Vogelsang v. Delta Air Lines, Inc.
| Decision Date | 10 April 1961 |
| Citation | 193 F. Supp. 613 |
| Parties | Joseph VOGELSANG and George Schmits, co-partners doing business under the firm name and style of Whitehouse Bros., Plaintiffs, v. DELTA AIR LINES, INC., Defendant. |
| Court | U.S. District Court — Southern District of New York |
Greenhill & Speyer, New York City, Simon Greenhill, New York City, of counsel, for plaintiffs.
Bigham, Englar, Jones & Houston, New York City, John L. Conners, New York City, of counsel, for defendant.
Defendant Delta Air Lines, Inc., moves for a summary judgment in its favor in an action brought against it for the negligent loss by defendant of one of two two bags owned by plaintiffs and checked with movant in connection with the air transportation of George Schmits, one of the plaintiffs.
As alternative relief, defendant asks for the entry of a judgment in plaintiffs' favor in the sum of $100, the limit of defendant's liability under defendant's tariff filed with the Civil Aeronautics Board.
Plaintiffs are a partnership engaged in the manufacture of jewelry for sale to retailers.
The bag, which was checked with defendant at the flight origin, Cincinnati, Ohio, and which was lost, contained loose diamonds and sample jewelry said to be worth over $69,000. It is assumed on this motion that this bag was given to a stranger at the flight destination, Jacksonville, Florida, through defendant's negligence.
In support of its contention of no liability whatsoever, defendant relies on those portions of Rules 65(B) (1) and 70(B) of its filed tariff which read:
It is defendant's argument that jewelry such as was lost was not "acceptable for transportation" and therefore it is not liable for the loss thereof. It requires but a reading of Rule 65(B) (1) framed in language composed by defendant to conclude that this proposition is without merit. The primary purpose of Schmits' trip was to sell his wares. It was certainly "necessary" and "appropriate" for his "convenience" to have his sample case carried as baggage for the "purposes of his trip" within the meaning of the tariff. If, as the defendant seems to argue, it intended to limit acceptable baggage to property normally used upon the person of the passenger it certainly did not say so. It is bound by the fair meaning of the language it employed. Defendant therefore may not obtain complete exoneration from liability under Rule 70(B).
Defendant's alternative position that its maximum responsibility to plaintiffs is limited to the amount of $100 by Rule 71 of the tariff which in pertinent part provides:
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...if was plaintiff's duty to declare the higher rate if she wished protection in excess of the limited amount. Vogelsang v. Delta Air .lines, Inc., 193 F.Supp. 613 (S.D.N.Y.1961), affirmed 302 F.2d 709 (2d Cir. 1962); Milhizer v. Riddle Airlines, Inc., supra; Melnick v. National Air Lines, su......
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...sustain its contention that Tishman had no understanding sufficient to form an election. Appellant cites Vogelsang v. Delta Air Lines, Inc., 193 F.Supp. 613 (S.D.N.Y. 1961), aff'd 302 F.2d 709 (2d Cir. 1962) in support of the proposition that the very passenger tariff involved in the case a......
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...the jewelry,2 its liability will not exceed $250.00, unless the $250.00 limitation in Rule 71(A) is invalid. Vogelsang v. Delta Air Lines, Inc., 193 F. Supp. 613 (S.D.N.Y.1961), aff'd, 302 F. 2d 709 (2d Although Order No. E-24198 also modified Rule 71(A) by increasing a carrier's liability ......