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735
AIRLINE LIABILITY FOR LOSS, DAMAGE,
OR DELAY OF PASSENGER BAGGAGE
M. R. Franks
∗
In the United States, “[l]ost or misdirected luggage incidents
increased by roughly 25 percent among all airlines from 2004—the
largest increase in the 16-year history of the survey—while customer
complaints rose 17 percent.”
1
In Europe, “the Air Transport Users’
Council (AUC) said that the number of written complaints it received
increased to 6,094 in the 12 months prior to March 31, 2006, compared
with 2,204 in the previous year.”
2
Worldwide, an estimated 30 million
bags are lost each year, roughly six per thousand.
3
One newspaper
reports:
An estimated 30 million bags were temporarily lost by airlines in
2005, and 200,000 of those bags were never reunited with their
owners, according to an industry report released yesterday. The
report by SITA Inc., a company that provides technology services for
the air-transport industry, also noted that “the problem of mishandled
baggage is worsening on both sides of the Atlantic.”
The 30 million misdirected bags made up only 1 percent of the 3
billion bags processed last year by airports, up from 0.7 percent in
2004, said SITA, which is promoting technology it says would reduce
the problem.
Last year, mishandled luggage cost world airlines $2.5 billion,
compared with $1.6 billion during 2004, SITA said in a report
released before today’s airline and airport passenger services
exposition in Paris. The jump partly reflects improvements in data
collection but also the increasing costs that result from inadequate
∗
Professor of law, Southern University, Baton Rouge, Louisiana. Formerly
associate professor of law; l’Université de Cergy Pontoise, Paris, France. The author
holds his Bachelor of Science and Juris Doctor degrees from the University of Memphis.
He also holds an airline pilot’s license (ATP certificate).
1. Zach Ahmad, Customer Service Falls at Airlines, ATLANTA J. CONST., Apr. 4,
2006, at 6C.
2. Air Transport Users Council, Annual Report, at 8 (July 24, 2006).
3. Seven Bags Lost on Every Jet, DAILY STAR (London), May 31, 2006, at 25.
736 FORDHAM JOURNAL OF Vol. XII
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baggage management.
4
Although most bags are eventually found, the delay is frustrating
and expensive to the passengers. Businesspersons fly to attend meetings
or make presentations at which they are expected to arrive in proper
business attire. Lawyers fly to appear in court or take depositions.
Entertainers fly to perform in their needed clothing and with their needed
musical instruments. Even vacationers, when deprived of their wardrobe,
sporting gear and medications, can lose the enjoyment of precious days
of their hard-earned holiday. Virtually everyone traveling is doing so for
a reason and has a genuine need for their packed items. This need is
usually immediate—necessary on the day of arrival or at the start of
business early the next morning. Clothing in a lost suitcase typically does
not arrive until the next day, well after the event for which it was needed
has begun. Toiletries, vital medicines and other required items are
likewise delayed. Delays average 31.2 hours from the passenger’s filing
of the lost luggage report.
5
Gone are the days when airlines would present a traveler whose
luggage has been lost with a voucher and kit of overnight toiletries. The
airlines’ attitude today when they lose luggage is one of callous
indifference. Though required to do so by regulation, airlines often fail
to inform passengers of their rights.
6
The new response is that
“company policy” does not permit reimbursement of damages for
delayed luggage
7
—a policy often in direct violation of applicable law.
4. Air Carriers’ Baggage Problems Get Worse, RICHMOND TIMES DISPATCH, Mar.
21, 2006, at C1.
5. Mishandled Baggage: Problems and Solutions: Oversight Hearing Before the
Subcommittee on Aviation of the House Committee On Transportation and
Infrastructure, 109th Cong. available at http://209.85.165.104/search?q=cache:RZI9T
egki1MJ:gopher.house.gov/transportation/aviation/05-03-06/05-03-06memo.html+Mica
+Mishandled+Baggage&hl=en&ct=clnk&cd=39&gl=us (2006) [hereinafter Hearings].
6. 14 C.F.R. § 254.5 (2007). This regulation may also be cited as Federal Aviation
Regulation 254.5 (F.A.R. 254.5) and within the aviation industry is usually cited as
F.A.R. 254.4. Under 14 C.F.R. § 254.4 the passenger has a right to written notice of
either (a) any monetary limitation on airline’s baggage liability to passengers; or (b) the
following: “Federal rules require any limit on airline’s baggage liability to be at least
$3,000 per passenger.”
7. Letter from Ms. T. Townsend, Central Baggage Services, American Airlines, to
author (Apr. 26, 2006) (on file with author). The airline wrote: “The policy for
compensation for consequential expenses states: ‘Consequential expenses authorized in
advance of purchase by [this airline’s] representative can be reimbursed with original
receipts at any of our airport or city ticket locations.’ Because you have no record of any
2007 AIRLINE LIABILITY 737
C
AUSES OF LOST OR DELAYED LUGGAGE
Although luggage may be lost for a variety of reasons, baggage-
handling systems are often to blame. Evidence presented in recent
hearings before the U.S. House of Representatives Subcommittee on
Aviation shows:
In the United States, baggage handling systems are typically owned
and operated by the airlines, rather than the airport. The situation
varies from airport to airport and from airline to airline. Some airlines
have their own baggage system, some share baggage systems with
other airlines, and some hire third party companies to provide a
baggage system. Elsewhere in the world, airports typically lease
baggage handling systems that are then used by all airlines operating
at the airport.
