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12/17/87 Monique Nahm, v. Scac Transport

December 17, 1987

MONIQUE NAHM, PLAINTIFF-APPELLANT

v.

SCAC TRANSPORT, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

522 N.E.2d 581, 167 Ill. App. 3d 971, 118 Ill. Dec. 911 1987.IL.1856

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McMORROW delivered the opinion of the court. LINN and JIGANTI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Monique Nahm (Nahm) engaged SCAC Transport, Inc. , which in turn contracted with Flying Tigers, Inc. (Flying Tigers), to transport personal effects from France to Illinois. All the goods were lost during transit, and Nahm filed this action against SCAC and Flying Tigers to recover damages for the loss.

The parties filed cross-motions for summary judgment. SCAC admitted liability to Nahm but maintained that she had agreed to limit SCAC's liability to $10,000. Flying Tigers argued that Nahm had no cause of action against it because the transport of her goods did not constitute one for "successive carriage" and because she did not contract directly with Flying Tigers. Nahm argued that SCAC and Flying Tigers were liable as a matter of law for the actual value of the goods. The trial court denied Nahm's motion for summary judgment, allowed Flying Tigers and SCAC's motion for summary judgment, and entered judgment against SCAC in the amount of $10,000. Nahm appeals.

Upon review, we determine that the trial court's order must be affirmed in part, reversed in part, and remanded. The record does not establish that Nahm agreed to limit SCAC's liability to $10,000. However, it does indicate that Nahm has no cause of action against Flying Tigers under the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929 (Warsaw Convention), 49 Stat. 3000 (1934), T.S. No. 876, 137 L.N.T.S. 11, reprinted in 49 U.S.C. App. § 1502 (1982).

Background

In January 1984, Nahm contacted SCAC, an international freight forwarder, at its Paris office. She requested that SCAC cause certain personal effects to be packed and removed from a house in Gagny, France, and transported to Evanston, Illinois. SCAC engaged a company that packed the goods in cartons (in Nahm's presence) and delivered them to SCAC in Paris, France. SCAC telephoned Nahm and requested her social security number and a complete inventory of the goods. SCAC also inquired whether Nahm wished to insure the goods and offered to "handle the insurance for her." Nahm decided to insure the goods for $10,000 and sent SCAC a letter requesting insurance in that amount.

SCAC executed an air waybill to Nahm which specified Flying Tigers as air carrier between Paris and Chicago. The bill was completed after the telephone conversation with Nahm, although the record does not clearly indicate whether SCAC executed the waybill before or after its receipt of Nahm's letter requesting $10,000 in insurance. Nahm never received a copy of the waybill.

Flying Tigers also issued its own air waybill to SCAC, bearing the same date as that appearing on SCAC's waybill to Nahm, to transport from Paris to Chicago a consolidated shipment to be received from SCAC. Thereafter, Flying Tigers undertook air transport of SCAC's consolidated shipment from Paris to Chicago. SCAC's air waybill to Nahm referenced the waybill number appearing on Flying Tigers' waybill to SCAC. Flying Tigers' waybill, however, did not refer to SCAC's waybill to Nahm.

When Nahm learned later that all the goods were lost in transit, she filed an action to recover damages for the loss. Flying Tigers and SCAC filed a motion for summary judgment. SCAC admitted liability in the amount of $10,000, but argued that Nahm's request for $10,000 in insurance coverage constituted an agreement to limit SCAC's liability to that amount. Flying Tigers claimed that Nahm had no cause of action against it because the transport of her goods did not constitute "successive carriage" under the Warsaw Convention and because she did not contract directly with Flying Tigers for the transport of her goods.

Nahm filed a cross-motion for partial summary judgment as to liability. She maintained that she had not made any agreement to limit SCAC's liability and that she had a valid cause of action against Flying Tigers. She also asserted that SCAC and Flying Tigers were jointly and severally liable for the actual value of the lost goods. The trial court denied Nahm's motion, granted Flying ...


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