{ "id": 3473443, "name": "MONIQUE NAHM, Plaintiff-Appellant, v. SCAC TRANSPORT, INC., et al., Defendants-Appellees", "name_abbreviation": "Nahm v. SCAC Transport, Inc.", "decision_date": "1987-12-17", "docket_number": "No. 85-3629", "first_page": "971", "last_page": "977", "citations": [ { "type": "official", "cite": "167 Ill. App. 3d 971" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "490 N.E.2d 1037", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 807", "category": "reporters:state", "reporter": "Ill. 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SCAC TRANSPORT, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE McMORROW\ndelivered the opinion of the court:\nMonique Nahm (Nahm) engaged SCAC Transport, Inc. (SCAC), which in turn contracted with Flying Tigers, Inc. (Flying Tigers), to transport personal effects from France to Illinois. All the goods were lost during transit, and Nahm filed this action against SCAC and Flying Tigers to recover damages for the loss.\nThe parties filed cross-motions for summary judgment. SCAC admitted liability to Nahm but maintained that she had agreed to limit SCAC\u2019s liability to $10,000. Flying Tigers argued that Nahm had no cause of action against it because the transport of her goods did not constitute one for \u201csuccessive carriage\u201d and because she did not contract directly with Flying Tigers. Nahm argued that SCAC and Flying Tigers were liable as a matter of law for the actual value of the goods. The trial court denied Nahm\u2019s motion for summary judgment, allowed Flying Tigers and SCAC\u2019s motion for summary judgment, and entered judgment against SCAC in the amount of $10,000. Nahm appeals.\nUpon review, we determine that the trial court\u2019s order must be affirmed in part, reversed in part, and remanded. The record does not establish that Nahm agreed to limit SCAC\u2019s liability to $10,000. However, it does indicate that Nahm has no cause of action against Flying Tigers under the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929 (Warsaw Convention), 49 Stat. 3000 (1934), T.S. No. 876, 137 L.N.T.S. 11, reprinted in 49 U.S.C. App. \u00a71502 (1982).\nBackground\nIn January 1984, Nahm contacted SCAC, an international freight forwarder, at its Paris office. She requested that SCAC cause certain personal effects to be packed and removed from a house in Gagny, France, and transported to Evanston, Illinois. SCAC engaged a company that packed the goods in cartons (in Nahm\u2019s presence) and delivered them to SCAC in Paris, France. SCAC telephoned Nahm and requested her social security number and a complete inventory of the goods. SCAC also inquired whether Nahm wished to insure the goods and offered to \u201chandle the insurance for her.\u201d Nahm decided to insure the goods for $10,000 and sent SCAC a letter requesting insurance in that amount.\nSCAC executed an air waybill to Nahm which specified Flying Tigers as air carrier between Paris and Chicago. The bill was completed after the telephone conversation with Nahm, although the record does not clearly indicate whether SCAC executed the waybill before or after its receipt of Nahm\u2019s letter requesting $10,000 in insurance. Nahm never received a copy of the waybill.\nFlying Tigers also issued its own air waybill to SCAC, bearing the same date as that appearing on SCAC\u2019s waybill to Nahm, to transport from Paris to Chicago a consolidated shipment to be received from SCAC. Thereafter, Flying Tigers undertook air transport of SCAC\u2019s consolidated shipment from Paris to Chicago. SCAC\u2019s air waybill to Nahm referenced the waybill number appearing on Flying Tigers\u2019 waybill to SCAC. Flying Tigers\u2019 waybill, however, did not refer to SCAC\u2019s waybill to Nahm.\nWhen Nahm learned later that all the goods were lost in transit, she filed an action to recover damages for the loss. Flying Tigers and SCAC filed a motion for summary judgment. SCAC admitted liability in the amount of $10,000, but argued that Nahm\u2019s request for $10,000 in insurance coverage constituted an agreement to limit SCAC\u2019s liability to that amount. Flying Tigers claimed that Nahm had no cause of action against it because the transport of her goods did not constitute \u201csuccessive carriage\u201d under the Warsaw Convention and because she did not contract directly with Flying Tigers for the transport of her goods.\nNahm filed a cross-motion for partial summary judgment as to liability. She maintained that she had not made any agreement to limit SCAC\u2019s liability and that she had a valid cause of action against Flying Tigers. She also asserted that SCAC and Flying Tigers were jointly and severally liable for the actual value of the lost goods. The trial court denied Nahm\u2019s motion, granted Flying Tigers and SCAC\u2019s motion, and entered judgment against SCAC in the amount of $10,000. Nahm appeals.\nOpinion\nI.