, the date of the accident, briefly described the accidents and listed the medical conditions of the nine occupants of the sport-utility vehicle involved in the second accident. The report indicated that the trailer was involved in both accidents and that Salgado was operating “Vehicle # 1” when he “lost control on the icy roadway.”In the list of the three vehicles involved in the first accident, “Arrow Trucking Co.” appears in the registration information for “Vehicle # 1.”

 

On the basis of the information in the report from the public information office, the defendants reasonably could have inferred that damage occurred to a trailer apparently registered to the plaintiff and that damage was caused to the trailer in each accident. The defendants could not have reasonably inferred, however, that the plaintiff intended to file a claim against them. As we have previously indicated, a report of damage alone is insufficient notice of a party’s claim under the defective highway statute. An injured party must also inform the commissioner of its intent to file a claim.“The notice requirement is not intended merely to alert the commissioner to the occurrence of an accident and resulting injury, but rather to permit the commissioner to gather information to protect himself in the event of a lawsuit.”(Internal quotation marks omitted.) Lussier v. Dept. of Transportation, 228 Conn. 343, 354, 636 A.2d 808 (1994). Here, Salgado’s notice may have alerted the defendants to the probability that the plaintiff’s trailer was damaged, but it did not place them on notice that the plaintiff also intended to pursue a defective highway action.

 

To reason otherwise would lead to the conclusion that whenever an injured party, in filing notice of a claim under § 13a-144, refers to other injured parties, the commissioner of transportation would be under notice that all such parties intended to file claims against the state. Such a result does not comport with the public policy goals of the notice statute, which include providing the state with an early start in assembling evidence for its defense against meritless claims, as well as assisting it in settling claims promptly in order to avoid the expenses of litigation. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991). Such reasoning also would contradict our well established tenet that the statute, as an exception to the doctrine of sovereign immunity, must be narrowly construed. Bresnan v. Frankel, 224 Conn. 23, 26 n. 3, 615 A.2d 1040 (1992); White v. Burns, 213 Conn. 307, 312-13, 567 A.2d 1195 (1990); Krozser v. New Haven, 212 Conn. 415, 421, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774 (1990).

 

Under these same principles, the fact that the plaintiff and Salgado shared the same legal counsel is also unavailing. First, we note that Salgado’s notice failed to indicate, even by inference, that he shared legal counsel with the plaintiff. Second, even if there had been an indication of common representation, this would not have excused the plaintiff from also providing notice of its own intent to file a claim. In other words, even when two or more parties share joint representation, the commissioner must at least receive written notice of which parties are claiming damages. In the present case, the defendants did not receive notice of the plaintiff’s intent to do so.

 

In sum, the plaintiff failed to provide adequate notice of its claim under § 13a-144 as a matter of law. The court therefore lacked subject matter jurisdiction to consider the plaintiff’s defective highway claim. Because the court improperly denied the defendants’ motion to dismiss this claim, we reverse the judgment of the court in this regard.

 

II

 

In light of our conclusion that the court lacked subject matter jurisdiction over the plaintiff’s defective highway action, we also reverse the court’s denial of the defendants’ motion to dismiss the plaintiff’s indemnification claim. The defective highway statute is the sole and exclusive statutory exception to the doctrine of sovereign immunity. Baker v. Ives, supra, 162 Conn. at 297-98, 294 A.2d 290. The plaintiff, having failed to meet the statutory notice requirements of § 13a-144, is barred from bringing a separate indemnity action on the basis of negligence. In short, the plaintiff’s indemnification claim is precluded from adjudication as a matter of law.

 

The judgment is reversed and the case is remanded with direction to grant the motion to dismiss and to render judgment dismissing counts five and nine only insofar as they raise claims by the plaintiff.

 

In this opinion the other judges concurred.

 

The plaintiffs, Armando Salgado and Arrow Trucking Company, Inc ., filed a thirteen count complaint against Stephen Korta II and James F. Byrnes, Jr., both former commissioners of transportation, as well as against M. DeMatteo Construction Company, the Brunalli Construction Company, the Phi chapter of Delta Kappa Epsilon and the national fraternity, Delta Kappa Epsilon. The commissioners and Arrow Trucking Company, Inc., are the only parties to this appeal and, for convenience, are referred to as the defendants and the plaintiff, respectively.

 

General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair … may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner….”

 

Three of the occupants of the sport-utility vehicle were killed instantly in the crash and a fourth subsequently died in Bridgeport Hospital.

