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Srivastava v. Alia

OPINION FILED JANUARY 4, 1985.

G.N. SRIVASTAVA, PLAINTIFF-APPELLANT,

v.

ALIA, THE ROYAL JORDANIAN AIRLINE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Francis J. Reilly, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 21, 1985.

Plaintiff, G.N. Srivastava, appeals from the trial court's order dismissing his complaint against defendant, Alia, The Royal Jordanian Airline, for loss of a Sanyo video cassette recorder. Plaintiff contends that the trial court erred in holding that his action was barred by article 29(1) of the Warsaw Convention.

On October 10, 1981, plaintiff delivered to defendant six pieces of baggage to be transported from Muscat, Sultanate of Oman, to Chicago, under air waybill No. 512-07700840. On November 18, 1981, plaintiff received in Chicago only five pieces of baggage. Defendant did not deliver one piece of baggage containing a Sanyo video cassette recorder. According to an affidavit filed by plaintiff, defendant advised him that the recorder had been loaded at Muscat, Oman, for Amman, Jordan, but was not loaded at Amman for the flight to the United States. Alia promised to investigate, trace and deliver the video cassette recorder but never responded to plaintiff's subsequent written inquiries or his claim for damages.

Plaintiff filed his complaint against defendant on January 18, 1984. On April 24, 1984, the trial court granted defendant's motion to dismiss plaintiff's complaint with prejudice on the ground that the complaint was not filed within two years of the date of the arrival of the subject flight at Chicago as required by article 29(1) of the Warsaw Convention.

The parties agree that the Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 29, 1934 (49 Stat. 3000 et seq., T.S. No. 876, 137 L.N.T.S. 11, 49 U.S.C. § 1502 (1982)), commonly known as the Warsaw Convention, controls the disposition of this appeal.

Article 29(1) of the Convention provides:

"The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped."

Plaintiff's complaint alleged that when the Alia flight carrying his baggage arrived in Chicago on November 10, 1981 (according to the shipping documents, the correct date is November 18, 1981), plaintiff received only five of the six pieces of baggage he had shipped from Muscat to Chicago. Alia did not deliver to plaintiff one piece of baggage containing a Sanyo video cassette recorder. Relying on article 26(4) of the Warsaw Convention and clause 12(a)(iv) of the air waybill contract, plaintiff contends that his action against Alia did not accrue until February 8, 1982, 120 days after the date of issuance of the air waybill on October 10, 1981.

• 1 Article 26 of the Warsaw Convention requires the person entitled to the delivery of baggage or goods to make a timely written complaint to the carrier of damage or delay, otherwise "no action shall lie against the carrier, save in the case of fraud on his part." (Art. 26(4).) Article 26, however, does not apply to claims against a carrier for lost baggage or goods. (Denby v. Seaboard World Airlines, Inc. (2d Cir. 1984), 737 F.2d 172, 176-82; Hughes-Gibb & Co. v. Flying Tiger Line, Inc. (N.D. Ill. 1981), 504 F. Supp. 1239, 1242.) Regarding lost goods, article 13(3) indicates that notice to the carrier need not be given. *fn1

• 2 Moreover, even if the notice requirements of article 26 did apply to claims for lost baggage or goods, it has been held that "article 26 notice serves no purpose in relation to article 29's prescriptive period of two years which is automatically triggered by specified events." (Dalton v. Delta Airlines, Inc. (5th Cir. 1978), 570 F.2d 1244, 1247 n. 8.) "This limitation period begins either at the date of arrival at the destination, or at the date on which the aircraft ought to have arrived, or at the date on which the transportation stopped." (Hepp v. United Airlines, Inc. (1975), 36 Colo. App. 350, 352, 540 P.2d 1141, 1143.) Thus, in the present case, the two-year period would have expired on November 18, 1983, two years after the Alia flight arrived at its destination in Chicago.

• 3 Plaintiff, however, also refers us to clause 12(a)(iv) of the air waybill contract he entered into with Alia on October 10, 1981. That clause provides that in the case of non-delivery of the goods, the person entitled to delivery must make a complaint to the carrier in writing within 120 days from the date of the issuance of the air waybill. (Article 33 of the Warsaw Convention authorizes such contractual provisions.) Plaintiff did make a timely written complaint but argues, without citation of applicable authority, that the two-year limitation period in article 29(1) of the Warsaw Convention does not begin to run until the 120-day period within which a shipper must submit his complaint to the carrier for lost goods has expired.

Our research, however, indicates that the notice requirement does not delay the running of the two-year limitation period of article 29(1). (See Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App.3d 1005, 1008-09, 370 N.E.2d 95; Sanchez v. Beacon Shipping Co. (1980), 79 App. Div.2d 591, 434 N.Y.S.2d 236.) Moreover, we note that clause 12(c) of the air waybill contract itself provides that "any rights to damages against carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped." The air waybill "makes no reference to any circumstances under which the two-year limitation may be extended" and where "contractual language is plain, its meaning clear, and no absurdity is involved, the agreement must be enforced as written." Hepp v. United Airlines, Inc. (1975), 36 Colo. App. 350, 354, 540 P.2d 1141, 1143.

• 4 Article 29(2) of the Warsaw Convention states that "[t]he method of calculating the period of limitation shall be determined by the law of the court to which the case is submitted." Plaintiff argues that this provision of the Convention authorizes the forum court to hold that his cause of action did not accrue until the 120-day period specified in clause 12(a)(iv) of the air waybill had elapsed. We disagree. Based ...


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