Indem. Ins. Co. of N. Am. v. Unitrans Int'l Corp.

21-2132
Indem. Ins. Co. of N. Am. v. Unitrans Int’l Corp.

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

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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 District of New York (Pollak, M.J.)

granted summary judgment in Unitrans’s favor, concluding that the Montreal

Convention applied and that the action was therefore barred by its two-year

limitations period. This appeal followed.

Though we hold that the Montreal Convention applies to contracting

carriers, we find that there remains a genuine factual dispute as to whether

Unitrans qualifies as a contracting carrier. Accordingly, we VACATE the

judgment of the district court and REMAND the case for further proceedings.

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 I. BACKGROUND

A. Facts

Amgen is a manufacturer and seller of pharmaceutical products, and

Unitrans is a logistics company that arranges for the shipment of cargo by using

the services of third-party carriers, such as truckers, airlines, and ship lines. 1

Amgen and Unitrans’s relationship was generally governed by two agreements –

a Master Terms and Conditions Agreement that was entered into in 2002 and a

Quality Agreement that took effect in 2014. From time to time, Amgen would

engage Unitrans to arrange for the shipment of its goods by contacting Multi

Cargo Limited (“MCL”), Unitrans’s agent in Ireland, with the particulars and

desired schedule of the shipment.

On June 30, 2014, Amgen contacted MCL in Dublin by email to “organi[z]e”

the “booking” of two commercial shipments of Enbrel from “ADL to PCI” – that

is, from “ADL,” referring to Amgen’s facility in Dun Laoghaire, Dublin, Ireland to

“PCI,” a company in Philadelphia called Packaging Co-ordinators Inc. that was

listed as the “[u]ltimate [c]onsignee” for the shipments. J. App’x at 266, 268, 271.

1Because the district court granted summary judgment in favor of Unitrans, we construe the
evidence in the record in the light most favorable to Indemnity. See Picard Tr. for SIPA Liquidation
of Bernard L. Madoff Inv. Sec. LLC v. JABA Assocs. LP, 49 F.4th 170, 182 (2d Cir. 2022).

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One of these shipments was the Cargo. The email did not specify the airline or

carriers to be used. On July 2, 2014, MCL responded by email, confirming the

bookings, including the booking of the Cargo. MCL’s email confirmed that air

carriage had been booked for the Cargo to be picked up on July 28, 2014 from ADL

and to depart from Dublin to Philadelphia on July 29, 2014 via US Airways under

an air waybill (AWB: 037-49058936) that was ultimately issued on July 28, 2014.2

The air waybill, which was issued and signed by an agent of MCL, identified the

shipper as Amgen and the consignee as Immunex Rhode Island Corporation

(“Immunex”). 3 Subsequent emails confirmed these arrangements for the Cargo.

The agreement provided for “the door to door carriage of the [C]argo.” Id. at 81.

MCL appointed Transport & Logistic Concepts Ltd. (“TLC”), a motor

carrier, to pick up the Cargo from Amgen’s facility, drive it to Dublin Airport, and

deliver it to the air carrier’s ground handling agent for shipment via air carriage

2 A “waybill” is “[a] document acknowledging the receipt of goods by a carrier or by the shipper’s
agent and the contract for the transportation of those goods. . . . A waybill ordinarily records
where the goods [are] being sent, how much they are worth, and how much they weigh.” Waybill,
Black’s Law Dictionary (11th ed. 2019). An “air waybill” is specifically “[a] waybill for
transportation of cargo by air.” Id. Article 4(1) of the Montreal Convention provides that “[i]n
respect of the carriage of cargo, an air waybill shall be delivered.” Montreal Convention art. 4(1).
3Although the air waybill states at the top that it was “[i]ssued by” US Airways in Arlington,
Virginia, it was signed by Irene Grealy for MCL in Dublin. J. App’x at 112. The air waybill lists
MCL in Dublin as the “Issuing Carrier’s Agent,” as well as the agent of the shipper, Amgen. Id.
Immunex was located in Rhode Island, and PCI was apparently Immunex’s agent in Philadelphia.

