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

• Decision Date: 02 May 1978
• Citation: 62 A.D.2d 324,405 N.Y.S.2d 44
• Parties: Charles H. COHEN and Hermaine K. Cohen, Plaintiffs-Appellants, v. VARIG AIRLINES (S.A. EMPRESA de VIACAO AEREA RIO GRANDENSE), Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 44

405 N.Y.S.2d 44

62 A.D.2d 324

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

Supreme Court, Appellate Division,First Department.

May 2, 1978.

Irving M. Gruber, New York City, of counsel (Gruber & Gruber, P. C., New York City, attys.), for plaintiffs-appellants.

Mark I. Silberblatt, New York City, of counsel (Hale, Russell, Gray, Seaman & Birkett, New York City, attys.), for defendant-respondent.

Before LUPIANO, J. P., and BIRNS, LANE, SANDLER and SULLIVAN, JJ.

SULLIVAN, Justice.

The only issue presented on this appeal is the amount of damages to which plaintiffs are entitled. Plaintiffs, airline passengers, sued for and recovered the full value of luggage checked with and subsequently lost by the defendant, Varig Airlines, as well as consequential damages for the mental and emotional suffering, physical discomfort and inconvenience resulting therefrom. Both parties concede that inasmuch as an international flight was involved the Warsaw Convention is applicable. Varig asserts the limitation of liability provisions of the Convention, which, if applicable, would limit plaintiffs' recovery to $700. Plaintiffs contend that the limitation of liability provisions of the Convention are inapplicable because of Varig's wilful misconduct in the handling of their luggage.

In July of 1974, plaintiffs, Charles and Hermaine Cohen, husband and wife, were on a 28 day tour of South America. They had departed from New York on their itinerary which included Bogota, Lima, Asuncion, Iguassu Falls, Rio de Janeiro, Manaus, Belem, Paramaribo, Georgetown, and the return flight to New York. On July 18th, they boarded Varig flight # 601 at Iguassu Falls, bound for Galeao Airport in Rio de Janeiro. Later, after takeoff, they learned that their flight would terminate in Sao Paulo, Brazil and that they would be transferred to another flight which was scheduled to land at Dumont Airport in Rio de Janeiro.

Upon their arrival at Sao Paulo, plaintiffs spoke to a Varig sales representative about the possibility of obtaining passage on a flight to Galeao Airport in Rio de Janeiro, since they were scheduled to depart from Galeao Airport early the next morning for Manaus, Brazil. The sales representative, a Mr. Bernsmuller, was able to accommodate plaintiffs and had them transferred to flight # 854 on an Electra, scheduled to land at Galeao Airport in Rio de Janeiro. While they were still at the airport at Sao Paulo plaintiffs expressed concern that their luggage might not be loaded on flight # 854. To assure plaintiffs that matters were being properly taken care of Bernsmuller had their luggage brought to them and issued two new baggage tickets for flight # 854. He further assured plaintiffs that he would personally see that their luggage was placed aboard flight # 854. This conversation took place in an area known as "the shed". There was no other baggage in the immediate vicinity. As further assurance Bernsmuller went out to the airfield to check on the luggage. On his return he stated that he "had personally seen to it that plaintiffs' luggage was actually placed on flight # 854." He further stated that he "saw (the luggage) on the plane."

When flight # 854 was called, plaintiffs realized that the flight was bound for New York with a stopover at Rio de Janeiro. They boarded with about 30 other passengers. On the arrival of flight # 854 at Galeao Airport on the evening of July 18th, an announcement was made that the passengers were to disembark, since the flight was continuing its journey to New York on another aircraft, a Boeing 707. It was nighttime. The passengers boarded a waiting bus which drove them to the 707. When it came time to get off the bus to board the 707, plaintiffs protested to the Varig representative in charge that they were not continuing on the flight to New York. They were told to stay on the bus. Plaintiffs were then driven to the terminal building. When they inquired about their luggage they were directed to the baggage receiving area. After a time when it became apparent that their luggage was not being delivered, plaintiffs complained to various Varig personnel, including Celestino Pazinatto, Varig's lost and found agent, who twice checked with the ramp supervisor in charge of unloading the Electra and loading the 707. Efforts to locate plaintiffs' luggage were unavailing.

