affect the existence or the validity of the contract of transportation which shall, subject
to the provisions of article 9, be none the less governed by the rules of this
convention”). Rather, in cases where the parties failed to issue and accept an air
waybill, the contract is still governed by the Warsaw Convention. See id. In sucha
case, the carrier who accepted the goods without an air waybill “shall not be entitled
to avail himself of the provisions of this convention which exclude or limit his
liability.” Art. 9. The absence of an air waybill does not affect the applicability of the
Convention, only the availability of limitations of liability.

Courts in several other circuits have held that the provisions of the Warsaw
Convention provide an exclusive remedy preempting all other state and federal law

claims. See Husmann v. Trans World Airlines, 169 F.3d 1151, 1153 (8th Cir. 1999);

Fishman v. Delta Air Lines, 132 F.3d 138 (2d Cir. 1998); Boehringer-Mannheim

Diagnostics v. Pan American World Airways, 737 F.2d 456, 458-59 (Sth Cir. 1984).

Although the Seventh Circuit has never reached this question, it has demonstrated at
least some approval of the line of cases finding preemption. See Schroeder _v.
Lufthansa, 875 F.2d 613, 620 n.5 (7th Cir. 1989) (observing that recent courts had held
that the Convention itself creates a cause of action; citing cases so holding). Courts in

the Northern District have followed this reasoning. See Cheng v. United Airlines, No.

93 C 149, 1995 WL 42157, *2 (N.D. Ill. Jan 31, 1995); Beaudet v. British Airways

-4-


the handling of the box prior to loading onto the aircraft for transportation. At some
point between August 9 and 11, the box disappeared.

As aresult of the disappearance of the box, GVA brought suit against Aeroflot,
Aeroflot Cargo and Aeroground on theories of bailment and negligence. GVA seeks
compensatory and consequential damages. Aeroflot now moves to dismiss the
complaint, claiming that it is preempted by the Warsaw Convention.

DISCUSSION

Defendant contends that the Warsaw Convention, 49 U.S.C. § 40105, preempts
Plaintiff's causes of action. The Warsaw Convention applies to “all international
transportation of persons, baggage, or goods performed by aircraft for hire.” Art. 1(1).
The Convention defines “international transportation” as “any transportation in which,
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. .
..” Art. 1(2). Where the Warsaw Convention applies, it imposes liability for the loss
of goods during “transportation by air,” which comprises “the period during which...
the goods are in charge of the carrier, whether in an airport or on board an aircraft... .”
Art. 18(2).

The validity of the contract between the parties is unaffected by the absence of

an air waybill. Art. 5(1) (“[t]he absence, irregularity, or loss of this document shall not

-3-


PLC, 853 F. Supp. 1062, 1069 (N.D. Ill. 1994); Rageb v. DHL Worldwide Express,

No. 91 C 7334, 1992 WL 58753, *2 (N.D. Ill. 1992); Kenner Prods.-General Mills, Inc.

v. The Flying Tiger Line, Inc., No. 87 C 126, 1987 WL 11629, *2 (N.D. Ill. May 22,
1987).

The Warsaw Convention applies to the case at bar. According to Plaintiff's
allegations, Plaintiff sought shipment of a “white box” which qualifies as “goods” for
purposes of the Convention. The shipment was to be sent from Aeroflot’s cargo
facility at O’Hare International Airport in the United States to a consignee in the
Ukraine. Both parties concede that both countries are party to the Convention; hence
the“international transportation” requirement of the Convention is satisfied. Finally,
when Defendants’ representative at the storage facility accepted the white box from
Plaintiff, the goods came into “charge of the carrier,” thus triggering liability under
Article 18(2).

Plaintiff argues that the transaction does not fall within the scope of the Warsaw
Convention because Defendants’ representative failed to furnish an air waybill. This
argument runs contrary to the plain language of the Convention, however, which states
clearly that the absence of an air waybill “shall not affect the existence or the validity

of the contract of transportation. ...” Art. 5(2). Thus, in the case at bar, the absence


Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Name of Asfené Jude Sitting Judge if Oth

nmetatenbseie\! Charles P. Kocoras | Slogger

CASE NUMBER 01 C 1435 DATE 5/16/2001
CASE GVA & BG vs. Aeroflot Russian Intl Airlines
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue__.

