Petition for Writ of Certiorari — Utah v. United States

Supreme Court brief1962

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is THE

-Sopeeme Court of the Hated States

a —_— 1962

| ie 2BO ;

- JOSEPH VOGELSANG and GEORGE SCHMITS, co-- ’

partners doing business under the firm name and style

of WHITEHOU SE BROS,,

. Petitioners,

aiiinal 6

>... DELTA AIR'‘LINES, INC.,

Respondent.

PETITION FOR A WRIT OF CER$JORARI TO THE

“UNITED STATES COURT OF &PPEALS FOR

j THE SECOND —

Simon GREENHILL,

Jon M. Speyer,

Counsel for Petitioners,

17 John Street,.

‘New York 38, New York.

xe is INDEX

ot ne _- -PaGR

Opinions of the Courts Below | | ety s feck Proeepeme aye ye

\. Jurisdiction ©.......... “a seeees Brrcissteeseisnne- | 2

; Questions. Presented Saaus Min eehe eee Rae me eKe 2

‘Statement of the CONE cats vedbeses Veabenakee a 2

a | ;

Reasons Rewiep Upon For ; Assowince OF THE Warr:

Point I—The Court below erred when, it ignored

all the. uncontroverted acts of wrongful conduct’

and upheld the limitation as a matter of law upon

its prior decision in Lichten v. Eastern Airlines,

189 F’. 2d 939. Petitioner,who had aright under.

. the tariff to check his case of jewelry as baggage «

' was thereby penalized for Delta’s intentional,

wanton and wilful misconduct: which caused the

Loss. _ Neither public policy nor morality-can”

_—support-such a holding which has as its basis:

take : the right to use a tariff as a shield i in the face

: ~” of one’s own wrongful acts ..:.......0.....05. 7

Port II—The Court below erred when: it held that |

_ the Civil Aeronautics Board had primary juris-

diction in a case such as this since, in the light

- of Delta’s wrongful conduct, the real i issué was _ ee emencoene

q the applicability or legality-of the rule, which

ae ~~ only ‘the Courts mer eee. PEC re eer a es

Conclusion .......... AT nO Ror pa AE aoe Owe ee

ae APPENDIX:

__._--_ Opinion of the United States Court of Appeals

for the Second Circuit ..................... oe} &

TOMI oo ois visas ciivicndencesedgecces ane

‘ii

) Cases Cited aha

. a . pry PAGE -

“ Adams Express Ce. v. Croninger, 226 U. S..491 . 8

American Airlines, Ine. v.*Ulen, 186 F. 2d° 529

Se Sie IN ski besrbete nae ehadeusee ens re

American Ry. Exp. Co: v. | ae, 260°U. S. - ,

DE ac koucs sds Cahuuce 3 aden sreeseeteseaee eds eo

Boston & Maine Railroad v. Piper, 246 U.S. 439 . 19

Braughton v. United Airlines, Inc., 189 F. Supp. 137

(W. D: Mo.) ..:....-+0:. Reavise cdseharaseenen 10, 14

Dexter & Carpenter v. ‘Davis! 281 Fed. 385 (C. A. 4) ao

- DU tassy v. Barrett, 219 N. Y. 420 ,...:..... a eeuees — §

‘ Evens v. Texas Pac.-Missouri Pac. Terminal, R. R.,

134 F. 2d 275 (C. A. 5) rete aeiwts reTeyrr ree +9

_Franklin v. United Airlines, Inc., 184 F. Sai. 814, .

FB DW Ys) oc pec cciedeccnctocgsecsscoveeges 14

Georgia F. & A.R. Co. v. Blish Milling Co., 241 v. S. =

BE 4 756 kes hades hokesasasutiedecintdaeweane - 8°

Gillespie ‘ v. Platt, 19 Mise. 43°..... Siiechnedestawas re

Glickfeld v. Howard Van Lines, 213 F “bd ne

i AO ie sa cade bden ewan eae —

Great Northern si Co. v. Merchants Elevator Co., .