 

The legal representatives of the nine occupants of the sport-utility vehicle filed accident claims against Salgado and the plaintiff, which were settled prior to the commencement of this case.

 

The plaintiff argues that we should decline to review the defendants’ claims on appeal because the defendants, in presenting a record for review, did not provide this court with either a memorandum of decision or a signed transcript. See Practice Book §§ 60-5, 64-1. Prior to oral argument, however, we received a signed transcript containing the court’s oral decision. We have reviewed the transcript and conclude that it is adequate for our review.

United States Court of Appeals,Third Circuit.

WARNER LAMBERT COMPANY

v.

LEP PROFIT INTERNATIONAL, INC.; LEP International (Japan) Ltd,; Federal Express Corporation; Boeing Company; John Does 1 Through 5, LEP Profit International, Inc., Appellant No. 06-3244.

Warner Lambert Company, Appellant No. 06-3340

v.

LEP Profit International, Inc.; LEP International (Japan) Ltd,; Federal Express Corporation; Boeing Company; John Does 1 Through 5.

Warner Lambert Company

v.

LEP Profit International, Inc.; LEP International (Japan) Ltd,; Federal Express Corporation; Boeing Company; John Does 1 Through 5, LEP International (Japan) Ltd., Appellant No. 06-3341.

 

Argued Sept. 12, 2007.

Filed Feb. 27, 2008.

 

Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Warner-Lambert Company (“Warner-Lambert”) appeals from the District Court’s entry of final judgment limiting the liability of Federal Express Corporation (“FedEx”), LEP Profit International Inc. (“LEP Profit”), and LEP International (Japan), Ltd. (“LEP Japan”) to $9.07 per pound, pursuant to Article 22(2) of the Warsaw Convention, for pharmaceutical cargo destroyed when a FedEx plane crashed on July 31, 1997, while attempting to land at Newark International Airport. The shipment had left Japan on July 30, 1997, destined, ultimately, for Puerto Rico. LEP Profit and LEP Japan individually performed various functions in connection with the transport of the troglitazone shipment at issue, such as arranging and coordinating transportation, engaging outside contractors (including FedEx), and preparing necessary documentation and air waybills. The District Court held that LEP Profit and LEP Japan acted as “indirect carriers” with respect to the shipment at issue, subjecting them to common carrier liability under the Warsaw Convention, as opposed to liability as “freight forwarders.” Warner-Lambert, LEP Profit, and LEP Japan filed appeals. For the reasons stated below, we will affirm the District Court’s classification of LEP Profit and LEP Japan as indirect carriers, but reverse the District Court’s entry of final judgment limiting the liability of FedEx, LEP Profit, and LEP Japan, and remand for further proceedings consistent with this opinion.

 

DISCUSSION

 

This Court exercises plenary review over a grant of summary judgment, Onyeanusi v. Pan Am. World Airways, Inc., 952 F.2d 788, 790 (3d Cir.1992), and reviews de novo pure questions of law and the application of law to uncontested facts, Ilchuk v. Att’y Gen. of U.S., 434 F.3d 618, 621 (3d Cir.2006).

 

This case is fact-intensive and the relevant facts were well catalogued by the District Court. We repeat them herein below as necessary to our discussion. Our resolution of the issues was aided not only by a review of the record, briefs, and case law, but also by oral argument.

 

I. Classification of LEP Profit and LEP Japan

 

The characterization of LEP Profit and LEP Japan as either “indirect carriers” or “freight forwarders” turns on the specific involvement of each in the arrangement and oversight of the troglitazone shipment at issue. It presents a close question in the instant factual setting. There is no dispute as to the parties’ respective roles in the shipment and the terms of the documents that they drafted, filled in, or were governed by. The challenge lies in fitting what they did neatly within the category of “indirect carrier” or “freight forwarder” under the four-factor analysis that is customarily used. See Zima Corp. v. M.V. Roman Pazinski, 493 F.Supp. 268, 273 (S.D.N.Y.1980).

 

Both LEP Profit and LEP Japan urged that they were freight forwarders in connection with this shipment.The District Court examined the functions performed by each and, after a thorough and well-reasoned analysis, concluded that they had instead acted as indirect carriers. We have reviewed the relevant case law distinguishing between freight forwarders and indirect carriers, and agree with this conclusion. Accordingly we will affirm this aspect of the District Court’s order.

