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Delta Airlines, Inc. v. Chimet

December 19, 2008

DELTA AIRLINES, INC.
v.
CHIMET, S.P.A.



The opinion of the court was delivered by: Bartle, C.J.

MEMORANDUM

Plaintiff Delta Airlines, Inc. ("Delta") brings this declaratory judgment action in connection with the loss of approximately $4 million in platinum which defendant, Chimet, S.p.A. ("Chimet"), had shipped via the plaintiff from Milan, Italy to Philadelphia, Pennsylvania on April 23, 2007. Chimet is an Italian corporation with its principal place of business in Arezzo, Italy. Delta seeks a declaration that its liability with respect to the loss of the platinum is limited pursuant to Article 22(3) of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on May 28, 1999 (the "Montreal Convention").

Now pending before the court is the motion of Chimet to dismiss for forum non conveniens.*fn1

I.

The following facts are undisputed unless otherwise noted. Chimet is in the business of refining precious metals, including the platinum at issue, which was to be shipped and sold to Johnson Matthey, Inc., a company located in Pennsylvania.*fn2

Several Italian businesses assisted in shipping the platinum. On April 20, 2007, Chimet retained Arexpress S.r.l. ("Arexpress"), an Italian company located in Arezzo, to execute the necessary transportation contracts and customs clearances. Arexpress, in turn, engaged Securpol Vigilantes ("Securpol"), another Italian company with its principal place of business in Arezzo, to transport the platinum from Chimet's Arezzo factory to Vicenza, Italy. In Vicenza, the platinum was delivered to Vicenza Sped, an Italian company with its principal place of business in Vicenza and an agent for the International Air Transport Association. The parties dispute whether Vicenza Sped is also an agent of Delta. Vicenza Sped transported the platinum to Malpensa Airport in Milan where it was consigned to Malpensa Logistica Europea S.p.A. ("M.L.E."), an agent of Delta.

Upon delivery to M.L.E., Vicenza Sped issued to Delta an air waybill and a delivery receipt for the platinum. The delivery receipt generated by Vicenza Sped, dated April 21, 2007, is in Italian and lists as the destination: M.L.K. Malpensa. Under a column that appears to be labeled "I.N.," there is written "€3,050,000.00." There is a handwritten notation on the delivery receipt and a signature but neither Chimet nor Delta was able to explain at oral argument what the notation means or who signed the receipt.

Air waybill number 006-4899-1622, also dated April 21, 2007, lists the shipper's name and address on the air waybill as:

VICENZASPED INT.AC.SRL VIA ROSSATO, 20-22 VICENZA ITALLIA P/C CHIMET SPA Johnson Matthey, Inc. is listed as the consignee and VicenzaSped Int.Agency SRL is listed as the issuing carrier's agent name. "N.I.L." is entered in the box on the air waybill titled "Amount of Insurance" and "NVD" is typed in the boxes titled "Declared Value for Carriage" and "Declared Value for Customs."*fn3 Under a column titled "Nature and Quantity of Goods," the letters "VAL VAL VAL VAL" are typed. The parties dispute the meaning and import of these letters.

On May 8, 2007, Chimet was informed that the platinum never reached Johnson Matthey. The parties concede that the platinum arrived safely in Philadelphia but was stolen while being stored in a cargo building at the airport.

II.

A district court may grant a motion to dismiss on forum non conveniens grounds where "an alternative forum has jurisdiction to hear the case, and when trial in the plaintiff's chosen forum would 'establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiff's convenience,' or when the 'chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems.'" Windt v. Qwest Communic'ns Int'l, Inc., 529 F.3d 183, 189 (3d Cir. 2008).

The burden of persuasion as to all elements of the forum non conveniens analysis rests on the defendant. Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43-44 (3d Cir. 1988) ("Lacey I"). Although it is clear that the defendant "must provide enough information to enable the District Court to balance the parties' interests," Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), our Court of Appeals has noted that "it is unclear from Piper how much detail by a moving party is required." Lacey I, 862 F.2d at 44. The level of detail required will depend on the facts of the case. Id.

A defendant bringing a motion to dismiss on forum non conveniens grounds must initially establish that an adequate alternative forum exists. Lacey v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991) ("Lacey II"). To meet this standard, the alternative forum must be one where the defendant is amenable to process, and the ...


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