Herman v. Northwest Airlines, 152
| Decision Date | 05 May 1955 |
| Docket Number | No. 152,Docket 23275.,152 |
| Citation | 222 F.2d 326 |
| Parties | Anita HERMAN, Appellant, v. NORTHWEST AIRLINES Inc., and Capital Airlines, Inc., Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Harvey Goldstein, New York City (Jacob Rassner, New York City, on the brief), for appellant.
Edward J. Behrens, New York City, Gay & Behrens, New York City (Charles H. Lawson, New York City, on the brief), for appellees.
Before HAND, SWAN and HINCKS, Circuit Judges.
This is an appeal from a judgment, summarily dismissing the complaint of a passenger for personal injuries suffered in an airplane. The complaint alleged that the plaintiff bought a ticket from Cleveland to Seattle by airplane, and that she was injured while on the leg of the route between Chicago and Seattle in a plane, owned and operated by the Northwest Airlines Inc. She joined as defendant the Capital Airlines, Inc., which issued the ticket; but as it acted only as an agent for the other company, we disregard it. The ticket contained two limitations; one that the passenger must serve notice of any claim for injuries within thirty days, and the other that suit must be brought within one year. The plaintiff complied with neither limitation, but, since we hold that the second was valid, we ignore the first, regardless of the scope that should be given to the decision of the Civil Aeronautics Board in In re Battista, 1952 U. S. Aviation Reports 471. Northwest Airlines Inc., which we shall speak of as the defendant, was operating under a certificate of public convenience and necessity granted by the Board, and had filed with it a copy of its regulations, one of which, as we have said, provided that the action must be "actually commenced within one year after such occurrence": i. e. after the injury. Judge Weinfeld held that, as the plaintiff had not procured any preliminary ruling of the Board as to the validity of the limitation, she might not challenge it, and that consequently the action was brought too late. Judgment was entered in June, 1951, and neither at the hearing before the judge, nor after the opinion or the judgment was filed, did she ask leave to present to the Board the invalidity of the regulation, so that the only question upon this appeal is whether it was to be deemed valid until the Board declared that it was not.
As to this the plaintiff says, first, that the Board's jurisdiction did not extend to a regulation limiting the time within which an action for personal injuries may be brought, because the statute, § 483(a) of Title 49 U.S.C.A., did not require carriers to file such a regulation with the Board; and its jurisdiction extended only to regulations that had to be filed. To this there are two answers: first, that the jurisdiction of the Board to hear complaints as to the validity of a carrier's regulations is not dependent upon the carrier's duty to file the regulation with the Board; and second, that the statute imposed upon the carrier a duty to file with the Board such a regulation as that at bar. Section 642 of Title 49 defines the Board's jurisdiction; it is...
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...thus recognizing the distinction between such clause and the one exempting the carrier from all liability. In Herman v. Northwest Airlines, Inc., 2 Cir., 1955, 222 F.2d 326, Judges Hand, Swan and Hincks, reiterated that portion of the Lichten case holding an air carrier's regulation with re......
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