## Facts

- Hitachi Data Systems Corp. hired Fritz Companies, Inc., a freight forwarder, to ship a 530-kilogram disk drive from Miami to Buenos Aires.
- Fritz arranged air carriage with Tower Air, Inc., which transported the cargo internationally.
- The disk drive arrived damaged and was determined to be a total loss.
- The parties agreed the Warsaw Convention governed, including Article 26’s requirement that written notice of damage be made within seven days and that the complaint be “dispatched” within that period.
- Fritz supported summary judgment with an affidavit asserting it did not receive written notice within seven days.
- Tower supported summary judgment with affidavits asserting it did not receive timely written notice and that Laser Cargo S.A. was not Tower’s agent.
- Plaintiffs submitted an affidavit asserting they dispatched a written complaint within seven days to Laser Cargo as Tower’s alleged agent.

## Issues

1. Whether Fritz met its Rule 56 initial burden by showing noncompliance with Warsaw Convention Article 26 when its evidence addressed only receipt of notice rather than dispatch within seven days.
2. Whether Tower met its Rule 56 initial burden to negate timely notice by showing lack of timely notice and lack of agency, and whether plaintiffs produced evidence creating a genuine dispute as to dispatch to Tower or an authorized agent.

## Decision

- The Ninth Circuit reversed summary judgment for Fritz because Fritz’s evidence showed only non-receipt within seven days and did not address whether notice was timely dispatched as required by Article 26(3).
- The Ninth Circuit affirmed summary judgment for Tower because Tower produced evidence of no timely notice and that Laser Cargo was not its agent, and plaintiffs failed to produce sufficient evidence to establish agency or timely dispatch to Tower or an authorized recipient.
- Disposition: reversed as to Fritz; affirmed as to Tower.

## Legal Principles

- Under the Warsaw Convention, Article 26 requires that a damage complaint be made in writing and “dispatched” within seven days of receipt of goods; the treaty’s timing requirement focuses on dispatch rather than receipt.
- On summary judgment, the movant must produce evidence directed to the legally controlling element; proof of facts that do not negate that element does not satisfy the movant’s initial burden.
- When the movant presents evidence negating an essential element, the nonmovant must present specific, admissible facts showing a genuine issue for trial; unsupported assertions are insufficient.
- Notice to an alleged agent is effective only if the recipient is shown, with competent evidence, to be authorized as the carrier’s agent for receipt of such notice.

## Conclusion

The court held that Article 26’s notice requirement turns on timely dispatch, not timely receipt, and applied Rule 56 accordingly: a forwarder’s proof of non-receipt alone could not support summary judgment, while a carrier that negated both timely notice and the existence of an alleged agency relationship was entitled to judgment when plaintiffs failed to raise a triable issue.


Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099 (9th Cir. 2000)