the law of documents of air carriage

7/29/2019 The Law of Documents of Air Carriage

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The Law of Documents of Air Carriage

Nicolai Nielsen

March 2012


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Contents

I Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II Formal Requirements for issuance of an airway bill . . . . . . . 1

a) The Warsaw and Montreal formal requirements . . . . . . 1

b) Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

c) Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

d) Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

e) Carrier and freight forwarder . . . . . . . . . . . . . . . . . 3

f) Consequences of issuing an air waybill . . . . . . . . . . . 4

III Air waybill and bill of lading compared . . . . . . . . . . . . . . . 5

a) Overview: bill of lading . . . . . . . . . . . . . . . . . . . . 5

b) Documents of title . . . . . . . . . . . . . . . . . . . . . . . 6

c) A blessing and a curse . . . . . . . . . . . . . . . . . . . . 7

IV Deficient Air Waybills and limitations of liability under Warsaw . 8

a) Is Warsaw relevant after the Montreal Convention comes

into effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8b) Why deficient air waybills are heavily litigated . . . . . . . 8

c) Referencing Stopping places . . . . . . . . . . . . . . . . . 9

1. The view of the second circuit . . . . . . . . . . . 9

2. The view of the 9th circuit . . . . . . . . . . . . . 10

3. The view of the Southern District of New York . . 11

(aa) Article 8(c) Warsaw Convention does not

exclude local stops . . . . . . . . . . . . . 11

(bb) The parties did notagree to Memphis as

a stopping place . . . . . . . . . . . . . . . 12

(cc) The parties' contract allowed the carrier

to use whatever stopping places appro-

priate . . . . . . . . . . . . . . . . . . . . . 12

d) number of packages etc. . . . . . . . . . . . . . . . . . . . 13

e) Other requirements of Article 8 Warsaw Convention . . . 13


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Contents ii

V Obligations of the parties in regards to air waybills . . . . . . . . 14

a) Take back original Airway Bill in case of non-carriage . . 14

b) Does consignee need to notify issuer of AWB or is notice

to any subsequent carrier sufficient . . . . . . . . . . . . . 14

VI Multimodal Transport and Trucking . . . . . . . . . . . . . . . . 15a) Trucking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. German view . . . . . . . . . . . . . . . . . . . . . 17

2. US view . . . . . . . . . . . . . . . . . . . . . . . . 17

b) Multimodal Transport . . . . . . . . . . . . . . . . . . . . . 18

1. Extending the coverage of the AWB . . . . . . . . 19

2. Warsaw Convention and multimodal transport . 19

3. Montreal Convention and multimodal transport . 21

VII Electronic shipping documents . . . . . . . . . . . . . . . . . . . 21

a) Problems with paper documents . . . . . . . . . . . . . . . 21

b) Current attempts . . . . . . . . . . . . . . . . . . . . . . . . 22

1. The SEADOCS system . . . . . . . . . . . . . . . . 22

2. The CMI Rules for Electronic Bills of Lading . . . 23

3. The Bolero System . . . . . . . . . . . . . . . . . . 23

4. The GlobalTrade System . . . . . . . . . . . . . . . 24

5. The TradeCard System . . . . . . . . . . . . . . . 24

c) Which types of documents can be made paperless . . . . 25

d) Problems when introducing paperless shipping documents 25VIII Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

www.letterofcreditforum.com


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Contents iii

List of Abbreviations

AWB Air Waybill

CMR Convention on the Contract for the International Car-

riage of Goods by Road

CTO Combined Transport Operator

EDI Electronic data interchange

IATA International Air Transport Association

M99 Convention for the Unification of Certain Rules for In-

ternational Carriage by Air - Montreal, 28 May 1999

MP4 Montreal Protocol No. 4 to amend the Convention for

the Unification of Certain Rules Relating to Interna-

tional Carriage by Air, Signed at Warsaw on 12 Oc-

tober 1929 as amended by the Protocol done at theHague on 28 September 1955 signed at Montreal on

25 September 1975

MTO Multimodal Transportation Operator

PGP Pretty Good Privacy; a data encr yption and decryp-

tion computer program that provides cryptographic

privacy and authentication for data communication

UCP Uniform Customs and Practices

Warsaw Convention Convention for the Unification of Certain Rules Relat-

ing to International Carriage by Air, Signed at Warsaw

on 12 October 1929 - Warsaw Convention 1929



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I Introduction 1

I Introduction

In view of globalization and the emergence of global supply chains, the role

of the air freight industry has become increasingly important to the global

economy. Not only is air cargo a growth leader, preceding and announc-ing increases in GDP1 air cargo traffic is estimated to triple over the next 20

years.2

Taking into consideration the importance of air freight it seems pertinent

to shed some light on the legal document accompanying each cargo shipped

by plane. The Air Waybill (AWB) or air consignment note is a cargo receipt is-

sued by an international airline. The AWB evidences the contract of carriage,

however, compared to maritime bills of lading, some major differences exist.

The following analysis attempts to illustrate various aspects of air waybills,

from the formal requirements for their issuance, to their role in litigation. Wewill compare AWBs to their maritime counterparts, the bill of lading, see how

AWBs fare as multimodal transport documents, and venture into the field of

electronic shipping documents. The hope is to achieve a better understanding

of the current legal status including an idea how their role might change in

the future.

II Formal Requirements for issuance of an airway bill

a) The Warsaw and Montreal formal requirements

In its Article 8 the Warsaw Convention lists 17 pieces of information that the

"air consignment note shall contain". Ten of these are considered so important

that the carrier loses the limitation of liability if one is missing.3

1 John D. Kasarda and David L. Sullivan, `Air Cargo, Liberalization, and Economic Devel-opment', Annals of Air and Space Law, XXXI [2006] URL: http://www.aerotropolis.com/files/2005_07_AASL.pdf -- visited on 03/12/2012, pp. II A.

2

Tom Crabtree et al., World Air Cargo Forecast 2010-2011, 2010 URL: http://www.boeing.com/commercial/cargo/wacf.pdf -- visited on 03/03/2012, p. 2.3 Article 9 Warsaw Convention provides that the following requirements of Article 8 need to

be listed in the AWB if the carrier wants to avail himself of the limitation of liability. (a) theplace and date of its execution; (b) the place of departure and of destination; (c) the agreedstopping places, provided that the carrier may reserve the right to alter the stopping placesin case of necessity, and that if he exercises that right the alteration shall not have theeffect of depriving the carriage of its international character; (d) the name and address ofthe consignor; (e) the name and address of the first carrier; (f) the name and address ofthe consignee, if the case so requires; (g) the nature of the goods; (h) the number of the



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II Formal Requirements for issuance of an airway bill 3

c) Delivery

The Warsaw Convention12 require that the air waybill be handed over with the

goods and a copy of the waybill accompany the goods. Montreal Protocol No. 4

amended this requirement insofar as the air waybill may be issued after the

carriage has begun.13 Since the wording of MP4 ARticle 5 paragraph 1 and

M99 Article 4 paragraph 1 are identical14 it can be assumed that a carrier

which is subject to M99 equally may commence cargo shipments prior to the

waybill's completion.

