494 F.2d 196 (2nd Cir. 1974), 568, American Airlines, Inc. v. Remis Industries, Inc.

Docket Nº:568, 73-1960.
Citation:494 F.2d 196
Party Name:AMERICAN AIRLINES, INC., Plaintiff-Appellant, v. REMIS INDUSTRIES, INC., Defendant-Appellee.
Case Date:March 15, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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494 F.2d 196 (2nd Cir. 1974)

AMERICAN AIRLINES, INC., Plaintiff-Appellant,


REMIS INDUSTRIES, INC., Defendant-Appellee.

No. 568, 73-1960.

United States Court of Appeals, Second Circuit.

March 15, 1974

Argued Feb. 27, 1974.

Paul E. Konney, New York City (Jacob Oliver, New York City, and Debevoise, Plimpton, Lyons & Gates, New York City, of counsel), for plaintiff-appellant.

Richard L. Bond, New York City (Marshall, Bratter, Greene, Allison & Tucker, New York City, of counsel), for defendant-appellee.

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Before KAUFMAN, Chief Judge, FEINBERG and MULLIGAN, Circuit Judges.


The importance of the question presented on this appeal cannot be gauged by reference to the relatively small amount in controversy. Indeed, the more than fourteen thousand dollars of disputed liability arising from the unauthorized use of an executive's Air Travel Card, issued to Remis Industries, Inc., pales in significance when viewed in the light of the sums which may well depend on our determination of the ambit of statutory credit card protection afforded by the 1970 amendment to the Truth in Lending Act. Since we find that the credit card abuses which Congress sought to eliminate plague all cardholders without meaningful distinction, we decline to interpret Congress's enactment in a way that would sap the strength of the statutory safeguards it provided. It is our belief that by arbitrarily confining the scope of the Truth in Lending Act's application to a limited class of cardholders, we would undermine Congress's purpose to afford a broader and more meaningful protection to all who enter the credit card domain.

Remis Industries is a Massachusetts corporation engaged in the sale of hides and other equine by-products. Since 1943 its personnel have been using Air Travel Cards which, although issued in this instance by American Airlines, are accepted by all airlines for the purchase of tickets on credit. Remis entered into a 'Universal Air Travel Plan Subscriber's Contract' with American and in May, 1971 forwarded a 'Request for Travel Cards' form to American in New York. On May 19, American approved the renewal of its contract with Remis and soon thereafter issued new Air Travel Cards, including one for use by Abraham Lerner, Remis's Vice President and General Manager.

In August, 1971 Lerner received a call from a Royal Dutch Airlines representative informing him that there had been an error in the billing of six round-trip tickets from Miami to Curacao charged to his Air Travel Card on August 6. Since Lerner had not purchased these tickets, he immediately realized that his Air Travel Card had either been lost or stolen. Because of this, he promptly notified American of the card's loss.

Much to Lerner's chagrin, he soon learned that airline tickets totaling $14,008.16 had been charged to his Air Travel Card during the period of its loss and prior to his notification of American. When American duly requested payment of this amount from Remis, the company refused to pay because the charges stemmed from an unauthorized use of the credit card.

American filed suit against Remis in February, 1972 in New York State Supreme Court. On March 6, 1972, Remis removed the action to United States District Court for the Southern District of New York on grounds of diversity, 28 U.S.C. § 1441. In its answer to the complaint, Remis contended that the amount in issue resulted from an unauthorized use of Lerner's Air Travel Card; that American was negligent in permitting the Card's unauthorized use; and that, in any event, under either Massachusetts law or New York law, liability for the unauthorized use of a credit card was limited to $50.

With the issues joined, American moved for summary judgment. It argued that the 'Universal Air Travel Plan Subscriber's Contract' signed by Remis obligated the company to pay for all tickets charged to its account prior to the receipt by American of notice that an Air Travel Card had been lost. The various affirmative defenses raised by Remis, American contended, were insufficient as a matter of law.

On August 8, 1972, in an opinion reported only in 4 CCH Cons.Cred.Guide P99, 123, Judge Cannella denied the motion. Finding New York law to be applicable, he held that American had failed to comply with the conditions

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precedent to the recovery of charges resulting from the unauthorized use of a credit card, limited in any case to $50, as contained in N.Y.G.B.L.§ 512. Moreover, in so doing, Judge Cannella rejected American's assertion that § 512 was not applicable in this instance because that section, by its language, extends protection only so far as the federal Truth in Lending Act, 15 U.S.C. §§ 1601, et seq.-- which in turn, argued American, does not apply to credit cards issued to corporations or to credit cards used for business or commercial purposes.

Following Judge Cannella's decision, the parties stipulated that his order would be considered as granting partial summary judgment to Remis dismissing the complaint in excess of $50, and that the balance of the claim would be voluntarily dismissed by American. On April 23, 1973, this stipulation was embodied in an order issued by Judge MacMahon and, with no claim remaining to be litigated, American appealed from the April 23rd order as a final order pursuant to 28 U.S.C. § 1291.

Although we cannot agree with the rationale of Judge Cannella's opinion, we believe his conclusion-- that Remis's maximum liability for the unauthorized use of its Air Travel Card is $50-- is correct. Accordingly, we affirm.


We begin by examining N.Y.G.B.L. § 512 upon which Judge Cannella relied as the exclusive determinant of Remis's potential liability. 1 That section states:

A provision which imposes liability upon a holder for a cash advance or loan or for the purchase or lease of property or services obtained by the unauthorized use of a credit card shall not be enforceable to the extent that it imposes a greater liability upon the holder than is imposed under the provisions of the act of Congress entitled 'Truth in Lending Act' and the regulations thereunder, as such act and regulations may from time to time be amended.

McKinney's Cons.Laws of N.Y. Cumulative Pocket Suppl. for 1973-1974. The reference to the Truth in Lending Act is quite clear. Judge Cannella construed that reference as defining the dollar amount of maximum liability under New York law-- $50, pursuant to § 133(a) of the Truth in Lending Act, 15 U.S.C.§ 1643(a)-- but not the scope of section 512's coverage. That, he concluded, was governed by the definitions contained in the New York Act, N.Y.G.B.L. § 511, which on their face include all credit card holders, natural persons as well as corporations, without exception. 2 Thus, without interpreting the range of the Truth in Lending Act as a whole, the district judge determined that § 512 imposed a liability limitation on the Air Travel Card issued to Remis. It is a well-settled principle of statutory construction that the plain language of a statute offers the primary guidance to its meaning. Indeed, the New York Court of Appeals has said:

(Where) the language found in the statute is clear and unambiguous, . . . the intent of the framers 'is to be sought first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and

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distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation.' McCluskey v. Cromwell, 11 N.Y. 593, 601-602.

Meltzer v. Koenigsberg, 302 N.Y. 523, 525, 99 N.E.2d 679 (1951). See also Roosevelt Raceway v. Monaghan, 9 N.Y.2d 293, 304, 213 N.Y.S.2d 729, 174 N.E.2d 71 (1961); Daniman v. Board of Education, 306 N.Y. 532, 543, 119 N.E.2d 373 (1954). We believe that the clear language of § 512, by referring without qualification to the 'provisions of the act of Congress entitled 'Truth in Lending Act',' simply does not support the selective incorporation approach adopted below. Accordingly, although New York's statutory definitions are sufficiently broad to...

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