Maghsoudi v. Pan American World Airways, Inc.

• Court: U.S. District Court — District of Hawaii
• Writing for the Court: Alexander C. Marrack, Hoddick, Reinwald, O'Connor & Marrack, Honolulu, Hawaii, for defendant
• Citation: Maghsoudi v. Pan American World Airways, Inc., 470 F.Supp. 1275 (D. Haw. 1979)
• Decision Date: 01 June 1979
• Docket Number: Civ. No. 79-0070.
• Parties: Nasrollah MAGHSOUDI, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.

470 F. Supp. 1275

Nasrollah MAGHSOUDI, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.

Civ. No. 79-0070.

United States District Court, D. Hawaii.

June 1, 1979.

Kenneth G. K. Hoo, Fong, Miho & Robinson, Honolulu, Hawaii, for plaintiff.

Alexander C. Marrack, Hoddick, Reinwald, O'Connor & Marrack, Honolulu, Hawaii, for defendant.

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

SAMUEL P. KING, Chief Judge.

On April 21, 1978, plaintiff Nasrollah Maghsoudi, a citizen of Hawaii, purchased an airplane ticket hereinafter "ticket and baggage check" from defendant Pan American World Airways, Inc., a New York corporation with its principal place of business in a state other than Hawaii, for around-the-world passage. On April 23, 1978, plaintiff departed from Honolulu for Tehran, Iran, with scheduled stopovers in San Francisco and London.

After spending four days in San Francisco, plaintiff went to the airport on April 27, 1978 to continue his journey. Plaintiff checked one suitcase containing two master tape recordings, clothing, and other personal effects and received one "baggage claim check" from defendant. The ticket and baggage check contained a written statement advising plaintiff that defendant's liability for loss of checked baggage was limited to $20 per kilogram;¹ however, neither plaintiff's ticket and baggage check nor his baggage claim check contained any information as to the weight of his luggage.

On April 28, 1978, plaintiff arrived at the London airport and went to the baggage claim area to retrieve his suitcase from defendant. Plaintiff could not find his suitcase and defendant was unable to locate it for him. After staying in London for as long as he could, plaintiff flew to Tehran, Iran. On May 13, 1978, plaintiff filed a claim for his missing suitcase at defendant's Tehran office by completing a "baggage claim blank" and surrendering his baggage claim check at defendant's request. Plaintiff's total claim of $6,190 was derived primarily from the loss of the two master tape recordings valued at $5,400.

Plaintiff subsequently received a letter from defendant dated September 26, 1978, again requesting his baggage claim check and also his ticket and baggage check. Plaintiff responded by sending copies of both his ticket and baggage check and his baggage claim blank to defendant. Plaintiff also informed defendant at this time that because the purpose of his trip was to take the master tape recordings to Iran for record production, the loss of his luggage had rendered the entire trip worthless and would require that he reproduce the tape and make another trip to Iran. Thus, plaintiff requested that his claim be settled for $6,190 plus another round-trip ticket to Iran.

Over two months later, plaintiff received a letter from defendant dated December 18, 1978 conceding the loss of plaintiff's suitcase accompanied by a check for $400 in total settlement of his claim. Defendant contended that the governing tariff for plaintiff's travel provided a maximum liability of $20 per kilogram for checked baggage lost or destroyed and that the weight of plaintiff's suitcase was 20 kilograms.

On January 24, 1979, plaintiff filed suit in state court alleging that defendant wrongfully or willfully allowed his luggage to be stolen or converted and negligently or willfully mishandled plaintiff's claim for reimbursement. Plaintiff prayed for damages in the amount of $192,790 as follows: $7,790 in actual damages; $10,000 in special damages; $50,000 for emotional distress and mental anguish suffered; $100,000 for lost income because the changed conditions in Iran have made the copying and distribution of plaintiff's tape impossible; $25,000 in punitive damages; and costs and attorney's fees. On February 13, 1979, defendant removed this action to this Court pursuant to 28 U.S.C. § 1441(a) on the basis of the diversity of citizenship jurisdiction of 28 U.S.C. § 1332(a)(1).

