The opinion of the court was delivered by: HAROLD H. GREENE
This case involves a claim for damages allegedly caused by water to a portion of a shipment of carpets carried by defendant, Compagnie Nationale Air France (Air France), between Salzburg, Austria and Washington, D.C. Plaintiff Mohammad Ali Saba is seeking $ 278,950 which represents the difference between the value of the carpets undamaged and the proceeds he received for those carpets following salvage. Plaintiff also seeks pre-judgment interest, costs, and attorneys' fees.
Air France asserts that, if it is liable for any damages, that liability should be limited pursuant to the Warsaw Convention. Additionally, Air France asserts that plaintiff contributed to the damages by failing adequately to mark and protect his shipment and by not taking all available steps to ameliorate the damages.
Plaintiff was the owner of 800 hand-woven Persian carpets which were being stored on his behalf in Salzburg, Austria pending shipment to the United States. On September 19, 1990, he arranged with Franz Welz Internationale Transporte GmbH (Welz), a foreign air freight forwarder, to ship 575 of the carpets in 191 bales to the United States, and on the same day, Welz arranged with Air France to ship the carpets.
The carpets were shipped in bales, which consisted of between two and five carpets folded and stacked together, which were then wrapped in plastic and covered with burlap. Air France loaded the bales onto two metal pal lets and three metal containers; it carried the carpets by air to New York; it trucked them down to Washington's Dulles Airport; and it stored them with Dynair Services, Inc. (Dynair), Air France's contract cargo handling agent, from September 25 to October 1, 1990.
Because of overcrowding in Dynair's facilities, which were small, the pallets and the containers were stored out of doors during the daytime and possibly overnight as well. During the afternoon of September 30, .34 inches of rain fell, and the following day, during an inspection by the U.S. Customs Service, several individuals, including plaintiff and Dynair employees, noticed that some of the bales were wet. Plaintiff complained and then took delivery. He made a timely written complaint to Air France, and when he failed to receive satisfaction, he brought this action.
This lawsuit is brought under the Convention for Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, Ts 876 (1934), reprinted in note following 49 U.S.C.App. § 1502 (Warsaw Convention). The Court has jurisdiction of the action, see 28 U.S.C. § 1330(a), 1331, and plaintiff has complied with all statutory procedures and time requirements.
The Warsaw Convention applies to "all international transportation of . . . . goods performed by aircraft for hire," where, "according to the contract made by the parties, the place of departure and the place of destination . . . . are situated . . . . within the territories of two High Contracting Parties." Warsaw Convention, Article 1(1), (2). Article 18 provides that the "carrier shall be liable for damage sustained in the event . . . of damage to . . . goods, if the occurrence which caused the damage so sustained took place during the transportation by air."
Article 22 provides a $ 20.00 per kilogram limitation, which is applicable in all cases except three. Only one exception, that of carrier wilful misconduct, need concern us here and will be addressed below.
A prima facie case of absolute liability under the Warsaw Convention is established upon a showing that the goods were delivered to the carrier in good condition, arrived in damaged condition, and resulted in a specified amount of damage. Offshore Aviation v. Transcon Lines, Inc. 831 F.2d 1013, 1014 (11th Cir. 1987). A clean bill of lading creates a rebuttable presumption, or prima facie case, of delivery in good condition. Terman Foods, Inc. v. Omega Lines, 707 F.2d 1225, 1227 (11th Cir. 1983). With such a showing, the burden then shifts to the defendant to produce evidence controverting the bills of lading. Caemint Food, Inc, v. Brasileiro, 647 F.2d 347, 352 (2d Cir. 1981). The airbills issued by Welz and Air France prior to shipment of the goods here in question all acknowledged receipt of the goods in apparent good condition. Because the defendant offered no evidence to controvert the condition of the goods received, the Court finds that they were delivered to the air carrier in good condition.
It is clear that many of the carpets were damp at the time of the customs inspection at Dynair's facilities at Dulles Airport. Stephen Meirnicke, President of International Cargo Surveyors, who was hired by Air France to examine the carpets, observed that the damage included coloration changes and streaking. The pattern of this streaking was consistent with the folds of the carpets, which suggested to him that damage occurred while the carpets were in a folded position. Further, plaintiff's son, Mr. Bahram Saba, noticed during the customs inspection on October 1, 1990 that the pallet had many wet bales on it. The bales on the bottom of the unloaded pallet were the most wet, with diminishing degrees of wetness the higher the bales were stacked, and the wet carpets tended to be those that were outermost.
Once the bales were transported to plaintiff's warehouse, 50 to 60 carpets were laid out to dry. Ultimately, while around 100 carpets out of a total of 73 wet bales were found to have been wet, only 86 of those actually suffered water damage. Some of the damage was apparent immediately, but as the carpets dried more damage was discovered. Once again, defendant offered no evidence to contradict that the carpets were delivered to plaintiff at destination in damaged condition, and plaintiff has established a prima facie case for the second element for liability under the Warsaw Convention.
The proper measure of damages is the difference between the market value of the cargo in sound condition at the place of destination and the market value of the damaged goods at the place of destination at that time. See Gulf C. & S.F. Ry. Co. v. Texas Packing Co., 244 U.S. 31, 61 L. Ed. 970, 37 S. Ct. 487 (1917). Plaintiff's two experts, Mr. Weschler, Vice President of the auction house of Adam A. Weschler & Sons, and Mr. Fereidoon Vazili, both testified as to the damage. Their ...