The poorly phrased obligation that the air waybill "shall be delivered" leaves

open for interpretation who should deliver to whom. The mystery is mitigated

by M99 Article 7 which requires the consignor to make out the document

in three originals, one original "for the carrier", the second original "for the

consignee" and the third one for the consignor.

d) Originals

As the court in Integrated Measurement Sys. v. Intern. Com. Bank15 held,

specifying that transport documents must be written or typed or printed in

any particular ink or that handwritten notations be accompanied by correc-

tion stamps is not necessary.16

e) Carrier and freight forwarder

An airway bill is a carrier type document, whereas the House airway bill is a

document issued by a freight forwarder. In an airway bill, the issuer promises

to perform the carriage of goods. It is not necessary, that the issuer owns

the means of transportation (e.g. ship, plane, truck), however, the issuer

is obligated to perform the carriage either itself or by employing persons for

whom the principal is vicariously liable.

12 and The Hague Protocol13 L. Dean Warren, `Aviation Liability Regimes in the New Millennium: Beyond the Wild Blue

Yonder Air Carrier Liability For International Air Cargo Shipments In The 21st Century',Transportation Law Journal, [2001], No. 28, p. 244.

14 "In respect to the carriage of cargo an air waybill shall be delivered."15 Integrated Measurement Sys. v. Intern. Com. Bank, 757 F. Supp. 938 Dist. Court, ND

Illinois (1991)16 Id. at 944



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II Formal Requirements for issuance of an airway bill 4

The distinction to the obligation of a freight forwarder is that a freight for-

warder does not promise to perform the carriage, rather, as Title 49 Part B of

the U.S. Code defines:

a freight forwarder is defined as a company or individual that pro-

vides transportation of cargo belonging to others, and in the course

of its business:

(A) assembles and consolidates, or provides for assembling and con-

solidating, shipments and performs or provides for break-bulk and

distribution operations of the shipments;

(B) assumes responsibility for the transportation from the place of

receipt to the place of destination; and

(C) uses for any part of the transportation a carrier

It follows that the freight forwarder assumes responsibility for the transporta-

tion and assembles the loads but often does not conduct the actual trans-

portation.

The distinction is highly relevant, since banks will not accept airway bills

of lading issued by freight forwarders when acting as freight forwarders. The

caveat implies that a freight forwarder can elect to act as a carrier; when

acting as a carrier any shipping document issued will be accepted by banks

under a letter of credit.17

This results from the language of Articles 19 - 24 UCP 600 which consis-tently calls for carrier issued documents.18

f) Consequences of issuing an air waybill

The main consequence for the carrier is the limitation of liability according to

Article 22 of the Warsaw regime and Article 22 of the Montreal Convention .

17 Article 30 UCP 500 provided in this regard:"Unless otherwise authorized in the Credit,banks will only accept a transport document issued by a freight forwarder if it appears onits face to indicate: i. the name of the freight forwarder as a carrier or multimodal trans-port operator and to have been signed or otherwise authenticated by the freight forwarderas carrier or multimodal transport operator, or ii. the name of the carrier or multimodaltransport operator and to have been signed or otherwise authenticated by the freight for-

warder as a named agent for or on behalf of the carrier or multimodal transport operator."18 Article 14 l UCP 600 is supposed to clarify this fact as well; however the wording is slightly

ambiguous. See also in this regard Nielsen, p. 94



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III Air waybill and bill of lading compared 5

Failure to issue an airway bill will make the carrier liable without limita-

tion.19 Even when the consignee does not accept the goods and has them

returned to the consignor a carrier needs to issue a new AWB if it wants to

avail himself of the limitation of liability.20

III Air waybill and bill of lading compared

To properly understand the air waybill, the comparison with a bill of lading is

most enlightening.

a) Overview: bill of lading

The bill of lading is

"a document acknowledging the receipt of goods by a carrier or by

the shipper's agent and the contract for the transportation of those

goods; a document that indicates the receipt of goods for shipment

and that is issued by a person engaged in the business of trans-

porting or forwarding goods. UCC 1-201(6). - A negotiable bill of

lading is a document of title."21

Typically, the three functions of the bill of lading are summarized as follows:22

1. A contract of affreightment

2. Evidence of affreightment

3. Evidence of title.

Since the air waybill also fulfills functions 1 and 2, we will focus on the

difference between the two shipping documents, i.e. the nature of a document

of title.

19 SeeNippon Fire & MARINE Ins. v. Skyway Freight Systems, Inc., 45 F. Supp. 2d 288 Dist.Court, SD New York (1999)

20 See Fujitsu Ltd. v. Federal Express Corp., 76 F. Supp. 2d 474, 475 Dist. Court, SD NewYork (1999)

21 Bryan A. Garner and Henry Campbell Black, Black's law dictionary, 9th edition. (St. Pauland MN: West, 2009), ISBN 978--0--314--19949--2, p. 188.

22 Susan Beecher, `Can the Electronic Bill of Lading Go Paperless', The International Lawyer,40 [2006], p. 628.



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b) Documents of title

As Black's law dictionary point out, a negotiable bill of lading is a document

of title. A nonnegotiable bill is one stating that the goods are consigned to a

specified person but not to the person's order.23 Negotiability is hence at the

heart of a document of title. Bills of lading can be negotiated in two ways:

1. a bearer bill ("consign to bearer") can be negotiated by mere delivery24

2. an order bill (consign to the order of XYZ Co.") can be negotiated by

indorsement.

The carrier is obligated to deliver the goods to the bearer of a bearer bill of

lading or to the lawful holder of an order bill. On the other side, the consignee

or assign can normally not receive the goods unless he delivers the bill of

lading.25

23 See UCC 7-10424 See UCC 7-501(1), (2)(a)25 The exception to this rule is that carriers will deliver the cargo if the consignee delivers a

letter of indemnity issued by the consignee's bank.



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c) A blessing and a curse

The holder of a bill of lading can at all times demand release or delivery of the

goods. Regarding bills of lading M99 provides in its Article 12:

. . .the consignor has the right to dispose of the cargo by withdrawing

it at the airport of departure or destination, or by stopping it in

the course of the journey on any landing, or by calling for it to be

delivered at the place of destination or in the course of the journey

to a person other than the consignee originally designated, or by

requiring it to be returned to the airport of departure.

Financial institutions generally prefer documents of title as collateral. Docu-

ments of title enable the creditor to control the goods, dispose of them upondefault, and use the proceeds of the sale to repay the loan.26 A waybill does

not possess these characteristics, on the other hand, the consignee of a way-

bill will receive the cargo faster and is unlikely to incur demurrage fees since

presentation of the shipping documents is not a prerequisite for receipt of the

goods.