 

II. Limitation of Liability

 

The extent of FedEx’s liability (and consequently of LEP Profit and LEP Japan) depends entirely on how we read Article 8(c) of the Warsaw Convention, which-together with Article 9-excepts from the limitation of liability carriers who fail to list “agreed stopping places” on the air waybill. Here, the relevant transportation of goods was from Japan to Puerto Rico, with stops in Anchorage, Alaska, and Newark, New Jersey. The FedEx flight from Anchorage crashed while landing on the Newark runway, and the entire shipment of pharmaceuticals was destroyed. None of the air waybills prepared in connection with the shipment listed Anchorage, nor did they indicate that once Flight 78 (the FedEx flight from Tokyo to Anchorage) terminated in Anchorage, the cargo would be transferred onto Flight 14, which in turn would terminate at Newark Airport, where the cargo was to be transferred by truck to JFK. Warner-Lambert seized upon this omission as its basis for imposing liability on FedEx, LEP Profit, and LEP Japan for the full value of the goods rather than the $9.07 per pound limitation under the Warsaw Convention.

 

Our ruling in this regard has limited significance because the Hague Protocol, which became effective in 1999, changed the relevant provision so as to require listing of only those stopping places that give international character to an otherwise domestic or single-country flight.Nevertheless, it is of obvious significance to the parties involved in this mishap, which occurred in 1997, and parties to any other cases currently in litigation involving pre-1999 incidents subject to the Warsaw Convention.

 

The District Court concluded that the “agreed stopping places” requirement should be read as limited only to flights that had both their place of origin and destination within the territory of a single High Contracting Party, but had an interim stop outside the territory of the Party (e.g., a flight from Los Angeles to New York, with an interim stop in Toronto). The District Court reasoned that “the driving force of 8(c) as a whole is to ensure notice and acknowledgment, not as to every stop, but as to stops [that] pertain to and indicate the international character of the shipment of the flight.”Dist. Ct. Op. at 22. “Consequently,” the District Court continued, “8(c)’s requirement to list ‘agreed stopping places’ is inextricably related to making sure the parties are aware of the international character of the flight, and not a very general (and overly burdensome) notice requirement that requires every stop to be listed.” Dist. Ct. Op. at 22-23. It reasoned that, here, because the origin of the shipment and the destination were in different countries, no stopping places needed to be listed, and the exception to limited liability did not apply. Thus, the District Court granted FedEx’s motion for partial summary judgment and held that FedEx was entitled to limited liability under the Convention.

 

We respectfully disagree with the District Court’s conclusion that the strictures of Article 8(c) are satisfied as long as the air waybill gives the shipper notice of the international nature of the shipment. Based on the Convention’s plain text, the drafting history of Article 8, and its overall structure, we do not find its application to be so limited. Rather, we find the jurisprudence of the Court of Appeals for the Second Circuit, which requires the listing of all stopping places contemplated by the carrier and which represents the “prevailing view” in this area, see Fireman’s Fund Ins. Co. v. Panalpina, Inc., No. 00 C 2595, 2001 WL 969032, at(N.D.Ill. Aug. 24, 2001), to be both persuasive and on point.The meaning the District Court gave to the language of 8(c) requires an additional caveat that simply does not appear in the text. Moreover, the later change effectuated by the Hague Protocol could just as easily be viewed as changing and restricting, rather than clarifying, the exceptions for limited liability. In addition, the drafting history of the Convention reveals another animating purpose for the need to list “agreed stopping places,” namely the desire of shippers to know precisely where their goods would be landing so as to anticipate the applicability of other laws, potential risks, customs regulations, and the like.

 

Finally, we find that the mere listing of Flight 78 (as “FX078/30” and “FX78/30”) on the air waybills at issue was not sufficient to satisfy the requirements of Article 8(c), as the record indicates that the information relayed was not complete.Thus, having failed to satisfy the requirement that Anchorage be listed as an “agreed stopping place,” we conclude, pursuant to Article 9, that no carrier involved in this case-whether direct or indirect-may avail itself of the limited liability provisions of the Warsaw Convention.Accordingly, we will reverse the District Court’s grant of summary judgment in favor of FedEx.

 

CONCLUSION

 

For the reasons set forth above, we will AFFIRM the District Court’s classification of LEP Profit and LEP Japan as indirect carriers; REVERSE the District Court’s June 13, 2006 Amended Order of Final Judgment, which limited the liability of Fed Ex, LEP Profit, and LEP Japan pursuant to Article 22 of the Warsaw Convention; and REMAND for further proceedings consistent with this Opinion.

FUENTES, concurring in part and dissenting in part.