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to Philadelphia. On July 28, 2014, a TLC driver picked up the Cargo from Amgen’s

facility, drove to MCL’s office to retrieve the air waybill and other documentation,

and then drove to Dublin Airport.

At Dublin Airport, while the TLC driver was removing the Cargo from the

truck to deliver it to US Airways’s ground handling agent, one pallet fell off the

truck and was damaged. The Cargo was returned to Amgen’s facility, and the

damaged pallet was declared a total loss of over $1.8 million. Indemnity paid

Amgen’s claim for the total loss and became fully subrogated to Amgen’s rights.

B. Procedural History

On September 21, 2016 – more than two years after the incident occurred –

Indemnity sued Unitrans in New York state court for breach of contract,

negligence, and breach of bailment. On August 11, 2017, Unitrans removed the

case to the Eastern District of New York. The parties consented to jurisdiction by

Magistrate Judge Pollak over all further proceedings in the case. Unitrans moved

for partial summary judgment, and Indemnity cross-moved for partial summary

judgment.

On September 30, 2019, the district court granted Unitrans’s motion for

partial summary judgment, concluding that the Montreal Convention applied to

Indemnity’s claims. Indemnity moved for reconsideration, arguing that the

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district court overlooked portions of the Montreal Convention. On February 4,

2020, the district court denied the motion.

On March 5, 2020, Indemnity requested that the district court certify its

September 30, 2019 decision for interlocutory appeal to this Court in order to

review the district court’s interpretation of the Montreal Convention. The district

court denied that request on November 30, 2020. On February 1, 2021, Unitrans

filed a second motion for summary judgment, arguing that Indemnity’s complaint

should be dismissed as untimely under the Montreal Convention’s two-year

statute of limitations. 4 On August 5, 2021, the district court granted the motion.

Judgment was entered on August 9, 2021. This appeal followed.

II. DISCUSSION

We review a district court’s decision on a motion for summary judgment de

novo. See Picard Tr. for SIPA Liquidation of Bernard L. Madoff Inv. Sec. LLC v. JABA

Assocs. LP, 49 F.4th 170, 182–83 (2d Cir. 2022). “We affirm only if there is no

genuine issue of material fact and the prevailing party was entitled to judgment as

a matter of law, but summary judgment must be rejected if the evidence is such

4Article 35 of the Montreal Convention provides: “The right to damages shall be extinguished if
an action is not brought within a period of two years, reckoned from the date of arrival at the
destination, or from the date on which the aircraft ought to have arrived, or from the date on
which the carriage stopped.” Montreal Convention art. 35(1).

7
that a reasonable jury could return a verdict for the nonmoving party.” Id. at 183

(citations and internal quotation marks omitted). Additionally, we review the

scope of the Montreal Convention, which is a matter of treaty interpretation, de

novo. See Badar v. Swissport USA, Inc., 53 F.4th 739, 746 (2d Cir. 2022).

The principal legal issue presented is whether the Montreal Convention

applies only to damage that occurs while cargo is in the charge of an actual carrier.

Indemnity urges us to adopt this narrow construction of the Montreal Convention,

which would place its claims outside of the Convention given that Unitrans merely

arranged for the Cargo’s transportation through third-party carriers and was not

itself an actual carrier. We reject Indemnity’s legal argument and hold that the

Montreal Convention extends to “contracting carriers” when cargo is damaged in

international carriage while in their charge. Nevertheless, because there remains

a genuine factual dispute over whether Unitrans qualifies as a “contracting

carrier,” we conclude that the district court should not have granted Unitrans’s

motion for summary judgment.

A. The Interpretation of Treaties

“When interpreting a treaty, we begin with the text of the treaty and the

context in which the written words are used.” Id. (internal quotation marks

omitted). If the words of the treaty “are reasonably susceptible of only one

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interpretation, our task of interpretation ends there.” Ehrlich v. Am. Airlines, Inc.,

360 F.3d 366, 375 (2d Cir. 2004) (internal quotation marks omitted); see also Com.

Union Ins. Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 457 (2d Cir. 2003) (“Where

the language of . . . an international treaty is plain, a court must refrain from

amending it because to do so would be to make, not construe, a treaty.”). But

“when a treaty is reasonably susceptible to more than one interpretation,

secondary sources must be employed to ascertain appropriate meaning.” Com.