\nSCAC\u2019S MOTION FOR SUMMARY JUDGMENT\nThe trial court found as a matter of law that Nahm agreed to limit SCAC\u2019s liability to $10,000. SCAC asserts that this determination was correct, because Nahm\u2019s request for $10,000 in insurance constituted an agreement to limit SCAC\u2019s liability to that amount.\nIn order to limit a carrier\u2019s liability to a specified amount, a shipper must make an absolute, deliberate, and well-informed choice to do so. (Anton v. Greyhound Van Lines, Inc. (1st Cir. 1978), 591 F.2d 103, 108; Fireman\u2019s Fund Insurance Co. v. Barnes Electric, Inc. (N.D. Ind. 1982), 540 F. Supp. 640, 645-46; see also Neal v. Republic Airlines, Inc. (N.D. Ill. 1985), 605 F. Supp. 1145, 1148.) Here, SCAC informed Nahm that she could insure the goods for any value she chose and that SCAC would \u201chandle the insurance for her.\u201d She was also told that there would be an incremental charge for the insurance. However, SCAC never told Nahm that her choice in an insurance amount would be construed by SCAC to limit SCAC\u2019s liability to whatever amount she designated. Under these circumstances, Nahm\u2019s request for $10,000 in insurance did not constitute an absolute, deliberate, and well-informed choice to limit SCAC\u2019s liability to a specified sum. As a result, SCAC failed to show as a matter of law that Nahm agreed to limit SCAC\u2019s liability to $10,000.\nSCAC also contends that under the \u201creleased value doctrine,\u201d SCAC\u2019s liability is limited to $10,000. On this record, we find the doctrine inapplicable to the facts of this case. The \u201creleased value doctrine\u201d limits a carrier\u2019s liability to whatever value, agreed to between the shipper and the carrier, upon which the carrier fixes its freight rate to the shipper. (See, e.g., Kansas City Southern Ry. Co. v. Carl (1913), 227 U.S. 639, 651, 57 L. Ed. 683, 688, 33 S. Ct. 391, 394; First Pennsylvania Bank, N.A. v. Eastern Airlines, Inc. (3d Cir. 1984), 731 F.2d 1113, 1116; see also Gordon H. Mooney, Ltd. v. Farrell Lines, Inc. (2d Cir. 1980), 616 F.2d 619, 626, cert. denied sub. nom. Maislin Transport v. Farren Lines, Inc. (1980), 449 U.S. 875, 66 L. Ed. 2d 96, 101 S. Ct. 217.) Nahm\u2019s letter requested $10,000 worth of insurance. It neither referred to nor mentioned any freight rate which SCAC would charge to her based upon a valuation of the goods. Similarly, SCAC\u2019s offer to \u201chandle the insurance\u201d for Nahm made no mention that Nahm would be assessed a freight rate based upon a certain value of the goods. Consequently, SCAC\u2019s summary judgment motion failed to establish that, pursuant to the released value doctrine, Nahm had agreed to a valuation of her goods relied upon by SCAC in fixing a freight rate, such that SCAC\u2019s liability should be limited to that valuation.\nAs an alternative ground for sustaining the allowance of summary judgment, SCAC urges that Nahm misrepresented the value of her goods when she requested $10,000 in insurance. We disagree. Nahm\u2019s letter specified an amount of insurance; it did not represent that the goods were actually valued at that amount. See, e.g., Marlen Stamp & Coins, Ltd. v. Rapp (E.D.N.Y. 1984), 18 Av. Cas. (CCH) par. 17,810.\nFor the reasons stated, we conclude that SCAC\u2019s motion for summary judgment did not establish, as a matter of law, that Nahm agreed to limit SCAC\u2019s liability to $10,000. Accordingly, the trial court erred in allowing SCAC\u2019s motion for summary judgment limiting its liability to $10,000.\nII.\nFLYING TIGER\u2019S MOTION FOR SUMMARY JUDGMENT\nThe trial court entered summary judgment for Flying Tigers on the basis that under the Warsaw Convention, Nahm had no cause of action against Flying Tigers as a successive carrier. Nahm argues that her suit against Flying Tigers was proper because the transport was for successive carriage. Under the Warsaw Convention, \u201csuccessive carriage\u201d occurs where all of the parties intended and understood that performance of the shipment by several carriers would nevertheless constitute a single, international operation. When the transport is one for successive carriage, a shipper whose goods have been lost in transit has a right of action against both the first carrier and the carrier which performed the transport during which the loss took place. Warsaw Convention, Articles 1(3), 30(3), 49 U.S.C. App. \u00a71502 (1982); see, e.g., In re Alleged Food Poisoning Incident, March, 1984 (2d Cir. 1985), 770 F.2d 3, 5-6; In re Air Crash Disaster, Warsaw, Poland, March 14, 1980 (2d Cir. 1984), 748 F.2d 94, 95-97; P. T. Airfast Services, Indonesia v. Superior Court County of Siskiyou (1983), 139 Cal. App. 3d 162, 168-70, 188 Cal. Rptr. 628, 633-34; Egan v. Kollsman Instrument Corp. (1967), 21 N.Y.2d 160, 165-68, 287 N.Y.S.2d 14, 17-19, 234 N.E.2d 199, 201-02, cert. denied sub. nom. American Airlines, Inc. v. Egan (1968), 390 U.S. 1039, 20 L. Ed. 2d 301, 88 S. Ct. 1636.