I join the majority in its affirmance of the District Court’s finding that, in connection with this transaction, LEP Profit and LEP Japan acted as “indirect carriers” and not as “freight forwarders.” However, I respectfully dissent from the majority’s conclusion that the District Court’s finding that FedEx was entitled to benefit from the limited liability provision of the Warsaw Convention was in error. The majority reversed the District Court’s decision on that issue because FedEx failed to specifically list Anchorage, Alaska and Newark, New Jersey as “agreed stopping places” on the air way bill for the relevant transaction.

 

As noted above, to be eligible for limited liability protection, Article 9 of the Warsaw Convention requires that a carrier comply with the Convention’s requirements for documenting a given shipment in an “air waybill.” A proper “air waybill” must contain certain particulars listed in Article 8 of the Warsaw Convention, including the following, which is the text of subpart (c) and the disputed provision in this case:

The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in cases of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the transportation of its international character.

 

The majority here adopts an interpretation of 8(c) articulated in a line of cases from the Second Circuit. These cases found that all interim stops are encompassed by the phrase “agreed stopping places,” so that failure to specifically list any such stop on the waybill of an international flight renders the carrier ineligible for limited liability protection. See, e.g., Intercargo Ins. Co. v. China Airlines, Ltd., 208 F.3d 64, 69-70 (2d Cir.2000); Tai Ping Ins. Co. v. Northwest Airlines, Inc., 94 F.3d 29, 31 (2d Cir.1996). The rationale for interpreting 8(c) in such a stringent fashion is that limited liability affords carriers a “significant benefit”; as such, “omission of any required item from the air waybill will result in the loss of limited liability regardless of the commercial significance of the omission.”Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 429 (2d Cir.2001).

 

The “primary purpose of the contracting parties to the Convention,” however, was to “limit[ ] the liability of air carriers.”Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 546, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991). Our own jurisprudence suggests that in “order to further the goals of uniformity and liability limitation, the Convention’s provisions must be construed broadly. Indeed, the purposes of the Convention must be furthered to the greatest extent possible.”Onyeanusi v. Pan Am, 952 F.2d 788 (3d Cir.1992) (internal quotations and citations omitted). To read Article 8(c) as imposing the draconian requirement that a carrier anticipate and list all stopping places in order to qualify for limited liability protection is certainly not a “broad” interpretation that furthers the goal of limited liability for carriers to the “greatest extent possible.”

 

Instead, the majority’s interpretation embraces the narrowest possible understanding of Article 8(c) by failing to consider the significance of the latter portion of the provision. That portion states that “if [the carrier] exercises [the right to alter the stopping places] the alterations shall not have the effect of depriving the transportation of its international character.”This safety valve ensures that all parties to the contract understand and agree that the transportation in question qualifies for limited liability protection under the Warsaw Convention regardless of any alternate route that the carrier may select out of necessity. As the District Court explained, the inclusion of a safety valve demonstrates that the “driving force of 8(c) as a whole is to ensure notice and acknowledgment, not as to every stop, but as to stops [that] pertain to and indicate the international character of the flight.”Dist. Ct. Op. at 22.

 

The majority contends that the “meaning the District Court gave to the language of 8(c) requires an additional caveat that simply does not appear in the text.”Part II, supra at . To the contrary, it is the majority’s reading of Article 8(c) that imposes upon carriers a burden far heavier than the provision requires. To further the purpose of the Warsaw Convention to the “greatest extent possible,” as mandated by Onyeanusi, this Court should read Article 8(c) as imposing a requirement that carriers list only those “agreed stopping places” that might impact the international character of the flight and thus the availability of limited liability protection to the carrier.

 

For these reasons, I respectfully dissent.

 

Usually, entities in the position of LEP Profit and LEP Japan urge or concede that they are carriers so as to be covered by the protections of the Warsaw Convention. It is rare that the position is taken, as it is here, that they are, instead, freight forwarders.

 

Article 8(b) of the Convention, as amended by the Hague Protocol, requires that the air waybill contain, “if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place.”Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929, Sept. 28, 1955, 478 U.N.T.S. 371 (“Hague Protocol”).

 

We agree with the District Court that the Hague Protocol should not be given retroactive effect. See Arkwright Mut. Ins. Co. v. LEP Profit Int’l, Inc., No. 99-3618, slip op. at 17 (E.D.Pa. Aug. 16, 2001) (“Dist.Ct.Op.”) (citing Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 431-34 (2d Cir.2001)).