Se A beat secndusiavtyuhesanssesehs ypeee 18

‘Hazle v. Southern Pac. Co., 173 Fed. 431 (Cir,D.Or.) 9

Lake Shore & M. S. Railway Co. v. Prentice, 147 :

U. S. 101, 107 Dinah os dak aaiobasadeenetca Véwuks 9

_Lichten v. Eastern Airlines, 189. F. 2d 939

1. A Oi ahs EE SE. re ieeures 6,7,14,16 -

Lives v. N. Y. Cent. rae R. R. Co., 89 Mise. 472, .

affirméd 172 App. Dig, 934'...............002- .. 12,13

Magnin v. Dinsmore, 70 N. Y. 410 ...............6% Oe

Martin v. Greyhound Corp., 227 F. 2d 501 (C. A. 6) 10

McKahan v. Amer. Express Co., 209 Mass. 270 ..... 13

Moore v. Duncan, 237 Fed. 780 (C. A. 6) .-,,.:... 8

_ \

‘S\ =

ili

" PAGE ‘

New York Central R. a Co. v. Mohney, (252. U. S. ;

Se COS ie erp n mrt Sar orD 10.

Penn: .R. R. Co. v. Puritan Coal Mining Co. y 237

DME os faconas ier eesti grea de pnts 18

" ‘Southern Exp. Co.-v. Pastime ‘Amusement Co., 299°

Stearns. tin 31 E8168 SS

The Indrapura, 171 Fed. 929 (D, C.)-..7.-. aie a

The Sarnia, 278 Fed..459-(C. A. 2) PAIRS A 12

Ward v. Gulf, M. & N.-B. Co., 23 Tenn. App. 533 . 3° *,

Wills v. Trans World Airlines, Inc., 200 F. Supp. 360,. ; va

367 (8. D: Cal. C, D.) - fevers EE eS 9 aay

— Ome 8 A: he Pee ne

ae ke eee a ae Pee if

Prosser, Torts (1941) p. 261 rer Need NM ivéeus fal “9

Restatement of the Law, ‘Torts, Vol. 2, See. 500 Yo gy

: pe ° : /

; : Statutes vA ”)

Bese Se ve | Dearne Annee eee 16

Pie fe & oe.) Aen ae

_. 49 U, S. C. A, See. 401, ey die eee atape eae 16

49 US S.C. A. See, 483(b) Mo... e eee. ee

49 Stat. 3000 etter ey me PPR tee OPS a

4 : ——

“We

eae Se THE

~Hapctoe Court of ‘the Buited States .

October Term, 1962

%, / No. ? *

5 nin

i pm VV

Josertt Voornsanc and Grorce Scumirs, co-partners doing ,

business — under the firm name and style of Wuirenovse

‘Doeth, - : | a

ae . Ce By * Petitioners,

° ei 7 8. against Sai i eee

ow! .

Detta Air Lines, INc.,

—_ MS

Respondent.

PETITION FOR A WRIT OF CERTIORARE-TO THE:

UNITED STATES COURT OF APPEALS F OR :

~~. .THE SECOND CIRCUIT

To the Honorable, the Chief Justice aid Associate Justices

of the Supreme Court of the United States: '

Petitioners, Joseph Vogelsang and. George’ Schmits,

o-partners doing business under, the firm name and style .

of Whitehouse Bros., respectfully pray that a Writ.of ~

Certiorari issue to review the final judgment of the United © -

- States Court of Appeals for the Second Circuit, entered

on April 30, 1962, affirming the judgment of the District .

Court of the United States, Southern District of New York,

in the appeal docketed in the said — of Appeals as

No. 27108. _ .:

‘ina of. the Courts Below

The opinion of the District Court for -the Southern

‘District of New York is reported at 193 F. Supp. 613 (Appel-

lants-A ppellegs’ Appendix in Appeal No. 27108, pp. 83a-

85a). The opinion of the Court-of Appeals for the Second

Circuit is recorded in 302. F. 2d 709 (infra, pp. (21- -29).

—_

. 4

“The judgment ot the Court of deca was enteréd on’

April 30, 1962. (infra, p. 30). The -jurisdtttion of this -

court is invoked urider 28 U.S. C. See. 1254(1).

