Hitachi Data System Corp. v. United Parcel Service, Inc.

76 F.3d 276, 96 Daily Journal DAR 1181, 96 Cal. Daily Op. Serv. 750, 1996 U.S. App. LEXIS 1456
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 2, 1996
DocketNo. 94-15292
StatusPublished
Cited by1 cases

This text of 76 F.3d 276 (Hitachi Data System Corp. v. United Parcel Service, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hitachi Data System Corp. v. United Parcel Service, Inc., 76 F.3d 276, 96 Daily Journal DAR 1181, 96 Cal. Daily Op. Serv. 750, 1996 U.S. App. LEXIS 1456 (9th Cir. 1996).

Opinion

BREWSTER, District Judge:

Hitachi arranged for the shipment of seven crates of computer equipment from California to the Netherlands, which were damaged when they fell off a dolly at Schiphol Airport in Amsterdam. Damage claims against air carriers are governed by the Warsaw Convention.1 See Convention for Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, reprinted in 49 U.S.C. § 1502 note (1988) [‘Warsaw Convention”]. The air waybills for Hitachi’s shipment required Hitachi to provide written notice of damage to the carrier within 14 days of delivery.2 Although the incident occurred on March 24, 1991, Hitachi submitted no written notice until December 21, 1992.

Hitachi argues that Defendants-Appellees gave Hitachi an air waybill that failed to provide all the particulars required by Article 8 of the Convention. Specifically, Hitachi alleges that the waybill violated subsections (b), (c) and (e) of Article 8, by listing an incorrect place of departure, neglecting to provide a valid address for Defendant-Ap-pellee United Parcel Service [“UPS”], and omitting a scheduled refueling stop in Newfoundland. Hitachi argues that Defendants-Appellees’ failure to adhere to the requirements of Article 8 makes the 14-day notice period inapplicable — thus permitting it to recover from Defendants-Appellees despite having waited a year and a half to file a claim.

[278]*278This presents us with two questions. First, does Defendants-Appellees’ alleged failure to comply with the requirements of Article 8 of the Warsaw Convention prevent them from relying upon the untimeliness of Hitachi’s damage claim to avoid liability? Second, even if an Article 8 violation does not normally exempt a claimant from notice requirements, may its non-compliance be excused in this case because the incorrect address of Defendant-Appellee UPS on one waybill prevented notice?

(1) Article 9 of the Warsaw Convention provides that if a carrier accepts goods without an air waybill containing “all the particulars set out in article 8(a) to (i), inclusive, and (q), the carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability.” Warsaw Convention, art. 9. Arguing that notice requirements are just such provisions that “exclude or limit liability,” Hitachi asks us to find its claim timely because of the failure of one waybill to comply with subsections (b), (c) and (e) of Article 8.

Although notice rules can, in one sense, “exclude” liability — because untimely claims subject a carrier to no liability at all — courts have long recognized that the Warsaw Convention does not regard them as provisions encompassed by the Article 9 exemption. Rather, Article 9 and other references to provisions which “exclude,” “limit,” or “tend[ ] to relieve the carrier of’ liability, see, e.g., Warsaw Convention, Arts. 3(2), 23, 25, reach only provisions such as Articles 20 and 22, which limit damages recoverable against a carrier under the Convention or exclude it entirely in certain circumstances. See Onyeanusi v. Pan Am, 952 F.2d 788, 794 (3d Cir.1992) (“Article 9 ... only excuses the monetary liability limitations, not the notification requirements.”); St. Paul Ins. Co. v. Venezuelan Int’l Airways, Inc., 807 F.2d 1543, 1549 (11th Cir.1987) (“In Warsaw Convention eases, limitations periods, whether imposed by the treaty itself or by contract, have not been held to be provisions limiting or excluding liability.”); Butler’s Shoe Corp. v. Pan American World Airways, Inc., 514 F.2d 1283, 1285 (5th Cir.1975) (limitations periods imposed by the Convention or by contract are not considered provisions limiting or excluding liability); Denby v. Seaboard World Airlines, Inc., 575 F.Supp. 1134, 1145 (E.D.N.Y.1983) (“[T]he Article 26 notice provision is not one excluding or limiting liability within the meaning of Article 9.”), rev’d on other grounds, 737 F.2d 172 (2d Cir.1984); cf. Molitch v. Irish Int’l Airlines, 436 F.2d 42, 44 (2d Cir.1970) (limitations period of Art. 29(1) is not a provision excluding or limiting liability).

Hitachi relies upon Maritime Ins. Co. v. Emery Air Freight Corp., 983 F.2d 437 (2d Cir.1993), to provide a contrary rule — going so far as to argue that this Second Circuit case “effectively reversed” the Third Circuit’s Onyeanusi decision. Hitachi feels that Maritime should control in the instant action, and “urges the Ninth Circuit to adopt and apply [it] in this case.”

Hitachi’s reliance upon Maritime is misplaced. Maritime dealt with whether a carrier could still avail itself of the Warsaw Convention’s liability limits despite having failed to provide certain particulars on its waybill as required by Article 8. A previous Second Circuit case, Exim Indus. v. Pan American World Airways Inc., 754 F.2d 106 (2d Cir.1985), had permitted a carrier to enjoy the Convention’s liability limits even though it had failed to comply with subsections (h) and (i) of Article 8. Maritime limited Exim to its facts, finding that violations of any other subsections of Article 8 would cause a carrier to forfeit the Convention’s liability limitations. 983 F.2d at 440-41.

Maritime, however, does nothing for Hitachi here. Were Defendants-Appellees attempting to limit Hitachi’s recovery to the Convention’s $20-per kilogram limit, the ease might have some relevance if the alleged violations of Article 8 could be shown. But Hitachi seeks to escape the waybills’ notice requirement, not the liability restriction of Article 22(2). Maritime does nothing to undermine the settled Second Circuit rule that limitations periods such as Article 26(2) and Article 29(i) are not provisions that “exclude or limit liability” in the first place. See e.g., Molitch, 436 F.2d at 44.

[279]*279Hitachi has given us no reason to question this interpretation. As ably explained with respect to passenger ticket provisions by Judge Weinstein in Denby, 575 F.Supp. at 1147, the purpose of a provision such as Article 9 is to prevent carriers from taking advantage of liability limits when they have not provided shippers with information needed to make an informed decision about the advisability of air carriage under the Convention's limited-liability regime. As with the information required on passenger tickets (by Article 3) and on baggage checks (by Article 4), the Article 8 waybifi requirements help would-be shippers understand the terms of the agreement into which they are entering.

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76 F.3d 276, 96 Daily Journal DAR 1181, 96 Cal. Daily Op. Serv. 750, 1996 U.S. App. LEXIS 1456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hitachi-data-system-corp-v-united-parcel-service-inc-ca9-1996.