On April 11, 1979, plaintiff filed a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure for partial summary judgment in his favor as to the following issues: (1) Defendant is liable to plaintiff for damages sustained because of the loss of plaintiff's checked baggage; and (2) Defendant's liability is not limited to $20 per kilogram (or $9.07 per pound) of checked baggage weight. On May 18, 1979, defendant filed a memorandum in opposition to plaintiff's motion in which defendant conceded that it was liable to plaintiff for the loss of his suitcase. Defendant contended, however, that its maximum liability is limited by the Warsaw Convention to $20 per kilogram (or $9.07 per pound) of checked baggage weight or, in the alternative, that it is premature to determine whether or not the Warsaw Convention applies in this case.

I conclude that there is no issue as to any material fact regarding these issues and that plaintiff is entitled to partial summary judgment as a matter of law.

The Warsaw Convention² was drafted during the early days of international air travel.³ Several countries "agreed to create a uniform body of law governing the rights and liabilities of passengers and air carriers in international air transportation" in order to furnish a more favorable climate for the growth of this budding industry.⁴ Article 18 of the Warsaw Convention established a presumption of liability of the air carrier for destruction, loss, or damage to checked baggage.⁵ This presumption of liability was offset by Article 22(2) which limits the air carrier's liability to 250 francs (or $20) per kilogram of checked baggage weight.⁶ Defendant contends that Article 22(2) governs in this case and limits its total liability to plaintiff.

Plaintiff asserts that the express language of the Warsaw Convention provides that the liability limitations of Article 22(2) are inapplicable in this case. Article 4 of the Convention states:

(1) For the transportation of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check.

(2) The baggage check shall be made out in duplicate, one part for the passenger and the other part for the carrier.

(3) The baggage check shall contain the following particulars:

(a) The place and date of issue;

(b) The place of departure and of destination;

(c) The name and address of the carrier or carriers;

(d) The number of the passenger ticket;

(e) A statement that delivery of the baggage will be made to the bearer of the baggage check;

(f) The number and weight of the packages;

(g) The amount of the value in accordance with article 22(2);

(h) A statement that the transportation is subject to the rules relating to liability established by this convention.

(4) The absence, irregularity, or loss of the baggage check shall not affect the existence or the validity of the contract of transportation which shall none the less sic be subject to the rules of this convention. Nevertheless, if the carrier accepts baggage without a baggage check having been delivered, or if the baggage check does not contain the particulars set out at (d), (f), and (h) above, the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability. (Emphasis supplied.)

Both parties agree that neither plaintiff's ticket and baggage check nor his baggage claim check included any information regarding the weight of plaintiff's luggage.⁷ Thus, the absence of this information prevents this Court from applying the relevant liability limitation of the Warsaw Convention without disregarding one of the treaty's express prerequisites for its application.⁸ Furthermore, because the Warsaw Convention was drafted with a bias in favor of the air carriers,⁹ this Court is reluctant to ignore the clear language of the treaty in this case without a compelling justification for doing so.¹⁰

Defendant first contended that the omission of the weight is unimportant because it is irrelevant information. This contention is without merit. The maximum liability of the air carrier in this instance is a function of the weight of the checked baggage; thus, a passenger needs this information in order to determine whether or not he requires additional liability coverage.

Defendant then argued that it was not necessary for plaintiff to be given notice of the exact weight of the checked luggage because the maximum liability could be easily approximated by estimating the maximum weight of the suitcase. Defendant contended that the maximum liability could not exceed $1,000 because it must be assumed that the lost suitcase was less than 50 kilograms.¹¹ The weakness of this argument is evident from a perusal of the history of this case. Defendant originally informed plaintiff that defendant's maximum liability was $400 because the weight of his suitcase was 20 kilograms.¹² Consequently, plaintiff's estimate of his liability coverage would have varied significantly depending upon the benchmark he chose for the maximum weight. Furthermore, plaintiff had no way of knowing whether the benchmark he chose would be acceptable to defendant. It is this type of uncertainty that the treaty's requirement for specifying actual weight was designed to avoid so that plaintiff could make a reasoned decision about taking protective measures against the limitation of liability.

Defendant's final argument is that to allow plaintiff to recover in excess of $100,000 for the loss of his suitcase because he did not receive a ticket and baggage check with the baggage weight listed on it would be "raising legal technicalities to the highest absurdity."¹³ This argument misses the mark. The question presented herein is whether or not the artificially low liability limitations of the Warsaw Convention are applicable in this situation. By concluding that defendant may not avail itself of the liability limits, this Court is not holding that plaintiff is entitled to all the damages prayed for.

Since the

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