United States Court of Appeals For the Second Circuit

August Term 2022

Argued: October 7, 2022 Decided: April 4, 2024

No. 21-2132

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA,

Plaintiff-Appellant,

v.

UNITRANS INTERNATIONAL CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of New York No. 17-cv-4718, Cheryl L. Pollak, Magistrate Judge.

Before: LYNCH, CHIN, and SULLIVAN, Circuit Judges. *

*Judge Rosemary S. Pooler, originally a member of the panel that heard oral argument in this case, passed away on August 10, 2023. Judge Gerard E. Lynch was selected at random to complete the panel. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b). Indemnity Insurance Company of North America (“Indemnity”) appeals from the district court’s grant of summary judgment in favor of Unitrans International Corporation (“Unitrans”) on Indemnity’s subrogated claims for damage to cargo that occurred while the cargo was being unloaded from a truck at an airport. The district court (Pollak, M.J.) granted Unitrans’s motion for summary judgment on the grounds that Unitrans – a logistics company – qualified as a contracting carrier under the Montreal Convention and that Indemnity’s action was therefore time-barred by the Convention’s statute of limitations. Although we agree that contracting carriers are subject to the Montreal Convention, we find that there is a genuine dispute of material fact as to whether Unitrans was a contracting carrier. Accordingly, we VACATE the judgment and REMAND the case for further proceedings.

VACATED AND REMANDED.

JUSTIN M. HEILIG (Casey M. O’Brien, on the brief), Hill Rivkins LLP, New York, NY, for Plaintiff-Appellant.

JOHN ALAN ORZEL (Mariya Joldzic, on the brief), Kennedys CMK LLP, New York, NY, for Defendant-Appellee. RICHARD J. SULLIVAN, Circuit Judge:

In July 2014, Amgen, Inc. (“Amgen”), subrogor of plaintiff-appellant Indemnity Insurance Company of North America (“Indemnity”), engaged defendant-appellee Unitrans International Corporation (“Unitrans”) to arrange for the transportation of three pallets of Enbrel, a pharmaceutical drug (the “Cargo”), by motor and air carriage from Amgen’s facility in Dublin, Ireland to Philadelphia. On July 28, 2014, while Unitrans’s agent was delivering the Cargo

2 to the air carrier at the airport, one of the pallets fell and was damaged. As a consequence, the entire shipment was returned to Amgen’s facility in Dublin, and the damaged pallet was declared a total loss.

Indemnity, as Amgen’s insurer, paid Amgen’s claim for the loss of the pallet and, as subrogee to Amgen’s rights, sued Unitrans for breach of contract, negligence, and breach of bailment. Unitrans moved for summary judgment, arguing that the Montreal Convention – which preempts all state law claims within its scope – governed Amgen’s claim. See Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, T.I.A.S. 13038, 2242 U.N.T.S. 309 (entered into force Nov. 4, 2003) (“Montreal Convention”). The United States District Court for the Eastern