By this time Mr. Cohen was becoming indignant. He kept insisting to Varig's personnel that he had gotten off flight # 854, that he had not received his luggage, and that it was being taken to New York on the Boeing 707. When the announcement was made for the passengers of flight # 854 to board, Mr. Cohen demanded that his luggage be removed from the New York bound plane. Varig's personnel refused and told him that they "would not go to the expense of unloading the plane" for him. Pazinatto told plaintiffs that the flight would be returning from New York City in 2 days and that they could get their luggage back at that time. Mr. Cohen explained that they were leaving the next morning for Manaus, Brazil. He showed Pazinatto his flight tickets and informed him that he and his wife had no clothes other than what was on their backs, that they had 18 days left on their tour which was taking them to the Amazon jungle and to Georgetown, Guyana, where they had friends and expected to be entertained. When Pazinatto was asked again to go out to the plane to get the luggage he refused, stating: "we will not do it. You will get it back on Saturday morning." When the loading of the 707 was completed the plane departed.

The interval of time between plaintiffs' arrival at Galeao Airport and the departure of flight # 854 for New York was estimated at one-half hour. During this time Varig's personnel steadfastly refused to look for plaintiffs' luggage on the Boeing 707. Testimony adduced at trial reveals that it would have taken one hour to unload the Boeing 707, check the baggage, and reload. After the flight's departure plaintiffs were given $60. by a Varig representative to tide them over until the luggage came back on Saturday, July 20th.

Varig sent tracers to every destination to which its airplanes flew from Galaeo Airport and radiogrammed New York City prior to the arrival time of flight # 854. None of these attempts to locate plaintiffs' luggage was successful.

The next morning, July 19th, according to schedule, plaintiffs flew to Manaus. There they made several visits to the Varig office, as instructed, to inquire about their luggage, but without any success. They were unable to purchase ready-made clothes in Manaus and after 2 days they left, again in accordance with their itinerary, for the journey by ship down the Amazon River and the completion of their tour.

At trial plaintiffs testified to the physical discomfort of being without their clothing and personal effects. They also claimed mental distress in the nature of humiliation and embarrassment from being inappropriately attired, either in the same clothing or in ill-fitting hastily purchased apparel, at social affairs which had been pre-arranged with dignitaries and friends of high social levels in the countries being visited. For instance, in Georgetown, a dinner at which the Chief Justice and other State officials were guests was given in honor of Mr. Cohen. He was compelled to wear the same dishevelled suit that he had been travelling in. His wife's predicament was no better. For 18 days of their tour, plaintiffs were without their water purification implements. They spent needless hours shopping, without success, for suitable clothing. In a humid, tropical climate they had no second set of clothing into which to change. As a consequence, plaintiffs contend that their trip was ruined.

On their return to New York Varig's general manager offered plaintiffs an additional $640. in reimbursement for their lost luggage. When Mr. Cohen remonstrated with him, the general manager stated: "Do you expect us to unload a whole plane just for the two of you? We don't do that."

Thereafter, plaintiffs commenced this action in the Civil Court for damages for Varig's wilful failure to deliver their luggage. Varig interposed a general denial and asserted, inter alia, the affirmative defenses of its tariff provisions and the Warsaw Convention.

After a trial without jury the court held that the Warsaw Convention controlled, inasmuch as plaintiffs were travelling on an international flight. The court found that the provisions of the Convention limiting claims for lost baggage to $20. per kilogram, or $700. in the present case, were not applicable since Varig's refusal to unload plaintiffs' luggage constituted "wilful misconduct" within the meaning of Article 25(1) of the Convention. Plaintiffs were awarded $6,440.65, including $3,250. for their physical inconvenience, discomfort and mental suffering. The court rejected Varig's contention that the terms of its tariff barred a recovery for consequential damages.

On appeal, Appellate Term, by a divided Court, modified the judgment by decreasing the award of damages to $700., holding that there was "insufficient evidence in the record to support the trial court's finding that the act of defendant . . . constituted 'wilful conduct' within the purview of Article 25(1) of the Warsaw Convention." (Italics mine.) Appellate Term granted leave to appeal to this Court.

Article 22(a) of the Warsaw Convention, 1934 U.S.Av.R. 245 et seq., which generally applies to international air transportation, limits a carrier's liability to $20. per kilogram (i. e., $700. in the instant case) of checked baggage. Article 25(1) of the Convention, however, eliminates the limitation of liability where there is wilful misconduct by the carrier. Article 25(1) provides as follows:

"The carrier shall not be entitled to avail himself of the provisions of this...