A further benefit of documents of title is the protection of holders in due

course. Typically to enjoy this type of benefit the transferee must take the

instrument for value, in good faith and without notice of defenses that might

be available to the obligor.

Dempsey27 points out that according to Article 15 M99 the parties are al-

lowed to agree to make the air waybill negotiable unless prohibited by do-

mestic law. Obviously, the parties can emulate certain statutory constructs

through contractual stipulations. However, these attempts can only be in-

complete as contracts have to comply with general requirements of the law. 28

The reason that air waybills are not documents of title is that the goods are

in transit for short periods of time. In maritime shipping consignees will sell

the goods that are still ocean-bound; this is not necessary for air transporta-tion.

26 Marek Dubovec, `The problems and possibilities for using electronic bills of lading as col-lateral', Arizona Journal of International & Comparative Law, 23 [2006], No. 2, p. 459.

27 Paul Stephen Dempsey and Michael Milde, International air carrier liability: The MontrealConvention of 1999, (Montreal: McGill University Centre for Research in Air & Space Law,2005), ISBN 0--7717--0636--7, p. 117.

28 The German law on trade terms, now incorporated in the Civil Code as part of the law ofobligation, e.g. renders most limitations of liability void.



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IV Deficient Air Waybills and limitations of liability under Warsaw 8

IV Deficient Air Waybills and limitations of liability

under Warsaw

a) Is Warsaw relevant after the Montreal Convention comes into

effect

The United States has ratified the Warsaw Convention, the Hague Protocol,

MP4 and the Montreal Convention. In order to determine which of these to

apply in US litigation, Dempsey suggests to determine the Protocol of Conven-

tion the nations of origin and destination have ratified and apply the treaty

regime common to both.2930 In case both Warsaw and Montreal were signed,

Montreal prevails.

In case the parties did not sign either of the conventions, international pri-vate law will designate the applicable substantive law.

b) Why deficient air waybills are heavily litigated

Claiming a deficiency in the air waybill is a method of avoiding the limitations

of the Warsaw regime. This attempt however is fruitless under Montreal since

the requirements for issuance have been considerably lowered.31

Failure to meet the requirements for issuance of AWB under the Warsaw

regime does not render Warsaw inapplicable, rather, the carrier no longerenjoys the limitation of liability.32

Courts have been reluctant to accept limitations of liability and hence inter-

pret the requirement strictly, concluding that "the omission of any required

item from the air waybill . . .will result in the loss of limited liability regardless

of the commercial significance of the omission."33 34

29 Dempsey and Milde (as in n. 27), p. 81.30 Patricia Matczak, Rechtsgrundlagen und Haftung in internationalen Supply Chains,

2009 URL: http://bibliothek.fh-burgenland.at/fileadmin/Download/bibliothek/

diplomarbeiten/AC07728778.pdf -- visited on November 5, 2011, p. 45.31 Paul Stephen Dempsey, `International Air Cargo & Baggage Liability and the Tower of Ba-bel', George Washington International Law Review, [2004], No. 36, p. 278.

32 Ibid.33 Id. at 42934 In previous decisions the courts had accepted omissions as long as "the particulars miss-

ing from the first waybill the method of packing and the numerical markings weretechnical and insubstantial omissions that did not prejudice the shipper and were of littlecommercial significance". see Exim Industries v. Pan American World Airways, Inc., 754F. 2d 106, 108 Court of Appeals, 2nd Circuit (1985)



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The plaintiff may bring suit in one of four places within the territories of

States which have ratified the Convention:

the carrier's domicile, which is the State under whose laws it was incor-

porated;

the carrier's principal place of business;

where the contract was made, that is, where the air waybill or ticket was

issued; or

the place of destination, which is the ultimate destination as stated in

the air waybill or ticket

c) Referencing Stopping placesArticle 8 (c) of the Warsaw Convention requires that the airway bill list

the agreed stopping places, provided that the carrier may reserve

the right to alter the stopping places in case of necessity, and that

if he exercises that right the alteration shall not have the effect of

depriving the carriage of its international character;

The first question this Article raises is in how far the carrier may reference

information to be found outside the waybill.

1. The view of the second circuit

In Brink the second circuit posed the question as follows:

. . .

we must determine whether an air waybill that incorporates essen-

tial particulars by reference to documents outside the waybill and

to statements within the waybill satisfies Articles 8 and 9.35

On the back of the waybill the carrier had included a statement that the

agreed stopping places were those shown in the carrier's timetables. The

court concluded that this was sufficient "to notify the shipper of the agreed

stopping places".36

35 Brink's Ltd. v. South African Airways, 93 F. 3d 1022, 1033 Court of Appeals, 2nd Circuit(1996)

36 Id. at 1035



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The same year the second court elaborated on this position.37 In the case

at bar the carrier had similarly to38 referenced its timetable on the back of

the air waybill; however, on the front the carrier had noted an incorrect flight

number. Due to this inaccuracy the shipper could not ascertain the stopping

places. The court hence found that the carrier could not avail himself of thelimitation of liability.39

In Intercargo Ins. Co. v. China Airlines, Ltd.40 the second circuit built

onBrink andTai, confirmed that if carrier "chooses . . . to incorporate the

agreed stopping places by reference to its timetables . . . then [the carrier]

bears the risk that the incorporation will fail." In this case the incorporation

failed because it failed to list all stopping places. The air waybill designated

Los Angeles and Hong Kong as the places of departure and destination, how-

ever failed to disclose that the cargo was carried from Taipei to Hong Kong on

a flight not noted on the air waybill.4142 The court43 further emphasizes that

the purpose of the Article 8 (c) requirement is not to notify the shipper of the

international character of the carriage.

2. The view of the 9th circuit

In Insurance Co. of North America v. Federal Express44 the carrier disclaimed

any agreement as to specific stopping places for the shipment. In its air way-

bill it stipulated

You agree that this shipment may be carried via intermediate

stopping places that we deem appropriate.45

Furthermore, "FedEx Service Guide", which was incorporated by reference

into the air waybill reserves the carrier's right to route its shipments as it

sees fit.

37 Tai Ping Insurance Co., Ltd. v. Northwest Airlines, Inc., 94 F. 3d 29 Court of Appeals, 2nd

Circuit (1996)38 Brink, 93 F. 3d 1022.39 Tai, 94 F. 3d at 3440 Intercargo Ins. Co. v. China Airlines, Ltd., 208 F. 3d 64 Court of Appeals, 2nd Circuit (2000)41 Id. at 6942 Dempsey and Milde (as in n. 27), p. 103.43 Id44 Insurance Co. of North America v. Federal Express, 189 F. 3d 914 Court of Appeals, 9th

Circuit (1999)45 Id. at 917



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When the cargo disappeared in Memphis the court found that Memphis

was not an agreed upon stopping place since the air waybill made it "perfectly

clear" that there were no agreed stopping places.