8
Lost luggage is usually caused by negligence. The recent
congressional hearings reviewed industry statistics showing that causes
of delayed baggage in 2005 were as follows:
Transfer baggage mishandling 61 %
Failure to load at originating airport 15 %
Ticketing error/passenger bag switch/security.other 9 %
Loading/offloading error 4 %
Space-weight restriction 5 %
Arrival station mishandling 3 %
Tagging errors 3 %
9
More sinister causes (not discussed in the congressional report)
include the offloading of passenger baggage to accommodate revenue
cargo. This reason for losing a passenger’s luggage seems to say that the
airline’s attitude here is to just take the cargo, for more revenue, while
letting the passenger who has already paid be damned. Airlines also have
been known to “ferry” fuel, buying more than they need for the flight
10
in
authorizations, I regret that I will be unable to reimburse you for the expenses you have
submitted.” This airline’s “policy” appears to contradict the applicable law.
8. Hearings, supra note 5.
9. Id.
10. See 14 C.F.R. § 91.167 (West 2007). The applicable regulation provides that an
airplane must carry enough fuel to reach its intended destination, then to continue
738 FORDHAM JOURNAL OF Vol. XII
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a city where fuel is cheaper, and carrying it to destinations where fuel is
costlier. This author, in his experience as a pilot, has seen evidence that
passenger baggage may be offloaded to accommodate the extra fuel.
Of course, passengers will not be told the real reason. While
traveling on one commuter flight, this author heard an announcement that
the airplane was “overweight,” even though there were thirteen empty
seats on the flight! It goes without saying that an aircraft is designed to
accommodate a full load of passengers and their normally expected
baggage. But how can an aircraft be “overweight” with empty seats?
Again this author’s experience has led him to believe that this is almost a
sure sign of offloading luggage to accommodate heavy cargo or ferried
fuel. A “load manifest” must be kept by the airline, showing the weight
of the aircraft, fuel and oil, cargo and baggage, passengers and
crewmembers.
11
This can be subpoenaed or discovered.
Most airlines are reluctant to forward misdirected luggage via the
next flight out on any airline, thereby exacerbating the problem of
delayed baggage. Some airlines prefer to make passengers wait until the
next flight out on their own airline, which may not be until the next day.
A
PPLICABLE LAW
Rules differ between purely domestic travel and international travel,
and must be discussed separately. Before discussing the applicable law
of domestic and international flights, the following information is offered
for passengers wishing to initiate claims for loss, damage, or delay of
passenger property.
To initiate a claim for loss, damage, or delay of passenger property
the first step is to give the airline notice of the claim promptly and in
writing, preferably by certified mail. The letter can be sent to the
airline’s legal department, usually listed in Westlaw’s or Lexis’s
directory of corporate counsel. It is wise to attach numbered or lettered
exhibits to the letter, including as applicable: (1) a copy of the ticket; (2)
a copy of any boarding passes, if available; (3) a copy of the baggage
claim checks, if available; (4) a copy of the lost baggage report filed on
arrival at the destination; (5) a copy of any email sent to the company to
confirm a claim is being made; and (6) copies of receipts for out-of-
pocket expenses such as clothing, toiletries, repairs to luggage and the
thereafter to an alternate airport, and then to fly for an additional 45 minutes.
11. 14 C.F.R. § 121.693 (West 2007).
2007 AIRLINE LIABILITY 739
like. Expect the letter to be ignored.
Applicable law depends on whether the flight is international or
domestic. International flights are governed by the Warsaw Convention
of 1929, as amended,
12
an international multilateral treaty. Most
countries are signatories. The treaty imposes strict liability for loss,
damage or delay of passenger baggage in international travel.
“International [transportation]” is defined under the Warsaw Convention
as:
Any [transportation] in which . . . the place of departure and the place
of destination, whether or not there be a break in the transportation or
transshipment, are situated either within the territories of two High
Contracting Parties, or within the territory of a single High
Contracting Party, if there is an agreed stopping place within a
territory of another State, even if that State is not a High Contracting
Party.”
13
The domestic segment of an international flight is subject to the
Warsaw Convention.
14
For example, a person flying via commuter
airline from, Memphis to New York, there connecting with a flight from
New York to London, and there connecting with a British domestic
commuter flight from London to Manchester, is considered in
international travel from the time the passenger boards the commuter
flight in Memphis until he arrives in Manchester, and likewise on the full
return trip to Memphis. If all flights (including the domestic segments)
are contracted on the same ticket (even if via different airlines), the
presumption of international travel is conclusive.
15
LIABILITY FOR DOMESTIC TRAVEL
If the trip is entirely domestic, meaning no destinations or stopover
points in a foreign country, the Warsaw Convention does not apply.
State law usually applies to aviation accidents.
16
There is generally a
12. Convention for the Unification of Certain Rules Relating to International
Transportation by Air, 49 Stat. (part II) 3000 [hereinafter Warsaw Convention].
13. Warsaw Convention, art. 1(2).
14. Id., at art. 1 (3).
15. See generally Gally v. Re-Al Braz. Int’l Airlines, 29 Misc. 2d 499, 500 (N.Y.
Sup. Ct. 1961).
