The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Magnus Electronics, Inc. ("Magnus") has filed a multi-count
First Amended Complaint (the "Complaint") against Aerolineas
Argentinas ("Aerolineas") and the Royal Bank of Canada
("Bank") to recover the unpaid portion of the purchase price
of two shipments of electronics equipment that, Magnus says,
were delivered to the buyer in Argentina in breach of
Aerolineas' and Bank's obligations to Magnus. Bank has in turn
filed a First Amended Cross-claim (the "Cross-claim") against
Aerolineas for indemnity or contribution, asserting the loss
was attributable to Aerolineas' wrongful conduct.
Aerolineas now has moved under Fed.R. Civ.P. ("Rule")
12(b)(6) to dismiss both the Complaint and the Cross-claim
because (1) Aerolineas' liability is governed by the terms of
the Warsaw Convention (the "Convention," 49 Stat. 3000 TS 876,
reprinted following 49 U.S.C.A. § 1502) and (2) the claims
against Aerolineas are barred by the Convention's two-year
limitations period. For the reasons stated in this memorandum
opinion and order, Aerolineas' motion is granted.
In October 1981 Magnus contracted to sell three of its
"Magnasync" generators to buyer Alfredo Di Lullo ("Di
Lullo")*fn2 in Buenos Aires. Magnus engaged a freight
forwarder to arrange for shipment to Di Lullo, and the freight
forwarder then engaged Aerolineas to transport the generators
from Miami to Buenos Aires. According to the Aerolineas air
waybill the generators were to be delivered to Bank (as
consignee) in Buenos Aires, with notice to Di Lullo of their
arrival. Under the terms of its arrangement with Magnus, Bank
was to hold the generators pending Di Lullo's payment of the
full purchase price to Bank (for Magnus' account). Only upon
payment in full was Di Lullo to take delivery of the goods.
Despite those arrangements, either Aerolineas or Bank (or
perhaps the two together in some fashion) permitted delivery
of the generators to Di Lullo without Bank's (and hence
Magnus') receiving payment. Magnus has yet to collect any
portion of the $68,946 purchase price.
In early March 1982 Magnus entered into a second transaction
with Di Lullo, this time involving a shipment of transceivers.
Again Aerolineas was engaged to carry the goods from Miami to
Buenos Aires, where Bank was to take delivery as consignee
pending payment in full of the $30,831 purchase price. On
March 18 Di Lullo telephoned Magnus and said it had received
the transceivers in good condition and would shortly tender
payment — this despite the fact Di Lullo was not to get
delivery before having paid the purchase price. To date Di
Lullo has paid $30,000 on the 1982 shipment, leaving an
outstanding balance of $831. Again Magnus claims the loss is
attributable to either Aerolineas or Bank or both.
"[A]ll international transportation of persons, baggage, or
goods performed by aircraft for hire" (Convention Art. 1(1))
is governed by the Convention, a uniform set of rules drafted
at international meetings held in Paris in 1925 and Warsaw in
1929. "International transportation" is defined in relevant
part to include (Art. 1(2)):
any transportation in which, according to the
contract made by the parties, the place of
departure and the place of destination, whether
or not there be a break in the transportation or
transshipment, are situated . . . within the
territories of two High Contracting
Parties. . . .
Both the United States and Argentina are High Contracting
Parties to the Convention.
Probably the most frequently invoked provisions of the
Convention, in litigation terms, are those limiting the
liability of air carriers for loss or damage to passengers or
property in the course of air transportation. However, the
focus of the present dispute is the limitations period under
Convention Art. 29:
(1) 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
(2) The method of calculating the period shall be
determined by the law of the court to which the
case is submitted.
Aerolineas claims that provision bars the claims of both
Magnus and Bank. They respond with several arguments in an
effort to avoid dismissal:
2. Bank's cross-claim is not subject to the
Convention in any event.
3. Even if the Convention does apply to the
claims, the Complaint's allegations leave open
the possibility the limitations period has not
run, at least as to the 1981 shipment.
4. Magnus' allegations of fraud on Aerolineas'
part either render the two-year limitations
period inapplicable or toll it on a fraudulent
5. Because Aerolineas is alleged to have
engaged in "wilful misconduct," Convention Art.
25 says Aerolineas cannot avail itself of the
two-year limitations period.
This opinion will deal successively with those ...