Federal Express explicitly reserved the right to route the ship-

ment as it saw fit. Accordingly, Federal Express was under no obli-

gation to disclose the intermediate stop in Memphis.46

3. The view of the Southern District of New York

In Sotheby's v. Federal Exp. Corp.47 Federal Express had issued an air way-

bill which provided that valuable paintings were to be flown on FedEx Flight

005 from London, England to Newark, New Jersey. Once the cargo arrived in

Newark, Federal Express rerouted it to Memphis since it did not have sufficient

staff in Newark over the weekend. While in Memphis, one of the paintings was

damaged by a forklift before it was returned to its destination in Newark.

The situation here is similar to the Insurance case as the shipper did not

know that the cargo would be taken to Memphis. The court however carefully

rejected the carrier's three arguments"

1. Article 8(c) Warsaw Convention does not exclude local stops

2. The parties did not agree to Memphis as a stopping place

3. The parties' contract allowed the carrier to use whatever stopping places

appropriate.

(aa) Article 8(c) Warsaw Convention does not exclude local stops The court

rejected the argument that Article 8 (c) was only intended to notify the shipper

of the international character of the carriage referencing in its decisionTai,

Intercargo as well as Tai2.48

A carrier hence does not comply with Article 8(c) by simply listing one of

several international stops.

46 Id. at 91947 Sotheby's v. Federal Exp. Corp., 97 F. Supp. 2d 491 Dist. Court, SD New York (2000)48 Id. at 497



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(bb) The parties did not agree to Memphis as a stopping place The court in-

terprets the word "agree" in the context of Article 8 (c) to mean "notify". Ref-

erencing Intercargo Article 8 (c) was held to be a "notice provision". The court

concluded that it did not make sense that the parties actually have to agree

on stopping places.49The court further elaborates that "a carrier could unilaterally decide to send

cargo anywhere in the world but because the shipper had not "agreed" that

these places were stopping places, the carrier would not be required to list

them on the air waybill."50

Also, the Warsaw Convention allows the carrier to reserve the right to alter

the stopping places in case of necessity. This provision would be superfluous

if the carrier needed not notify the shipper of all stopping places.51

(cc) The parties contract allowed the carrier to use whatever stopping places

appropriate The court refused to allow the incorporation by reference of the

carrier's Service Guide since the waybill only listed "applicable tariffs, rules,

conditions of carriage, regulations and timetables".52 Next, the court found

that "Memphis" was not an "intermediate" stop on the planned route between

London and Newark and supported this view by the argument that allowing

the carrier to thus reduce its liability would violate Article 23 of the Warsaw

Convention:

Any provision tending to relieve the carrier of liability or to fix a

lower limit than that which is laid down in this convention shall be

null and void, but the nullity of any such provision shall not involve

the nullity of the whole contract, which shall remain subject to the

provisions of this convention.53

49 This is a rather weak argument and seems to be fallacious. Equally the court could haveheld that the parties need to agree on the stopping places and once they agreed a notifi-cation is superfluous. The unsubstantiated claim that Article 8 (c) is a notice provision

is not an argument but leads to a vicious circle where the premise is used to prove theconclusion.50 Id. at 49851 Again this argument is not very convincing since the permission to deviate from the stop-

ping places listed in the air waybill might simply be a confirmation of an understandingimminent in the preceding language. An indication of such a mercantile practice would be

Article 20 d UCP 600:"Clauses in a bill of lading stating that the carrier reserves the rightto transship will be disregarded."

52 Id. at 50053 Again a rather disappointing argument. The court's interpretation of Article 23 fails to



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Finally the court considered the mention of a specific flight number in an

air waybill as a contrary instructions which would not allow the carrier to use

other stopping places.54

d) number of packages etc.

Article 8 requires that the air waybill contain:

(h) the number of the packages, the method of packing and the

particular marks or numbers upon them;

(i) the weight, the quantity and the volume or dimensions of the

goods;

If the air waybill omits this information and this information is commercially

significant, then the carrier will lose the limitation of liability.55 In Exim Indus-

tries v. Pan American World Airways, Inc.56 confirmed this view and found that

if a freight rate is based on weight, "figures showing the volume and dimen-

sion of each carton and the quantity of blouses contained therein would be of

no practical significance with respect to either the identity of the shipment or

the rate to be charged."57 The carrier who failed to include these details could

nevertheless avail himself of the limitation of liability under Warsaw.

e) Other requirements of Article 8 Warsaw Convention

If an air carrier omits any other essential particular from its air waybill, Article

9 deprives the air carrier of limited liability protection regardless of commer-

cial significance.

Third, if an air waybill includes an essential particular, but deviates in lan-

guage or some other respect, the question of whether or not Article 9 deprives

take into account that in other areas, the courts accept not only limitations of liability butexclusions of liability, as e.g. in the case of emotional sufferings where the plaintiff would

have no recourse at all, see, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 US 155Supreme Court (1999)54 This view seems to exceed the parties expressed intention. An air carrier notifying the

shipper of the flight number is certainly under the impression that he might use a later oralternate flight if the originally intended flight is rescheduled, overbooked or available forother reasons.

55 Brink, 93 F. 3d at 103456 Exim Industries v. Pan American World Airways, Inc., 754 F. 2d 106 Court of Appeals, 2nd

Circuit (1985)57 Id. at 108



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V Obligations of the parties in regards to air waybills 14

the air carrier of limited liability may be determined with the assistance of

traditional methods of interpretation.

V Obligations of the parties in regards to air waybillsa) Take back original Airway Bill in case of non-carriage

In Philip A. Feinberg, Inc. v. Varig58 the New York Supreme court found that a

carrier has to request the shipper to return a previously issued AWB when the

carrier does not perform the carriage of goods. In the Feinberg fact pattern,

the consignor had used the AWB to obtain payment under a letter of credit,

even though the goods were returned to the consignor due to its failure to

obtain an export license.

The Court found the carrier liable since it failed to obtain the originals of

the airway bill.