16. See generally Kilberg v. Ne. Airlines, Inc., 172 N.E.2d 526 (N.Y. 1961).
740 FORDHAM JOURNAL OF Vol. XII
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cause of action in contract or tort.
17
Federal courts have generally agreed
that state law applies,
18
moreover this same logic applies regarding
claims for loss, damage or delay of luggage.
19
The Fifth Circuit has held
that the Airline Deregulation Act does not preempt state-law-based
claims for injury from a falling box of cabin cargo.
20
State courts have
jurisdiction to adjudicate lost luggage claims.
21
In a case asking for both tort and contract damages, including
damages for mental distress and inconvenience, the Louisiana Court of
Appeal wrote:
Since this is a claim under federal statutes and regulations the next
question is whether such a claim may be asserted in the state court. If
there were any doubt before, this has been resolved by the United
States Supreme Court in Yellow Freight System, Inc. v. Donnelly and
Tafflin v. Levitt. In these cases the court held that under our system
of dual sovereignty state courts have the inherent power, and are
presumptively competent, to adjudicate claims arising under the laws
of the United States. The court held that to give federal courts
exclusive jurisdiction over a federal cause of action, Congress must
affirmatively divest state courts of their concurrent jurisdiction. We
find nothing in the Federal Aviation Act which prevents the state
courts from adjudicating a claim for consequential damages flowing
from the delay in delivering luggage by the airline carrier.
22
Most reported aviation cases are federal. Where the claim is for
more than $75,000, original diversity jurisdiction
23
or removal diversity
jurisdiction
24
is available. In Luckett v. Delta Airlines, Inc.,
25
the
plaintiff suffered a heart attack when the airline lost her luggage
containing her heart medication. The court upheld diversity jurisdiction,
but dismissed the case by applying Louisiana’s one-year prescription
17. Id.
18. See, e.g., Pearson v. Ne. Airlines, Inc., 309 F.2d 553, 564 (2d Cir. 1962).
19. See generally Luckett v. Delta Airlines, 171 F.3d 295 (5th Cir. 1994). The Fifth
Circuit applied a state period of limitations and not the two-year period prescribed by the
Warsaw Convention law to a suit for damages for a heart attack claimed to have resulted
from the loss of luggage containing plaintiff’s hear medication.
20. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995).
21. See, e.g., Kibler v. Nw. Airlines, Inc., 563 So.2d 550 (La. Ct. App. 190); accord,
Steber v. British Caledonian Airways, Ltd. 549 So.2d 986 (Ala. Civ. App. 1989).
22. Kibler, 563 So.2d at 522 (internal citations omitted).
23. 28 U.S.C.A. § 1332 (West 2007).
24. 28 U.S.C.A. § 1441(c) (West 2007).
25. Luckett v. Delta Airlines, 171 F.3d 295, 297 (5th Cir. 1994).
2007 AIRLINE LIABILITY 741
period.
An attempt to remove a luggage claim to federal court based on
federal-question jurisdiction
26
failed in Security Insurance Co. of
Hartford v. National Airlines, Inc.
27
The Honorable Alvin Rubin wrote:
The plaintiff might have chosen to proceed in federal court initially,
and fashioned his complaint in such a way as to raise a federal
question on the face of that pleading. However, since the plaintiff
chose to proceed in state court, and relied solely on state law,
removability is tested by the face of the complaint. Based on this
criterion, the case was not properly removed and hence it is
REMANDED.
28
A more recent unreported federal decision, Balart v. Delta Airlines,
Inc.,
29
has held otherwise. In Balart, Judge G. Thomas Porteous of the
United States District Court for the Eastern District of Louisiana
permitted removal of a lost luggage claim to federal court based on
federal question jurisdiction rather than diversity of citizenship, stating
that the applicable law is federal common law. The court relied on the
express shipping company case of Sam L. Majors Jewelers v. ABX,
Inc.,
30
a decision which in turn claims to rely on the Airline Deregulation
Act.
31
It is far from clear, however, that federal substantive law even
applies to such a claim, much less exclusive federal jurisdiction.
One federal regulation is of importance. The airlines are not always
quick to tell their passengers about 14 C.F.R. § 254.4, which reads as
follows:
On any flight segment using large aircraft, or on any flight segment
that is included on the same ticket as another flight segment that uses
large aircraft, an air carrier shall not limit its liability for provable
26. 28 U.S.C.A. § 1441(b) (West 2007).
27. 413 F. Supp. 493 (E.D. La. 1976).
28. Id. at 494.
29. 2001 WL 322065, (E.D. La. Apr. 2, 2001) (holding that a passenger’s lost
luggage claim arises under federal common law based on the Fifth Circuit’s analysis of
the Airline Deregulation Act of 1978 in Sam L. Majors Jewelers v. ABX, Inc. 117 F.3d
922 (5th Cir. 1997)).
30. 117 F.3d 922 (5th Cir. 1997). Congress included a savings clause (now 49
U.S.C.A. § 40120(c)) in the Airline Deregulation Act (“ADA”) of 1978 and the Fifth
Circuit reasoned that this savings clause “had the effect of preserving the clearly
established federal common law cause of action against air carriers for lost shipments.”