Union Ins. Co., 347 F.3d at 457. The Supreme Court has traditionally considered

“negotiating and drafting history” a useful aid for interpreting an otherwise

ambiguous treaty. El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999)

(internal quotation marks omitted); accord Badar, 53 F.4th at 747. “In so doing, we

strive to conform our reading to the treaty’s original intent and purpose.” Com.

Union Ins. Co., 347 F.3d at 457.

B. The Montreal Convention

The Montreal Convention “applies to all international carriage of persons,

baggage[,] or cargo performed by aircraft.” Montreal Convention art. 1(1). It was

drafted in 1999, when “the International Civil Aviation Organization convened a

conference in Montreal to fix the [then-operative] Warsaw Convention and create

a modernized uniform liability regime for international air transportation.” Badar,

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53 F.4th at 743 (alterations and internal quotation marks omitted). As relevant

here, Article 18 of the Convention, which covers damage to cargo, provides that a

carrier is liable for damage to cargo if “the event which caused the damage . . . took

place during the carriage by air.” Montreal Convention art. 18(1). “[C]arriage by

air . . . comprises the period during which the cargo is in the charge of the carrier.”

Id. art. 18(3). Significantly, “carriage by air” can encompass periods when the

cargo is not “actually aboard an airplane,” Underwriters at Lloyds Subscribing to

Cover Note B0753PC1308275000 v. Expeditors Korea Ltd., 882 F.3d 1033, 1040 (11th

Cir. 2018), but does not cover “carriage by land . . . performed outside an airport,”

Montreal Convention art. 18(4); see also Underwriters at Lloyds, 882 F.3d at 1040.

Most of the Montreal Convention’s provisions, including Articles 18(1) and

18(3), were carried over from its predecessor treaty, the Warsaw Convention. The

Montreal Convention’s text “hews closely” to that of its predecessor and may

therefore be analyzed according to case law arising from similar provisions in the

Warsaw Convention. Badar, 53 F.4th at 744. Chapter V (Articles 39 to 48) of the

Montreal Convention, however, was newly added in 1999 and reflects the essential

terms of the Guadalajara Convention, which was held in 1961

for the limited purpose of supplementing the Warsaw Convention to
address indirect carriage of cargo. In operations involving indirect

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 carriage of cargo, a consignor purchases transportation from one
carrier, such as an air freight forwarder or consolidator (“the
contracting officer”), but the transportation is provided by another
carrier (the “actual carrier”), in accordance with an agreement
between the carriers.

S. Treaty Doc. No. 106-45, at vi (2000), reprinted in 1999 WL 33292734, at *3.

Historically, cases interpreting the Warsaw Convention concluded that

“carrier” applied only to the airline carrying out the transportation. See Pflug v.

Egyptair Corp., 961 F.2d 26, 31 (2d Cir. 1992) (“Although the term ‘carrier’ is not

defined in the [Warsaw] Convention, the manner in which it is employed . . .

makes clear that the [Warsaw] Convention’s drafters were referring only to those

airlines that actually transport passengers or baggage (‘actual carriers’).” (quoting

Kapar v. Kuwait Airways Corp., 845 F.2d 1100, 1103 (D.C. Cir. 1988))); see also Best v.

BWIA W. Indies Airways Ltd., 581 F. Supp. 2d 359, 362–63 (E.D.N.Y. 2008) (collecting

cases).

Chapter V of the Montreal Convention, however, extended liability to other

carriers – “contracting carriers” – which provide “indirect carriage of cargo.” See

S. Treaty Doc. No. 106-45, at vi, reprinted in 1999 WL 33292734, at *3. Article 39

defines “contracting carrier” as a carrier that takes on the role of a principal in

carrying out the transport, even if it does not perform the actual transport itself:

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 The provisions of [Chapter V] apply when a person (hereinafter
referred to as “the contracting carrier”) as a principal makes a contract
of carriage governed by this Convention with a passenger or
consignor or with a person acting on behalf of the passenger or
consignor, and another person (hereinafter referred to as “the actual
carrier”) performs, by virtue of authority from the contracting carrier,
the whole or part of the carriage.