The obligation to take back an AWB does not only extend to the three orig-

inals. As the Florida District Court of Appeals finds in Cooper's Finer Foods,

Inc. v. Pan Am. World Airways, Inc.59, this obligation comprises also to re-

quest the return of all copies.60

In both cases however, the courts are aware of that the carrier knew of

the documentary conditions of a letter of credit and that the carriers hence

were alerted to an increased risk of fraud. It remains to be seen, whetherthe requirement to take back originals and copies of airway bills will equally

apply, when the carrier is unaware of a letter of credit and could not have

known of its existence.

b) Does consignee need to notify issuer of AWB or is notice to any

subsequent carrier sufficient

In Maschinenfabrik Kern, AG v. Northwest Airlines61 the carrier tried to defend

itself from liability by claiming, the consignee had only notified the last in a

58 Philip A. Feinberg, Inc. v. Varig, 80 Misc. 2d 305 NY: Supreme Court (1974)59 Cooper's Finer Foods, Inc. v. Pan Am. World Airways, Inc., 178 So. 2d 62 Fla: Dist. Court

of Appeals, 3rd Dist. (1965)60 Id. at 63 mentions copy No. 9 of originally 9 copies issued.61 Maschinenfabrik Kern, AG v. Northwest Airlines, 562 F. Supp. 232 Dist. Court, ND Illinois

(1983)



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VI Multimodal Transport and Trucking 15

chain of carriers, but not the issuer of the bill of lading and hence had missed

the 7 day notification period under Article 26(2) of the Warsaw convention.

The court relied on two arguments: Firstly, Article 1(3) of the Warsaw Con-

vention provides that transportation to be performed by several successive

carriers shall be deemed to be one undivided transportation, if the partiesregard it as a single operation. Secondly, Article 30(3) of the Warsaw Conven-

tion provides that successive carriers shall be jointly and severally liable for

damage sustained to goods during transportation. Since the carriers have ex-

clusive control over the cargo and the injured party would be hard-pressed to

identify the precise carrier which caused the damage, "the injured party may

sue all of the carriers involved with a single transportation of goods." 62 Both

articles read together imply that notice to "the carrier" as required by Article

26, may be achieved by notifying any carrier in the chain of carriage. This

result however should only be applicable in case of "unitary" transportation.

Unitary transportation according to63 exists when there are no long break in

the cargo's journey, beyond the time required to off-load the machines from

one carrier and onto the next. Also, the court in Motorola, Inc. v. MSAS Cargo

Intern., Inc.64 interprets that no separate contracts exist. This requirement

seems surprising since a single contract between shipper freight forwarder or

several carriers is a rare exception.

VI Multimodal Transport and Trucking

a) Trucking

IATA resolution 507b labeled "Use of Surface Transportation" permits a carrier

to "route a consignment via surface means over the first and/or last sector(s)

of the route as shown on the face of the Air Waybill. " 65

A consignor, airway bill in hand, hence will see his consignment disappear

on the back of a truck instead of the belly of a plane in case the carrier lacks

available cargo space or the size, weight or nature of the consignment is such

62 Id. at 23663 Id.64 Motorola, Inc. v. MSAS Cargo Intern., Inc., 42 F. Supp. 2d 952 Dist. Court, ND California

(1998)65 Article 1 a) and b)



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that it cannot be accommodated on the type of aircraft operated by such car-

rier 66

Contrary to IATA "recommended practices" IATA resolutions are binding on

IATA members.67 Being binding on members does not mean they become part

of the contract between the carrier and the consignor. To be binding on theconsignor, the IATA resolutions need to be incorporated by reference into the

contract of carriage.

IATA resolution 507 b should not be mistaken for Article 6.3.2 of the IATA

recommended "Conditions of Carriage for Cargo" which provide:

Carrier may without notice substitute alternative carriers or other

means of carriage.

since Article 1.5 of the IATA Conditions for Cargo provide:

Carriage which is equivalent to the term "transportation" means

carriage of cargo by air, whether gratuitously or for reward.

Typically, IATA resolution 507 b is incorporated into the contracts of air

carriage by IATA Resolution 600 b Air Waybill Conditions of Contract which

stipulates in its Article 9:

Where permitted by applicable laws, tariffs and government regu-

lations, Carrier may use alternative carriers, aircraft or modes oftransport without notice but with due regard to the interests of the

shipper.

Despite the widespread use of trucking, in letter of credit transactions truck-

ing might be harmful to the interests of the shipper who is a beneficiary.

Some authors advocate that banks reject air waybills which evidence that the

carriage between the airport of departure and the airport of destination was

performed by truck.68

66 IATA resolution 507 b permits carriers outside the ECAA any or no reason if they want toengage in trucking, carriers operating in the ECAA need very broadly phrased reasons.

67 Jan Brinkmann, Der Luftfrachtersatzverkehr: Die Haftung beim Trucking nach dem Mon-trealer bereinkommen, (Berlin and Mnster: Lit, 2009), ISBN 978--3--643--10094--8,p. 94.

68 Jens Nielsen, Richtlinien fr Dokumentenakkreditive: [mit ERA 600 und allen fr die Praxiswichtigen Richtlinien], 3rd edition. (Mnchen: Beck, 2008), ISBN 9783406581069, p. 126.



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1. German view

Under German law the carrier might not be able to avail himself of the lim-

itation of liability provided for under the Warsaw Convention. If it is clear

that the damage occurred during trucking then the Warsaw Convention does

not apply.69 In case the trucking was international (e.g. from Amsterdam

to Hamburg), the CMR would apply, otherwise national law will dictate the

outcome.70

Article 18 (3) of the Warsaw Convention provides in this regard:

The period of the carriage by air does not extend to any carriage

by land, by sea or by river performed outside an aerodrome. If, how-

ever, such a carriage takes place in the performance of a contract

for carriage by air, for the purpose of loading, delivery or transship-

ment, any damage is presumed, subject to proof to the contrary,

to have been the result of an event which took place during the

carriage by air.

The first sentence clearly supports the position of the German law. The second

sentence however seems to contradict the first. I believe that the resolution

of the contradiction lies in the following. Trucking is different from "loading,

delivery or transshipment", since these activities support the air carriage,

whereas trucking is a substitute for air carriage. This interpretation would

result in the application of Article 18 (3) sentence 1 of the Warsaw Convention

to trucking, whereas sentence 2 deals with a different fact pattern.

The legal qualification under the Montreal Convention does not change this

view.71

2. US view

US law seems to indicate that in the case of trucking the Warsaw Convention

is still applicable. In BRI Coverage Corp. v. Air Canada72 the court applied

the Warsaw Convention "as a matter of contract because the air waybill incor-

porates the Warsaw Convention by reference".73 The tendency of US courts

69 Brinkmann (as in n. 67), p. 115.70 Ibid., p. 116.71 Ibid.72 BRI Coverage Corp. v. Air Canada, 725 F. Supp. 133 Dist. Court, ED New York (1989)73 Id. at 135



22/35


to apply the Warsaw Convention to trucking can also be seen in Commercial

Union Ins. v. Alitalia Airlines74.

In regards to the applicability of the Montreal Convention of 1999, Dempsey

opines that a substituted motor carrier movement falls under the conven-

tion.75175

b) Multimodal Transport

Multimodal transport is the shipping of cargo using at least two different

modes of transport.76. The party obliged to perform the multimodal carriage is

referred to as the combined transport operator ("CTO") or Multimodal Trans-

portation Operator("MTO"). Conceptually in multimodal transport operations

two liability regimes are imaginable:

1. a multimodal systems approach

2. a network systems approach77

Under the multimodal systems approach, the combined transport operator is

liable as follows:

If the loss, damage or delay is obvious and can be attributed, then the

carrier for that segment is liable in accordance with the applicable treaty.