Id. at 928.
31. 49 U.S.C.A. § 41713 (West 2007).
742 FORDHAM JOURNAL OF Vol. XII
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direct or consequential damages resulting from the disappearance of,
damage to, or delay in delivery of a passenger’s personal property,
including baggage, in its custody to an amount less than $2,800 for
each passenger.
32
A “large aircraft” is generally any airplane weighing more than 12,500
pounds
33
—a definition which would include most commuter aircraft.
For purposes of this section, however, a “large aircraft” is any aircraft
having more than 60 seats.
34
Note that it is only necessary that any one
of the connecting flights be on a “large aircraft” for this section to apply
to all flights on the same ticket. It is not necessary that the “large
aircraft” be used for the same flight on which the luggage became lost.
This regulation alone, unless pleaded by the plaintiff in the petition,
would not appear to justify federal jurisdiction removal of the case. If the
plaintiff wishes to bring the case in federal court regardless of the amount
in controversy,
35
he may of course file the petition clearly articulating the
federal nature of the claim, citing 14 C.F.R. § 254.4 and the Sam L.
Majors case.
The cause of action for luggage lost, damaged or delayed on a
domestic flight is, however, normally a matter of state contract law, even
though the United States District Court for the Eastern District of
Louisiana has held that lost luggage is a matter of federal common law.
If the plaintiff wishes to avoid federal court, it would be best if the
petition makes clear that the claim is for less than the requisite sum for
diversity jurisdiction, expressly waiving all damages in excess of
$75,000.
36
If a plaintiff does not desire a jury trial in state court, then
that plaintiff may waive all damages in excess of the state law’s
minimum amount-in-controversy requirement for jury trials.
37
If plaintiff
files suit in a court of limited jurisdiction, there should instead be a
waiver of all damages in excess of that particular court’s jurisdictional
limit.
Waiver of damages will avoid a removal based on diversity
jurisdiction, but not a removal based on federal question jurisdiction.
Turning to the federal question jurisdiction, Aviation Litigation expert
32. 14 C.F.R. § 254.4 (West 2007).
33. 14 C.F.R. § 1.1 (West 2007).
34. 14 C.F.R. § 254.3 (West 2007).
35. 28 U.S.C.A. § 1331 (West 2007).
36. 28 U.S.C.A. § 1332 (West 2007).
37. See, e.g., LA. CODE CIV. PROC. ANN. art 1732(1) (2006).
2007 AIRLINE LIABILITY 743
Windle Turley tells us:
Under the well-pleaded complaint rule, federal jurisdiction will lie
only if the federal law upon which jurisdiction is based appears
clearly on the face of the plaintiff’s complaint. Under the rule, federal
jurisdiction cannot be based upon the likelihood that a federal issue
will be addressed during the course of the litigation or that the
defendant will plead a federal law in defense. . . . Since the Federal
Aviation Regulations do not create a private cause of action, and,
therefore, do not preempt common law tort claims, most aviation
cases involving wrongful death or personal injury claims do not
necessarily present a federal question, even if the crash resulted from
a violation of federal regulations.
38
In Lowe v. Trans World Airlines, Inc.,
39
the plaintiffs’ decedent died
when a bomb exploded aboard his flight, and plaintiffs filed a wrongful
death claim in New York state court. The airline sought federal question
removal.
40
The federal district court quoted Washington v. American
League of Professional Baseball Clubs
41
in its ruling, stating that
claiming federal preemption of the subject matter is insufficient because
“federal preemption is a matter of defense to a state law claim, and not a
ground for removal.”
42
The Lowe case may be distinguishable, however,
in that the wrongful death there occurred on an international flight
governed by the Warsaw Convention, which contains its own venue
provisions (to be discussed below). The well-pleaded complaint rule was
more clearly articulated by Judge Alvin Rubin in Security Insurance Co.
of Hartford v. National Airlines, Inc.,
43
which involved a domestic flight.
To deter federal question removal, therefore, the petition should
clearly articulate a claim in either contract, tort or both, based solely on
state law.
44
Moreover, to avoid diversity removal, the petition should
waive all damages in excess of the appropriate amount.
45
If the defense removes the case to federal court, the plaintiff may
wish to consider filing a motion to remand.
46
The defendant then has
38. Windle Turley, AVIATION LITIGATION, 384 (Shepard’s/McGraw Hill (1986).
39. 396 F. Supp. 9, 9 (S.D.N.Y. 1975).
40. Id. at 10.
41. 460 F.2d 654 (9th Cir. 1972).
42. Lowe, 396 F. Supp. at 12.
43. 413 F. Supp. 493, 493-94 (E.D. La. 1976).
44. 28 U.S.C.A. § 1331 (West 2007), see also id. at 494.
45. 28 U.S.C.A. § 1332 (West 2007).
46. 28 U.S.C.A. § 1447(c) (West 2007).
744 FORDHAM JOURNAL OF Vol. XII
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only thirty days from service in which to petition the federal court for
removal.
47
The plaintiff will then have thirty days in which to petition
the federal court to remand the case to state court.
48
Likewise, the
plaintiff should consider demanding a jury in the federal court. A jury
trial is available in federal court on any federal-question case involving
more than twenty dollars, and no jury fee or bond is required in federal
court.
