Opinion
98 Civ. 8729 (JSM).
November 2, 2000.
OPINION and ORDER
In an opinion dated June 22, 2000, this Court granted Plaintiff's earlier motion for summary judgment on the issue of liability. Plaintiff now moves for summary judgment on the issue of damages. The motion is granted.
Plaintiff has submitted affidavits from two of its employees along with documentation that they prepared at the time of the shipment in question that establish that the lost shipment contained: 1) two bricks each containing $400,000.00 in $100.00 notes; 2) one bundle of $100,000.00 in $100.00 notes; and 3) two bundles each with $50,000.00 in $50.00 notes. Defendant speculates that the bundles in question may not have contained the amounts stated because no one has sworn that they counted out each of the bundles to verify their contents. Mere speculation that the package may not have contained what the witnesses swore that it did contain cannot defeat a motion for summary judgment. See Williams Dental Co. v. Air Express Int'l, 824. F. Supp. 435, 437-38 (S.D.N.Y. 1993), aff'd, 17 F.3d 392 (2d Cir. 1993); see also Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952) Thus, Plaintiff has adequately proved that the lost shipment contained $1 million, and Plaintiff is accordingly entitled to summary judgment in that amount.
Plaintiff is also entitled to prejudgment interest from the date of the loss. However, the parties disagree as to the calculation of the interest rate. Plaintiff seeks a 9% interest rate under New York C.P.L.R. sections 5001 and 5004, arguing that New York law applies in the absence of a specific provision in the Warsaw Convention. Defendant contends that the action is governed by federal law and that federal law should therefore determine the rate of interest, which Defendant asserts should be based on the average twelve-month Treasury Bill rate since the date of loss.
Although this case falls within the purview of the Warsaw Convention, Plaintiff correctly notes that where the Convention fails to provide a rule of law regarding damages, courts must apply the substantive law that would otherwise govern in the Convention's absence. See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 229-31, 116 S.Ct. 629, 636 (1996); Pescatore v. Pan American World Airways. Inc., 97 F.3d 1, 4, 20-21 (2d Cir. 1996). The Warsaw Convention does not contain a rule regarding prejudgment interest. Here, despite the fact that the Convention supplies the cause of action, jurisdiction is based on diversity of citizenship, and thus New York's choice-of-law rules determine which forum's law will apply. See Klaxon Co. v. Stentor Elec. Mfg, Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822 (1938); see also Brink's Ltd. v. South African Airways, 93 F.3d 1022, 1029-30 (2d Cir. 1996). While the parties fail to brief the issue of choice of law, it appears that New York has the most significant contacts to this transaction, and thus New York's substantive law should apply. See Brink's, 93 F.3d at 1030-32.
Contrary to Defendant's assertions, there is no other basis of federal subject matter jurisdiction over this action, and thus the federal practice in awarding prejudgment interest is inapplicable.
Both companies conduct business in New York, the money changed hands at JFK airport, and the air waybill was filled out at JFK.
Accordingly, Plaintiff is awarded prejudgment interest at the rate of 9% per annum, calculated from December 10, 1997, the date that plaintiff's cause of action accrued. See N.Y. C.P.L.R. 5001, 5004 (McKinney 2000).
SO ORDERED.