Montreal Convention art. 39. Though the Montreal Convention does not further

define “contracting carrier,” the President included a “detailed article-by-article

analysis” of its text – prepared by the Secretary of State – when transmitting the

treaty to the Senate. See Cong. Rsch. Serv., Treaties and Other International

Agreements: The Role of the United States Senate 118 (2001) (explaining how “[a]ll

treaties are transmitted to the Senate in the President’s name” and are typically

accompanied by a letter from the Secretary of State that provides a “detailed

description and analysis of the treaty”), https://www.govinfo.gov/content/

pkg/CPRT-106SPRT66922/pdf/CPRT-106SPRT66922.pdf [https://perma.cc/JX6P-

CX4W]. This analysis of Article 39 clarifies that “contracting carrier” liability

extends to indirect carriage arrangements:

[A] contracting carrier/actual carrier operation . . . includes code-
share operations 5 and operations where one carrier offers service
using an aircraft and crew leased from another carrier. Under this
Chapter, a passenger or consignor, or an agent thereof, could bring

5“Code sharing is an arrangement in which an airline sells a ticket under its name and code
number, but the flight itself is operated by another airline.” Best, 581 F. Supp. 2d at 364.

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 suit against the carrier performing the relevant carriage or against the
carrier with which they contracted for the carriage.

S. Treaty Doc. No. 106-45, at 21, reprinted in 1999 WL 33292734, at *25.

In addition, Article 40, which explains the respective liability of contracting

and actual carriers, provides:

If an actual carrier performs the whole or part of carriage which,
according to the contract referred to in Article 39, is governed by this
Convention, both the contracting carrier and the actual carrier shall,
except as otherwise provided in this Chapter, be subject to the rules
of this Convention, the former for the whole of the carriage
contemplated in the contract, the latter solely for the carriage which it
performs.

Montreal Convention art. 40; see also id. art. 1(4).

Taken together, these provisions make clear that a “contracting carrier” –

that is, a company that arranges for the international transportation of cargo by

engaging third-party carriers such as airlines and truckers to perform the actual

carriage – is a “carrier” for purposes of the Montreal Convention if, as a principal,

it enters into the contract of carriage with a consignor. 6

Indemnity argues that “in the charge of the carrier” means delivery into the

charge of the actual carrier because the drafters of the Montreal Convention

6Because neither party suggests that “contracting carriers” are limited to companies that own
aircraft, we assume (without deciding) that the standard set forth in Article 39 can be applied
according to its terms on a case-by-case basis based on the totality of the circumstances.

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“declined to make material changes to the scope of ‘carriage by air’ in Article 18

and simply imposed concurrent liability on contracting carriers.” Indemnity Br.

at 22. We disagree. Article 40 plainly provides that when an actual carrier

performs the whole or part of carriage, both the contracting carrier and the actual

carrier are subject to the Montreal Convention – the actual carrier solely for the

carriage it performs and the contracting carrier for “the whole of the carriage

contemplated in the contract.” Montreal Convention art. 40; see also id. art. 1(4).

Thus, a contracting carrier, as defined by Article 39, is subject to the rules of the

Montreal Convention, including Article 18. See A.S.A.P. Logistics, Ltd. v. UPS

Supply Chain Sols., Inc., 629 F. Supp. 3d 42, 46 n.3 (E.D.N.Y. 2022) (rejecting

contention that the Montreal Convention applies only to actual carriers and

holding that the “Montreal Convention clearly covers entities acting in the

capacity of contracting carriers”); Best, 581 F. Supp. 2d at 363–64 (“Chapter 5 of the

Montreal Convention, which includes Articles 39–41, extended liability to what it

characterizes as ‘contracting’ carriers for harms incurred during carriage by

‘actual’ carriers.”); accord Pierre-Louis v. Newvac Corp., 584 F.3d 1052, 1056–57 (11th

Cir. 2009).