49
A plaintiff has ten days in which to file a jury demand in federal
court following the filing of the defendant’s petition for removal.
50
There is no reason why a plaintiff cannot file both a motion to remand
and a demand for jury trial, arguing in the accompanying memorandum
that while the case really belongs in state court, plaintiff wants a jury trial
if a substantial federal claim is found to exist. The defense may or may
not attempt removal. A prudent airline will not wish to wear out its
welcome at the federal courthouse by removing every small claims suit
for a $500 dented suitcase to federal court for possible jury trial.
The defense may ultimately file an answer raising a contract or
“company policy” defense. This was actually allowed, with summary
judgment for the airline granted in Balart v. Delta Airlines, Inc.
51
The
court’s unreported opinion is devoid of any reference to, and the court
apparently was totally unaware of, 14 C.F.R. § 254.4 or its predecessor.
The Fifth Circuit Court of Appeals, however, has upheld an airline’s right
to limit its liability in its contract of passage.
52
While various state courts have held that limitation-of-damages
clauses in airline tickets are to be decided according to federal law,
53
it is
by no means clear that limitations of liability expressed in fine print on
the back of the ticket—an adhesion contract to be sure—apply unless
those limitations are actually read by the passenger. In Colgin v. Security
Storage & Van Co.,
54
the Louisiana Supreme Court held that a depositor
of goods in a warehouse is not bound by the limitation of liability on the
47. 28 U.S.C.A. § 1446(b) (West 2007).
48. 28 U.S.C.A. § 1447(c) (West 2007).
49. U.S. CONST. amend. VII.
50. FED. R. CIV. P. 81(c).
51. No. Civ.A.00-2092, 2002 WL 535460 (E.D. La. Apr. 9, 2002). Court granted
summary judgment to defendant airline because the contract of carriage limited
defendant’s liability to $1250 per passenger and the defendant had already paid that
amount to plaintiff.
52. See Casas v. Am. Airlines, Inc., 304 F.3d 517, 524-25 (5th Cir. 2002).
53. See generally Finestone v. Cont’l Airlines, Inc., 759 N.Y.S. 2d 623 (App. Div.
2003); Delta Airlines, Inc. v. Barnard, 799 So.2d 208 (Ala. Civ. App., 2001).
54. 23 So.2d 36 (La. 1945).
2007 AIRLINE LIABILITY 745
warehouse receipt where the depositor was not admonished to read the
receipt and the limiting clause was not specifically brought to his
attention. In Gauthier v. Allright New Orleans, Inc., Louisiana’s Fourth
Circuit held that a limitation of liability on a parking lot’s claim check
does not bind a customer who never read the claim check.
55
Federal
courts have held that where a limitation of liability on an airline ticket is
“printed in such a manner as to virtually be both unnoticeable and
unreadable,” limited liability does not apply.
56
Federal courts reach that
same conclusion if the notice is “camouflaged in Lilliputian print.”
57
The plaintiff wishing to go the state court route would do best to
avoid mention of 14 C.F.R. § 254.4 in his petition, waiting for the
defense to file answer raising the contractual limitation or company
policy defense. Only after the thirty-day window for removal has passed
should the plaintiff file a memorandum of law calling the court’s
attention to 14 C.F.R. § 254.4.
L
IABILITY FOR INTERNATIONAL TRAVEL
The international passenger is actually in the stronger position. The
Warsaw Convention
58
and the amending Montreal Convention
59
limit
damages but provide strict liability for loss, damage or delay of luggage.
The U.S. Supreme Court ruled that the Warsaw Convention provides the
exclusive remedy for damages that occur on international flights.
60
The
Warsaw treaty as amended provides:
The carrier is liable for damage sustained in case of destruction or
loss of, or of damage to, any registered baggage if the occurrence
55. 417 So.2d 375 (La. App. 4th Cir. 1982).
56. Mertens v. Flying Tiger Line, 341 F.2d 851, 857 (2d Cir.), cert. denied, 382 U.S.
816 (1965).
57. Lisi v. Alitalia, 370 F.2d 508, 514 (2d Cir. 1966), aff’d, 390 U.S. 455 (1968).
58. See Warsaw Convention, supra note 13.
59. See Multilateral Convention for International Carriage by Air, May 28, 1999, S.
Treaty Doc. No. 106-45 [hereinafter Montreal Convention].
60. See El Al Isr. Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 172 (1999) (holding
that a claim for psychological injuries during a pre-flight security search was governed
by the Warsaw Convention). But see King v. E. Airlines, Inc., 536 So.2d 1023 (Fla.
App. 1988) (holding that a claim for purely psychological in-flight injuries is governed
by state common law and Warsaw does not apply); see also Abramson v. Japan Airlines
Co., F.2d 130 (3d Cir. 1984) (holding that where Warsaw was inapplicable due to the
non-accidental nature of the injuries, the trial court erred in not considering plaintiff’s
tort theories of recovery).
746 FORDHAM JOURNAL OF Vol. XII
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which caused the damage so sustained took place during the carriage
by air.
61
The treaty also provides that the carrier will be liable for damage
occasioned by delay in the carriage by air of passengers, baggage or
cargo.
62
The treaty continues:
In the carriage of passengers and baggage, and in the case of damage
occasioned by delay in the carriage of cargo, the carrier shall not be
liable if he proves that he and his servants and agents have taken all
necessary measures to avoid the damage or that it was impossible for
them to take such measures.
