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HUGHES-GIBB & CO., LTD. v. FLYING TIGER LINE

January 12, 1981

HUGHES-GIBB & CO., LTD., UNDERWRITERS OF LLOYDS OF LONDON AS SUBROGEE OF AG-WORLD EXPORT, INC., PLAINTIFF,
v.
THE FLYING TIGER LINE, INC., DEFENDANT.



The opinion of the court was delivered by: Bua, District Judge.

ORDER

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).

Facts

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.

Applicable Law

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. . . .

As regards Article 26(2), the plaintiff contends that the 7 day notice requirement for goods applies only in cases of "damaged" goods. The 72 dead pigs forming the basis of its claim, the plaintiff argues, were not "damaged" goods, but rather ...


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