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 We likewise reject Unitrans’s contention that carriage by air is a “term of

art” applying to all damage occurring within the premises of the airport and that,

therefore, the Montreal Convention applies here because the Cargo was damaged

while it was at the airport. Unitrans Br. at 12, 14. The text of the Montreal

Convention does not support the contention that any damage that occurs at an

airport occurs during carriage by air, regardless of whether the cargo is in the

charge of the carrier. As the Eleventh Circuit has explained, the Montreal

Convention provides that a carrier is liable only for damage sustained during

“carriage by air,” which is “the period during which the cargo is in the charge of

the carrier,” except when the cargo is transported on the ground outside an airport.

See Underwriters at Lloyds, 882 F.3d at 1040–42 (quoting Montreal Convention arts.

18(1), (3)–(4)). None of our precedent, even under the Warsaw Convention, is to

the contrary. See Victoria Sales Corp. v. Emery Air Freight, Inc., 917 F.2d 705, 706–08

(2d Cir. 1990) (holding that damage to cargo in the charge of a carrier that occurs

outside of an airport does not occur during carriage by air, but not holding that all

damage that occurs inside an airport occurs during carriage by air, regardless of

whether the cargo is in the charge of the carrier); Com. Union Ins. Co., 347 F.3d at

464–68 (holding that, under Article 18(4), when the point of damage is unknown,

15
carrier control over all portions of the journey is presumed, but not holding that,

even if the point of damage is known, the cargo need not be in the charge of the

carrier). Here, there is no question that the Cargo was damaged inside the airport,

but there remains the issue of whether the Cargo was damaged while “in the

charge of the carrier.”

C. Whether Unitrans Is a Contracting Carrier

There is no dispute that Unitrans was not the actual carrier because it did

not perform and was not intending to perform any part of the carriage itself.

Therefore, the Montreal Convention applies only if Unitrans was a contracting

carrier under Articles 39 and 40. 7

As discussed above and as relevant here, the Montreal Convention provides

that a contracting carrier is a person that (1) as a principal (2) makes a contract of

carriage governed by the Montreal Convention (3) with a consignor, and (4) an

7 Indemnity contends that Unitrans has forfeited any argument that it acted as a contracting
carrier because it never made that argument before the district court and failed to substantively
address the issue in its brief on appeal. See Reply at 10. While it is well-established that “issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed [forfeited],” Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001)
(internal quotation marks omitted), we cannot say that Unitrans forfeited the argument here. In
both its summary judgment and appellate briefing, Unitrans addressed Indemnity’s argument
that the term “carrier” applies only to air carriers and asserted that, as noted by the district court,
the drafters of the Montreal Convention included a chapter about the relationship between actual
carriers and contracting carriers. Dist. Ct. Doc. No. 21-1 at 16–17; Unitrans Br. at 8.

16
actual carrier performs the whole or part of the carriage by virtue of authority from

the contracting carrier. See Montreal Convention art. 39. In general, a principal is

“[s]omeone who authorizes another to act on his or her behalf as an agent” or

“[s]omeone who has primary responsibility on an obligation.” Principal, Black’s

Law Dictionary (11th ed. 2019).

Given the current factual record, we find that there remains a genuine

dispute as to whether Unitrans was acting as a principal and, by extension,

whether it qualifies as a contracting carrier. On the one hand, there is evidence

indicating that Unitrans was acting as a principal because it took primary

responsibility in making and executing the carriage contracts. Indeed, in

Unitrans’s interrogatory responses, it stated that it “acted as a freight forwarder

and an indirect air carrier with regard to the Cargo,” taking “responsib[ility] for

the care[,] custody[,] and control of the Cargo” “[f]rom the receipt of the Cargo at

the Amgen facility.” J. App’x at 248; see also, e.g., id. at 81 (Unitrans employee

stating that “[a]ir waybill 037-49058936 was issued for the door[-]to[-]door carriage

of the [C]argo on July 28, 2014”); id. at 225 (parties agreeing that Unitrans “entered

into a contract with . . . Amgen . . . to transport [the Cargo] from Amgen’s facility

in Dun Laoghaire, Dublin, Ireland to Philadelphia, Pennsylvania”); id. at 268

17
(Amgen listing Unitrans as a “[c]arrier” in its internal invoices). A reasonable juror

could take these statements to mean that Unitrans – acting as a principal with

ultimate “responsibility” for the Cargo – made a contract with consignor Amgen

to transport the Cargo internationally, and that Unitrans then subcontracted with

US Airways. In this circumstance, Unitrans would have assumed the

responsibility of a contracting carrier, while US Airways was set to perform the air

carriage – as the “actual carrier” – by virtue of authority from Unitrans.