63
Very few delay cases make the national reporters. Most delay cases
making their way into reported decisions involve delay of passengers or
cargo, not of baggage.
64
It is not unreasonable to surmise that most cases
involving loss, delay, or damage to luggage are settled long before they
reach an appellate court.
The Warsaw Convention and its amending Montreal Convention
limit damages in terms of a gold standard
65
and “special drawing
rights.”
66
This presently works out to approximately $1,519.00 per
passenger. Any attempt by the airline to set a lower limit is null and
void.
67
The damage cap is rendered inapplicable if the conduct of the
airline was “reckless”
68
or if the airline failed to deliver a proper ticket
meeting Warsaw specifications
69
or if the claim check fails to comply
with Article 4 of the Warsaw Convention.
70
Where carry-on baggage is
“gate checked,” the airline may not rely on the notice of limitation of
61. Warsaw Convention, art. 18(2). See also Montreal Convention, art. 17(2).
62. Warsaw Convention, art. 19. See also Montreal Convention, art. 19.
63. Warsaw Convention, art. 20. see also Montreal Convention, art. 19.
64. See, e.g., Harpalani v. Air India, Inc., 622 F. Supp. 69 (N.D. Ill. 1985). For a
delayed baggage case, see Suarez v. Lufthansa Airlines, 337 F. Supp. 60 (D. P.R. 1971).
65. Warsaw Convention, art 22(5).
66. Warsaw Convention, art 22(2)(a).
67. Warsaw Convention, art. 23(1).
68. Warsaw Convention, art. 25. Article 25 specifically states that “limits of
liability specified in Article 22 shall not apply if it is proved that the damage resulted
from an act or omission of the carrier, his servants, or agents done . . . recklessly and
with knowledge that damage would probably result.” Id.
69. Warsaw Convention, art. 3. The required contents of the ticket are detailed, and
it is highly possible that many electronic tickets do not comply. The result would be to
render caps on damages inapplicable.
70. Warsaw Convention, art. 4.
2007 AIRLINE LIABILITY 747
liability contained in the ticket or other baggage claim checks. If the gate
claim check itself does not comply with Warsaw, the limitation of
liability is inapplicable.
71
Many claim checks, particularly on commuter
flights, are written with domestic flight in mind, and simply fail to
comply with the Warsaw Convention requirements. It is necessary that
both the ticket and the baggage claim check comply with Warsaw for the
airline to avail itself of the convention’s limitation on damages.
To comply with Warsaw, the baggage claim check must contain: (a)
“an indication of the places of departure and destination;” (b) an
indication of at least one foreign stopping place; and (c) notice that “the
Warsaw Convention may be applicable and that the Convention governs
and in most cases limits the liability of carriers in respect of loss of or
damage to baggage.”
72
If the airline fails to record the weight of the
baggage on the claim check given the passenger, the airline may not rely
on Warsaw’s limits of liability.
73
The separate notice on the ticket must
be in 10-point type.
74
The United States Court of Appeals for the Fifth
Circuit has held that a Warsaw notice printed in 9-point type does not
give the airline the protection of limited liability.
75
An electronic ticket
may easily fall short of the requirements of a proper “ticket” under
Article 3 of Warsaw for want of all the required Warsaw notices in ten-
point type.
76
Reckless conduct also deprives the airline of the ability to rely on
the limits of liability.
77
In Butler v. Aeromexico,
78
the court held that
71. See generally Schopenhauer v. Compagnie Nationale Air Fr., 255 F. Supp.2d 81
(E.D.N.Y. 2003).
72. Warsaw Convention, art. 4.
73. See generally Perri v. Delta Airlines, Inc., 104 F. Supp. 2d 164 (E.D.N.Y. 2000).
74. Kriendler, AVIATION ACCIDENT LAW, § 11.04[1], (citing Montreal Proceedings
(International Civil Aviation Organization, Special ICAO Meeting on the Limits for
Passengers Under the Warsaw Convention and the Hague Protocol (1966))).
75. See In re Air Crash Disaster Near New Orleans, 789 F.2d 1092, 1095, 1098 (5th
Cir. 1986).
76. Convention for the Unification of Certain Rules Relating to International
Carriage by Air, May 28, 1999, art. 3, 1999 U.S.T. LEXIS 175, *80 [hereinafter Carriage
Convention]. The Carriage Convention requires that the ticket indicate “the places of
departure and destination,” indicate at least one foreign stopping place, and give notice
that “the Warsaw Convention may be applicable and that the Convention governs and in
most cases limits the liability of carriers for death or personal injury and in respect of
loss of or damage to baggage.”
77. Id. at 99.
78. 774 F.2d 429, 430-31 (11th Cir. 1985). See also Koninklijke Luchtvaart
Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller 110 U.S. App. D.C. 282, 293
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recklessness does not require specific intent to do harm. Failure to put
baggage left off the plane on the very next flight out on any carrier, and
holding the baggage until the offending carrier’s own next flight out, may
very well constitute willful conduct.
79
If baggage is “bumped” from a
flight, Warsaw may be totally inapplicable and state law will govern the
contract claim.