\nThe record in the instant case establishes that Flying Tigers did not understand and intend that its transport of SCAC\u2019s consolidated shipment from Paris to Chicago included Nahm\u2019s goods, and that transport of Nahm\u2019s goods by Flying Tigers was a single, international operation between Gagny, France, and Evanston, Illinois. The record shows that Flying Tigers knew, as evidenced in its air waybill to SCAC, only that it had agreed to perform air carriage of an SCAC consolidated shipment from Paris to Chicago. Nahm presented no evidence to demonstrate that Flying Tigers was aware that SCAC\u2019s consolidated shipment included Nahm\u2019s goods and also knew that shipment of her goods was to be considered a single, international operation between France and Illinois. As a result, although Nahm and SCAC may have been aware and agreed that shipment of her goods would be performed by several carriers between Gagny, France, and Evanston, Illinois, in a single international operation, nothing in the record shows that Flying Tigers knew and understood this as well. Under these circumstances, shipment of Nahm\u2019s goods by Flying Tigers was not a transport of successive carriers under the Warsaw Convention, and the trial court properly entered summary judgment in favor of Flying Tigers.\nNahm maintains that whether the transport was one for successive carriage depended only upon the understanding and agreement of Nahm and SCAC, and not the understanding of Flying Tigers. To support this position, Nahm relies upon Parke, Davis & Co. v. British Overseas Airways Corp. (1958), 11 Misc. 2d 811, 170 N.Y.S.2d 385, and Leon Bernstein Commercial Corp. v. Pan American World Airways (1979), 72 A.D.2d 707, 421 N.Y.S.2d 587. Nahm\u2019s argument is not well taken. Neither of the decisions relied upon by Nahm considered the interpretation to be given to the definition of \u201csuccessive carriage\u201d stated in articles 1(3) and 30 of the Warsaw Convention. Instead, Parke, Davis & Co. and Leon Bernstein Commercial Corp. concerned whether the Convention requires privity of contract between the shipper and the specific air carrier (of several who performed the transport) against whom suit had been filed. Where the question of \u201csuccessive carriage\u201d has been considered, it has been held that \u201c[u]nder Article 1(3), all parties \u2014 the successive carriers as well as the passenger [or shipper] \u2014 must regard the domestic and overseas flights as a \u2018single operation.\u2019 [Citations.]\u201d In re Air Crash Disaster, Warsaw, Poland, March 14, 1980 (2d Cir. 1984), 748 F.2d 94, 96; see also P.T. Airfast Services, Indonesia v. Superior Court County of Siskiyou (1983), 139 Cal. App. 3d 162, 169, 188 Cal. Rptr. 628, 634 (\u201cThe unilateral expectation of one party alone cannot be deemed controlling\u201d); Egan v. Kollsman Instrument Corp. (1967), 21 N.Y.2d 160, 165-68, 287 N.Y.S.2d 14, 17-19, 234 N.E.2d 199, 201-02; Kenner Products-General Mills, Inc. v. The Flying Tiger Lines, Inc. (N.D. Ill. Oct. 14,1987), No. 87C126.\nIn view of this disposition, we need not and do not address Flying Tigers\u2019 argument that Nahm could not sue Flying Tigers because she was not a party to Flying Tigers\u2019 air waybill to SCAC.\nNahm also argues that the trial court should have allowed her motion for partial summary judgment as to liability. Because SCAC admits its liability to Nahm, we remand to the trial court Nahm\u2019s claim against SCAC with directions that the trial court allow her partial summary judgment motion with respect to SCAC\u2019s liability, and hold further proceedings with regard to the amount of SCAC\u2019s liability to Nahm. (See generally 107 Ill. 2d R. 366(a)(5); Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 494, 505 N.E.2d 314; Tri-State Bank v. Colby (1986), 141 Ill. App. 3d 807, 813, 490 N.E.2d 1037.) Because we determine that the trial court properly entered summary judgment in favor of Flying Tigers, we affirm the trial court\u2019s judgment with regard to Nahm\u2019s claim against Flying Tigers.\nAffirmed in part; reversed in part and remanded.\nLINN and JIGANTI, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McMORROW" } ], "attorneys": [ "Lionel I. Brazen, of Chicago (Paul R. Jenen, of counsel), for appellant.", "Lord, Bissell & Brook, of Chicago (Hugh C. Griffin and Neal E Thompson, of counsel), for appellees." ], "corrections": "", "head_matter": "MONIQUE NAHM, Plaintiff-Appellant, v. SCAC TRANSPORT, INC., et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 85\u20143629\nOpinion filed December 17, 1987.\nRehearing denied April 11, 1988.\nLionel I. Brazen, of Chicago (Paul R. Jenen, of counsel), for appellant.\nLord, Bissell & Brook, of Chicago (Hugh C. Griffin and Neal E Thompson, of counsel), for appellees." }, "file_name": "0971-01", "first_page_order": 993, "last_page_order": 999 }