(4) Oo Ruling/Hearingon ss set for__—_at

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__setfor__at

(6) oO Pretrial conference(held/continued to] [set for/re-set for]on__setfor__—at__
(7) oO Trial[set for/re-set for]on___—_aat

(8) oO [Bench/Jury trial] [Hearing] held/continuedto__—_aat

(9) go This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) O General Rule21 OC FRCP41(a)(1) [1 FRCP41(a)(2).

(10) Ml [Otherdocketentry) ENTER MEMORANDUM OPINION: We grant defendant’s motion (Doc
2-1) to dismiss plaintiff's complaint in its entirety. The complaint is dismissed. Ruling set for June 7,
2001 is stricken.

(1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required

Notices mailed by judge’s staff.

Notified counsel by telephone.

av | Docketing to mail notices. C3
av | Mail AO 450 for + aodods scare
Copy to judge/mdgistrate judge. FILED £ CHETING
OI MAY MAY 17 200%
‘courtroom 16 PN &: 12 date mailed notice
SCT deputy’s
initials
Date/time received in
central Clerk’s Office maitthg deputy init



of an air waybill does not eviscerate the validity of the agreement between the parties.
The agreement remains within the scope of the Convention.
Because the Warsaw Convention applies to the case at bar, Plaintiff’s causes of

action based on state law are preempted. See Cheng v. United Airlines, No. 93 C 149,

1995 WL 42157, *2 (N.D. Ill. Jan 31, 1995); Beaudet v. British Airways, PLC, 853 F.

Supp. 1062, 1069 (N.D. Ill. 1994); Rageb v. DHL Worldwide Express, No. 91 C 7334,

1992 WL 58753, *2 (N.D. Ill. 1992); Kenner Prods.-General Mills, Inc. v. The Flying
Tiger Line, Inc., No. 87 C 126, 1987 WL 11629, *2 (N.D. Ill. May 22, 1987).
Accordingly, we dismiss the complaint.
CONCLUSION
For the foregoing reasons, we grant the motion to dismiss Plaintiffs complaint

in its entirety.

Charles P. Kocoras
United States District Judge

Dated: _ May 16, 2001


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GVA & BG, an Illinois corporation,

Plaintiff,

vs.

AIRLINES, a joint stock company pursuant 01 C 1435

to the laws of the Russian Federation AEROFLOT
CARGO, on information and belief, a wholly-owned
subsidiary of AEROFLOT Russian International

)
)
)

)

)

)
AEROFLOT RUSSIAN INTERNATIONAL )
)
)
)
)
Airlines; AEROGROUND, INC., an Illinois corporation, )
)

)

Defendants.
pecsets
MEMORANDUM OPINION yy 19 2000
CHARLES P. KOCORAS, District Judge:
Before the Court is the Motion to Dismiss of Defendant Aeroflot-Russian
Airlines. For the following reasons, we grant the motion.
BACKGROUND
For purposes of a motion to dismiss, we accept as true all well-pleaded
allegations. The instant case arises from the loss of goods destined for international
shipment. Plaintiff GVA & BG (“GVA”) is a business that purchases computer

equipment in the United States for export to the member states of the Russian


Federaion, the Ukraine, and other foreign nations. Defendant Aeroflot Russian
International Airlines (“Aeroflot”) is a common carrier of air passengers and air freight.
It uses its wholly-owned subsidiary, Aeroflot Cargo, as its agent for freight forwarding
processing of goods to be shipped on Aeroflot’s aircraft. Aeroflot Cargo’s
responsibilities include air freight in-processing, scheduling and out-processing of
goods to be transported by Aeroflot’s aircraft. As Aeroflot’s agent, Aeroflot Cargo
supervises the handling of goods to ensure safe and secure delivery aboard Aeroflot’s
scheduled flights.

Defendant Aeroground, Inc. (“Aeroground”) conducts the business of air freight
warehousemen at O’Hare International Airport (“O’Hare”). In its secured warehouse
at O’Hare, Aeroground receives and stores goods designated for transportation by air.
Aeroflot contracts with Aeroground to provide secured storage at the warehouse for
goods to be transported on Aeroflot flights.

On August 9, 2000, a GVA representative delivered a 24" x 24" x 24" white
cargo box (the “white box”) to Aeroflot Cargo’s facility at O’Hare. The white box
contained computer equipment destined for delivery to a consignee in Kiev, Ukraine.
Aeroflot Cargo’s representative furnished a receipt for the white box and assigned an

air waybill number, but the representative failed to follow company practices regarding