80
A New York court has held that tourists are entitled to
damages for a vacation ruined by delayed luggage, that failure of the
airline to retrieve the luggage for fifteen days constituted “willful
misconduct” justifying denying the airline the benefit of Warsaw’s
limitation on damages, and that in any case the baggage claim checks
failed to comply with Warsaw, also justifying denying the airline the
benefit of the cap.
81
A person who complains of damage to baggage must complain to
the airline “forthwith and at the latest within seven days from the date of
receipt in the case of baggage.”
82
In the case of delayed baggage, the
recipient has 21 days from receipt of the baggage in which to complain.
83
The complaint must be in writing,
84
but one case holds that an electronic
data entry in the airline’s baggage claims computer satisfies the
requirement of written notice.
85
No notice is needed in the case of total loss of baggage.
86
But if
several bags are checked, and only some arrive, the loss is treated as
damage, for which notice is needed.
87
There is, however, some authority
F.2d 775 (D.C. Cir. 1961).
79. While the Author is unaware of any reported case involving international
offloading, one reported decision holds refusal to unload baggage at the passenger’s
destination constitutes “willful misconduct” but does not warrant damages for mental
suffering. See Cohen v. Varig Airlines, 405 N.Y.S.2d 44 (App. Div. 1978).
80. Weiss v. El Al. Isr. Airlines, Ltd., 433 F. Supp. 2d 361, 364 (S.D.N.Y. 2006).
81. Kupferman v. Pak. Int’l Airlines, 108 Misc. 2d 485, 489 (N.Y. Civ. Ct. 1981).
82. Warsaw Convention, supra note 74, at 99.
83. Id.
84. Id.
85. D’Arrigo v. Alitalia, 192 Misc.2d 198 (N.Y. Civ. 2002).
86. See Dalton v. Delta Airlines, Inc., 570 F.2d 1244 (5th Cir. 1978); Hughes-Gibb
& Co., Ltd, v. Flying Tiger Line, Inc., 504 F. Supp. 1239 (N.D. Ill. 1981). Where a
horse being shipped died after the trip, however, notice was required. See Stud v. Trans
Int’l Airlines, 727 F.2s 880 (9th Cir. 1984). Note that while these cases and the cases
cited in footnotes 85 and 86 infra involve cargo rather than baggage, the notice
requirements of Warsaw Convention, article 26 apply equally and without distinction to
baggage and cargo.
87. Denby v. Seaboard World Airlines, Inc., 575 F. Supp. 1134 (E.D.N.Y. 1983).
2007 AIRLINE LIABILITY 749
stating that notice need not be given under this situation.
88
Notice should comply with the applicable law, discussed above.
Once written notice has been timely given, the plaintiff has two years in
which to file suit, starting from the date of arrival of the passenger at the
ultimate destination.
89
In the case of baggage carried by several different airlines on the one
ticket, the treaty provides:
As regards baggage or cargo, the passenger or consignor will have a
right of action against the first carrier, and the passenger or consignee
who is entitled to delivery will have a right of action against the last
carrier, and further, each may take action against the carrier who
performed the carriage during which the destruction, loss, damage, or
delay took place. These carriers will be jointly and severally liable to
the passenger or to the consignor or consignee.
90
Forum law determines procedure,
91
and prejudgment interest is
permissible.
92
Furthermore, court costs and expenses of litigation are
recoverable under the Warsaw conventions.
93
Since the term “expenses
of litigation” is used in addition to the term “court costs,” one can argue
that this includes attorney fees.
94
Warsaw also contains a venue
provision:
An action for damages must be brought, at the option of the plaintiff,
88. See Leather’s Best, Inc. v. Aerolinas Argentinas, 131 Misc.2d 426 (N.Y. Civ. Ct.
1986).
89. Warsaw Convention, art. 29(1).
90. Warsaw Convention, art. 30(3).
91. Warsaw Convention, art. 28(2).
92. Domangue v. E. Airlines, 722 F.2d 256, 263 (5th Cir. 1984); accord, Eli Lilly
Arg., S.A. v. Aerolineas Args, 133 Misc. 2d 858, (N.Y. Civ. Ct. 1986).
93. Warsaw Convention, art. 22(4).
94. The comment to the U.S. Senate filing of Montreal Convention, art. 22(6) reads
as follows:
This paragraph permits courts, in accordance with their own law, to award to plaintiffs
court costs, other litigation expenses (including attorneys’ fees) incurred by the
plaintiff, as well as interest, in addition to the amounts prescribed in Articles 21 and 22.
However, if the carrier presents a written settlement offer to the plaintiff within six
months of the occurrence that caused the damage or before the commencement of the
action (whichever is later) and the amount offered is greater than the amount awarded,
then the provision allowing the court to grant such additional amounts to the plaintiff
does not apply.
Id. This “settlement inducement” provision is intended to encourage prompt settlement
of claims. See Montreal Convention, supra note 57.
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in the territory of one of the High Contracting Parties, either before
the court having jurisdiction where the carrier is ordinarily resident or
has his principal place of business, or has an establishment by which
the contract was made, or before the court having jurisdiction at the
place of destination.
95
Regarding this venue provision, Kreindler states:
It is important to note that the locations specified in Article 28 refer to
the national territory of the contracting party and not to political
subdivisions. Thus, if the place of destination of a passenger’s flight
is New York, suit may properly be brought anywhere in the United
States, subject to personal jurisdiction over the defendant.