If the loss loss, damage or delay either is concealed or cannot be at-

tributed to a particular segment, the CTO is liable for a fixed amount

per weight of the cargo.78

Under the network systems approach, the MTO is liable as follows:

74

Commercial Union Ins. v. Alitalia Airlines, 347 F. 3d 448 Court of Appeals, 2nd Circuit(2003)

75 Dempsey and Milde (as in n. 27).76 See e.g. Article 19 a UCP 600 for this definition77 Stephen G. Wood, `Multimodal Transportation: An American Perspective on Carrier Lia-

bility and Bill of Lading Issues', The American Journal of Comparative Law, 1998 [1998],No. 46, p. 34.

78 The ICC Uniform Rules for a combined transport document (ICC publication no 298) usesthe term CTO, and limited the liability to 30 French Francs per kilogram of gross weightof the cargo. ibid., p. 405



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If the loss, damage or delay is obvious and cannot be attributed, then

the carrier the carrier is liable according to a fixed amount per weight of

the cargo.79

If the loss, damage or delay occurred during an identifiable segment

of transportation where another international treaty, convention, or law

fixes a greater liability, the CTO is liable according to the higher .

Among shipping documents, documents of title play a special role. The

question may arise whether a document issued under a multimodal transport

can qualify as a document of title.80

As interesting as this question is, it has little bearing on air carriage, since

the air waybill would only be converted into a document of title once it promises

a carriage by sea.

Relevant however is the question under which circumstances the MTO would

be able to avail himself of the limitation of liability of the Warsaw or M99

regime.

1. Extending the coverage of the AWB

Article 31 (1) Warsaw Convention limits the applicability regarding multimodal

transportation as follows:

In the case of combined carriage performed partly by air andpartly by any other mode of carriage, the provisions of this Con-

vention apply only to the carriage by air, provided that the carriage

by air falls within the terms of Article 1.

2. Warsaw Convention and multimodal transport

Nevertheless, where an air carrier issues an AWB and for purposes of loading,

delivery, or transshipment uses surface carriage, the Warsaw convention is

still applicable.8182

79 The United Nations' Convention on International Multimodal Transport of Goods an ex-ample of the multimodal systems approach. The Convention fixes the liability at 920units of account per package or other shipping unit or 2.75 units of account per kilogram,

whichever is higher. ibid., id.80 Nielsen, p. 10981 Dempsey and Milde (as in n. 27), p. 169.82 This view is supported by Article 18 (3) of the Warsaw Convention: "If, however, such

transportation [by land, sea, or river] takes place in the performance of a contract for



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Furthermore, in multimodal transportation the parties can agree to apply

the Warsaw Convention to through movements.83

In BRI Coverage Corp. v. Air Canada84 the carrier had stored the cargo

in a warehouse and trucked it to the airport. The court applied the War-

saw Convention, claiming the air waybill had incorporated the Convention byreference.

This view however is not unanimous. In Read-Rite Corp. v. Burlington Air

Express, Ltd.85 the court refused to apply the Warsaw Convention when the

carrier had deceitfully used trucks and ships to move the cargo; the cargo

was destroyed outside the airport while on truck.86

In general US and even Australian courts seem to be confused as to the ap-

plicability of the Warsaw convention when the cargo is not in the air. 87171 In

particular the relationship of Article 18 sentence 1 and 2 Warsaw Convention

is unclear which leads to divergent decisions. The divergence turns around

the question, whether an air carrier will be subject to the Warsaw Convention

when trucking cargo from or to the airport. The text of Article 18 (2) War-

saw Convention indicates that this is the case, however, US courts have read

Article 18 (1) in isolation with the consequence that they will only apply the

Warsaw Convention for cargo damaged when on the plane.

transportation by air, for the purpose of loading, delivery or transshipment, any damageis presumed, subject to proof to the contrary, to have been the result of an event whichtook place during the transportation by air."

83 Article 31 (2) thus:"Nothing in this Convention shall prevent the parties in the case ofcombined carriage from inserting in the document of air carriage conditions relating toother modes of carriage, provided that the provisions of this Convention are observed asregards the carriage by air."

84 BRI Coverage Corp. v. Air Canada, 725 F. Supp. 133 Dist. Court, ED New York (1989)85

Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F. 3d 1190 Court of Appeals, 9thCircuit (1999)

86 The court based its decision not to apply Warsaw on Article 18:" (1) The carrier shallbe liable for damage sustained in the event of the destruction or loss of, or damage to,any checked baggage or any goods, if the occurrence which caused the damage so sus-tained took place during the transportation by air. (2) The transportation by air within themeaning of the preceding paragraph shall comprise the period during which the baggageor goods are in charge of the carrier, whether in an airport or on board an aircraft, or, inthe case of a landing outside an airport, in any place whatsoever."

87 Dempsey and Milde (as in n. 27).



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VII Electronic shipping documents 21

3. Montreal Convention and multimodal transport

M99 modifies the Warsaw regime in regards to the liability of the air carrier

in multimodal transportation.88

The89 case would have been decided differently under M99, since the "car-

rier, without the consent of the consignor, substitutes carriage by another

mode of transport for the whole or part of a carriage intended by the agree-

ment between the parties to be carriage by air".90 As Dempsey91171 reports

the general view in regards to the reach of M99 seems to be that the carrier

remains liable as long as the goods are in his control. This extends in par-

ticular to situations where the cargo is in the customs warehouse or off the

airport.

VII Electronic shipping documents

Shipping documents have been available for centuries. One of the hotly dis-

cussed topics is how to replace paper documents with electronic means.

a) Problems with paper documents

The most obvious problem with paper document is their physical embodiment

which requires all parties involved to physically transport it instead of sending

88 Article 18 M99 provides:"1. The carrier is liable for damage sustained in the event of thedestruction or loss of or damage to, cargo upon condition only that the event which causedthe damage so sustained took place during the carriage by air. 2. However, the carrier isnot liable if and to the extent it proves that the destruction, or loss of, or damage to, thecargo resulted from one or more of the following: (a) inherent defect, quality or vice of thatcargo; (b) defective packing of that cargo performed by a person other than the carrier orits servants or agents; (c) an act of war or an armed conflict; (d) an act of public authoritycarried out in connection with the entry, exit or transit of the cargo. 3. The carriage by air

within the meaning of paragraph 1 of this Article comprises the period during which thecargo is in the charge of the carrier. 4. The period of the carriage by air does not extendto any carriage by land, by sea or by inland waterway performed outside an airport. If,

however, such carriage takes place in the performance of a contract for carriage by air,for the purpose of loading, delivery or transhipment, any damage is presumed, subjectto proof to the contrary, to have been the result of an event which took place during thecarriage by air. If a carrier, without the consent of the consignor, substitutes carriage byanother mode of transport for the whole or part of a carriage intended by the agreement

between the parties to be carriage by air, such carriage by another mode of transport isdeemed to be within the period of carriage by air.