On the other hand, the record also contains evidence that paints Unitrans as

an agent that merely set up an air-carriage contract between Amgen and US

Airways. In this circumstance, Unitrans would not have been acting as a principal

because it merely brokered the agreement while US Airways was obliged to

perform the air carriage by virtue of its own authority. This view is supported by

the fact that Unitrans presents itself as a “logistics company that arranges carriage

of cargo on behalf of its customers,” which suggests that it acts as an

“intermediary” that merely makes travel arrangements in the manner of a travel

agent. Id. at 63, 70. Indeed, Unitrans’s own employees made similar

representations, characterizing Unitrans not as a principal but as “an intermediary

between the cargo shippers and the actual carriers.” Id. at 70; see also id. at 76

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(Unitrans employee stating that “Unitrans’[s] only involvement with the

transportation is to make arrangements with other parties to carry the cargo” and

that “Unitrans does not carry the cargo, Unitrans simply makes connections and

moves paper”). Moreover, the single air waybill in the record conspicuously lists

Amgen as the shipper, US Airways as the issuing and first carrier, and Unitrans’s

agent MCL as the agent of both Amgen and US Airways. See id. at 112; see also id.

at 226 (parties agreeing that the air waybill was “issued on behalf of the

performing air carrier US Airways”). 8 That Unitrans is not mentioned in any

active role further undercuts any claim to principal status. Finally, the terms and

conditions listed on the back of Unitrans’s invoices state that Unitrans “assumes

no liability as a carrier” unless it physically carries the cargo itself, id. at 88, which

Unitrans did not do here, see id. at 81, 226–27, 273 (describing how MCL and TLC

handled the carriage).

To be sure, none of these facts is dispositive. Even if Unitrans characterized

itself as only an intermediary, a bonafide contracting carrier surely cannot disclaim

that status by its own fiat. Nor is the single airway bill in the record conclusive, as

8The single air waybill here stands in stark contrast to the two air waybills described in
Commercial Union Insurance Co. where the facts suggest that it would have involved a contracting
carrier, if the terms of the Montreal Convention had then been applicable. See 347 F.3d at 455–56.

19
it covers only the air carriage portion of the transport without indicating which

entities assumed responsibility for the ground transport of the Cargo to and from

the airports. See id. at 112 (referring to only one “carrier” – US Airways – and a

flight from Dublin to Philadelphia without mentioning the ground carriers to and

from the Dublin and Philadelphia airports). 9 But the point remains that there is

enough evidence cutting both ways to create a genuine question as to whether

Unitrans qualifies as a contracting carrier. 10 The district court therefore erred in

granting summary judgment, and the case must be remanded for additional

factfinding and trial if appropriate.

III. CONCLUSION

For the reasons set forth above, the judgment of the district court is

VACATED and the case is REMANDED for further proceedings.

9It remains unclear whether Unitrans (or MCL as its agent) ever issued a “house waybill” – which
could further shed light on Unitrans’s role and responsibilities – and if so, what happened to it.
See J. App’x at 80 (explaining that an “air waybill” is the waybill issued by the actual carrier while
the “house waybill” is issued by the forwarder).
10For the same reasons, we also reject Unitrans’s alternative argument that it was entitled to
summary judgment because it acted as an agent of US Airways when issuing the air waybill. See
Montreal Convention art. 30(1) (providing that agents “shall be entitled to avail themselves of the
conditions and limits of liability” of the Convention “if they prove that they acted within the
scope of their employment”); id. art. 43 (stating that the Convention extends to agents of “the
actual carrier” and of “the contracting carrier”). At present, there is not enough evidence in the
record regarding US Airways’s conduct for us, or the district court, to conclude that Unitrans was
US Airways’s agent. See Restatement (Third) of Agency § 2.01 (Mar. 2023 Update); Garanti
Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 71 (2d Cir. 2012).

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