The opinion of the court was delivered by: PALLMEYER
In August 1992, Omnichem S.A. ("Omnichem"), a Belgium corporation, contracted with American Airlines, Inc. ("American") to ship a refrigerated container of vincristine sulfate, a pharmaceutical product, from Belgium to Chicago, Illinois. While the product was in its custody, American misplaced the container for a period of ten days, during which time it was left unrefrigerated and rendered useless by exposure to high temperatures.
Omnichem, through its subrogee Ewig International Marine Corporation ("Ewig"), filed a two-count complaint against American in the Circuit Court of Cook County, Illinois. Pursuant to 28 U.S.C. § 1441, American removed the case to this court, which has both federal question and diversity jurisdiction under 28 U.S.C. §§ 1331, 1332, respectively. The court's federal question jurisdiction is derived from the "Warsaw Convention," an international treaty formally known as the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. 876 (1934), reprinted in 49 U.S.C. § 1502 note (1988). The parties have consented to have all proceedings in this matter conducted by a magistrate judge, pursuant to 28 U.S.C. § 636(c).
Defendant now moves for summary judgment, arguing that Plaintiff's claims are barred by the Warsaw Convention because Plaintiff did not timely notify American in writing that its product had been damaged or destroyed, as required by Article 26 of the Warsaw Convention. For the reasons stated below, Defendant's motion is granted and Plaintiff's complaint is dismissed with prejudice.
The following statement of facts is based on the parties' Local Rule 12(m) and 12(n) statements and attachments.
An assertion will be deemed admitted unless the opposing party puts forward specific facts demonstrating that there is a genuine issue of material fact. See FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Plaintiff Ewig International Marine Corporation is a New York corporation with its principal place of business in New York City. (Def.'s 12(m) Statement P 2.) Ewig is the subrogee of Omnichem, S.A., a foreign corporation with its principal place of business in Belgium. (Id. P 1.) Defendant American Airlines, Inc. is a Delaware corporation; the parties do not identify its principal place of business, however. (Id. P 3.)
On or about August 25, 1992, Omnichem delivered to American Airlines a shipment of vincristine sulfate for carriage from Brussels, Belgium to Aceto Corporation in Chicago, Illinois. (Id. PP 5, 7.) Vincristine sulfate is a pharmaceutical product used in the treatment of certain forms of cancer. (Complaint P 3.) The product is harmless as long as it is refrigerated but can deteriorate and become toxic if exposed to high temperatures. (Pl's 12(n) Statement PP 4, 9, 12, 13, 15, 18.) Consequently, Omnichem packed the product in an insulated container and surrounded it with dry ice. (Plaintiff's Response to Defendant's Motion for Summary Judgment on its Sixth Affirmative Defense (hereinafter "Plaintiff's Response"), at 1.) In addition, Omnichem included on the shipment's air waybill
and delivery receipt the instruction "MUST BE KEPT IN REFRIGERATOR BETWEEN 2 AND 10 DEGREES." (Exs. A, B to Plaintiff's Response.)
Unfortunately, the shipment was lost in America's cargo facility at Chicago's O'Hare Airport from August 26, 1992 to September 5, 1992. (Def.'s 12(m) Statement P 6.) During this time, Aceto repeatedly warned American employees by phone that the vincristine sulfate could become toxic or dangerous if it were not kept refrigerated. (See American Airlines' Trace
from 9/01/92-9/5/92, Ex. B to Pl.'s 12(n) Statement.) American's record of trace of the shipment includes the following notations:
TURN TOXIC IN HOT PUT IT IN THE COOL
(Id., lines D3/PSC3 and ID3/PSC3.)
SHPR CALLED TO SAY SHPMT MAY BECOME TOXIC IF NOT REFRIDGORATED [sic]...NN TO BE FOUND SOON..IBC FROM SUSHMA4..SAYS SHPMT MAY BECOME TOXIC IF DRY ICE EVAPORATES AND SHPMT THAWS.
(Id., lines X13/0 to X16/0.)
ALSO PC SHOULD BE REFRIGERATED AND IT WAS NOT IN COOLER.
(Id., lines X36/T to X37/T.)
PER ABV ORD SAYS NOT IN COOLER...PER MR UNGER
THEY CHECKED COOLER YESTERDAY SO WE KNOW IT IS NOT THERE...NN TO LOOK ELSEWHERE...PER I FIELD THIS STUF [sic] GETS TOXIC IF NOT KEPT COOL.
(Id., lines X53/T to X56/T.)
****IF SHPMNT FOUND ANY TIME PLZ CTC SHPR-CNEE..IS WORTHLESS-DANGEROUS IF USED/INJECTABLE DRUGS--VERY IMPORTANT IT IS DESTROYED PROPERLY***
(Id., lines X60/T to X62/T.)
In addition to the conversations described above, Aceto advised American in writing of the importance of keeping the product cool. In a letter dated September 2, 1992, Aceto requested that American continue to search for the shipment, explaining that "in the event the shipment is found, it must be kept under refrigeration, and must not be opened for any reason." (Letter from Aceto Corp. to American Airlines of 9/2/92, Ex. 2 to Def.'s 12(m) Statement.) Aceto also informed American that it was holding the airline responsible for the "missing" shipment in the amount of $ 98,526.54, adding that "the value [ ] makes it imperative that an extensive search is made to locate these goods." (Id.)
VINCRISTINE SULFATE loses potency when removed from refrigeration. American Airlines has not kept this product under refrigeration as per Bill of Lading instructions. It might, in this case, no longer meet the specifications of the Pharmacopeia, and be therefore, unusable for medicinal purposes. In addition, the price is based on material being 100% active. If, ...