89 Id.90 Article 18 (4) 2nd sentence M9991 Dempsey and Milde (as in n. 27).



26/35


it through cyberspace.92 This physis of the document delays its issuance and

processing. The document typically is not ready when the ship sails but on

average three days later,93, add another four days for pouching the documents

overseas, plus one day for the surrender of the documents from the customs

broker to the carrier. Adding banks to the mix in a letter of credit transactionfurther complicates matters.

In the past years shipping has become faster, however, processing of paper

documents has not kept pace. Carriers and freight forwarders who attempt

to lower costs begin to charge demurrage charges earlier, leading to hundreds

of dollars per day per container in case a bill of lading is delayed.

The discontent with paper documents prompted the drafters of M99 to allow

for electronic shipping documents. Article 4 2) M99 thusly:

Any other means which preserves a record of the carriage to beperformed may be substituted for the delivery of an air waybill.

b) Current attempts

So far four attempts have been made to electronify shipping documents.

1. The SEADOCS system

The Seadocs system was a project of INTERTANKO (International Associationof Independent Tanker Owners) and Chase Manhattan Bank.94

Chase Manhattan -through one of its subsidiaries- acted as a central reg-

istry into which the shipper deposited the paper bill of lading who in turn

received a code similar in nature to a PIN code. Through Chase Manhattan

all endorsements were recorded and the final endorsee having received the

appropriate PIN code could receive the properly endorsed bill of lading from

the bank.

SEADOCS was not truly an EDI system since communication was handled

by telex. Its failure95 was however not due to technical performance or legal

problems, but rather acceptance in the marketplace. Traders were concerned

92 Beecher (as in n. 22), p. 633.93 Ibid.94 Edmund Greiner, EDI and the Traditional Bill of Lading, 1997 URL: http://web.uct.ac.

za/depts/shiplaw/theses/greiner1.htm -- visited on November 6, 2011.95 SEADOCS did not even make it past its trial period



27/35


that a central registry would contain data which tax authorities could have

access to. Banks were uncomfortable that one of their competitors had ex-

clusive control over the registry.96

2. The CMI Rules for Electronic Bills of Lading

The next attempt to dematerialize shipping documents occurred in 1990 when

the Comit Maritime International adopted the "CMI Rules for Electronic Bills

of Lading".97

Since the CMI Rules are not laws parties must incorporate them by ref-

erence into their contracts. Whereas SEADOCS provided a technical service,

the CMI rules offer a contractual solution which anyone can use as they seem

fit. The CMI rules are premised on keys, however, the very successful imple-

mentation of public key encryption only became better known one year afterthe CMI rules were passed, when Phil Zimmerman released PGP in 1991.98

Hence, the public was yet uninformed about public key encryption and the

opportunities of public signatures through keys.

However, the CMI rules similarly have not gained widespread acceptance.

Among the points of criticism were the following. The rights of the parties

once the documents were transferred was unclear. The issue of default of the

holder was not addressed. The CMI rules did not provide for the passing of

title to the goods.99

3. The Bolero System

In 1998 SWIFT and Through Transport Club created the Bolero system which

was designed to achieve "interoperability between various businesses and in-

dustries involved in international commerce".100 Even though Bolero asserted

ed that its electronic documents were compliant with the Supplement to the

Uniform Customs and Practice for Documentary Credits for Electronic Pre-

sentation (eUCP) and the SWIFT standards it failed to attract financial insti-

96 Dubovec (as in n. 26), p. 449.97 Ibid., p. 451.98 Wikipedia, Pretty Good Privacy (PGP), November 2 , 2011 URL: http://en.wikipedia.org/

wiki/Pretty_Good_Privacy -- visited on November 6, 2011.99 Dubovec (as in n. 26), p. 451.100Ibid., p. 637.



28/35


tutions.101 The main challenge seems to have been that the legal system did

not recognize the electronic equivalents created by Bolero.102

4. The GlobalTrade System

CCEWeb Corp., Canada, created the GlobalTrade Secure Payment and Trade

Management System in 2001.103

The Global Trade System is based on the understanding that shippers and

carriers preferred to issue documents that were not documents of title, since

delays in the processing of documents of title cause demurrage.

The GlobalTrade system uses a nonnegotiable waybill that employed the

CMI rules to create a functional equivalent of a negotiable bill of lading. In

particular the shipper renounced to varying the identity of the consignee.104

5. The TradeCard System

In 1994 the World Trade Centers Association founded TradeCard which is an

Internet-based, electronic commerce system.105

The information provided by the company's website indicates that the Trade-

Card system matches purchase order with the documents provided by the

seller. In case of discrepancy buyer and seller are notified and have the op-

tion of negotiating them. "Once documentary compliance has been achieved,

TradeCard automatically sends payment instructions to a participating finan-cial institution, which debits the buyer's account and credits the seller's ac-

count."106 From this description it is clear that the system is a simplified

version of a letter of credit transaction.107 It remains however unclear, in how

far the system issues, processes, negotiates electronic bills of lading.

101Dubovec (as in n. 26), p. 637.102

Ibid.103United Nations, Electronic Commerce and International Transport Services: Report by theUNCTAD secretariat, 2001 URL: http://www.unctad.org/en/docs/c3em12d2.en.pdf -- vis-ited on November 5, 2011, p. 18.

104Dubovec (as in n. 26), p. 454.105Ibid., p. 456.106http://www.tradecard.com/about/faq.html visited on November 5, 2011107The check for discrepancy mainly seems to concern commercial invoice and purchase order

which are easily synchronized. However, additional documentation like testing certificates,certificates of origin require additional expertise not provided by the software.



29/35


c) Which types of documents can be made paperless

Currently, in particular banks favor documents of title, like a negotiable bill of

lading as collateral. The attempts to make these documents paperless how-

ever have not been successful since legal systems have been slow to accept

them. In international trade the EDI version of documents of title have to be

recognized by several legal system, a task, that prompts authors to predict

that the paper bill of lading will stay with us for many years to come. 108

However, often the decision to issue credit is not based on the type of doc-

ument the debtor will be able to offer as collateral, but rather the creditwor-

thiness of the debtor.109 This offers the opportunity to issue shipping docu-

ments that are not documents of title in electronic form, since their functions

--evidence of affreightment and evidence of the contract of affreightment--

can be performed easily by electronic data. The conclusion is that air way-bills might be more successfully converted to be processed in cyberspace than

their maritime colleagu, the bill of lading.

d) Problems when introducing paperless shipping documents

The above mentioned EDI systems failed in the marketplace. However, from

their past failure we can extrapolate the features of a successful EDI based

shipping document system.