 

See, e.g., Tai Ping Ins. Co. v. Northwest Airlines, Inc., 94 F.3d 29, 33 (2d Cir.1996) (“Concededly, the air waybill … reveals the international character of the flight and the (continued …) applicability of the Warsaw Convention. Nevertheless, if the air waybill does not incorporate the agreed stopping places effectively, the air waybill does not contain the information required.”); Intercargo Ins. Co. v. China Airlines, Ltd., 208 F.3d 64, 69-70 (2d Cir.2000) (finding that Article 8(c) had not been satisfied as carrier failed to properly incorporate Taipei as an “agreed stopping place” even though point of departure (Los Angeles) and destination (Hong Kong) clearly noticed international nature of shipment); Fed. Ins. Co. v. Yusen Air & Sea Servs. Pte. Ltd., 232 F.3d 312, 314-15 (2d Cir.2000) (same, with departure (Singapore), destination (Massachusetts), and stopping place (Amsterdam)); see also Sotheby’s v. Fed. Express Corp., 97 F.Supp.2d 491, 498 (S.D.N.Y.2000) (rejecting argument that “agreed stopping places” refers to literal agreement between shipper and carrier before waybill is issued, and holding that Article 8(c) “requires the carrier to include on the air waybill all stopping places contemplated by the carrier”); Mitsui Marine & Fire Ins. Co. v. China Airlines, Ltd., 101 F.Supp.2d 216, 221 (S.D.N.Y.2000) (same).

We note FedEx’s contention that the terms and conditions of its Service Guide-which include the statement: “There are no stopping places which are agreed at the time of tender of the shipment, and we reserve the right to route the shipment in any way we deem appropriate”-specifically disclaimed the need to list stopping places. FedEx cites the Ninth Circuit’s decision in Insurance Co. of North America v. Federal Express Corp., 189 F.3d 914 (9th Cir.1999), in support of this contention. In Insurance Co. of North America, however, the FedEx air waybill expressly incorporated the Service Guide into the waybill’s “Conditions of Contract.” There was no such incorporation here, and thus, Insurance Co. of North America is distinguishable on its facts. We therefore express no opinion as to what effect, if any, a proper incorporation would have had on this case.

 

The minutes of the 1929 Convention recount a dialogue between the delegate from Switzerland and the Convention’s official reporter in which the Swiss delegate urged that Article 8(c) require an indication of the “route to be followed,” expressing concerns about possible seizure of goods, levying of fines, and varying customs regulations. See Minutes, Second International Conference on Private Aeronautical Law, Oct. 4-12, 1929, Warsaw, 158-59 (R. Horner & D. Legrez trans. 1975). The official reporter objected to this suggestion, stating that “[a]ll the guarantees which we need can be found in the words ‘the contemplated stopping places.’ Provided there is no stop in any country overflown, there is nothing to be feared from the authorities of this country.”Id. at 159.Accordingly, the indication of the “route to be followed” was thereafter deleted from Article 8(c), id. at 161, and the language was included in Article 8(p) as an optional particular.

 

See Intercargo, 208 F.3d at 70 (rejecting same argument as proffered by Appellees here and stating that “when a carrier seeks to comply with Article 8(c) without listing stopping places but instead incorporates by reference its scheduled timetables, the flight information included on the waybill must be both accurate and complete.”); id. at 69 (“[C]arrier must include on the waybill accurate and complete information as to transfer flight numbers and dates” in order to incorporate timetables by reference); see also Yusen, 232 F.3d at 314-15 (relying on Intercargo in rejecting same argument as proffered by Appellees here).

 

We reach this conclusion notwithstanding the parties’ arguments that various provisions of their contracts and waybills limit their liability. Pursuant to Article 23 of the Convention, “[a]ny provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in th[e] Convention shall be null and void.”Warsaw Convention art. 23.

 

Although the District Court did not reach its conclusion on the issue of limited liability via application of the Hague Protocol to the facts of this case, to do so, I believe, would have lent further support to the court’s analysis. I respectfully disagree with the majority’s contention that the “later change effectuated by the Hague Protocol could just as easily be viewed as changing and restricting, rather than clarifying, the exceptions for limited liability.”Part II, at . The Hague Protocol did not furnish a different definition for the phrase “agreed stopping places,” but merely clarified that only an interim stop that affected the international character of the shipment qualified as such an “agreed stopping place.” Courts have recognized that if an “amendment clarifies prior law rather than changing it, no concerns about retroactive application arise and the amendment is applied to the present proceeding as an accurate restatement of prior law.”Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir.1999).