96
Kreindler further states “this provision allows suit in the location where
the ticket was purchased if the carrier has a place of business in that
location.”
97
Kreindler cites several cases in support of this proposition.
98
On a round-trip ticket, the ultimate destination, of course, is also the
point of origin.
99
Note that the treaty gives the plaintiff the right to select
the court. Clearly, actions under the Warsaw Convention may be brought
in state court.
100
Although this is a federal treaty, it is one containing
express venue provisions honoring the plaintiff’s choice of forum.
101
An
argument against removal can therefore be made under the very language
of the treaty. One court has accepted such an argument, finding removal
improper.
102
DISCOVERY
No case is complete without discovery. The plaintiff who files in
95. Warsaw Convention, art. 28(1).
96. Kreindler, supra note 74, at § 11-78.
97. Id. § 11-80.
98. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 808 n.8 (2d Cir. 1965); Mertens
v. Flying Tiger Line, Inc., 341 F.2d 851, 857 (2d Cir. 1965), cert. denied, 382 U.S. 816
(1965); Bryant v. Finnish Nat’l Airlines, 15 N.Y.2d 426, (N.Y. 1965).
99. See Al Zamil v. British Airways, 770 F.2d 3, 5-7 (2d Cir. 1985). See also Butz
v. British Airways, 421 F. Supp. 127 (E.D. Pa 1976), aff’d 566 F.2d 1168 (3d Cir. 1977).
100. See generally L.B. Smith, Inc. Circle Air Freight Corp., 488 N.Y.S. 547 (1985);
Eli Lilly Arg. S.A. v. Aerolineas Argentinas 133 Misc.2d 858 (N.Y. Civ. Ct. 1986);
Clark v. United Parcel Service, 788 F. Supp. 1209 (S.D. Fla. 1991); Air Express Int’l,
Inc. v. Aerovias De Mexico S.A. d/b/a Aeromexica, 977 F. Supp. 1191 (S.D.Fla. 1997).
101. Warsaw Convention, art. 28(1).
102. Rogers v. Am. Airlines, Inc., 192 F. Supp.2d 661 (N.D. Tex. 2001).
2007 AIRLINE LIABILITY 751
federal court may wish to commence with a summons, complaint,
interrogatories, requests for production, and requests for admission. If
filing in a state court, it is probably wiser for the plaintiff to wait until the
thirty-day removal period has passed before commencing discovery.
Discovery can be by way of a single-document combined form of
interrogatories,
103
requests for production,
104
and requests for
admission.
105
The interrogatories should ask whether the legal department
received a letter from plaintiff on or about the date shown on the return
receipt, and whether exhibits were attached to that letter. The next
questions can sequentially ask if the defendant airline has any reason to
doubt the authenticity of each of the numbered exhibits. Furthermore, the
next interrogatories should ask the exact routing (carrier, flight number,
time of departure, time of arrival) actually taken by plaintiff’s luggage.
If failure to forward baggage promptly is an issue, the interrogatories
should also ask whether earlier flights on other carriers existed by which
the omitted luggage could earlier have been delivered, asking such flights
to be identified by name of carrier, flight number, and times of departure
and arrival.
If intentional offloading of passenger baggage to accommodate
cargo is at issue, the requests for production can ask production (and
request indefinite retention) of a copy of the actual weight-and-balance
calculation for the flight in question on the day in question, as well as a
copy of the “load manifest” that must be kept by the airline, showing
separately the weight of the aircraft, fuel and oil, cargo, baggage (as
distinguished from cargo), passengers and crewmembers.
To avoid certification costs in cases involving international travel,
the defense should be requested to produce a copy of the Warsaw
Convention as amended. For domestic travel, the defense should be
requested to admit the text of 14 C.F.R. § 254.4.
The requests for admission should include a request for admission
that plaintiff was a revenue passenger on the flights in question on the
days in question between the points in question. The defense should be
requested to admit that plaintiff’s luggage was delayed in reaching its
destination until the time the client says he or she actually received it.
If tortious failure to forward on the next available flight
103. See, e.g., FED. R. CIV. P. 33 and corresponding state rules of procedure.
104. See, e.g., FED. R. CIV. P. 34 and corresponding state rules of procedure.
105. See, e.g., FED. R. CIV. P. 36 and corresponding state rules of procedure.
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(unreasonable delay or reckless misconduct) is an issue in addition to
strict liability in contract, the request for admissions should include a
listing of specific other connections that the airline could have used to get
the delayed baggage from origin to destination, including flights on
competing airlines, and an admission that the luggage could have been
sent via those connections but was not. The needed information on
competing flights and connections easily can be obtained online.
Furthermore, the defense should be requested to admit that each of
plaintiff’s notices of claim were received by the company and that the
exhibits to the demand letter are genuine. The request for admissions
should track the interrogatories and ask separately for an admission of
genuineness of each of the exhibits appended to the original demand
letter.
C
ONCLUSION
Airline passengers who are the victims of luggage mishandling are
not without legal recourse. The legal profession can do its part to make
the airlines more aware of their obligations to their passengers. This
article attempts to lay out steps that passengers can take in order to secure
the recourse they deserve.