The technical issues of yore of incompatible communication standards hasbeen solved by providing encr ypted HTTP based access. Hence, the technical

implementation is a non-issue.

Market participants fear a central system to which the IRS or competitors

might have access. Particularly financial institutions fear opening up their

books to competitors.110 The service provider has to be an entity whose im-

partiality is beyond doubt. SWIFT would seem a good candidate, however,

its data exchange with US spy agencies in the eyes of many will most likely

have disqualified in for taking on this role.111 The ICC on the other hand

108Beecher (as in n. 22), p. 646.109Georgios I. Zekos, The Use of Electronic Technology in Maritime Transport: the Economic

Necessity and the Legal Framework in European Union Law, 1998 URL: http://webjcli.ncl.ac.uk/1998/issue3/zekos3.html -- visited on November 9, 2011.

110Dubovec (as in n. 26), p. 450.111Timon Molloy, Exchange controls -- EU-US tensions over terrorist finance data transfer,

August 31, 2011 URL: http://www.moneylaunderingbulletin.com/terroristfinancing/exchange-controls--eu-us-tensions-over-terrorist-finance-data-transfer--1.htm --



30/35


is unburdened by too close a cooperation with government agencies, enjoys

a reputation as competent and impartial, and has excellent expertise in the

area on international trade.

Purely contractual language, that parties are free to adopt, does not con-

vince the market participants to change their old habits. Merchants are suffi-ciently sophisticated in their dealings so that they do not require drafting as-

sistance. Furthermore, contractual provisions cannot decree how judges and

lawmakers are to interpret these clauses 112 and cannot alter well-established

statutes.113

visited on November 11, 2011.112This was one of the defects of the CMI rules113Dubovec (as in n. 26), p. 453.



31/35

VIII Conclusion 27

VIII Conclusion

Air transport is only one of several modes of transportation. However, all

problems and issues extant in transportation law reflect themselves in air

carriage. EDI remains a challenge, however, air waybills might be part of thesolution, particularly since they are not documents of title and consequently

issues regarding the acceptability of their electronic versions by various legal

system does not plague them.

Multimodal transportation remains unpredictable. Even though the real-

ity of MTOs is no news anymore, the legal systems have not caught up with

these developments. A solution to the current conundrum however is not in

sight. The problems are old, they have been tackled unsuccessfully several

times so that all parties know something has to be done, however, urgency

is not the word that comes to mind. The problems that tie themselves into

a Gordian Knot are that the issues are international in nature and that the

law of transportation has been split up in tiny little islands of common un-

derstanding since time unknown. To find common ground among several

nations and several liability regimes spanning several modes of transporta-

tion is a task worthy of Sisyphus. Sisyphus however was a king who cheated

death and conversed with gods; mere mortal lawyers can only report on the

chaos without hope of ending it.



32/35

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http://webjcli.ncl.ac.uk/1998/issue3/zekos3.htmlhttp://en.wikipedia.org/wiki/Pretty_Good_Privacyhttp://en.wikipedia.org/wiki/Pretty_Good_Privacyhttp://www.unctad.org/en/docs/c3em12d2.en.pdfhttp://www.unctad.org/en/docs/c3em12d2.en.pdfhttp://www.moneylaunderingbulletin.com/terroristfinancing/exchange-controls--eu-us-tensions-over-terrorist-finance-data-transfer--1.htmhttp://www.moneylaunderingbulletin.com/terroristfinancing/exchange-controls--eu-us-tensions-over-terrorist-finance-data-transfer--1.htmhttp://www.moneylaunderingbulletin.com/terroristfinancing/exchange-controls--eu-us-tensions-over-terrorist-finance-data-transfer--1.htmhttp://bibliothek.fh-burgenland.at/fileadmin/Download/bibliothek/diplomarbeiten/AC07728778.pdfhttp://bibliothek.fh-burgenland.at/fileadmin/Download/bibliothek/diplomarbeiten/AC07728778.pdf


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Table of Authorities

C Page

BRI Coverage Corp. v. Air Canada,

725 F. Supp. 133 Dist. Court, ED New York (1989) . . . . . . . 15, 17

Brink's Ltd. v. South African Airways,93 F. 3d 1022 Court of Appeals, 2nd Circuit (1996) . . . . . . . 8, 11

Commercial Union Ins. v. Alitalia Airlines,347 F. 3d 448 Court of Appeals, 2nd Circuit (2003) . . . . . . . . . 15

Cooper's Finer Foods, Inc. v. Pan Am. World Airways, Inc.,178 So. 2d 62 Fla: Dist. Court of Appeals, 3rd Dist. (1965) . . . . 12

El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,525 US 155 Supreme Court (1999) . . . . . . . . . . . . . . . . . . . 11

Exim Industries v. Pan American World Airways, Inc.,754 F. 2d 106 Court of Appeals, 2nd Circuit (1985) . . . . . . . 7, 11

Fujitsu Ltd. v. Federal Express Corp.,76 F. Supp. 2d 474 Dist. Court, SD New York (1999) . . . . . . . 4, 7

Insurance Co. of North America v. Federal Express,189 F. 3d 914 Court of Appeals, 9th Circuit (1999) . . . . . . . . . . 9

Integrated Measurement Sys. v. Intern. Com. Bank,757 F. Supp. 938 Dist. Court, ND Illinois (1991) . . . . . . . . . . . . 3

Intercargo Ins. Co. v. China Airlines, Ltd.,208 F. 3d 64 Court of Appeals, 2nd Circuit (2000) . . . . . . . . . . . 9

Maschinenfabrik Kern, AG v. Northwest Airlines,562 F. Supp. 232 Dist. Court, ND Illinois (1983) . . . . . . . . . 12, 13

Motorola, Inc. v. MSAS Cargo Intern., Inc.,42 F. Supp. 2d 952 Dist. Court, ND California (1998) . . . . . . . . 13

Nippon Fire & MARINE Ins. v. Skyway Freight Systems, Inc.,45 F. Supp. 2d 288 Dist. Court, SD New York (1999) . . . . . . . . . 4

Philip A. Feinberg, Inc. v. Varig,80 Misc. 2d 305 NY: Supreme Court (1974) . . . . . . . . . . . . . . 12

Read-Rite Corp. v. Burlington Air Express, Ltd.,186 F. 3d 1190 Court of Appeals, 9th Circuit (1999) . . . . . . 17, 18


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Cases 31

Sotheby's v. Federal Exp. Corp.,97 F. Supp. 2d 491 Dist. Court, SD New York (2000) . . . . 9, 10, 11

Tai Ping Insurance Co., Ltd. v. Northwest Airlines, Inc.,94 F. 3d 29 Court of Appeals, 2nd Circuit (1996) . . . . . . . . . . . . 8