The opinion of the court was delivered by: Bua, District Judge.
This cause comes before the court on the motion of the
defendant herein, the Flying Tiger Line, Inc., for summary
judgment.*fn1 Rule 56(b), Fed.R.Civ.P. As in the matter at
bar the defendant's potential liability is predicated upon an
interpretation of the Warsaw Convention, 49 U.S.C. § 1502 note,
and the amount in controversy exceeds $10,000, exclusive of
interest and costs, subject matter jurisdiction over the cause
properly lies pursuant to 28 U.S.C. § 1331(a).
In the matter at bar, the plaintiff, Hughes-Gibb & Co.,
Ltd., seeks to recover, in its capacity as subrogee, for the
lose of 72 breeding swine (out of a shipment of 130) sustained
by its subrogor-insured, Ag-World Export, Inc. This loss,
Hughes-Gibb contends, was due to and resulted from the
defendant's alleged mishandling of the subject swine while
they were being transported by Flying Tiger from Chicago,
Illinois to Manila, Philippines.
In the summer of 1978, the 130 breeding swine forming the
basis of this litigation were located in Bloomington,
Illinois. During that summer, Ag-World Exports (the Shipper),
the owner of the swine, contracted to have them sold to South
Cotabato Hog Raisers, Inc. (the Consignee), a Philippine hog
merchant. In conjunction with this sale, the Shipper also
contracted with the defendant (the Carrier) to have the 130
pigs transported from the United States to the Philippines.
The 130 breeding swine debarked Chicago for the Philippines
on July 12, 1978, aboard an airliner owned and operated by the
defendant. Upon their arrival in Manila on July 14, it was
discovered that 60 of the pigs had died, allegedly as a result
of suffocation during the flight. These 60 pigs were certified
as dead on arrival by a Philippines' Customs Examiner, a
representative of the Philippines Bureau of Animal Industry,
and by a representative of the defendant. Plaintiff's Exhibit
A. According to the plaintiff, the dead animals were then
rendered, without autopsy, to the National Slaughterhouse of
the Bureau of Animal Industry.
At the Manila airport, the 70 surviving boars and gilts were
transferred, by the Shipper's agent, to a Philippine
Aerotransport aircraft, and flown the same day (July 14) to
Davao City. Defendant's Exhibit B-3. According to the
plaintiff, 3 more pigs died during that flight. That having
occurred, when the 67 surviving swine were off-loaded in Davao
City, they were immediately placed in the custody of the
Bureau of Animal Industry, and were quarantined for a period
of 80 days. 9 more pigs are alleged to have died during this
quarantine period. At the expiration of the quarantine, the
remaining 58 pigs were released to the Consignee.
On August 28, 1978, the Consignee presented a claim to the
defendant for the loss of the original 60 head of breeding
swine. Defendant's Exhibit A. Written notice of South
Cotabato's claim for the loss of the other 12 pigs was
provided to Flying Tiger sometime in January of 1979.
Defendant's Exhibit A.
In its motion for summary judgment, Flying Tiger contends
first that any claims against it in this matter will be
governed solely by the provisions of Article 26 of the Warsaw
Convention; and secondly that, since the plaintiff's subrogor
did not give Flying Tiger written notice of its loss within
seven days of July 14, 1978, the date of the loss, as is
required by Article 26(2), Hughes-Gibb is precluded from
recovering against it [the Carrier].*fn3
Article 26(2) of the Warsaw Convention provides that:
[i]n case of damage, the person entitled to
delivery must complain to the carrier forthwith
after the discovery of the damage, and at the
latest, within 3 days from the date of receipt in
the case of baggage and 7 days from the date of
receipt in the case of goods. . . .