Davis v. Northeast Airlines, Inc.

• Decision Date: 30 July 1976
• Docket Number: No. 7145,7145
• Citation: 362 A.2d 208,116 N.H. 429
• Parties: Clara Jean DAVIS v. NORTHEAST AIRLINES, INC.
• Court: New Hampshire Supreme Court

Page 208

362 A.2d 208

116 N.H. 429

Clara Jean DAVIS v. NORTHEAST AIRLINES, INC.

No. 7145.

Supreme Court of New Hampshire.

July 30, 1976.

Upton, Sanders & Smith, Concord (Richard F. Upton, Concord, orally) for plaintiff.

Sulloway, Hollis, Godfrey & Soden and John C. Ransmeier, Concord, for defendant.

KENISON, Chief Justice.

The plaintiff breeds and sells dachshunds. On June 13, 1969, she flew from Manchester to Chicago aboard a flight of the defendant Northeast Airlines, Inc., taking three dachshunds with her as excess baggage. In this action she seeks damages for the death of one dog and the injury of another. The defendant moved for dismissal of the action relying on provisions contained in the tariff which the defendant had filed with the Civil Aeronautics Board. The Trial Court (Keller, C.J.,) reserved and transferred without ruling the questions of law raised by the motion.

Under the Federal Aviation Act of 1958, the defendant filed a tariff containing its rules, regulations, and rates for the carriage of passengers and their baggage. 49 U.S.C.A. § 1373 (1976). The applicable provision of the tariff provided, 'The owner assumes all risk for injury, sickness or death of any pet(s) accepted for transportation.' The tariff further provided, '(I)f the passenger, at the time of presenting a dog or cat for transportation, when checking in for a flight, declares a value and pays a valuation charge of 20 cents for each $100, or fraction thereof, of declared value, NE's liability only for death or for injury rendering death necessary shall not exceed such declared value.' The tariff limited declarations of value to $500. The plaintiff did not declare a value or pay a valuation charge.

The plaintiff contends that the Act does not permit the Board to accept tariff provisions which disclaim, as opposed to limit, the defendant's liability for breach of its duty as a common carrier. The common law held void as against public policy contractual provisions which exempted a common carrier from such liability. United States v. Atlantic Mut. Ins. Co., 343 U.S. 236, 72 S.Ct. 666, 96 L.Ed. 907 (1952). The common law allowed the carrier to limit its liability, provided that it offered the shipper the opportunity to declare a higher value and pay a higher rate. The common law considered a provision like the tariff in the present case to be a disclaimer of liability. Boston & Maine Railroad v. Piper, 246 U.S. 439, 38 S.Ct. 354, 62 L.Ed. 820 (1918). The plaintiff contends that the Act tacitly incorporates the common law rules, and that the Board had no authority under the Act to allow the exculpatory provision in the defendant's tariff.

This contention was rejected in Lichten v. Eastern Airlines, Inc., over the strong dissent of Judge Frank. 189 F.2d 939 (2d Cir. 1951). This decision was strongly criticized in legal commentary. 65 Harv.L.Rev. 341 (1951); 21 Fordham L.Rev. 64 (1952); 25 So.Cal.L.Rev. 190 (1952). Its authority was questioned in later decisions. Randolph v. Am. Airlines, Inc., 103 Ohio App. 172, 144 N.E.2d 878 (1956); Rosenschein v. Trans World Airlines, Inc., 349 S.W.2d 483 (Mo.App. 1961). The only other case on point holds that the Federal Aviation Act does not authorize the filing of tariffs which exonerate carriers from liability. Odom v. Pacific Northern Airlines, Inc., 393 P.2d 112 (Alaska 1964). This decision in turn has been questioned. Blair v. Delta Air Lines, Inc., 344 F.Supp. 360 (S.D.Fla. 1972).

Because the cases on this question are in conflict, the parties have referred to decisions involving the Board's authority to accept other exculpatory clauses. The defendant relies on cases applying tariff provisions which disclaimed liability for loss or damage to jewelry and for consequential or special damages. See, for example, Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401 (2d Cir. 1969) (jewelry); Killian v. Frontier Airlines, 150 F.Supp. 17 (D.Wyo. 1957); Blair v. Delta Air Lines, Inc., 344 F.Supp. 360 (S.D.Fla. 1972), aff'd on the opinion below, 477 F.2d 564 (5th Cir. 1973) (special or consequential damages). The Board has declared both classes of exculpatory clauses to be unlawful. Baggage Liability Rules Case, Order E-24198, 45 CAB 182 (1966); Liability and Claim Rules and Practices Investigation, Order 76-3-139 (March 22, 1976); see also Gellert v. United Airlines, 474 F.2d 77 (10th Cir. 1973). The plaintiff relies on the decisions which hold that the Act does not authorize limitations or conditions on liability for personal injury or death. Pratt v. Tariff Limitations on Air Carriage Contracts, 29 J.Air.L. & Com. 14, 36 et seq. (1963). The Board in time prohibited such tariff provisions. Order No. E--8756, 19 Fed.Reg. 7387 (1954). The Board has ruled on the provision involved in this case.

The Civil Aeronautics Board has determined that tariff provisions 'which purport to exculpate carriers from liability for their own negligence in the carriage of live animals as baggage' are unlawful. CAB Order No. 74-12-124, 40 Fed.Reg. 1121, 1122 (1975); see also Order No. 74-4-20, 39 Fed.Reg. 12915 (1974). The order states, 'The Board's decision that a carrier rule exculpating itself from liability for its own negligence is unlawful on its face is consistent with long established legal principles . . .. The Supreme Court of the United States has consistently held it to be against public policy for a common carrier, by special or express contract, to exempt itself from liability for loss or damage due to its own negligence.' 40 Fed.Reg. 1121, 1122 & n. 5 (1975). The defendant's tariff is invalid under this decision.

The defendant argues that the Board's decision just quoted cannot be applied to invalidate the tariff in this case, because the Board rendered the decision five years after the occurrence giving rise to plaintiff's claim. The defendant relies on T.I.M.E. Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959), which was a suit brought after shipment challenging the reasonableness of charges which were made in accordance with a duly filed tariff. The shipper conceded that the court had no jurisdiction to determine the reasonableness of the rates, and that the issue of their reasonableness was for the Interstate Commerce Commission. The Supreme Court held that the suit failed, because the Motor Carrier Act did not authorize the I.C.C. to award reparations as to admittedly governing past rates. The defendant argues that T.I.M.E. Inc., governs this case,...