Cohen v. Varig Airlines, S.A. Empresa de Viacao Aerea Rio Grandense

• Citation: 380 N.Y.S.2d 450,85 Misc.2d 653
• Parties: Charles H. COHEN and Hermaine K. Cohen, Plaintiffs, v. VARIG AIRLINES, S.A. EMPRESA de VIACAO AEREA RIO GRANDENSE, Defendant.
• Decision Date: 15 October 1975
• Court: New York City Court

Page 450

380 N.Y.S.2d 450

85 Misc.2d 653

Charles H. COHEN and Hermaine K. Cohen, Plaintiffs, v. VARIG AIRLINES, S.A. EMPRESA de VIACAO AEREA RIO GRANDENSE, Defendant.

Civil Court of the City of New York, New York County, Trial

Term, Part 48.

Oct. 15, 1975.

Charles H. Cohen and Hermaine K. Cohen, pro se.

Hale, Russell, Gray, Seaman & Birkett, New York City (Stephen C. Pascal, New York City, of counsel), for defendant.

STANLEY P. DANZIG, Judge.

This is an action by airplane passengers for the full value of lost baggage checked with the defendant Varig Airlines on international air transportation and consequential damages which include mental and emotional suffering, physical discomfort and inconvenience. A claim has also been made for punitive damages.

One of the issues presented is whether defendant Varig Airlines' handling of the baggage constituted willful misconduct so as to deny them the benefits of the limitation of liability provisions of the Warsaw Convention (49 U.S.Stat. 3000 et seq.).

The plaintiffs, New Yorkers, traveling mostly by plane, were making an extended tour of South America. Their itinerary was: New York, Bogota, Lima, Asuncion, Iguassu Falls, Rio de Janiero, Manaus, Belem, Paramaribo, Georgetown and return to New York.

At Sao Paulo, the defendant airline switched the plaintiffs and their baggage to another plane which made a stop at Rio de Janiero on its way to New York. Also at Sao Paulo, a Varig employee took charge of plaintiffs' checked baggage, assured them that it was properly checked and routed to Rio de Janiero, and gave them a baggage check. The luggage itself was marked with the flight number and destination of Rio de Janiero.

In accordance with the itinerary indicated on their tickets, plaintiffs disembarked at Rio and demanded their baggage. While the plane was still on the runway at Rio, employees of the defendant refused to remove the baggage from the New York-bound plane saying that it was too expensive to do so inasmuch as the plaintiffs were the only passengers disembarking at Rio.

As a result of the defendant's failure to act promptly in delivering the baggage to plaintiffs in accordance with the terms of the contract, the baggage was carried to New York, and has never been recovered. Plaintiffs, were forced to spend the last 18 days of their 28 day vacation without the clothing and other personal effects contained in their luggage.

Vaig's defenses seek to limit its liability based upon its tariff provisions, the Warsaw Convention, and the conditions of the contract.

Article 18(1) of the Convention provides:

'The carrier shall be liable for damages sustained in the event of the destruction or loss of, or damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.'

'(T)ransportation by air . . . comprises the period during which the baggage of goods are in charge of the carrier.' Article 18(2) Warsaw Convention.

The flight in question meets the definition of 'international transportation' contained in Article 1 of the Warsaw Convention. The provisions of the Convention, therefore, govern the present action. Eck v. United Arab Airlines, 360 F.2d 804, 808 (2d Cir. 1966).

The Warsaw Convention for the Unifacation of Certain Rules Relating to International Transportation by Air is a sovereign treaty, and as such is the supreme law of the land, preempting local law in areas where it applies. Burnett v. Transworld Airlines, D.C., 368 F.Supp. 1152.

The plaintiffs' baggage check provides that the transportation of the baggage is subject to the rules relating to liability established by the Convention, Section II, Article 4(3)(h).

A presumption of liability is created by Article 18(1) of the Convention for lost or destroyed baggage, and for delay in its transportation, by Article 19.

However, Article 20 permits the carrier to avoid this liability by proving that 'he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.' The burden of proof is thus placed upon the defendant to establish its freedom from liability. The defendant has failed to carry this burden of proof.

Article 22(2) of the Warsaw Convention limits the air carrier's liability for baggage checked, without a special declaration of value, to 250 gold French francs per kilogram.

However, Article 25(1) of the Warsaw Convention provides: 'The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.'

In resolving the question of whether the defendant's refusal to deliver the luggage at Rio amounted to wilful misconduct it is noted that there is a duty to transport a reasonable amount of baggage in connection with the contract to transport a passenger. Hasbrouck v. N.Y. Cent. H.R.R. Co., 202 N.Y. 363, 95 N.E. 808.

The acceptance and checking of baggage implies that there is a passenger who intends to claim it at its destination. Atlantic Coast Line R. Co. v. Campen Bros. Co., 114 Fla. 386, 154 So. 131 (1934). And, it is generally the duty of a carrier to carry the baggage on the same vehicle with the passenger. 'Any other rule would be productive of great inconvenience and hardship, if not loss, and would subject travelers, often, to intolerable delays and annoyances.' Glasco v. New York Central R.R. Co., 36 Barb. 557, 562 (1862). The rights of the traveling public 'includes the right to stop and receive their baggage at any regular station or stopping-place for the (vehicle) on which they may be traveling. Any regulation that deprives them of that right is necessarily arbitrary, unreasonable, and illegal.' Pittsburgh, Cincinnati, & St. Louis R. Co. v. Lyon, 123 Pa. 140, 16 A. 607, 2 L.R.A. 489 (1889).

Varig's refusal to discharge plaintiffs' baggage was an intentional omission to perform their manifest duty under the terms of their contract of carriage. There was a disregard of the probable consequences in the light of common knowledge that on such flights passengers rely on the contents of their luggage for their physical comfort, enjoyment and well-being.

There was no evidence to show that the baggage was lost, stolen or misdelivered at the time that the plane was in Rio de Janeiro. The defendant acquired possession of the baggage for transportation to Rio and gave plaintiffs a baggage check.

A baggage check is prima facie evidence that the carrier has received the baggage (Earle v. Cadmus, 2 Daly 237; Davis v. Cayuga, etc. R. Co., 10 How.Pr. 330 (Sup.Ct.)) and in good condition. (Hannibal etc. v. Swift, 79 U.S. 262, 12 Wall. 262, 20 L.Ed. 423). Aided by a presumption of continuance of that possession (Hasbrouck v. N.Y. Cent. R. Co., 202 N.Y. 363, 95 N.E. 808), the proof established that the defendant had the power to comply with the demand of the plaintiffs for its delivery at that port. The plaintiffs had a right at that time to its immediate possession. The defendant's refusal to make delivery of the baggage to the plaintiffs in Rio was an intentional exercise of dominion and control over plaintiffs' property; and was inconsistent with their rights, and constituted a conversion.

The law of conversion is concerned with possession. McCoy v. American Express Co., 253 N.Y. 477, 482, 171 N.E. 749, 751. The right to possession may be infringed by a wrongful detention, Lewis v. Ocean Navigation & Pier Co., 125 N.Y. 341, 26 N.E. 301. 'The essence of the injury was that the use and possession were dealt with in a manner adverse to the plaintiff and inconsistent with his right of dominion.' Pollack on Torts (14th ed.) p. 286.

The circumstances would not save the defendant from liabili as a converter. Its tortious intermeddling to serve its own commercial convenience was a sufficiently serious interference with the plaintiffs' right of possession in Rio in the light of their immediate need for the baggage in fulfilling the purposes of their voyage.

It would be against public policy to permit the carrier to limit its liability for damage it caused by its own tortious conduct in converting the property for its own commercial advantage and gain to the detriment of the plaintiffs. Glickfeld v. Howard Van Lines, Inc., 213 F.2d 723, 727 (9th Cir. 1954); Riggs v. Palmer, 115 N.Y. 506, 511, 22 N.E. 188, 189 (1889).

Willful misconduct has been defined in Pattern Jury Instructions 2:171; in the treatise on Air Law (Shawcross and Beaumont (2d ed.), p. 345). An act may be characterized as wilful misconduct when there is an intent to do or to omit doing an act with knowledge that the act or omission will probably result in damage or injury.

The proximate cause of plaintiffs' damage was Varig's wilful misconduct in refusing to unload the luggage at Rio. The obvious foreseeability of the resulting damages to plaintiffs requires the inference that those damages were intentionally inflicted.

Thus, by its own terms, the Warsaw Convention is inapplicable to limit Varig's liability. Article 25.

A question arises as to whether foreign, federal or state law is applicable in determining the compensable items of damage.

In Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir. 1965), Cert. den., 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64, it was determined that the compensable items of damage under the Warsaw Convention are to be determined according to the law of the jurisdiction having the greatest interest in the particular case using the law of the forum regarding conflicts of laws to make that determination. In Mertens, as here, the forum was New York and the rule of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), was held to govern. In Babcock, the...