Questions Presented

a © Whether, in-the circumstances oytlined herein, and

as a matter of public policy and morality, a carrier had the

‘right to invoke the benefits of its tariff limiting liability

for baggage lost as the immediate and proximate result of °

the carrier’s own wanton or wilfial | misconduct?

2. Whether the Courts and not the Civil Aeronautics” :

Board are the “proper fortims for determining the ‘appli-°

eability or legality of a tariff rule limiting liability for loss

' where the carrier is guilty of wanton or wilful, misconduct?

ry -Sedestnaits ub thie Cine ee ta

Petitioners, co-partners in the manufacture ‘of jewelry,

_ brought this action against respondent, a common carrier

by air (hereinafter referr@l to as Delta), for loss of bag- -

gage, containing assorted jewelry’ and loose diamonds,

_ caused by the wanton or wilful misconduct of Delta’s em-

ployees in’the course of their employment.

Schmits, one of the petitioners, boarded Delta’ 8 plane

"in Cincinnati, Ohio, en route to Jacksonville, Florida, in ee

connection with a selling-trip. Prior to boarding he

. checked two pieces of baggage and received thé appropriate

claim: stubs. Delta transported Schmits and his luggagé

to Imeson Airport in Jacksonville. Upon arrival Schmits

_ went to the claim area in front of the airport building and

tendered both claim stubs. He received only one bag. The

other, identified as a jewelry sample case, was, as the —

“answer admits, ‘‘lost or stolen while in the peceisjon of.

a* ge . ; -, Duadl Eee

Jurisdiction ‘ ;

71(A) entitled- ‘Limitation o

the defe ndant, without any faylt or negligence on its part;

and by reason whereof, it was tot delivergg to said Nooerge

Schmits”’ (App. p. 21a)... °

There was no trial of the action. Delta moved-in the o

District Court‘for summary judgment pursuant to Rule 56

_ of the Rules of Civil Procedure. They contended that they

owe petitioners nothing because the lost bag contained

‘jewelry which was not **aeceptable for tretpertation’®

‘within the purview of tariff rules 65(B)(1) and 70(B) but,’

if they were liable, they owe » by reason of tariff rule

Liability’’ which, by its

terms, limited Delta’ 8 “ean C for the loss of baggage

(App. Ex.’A, opp. p. 18a). i

‘In the moving papers Delt offered no explanatife of

the special circumstances surrounding the loss. of Schmits’

bag which on its face raised the grave issue of wanton or

wilful misconduct. _They @ntended that regardless of the © -

testimony of their employees in their depositions, the

* handling of Schmits’ bag amounted to a ‘“‘misdelivery”’,

and argued that ‘‘even if it be assumed that there was an |

unauthorized defvery of the bag and its contents’’ the

‘motion for :s ary judgment should wt granted as‘a

matter of law (App. pp, 7a-8a).

In’ opposition, petitioners showed that the eel carry-

ing Schmits and his, baggage arrived nineteen minutes late © .

at, Imeson Airport, Jacksonville, and that immediately the

ground personnel or crew, consisting, among others, of

ramp agent, Wiley and the porter, Phillips, entered the fly-

ing field with baggage carts and commenced unloading.

While unloading was in progress, an unidentified man came

,on to the flying field, went under the plane and accosted

- agent Wiley. Wiley testified in his deposition that the

’ stranger, holding a claim check ini his hand, said that he was

looking for his luggage; that he took the claim check and

without ever looking at it, turned around and handed it to -

Phillips who accepted it; that lie never spoke to the stranger

‘ \ | -¢

PF" ge

“

vee

nor did:he see Phillips talk to-him; and that he saw the,

‘stranger take a bag’ off the baggage cart but did not stop,

him and, as far as he knew, neither did Phillips.

Phillips testified i in his deposition that the stranger gave

you. vet this bag for me?’’; that he returned the check to

the stranger.telling him that he had 63. bags to remove from

the'plane in a-few minutes and the bags would be carried —

around to the self-service area in front of the terminal °

where ‘he could ‘‘seleet your own bag”’. ‘Phillips reported

to his superiors that he also said to the stranger, ‘* However,

if you see your bag, it is all right to take ad (App. p. 47a).

The thief promptly selected Schmits’ bag and disappeared. —

“At the time’of the loss it was a cardinal. rule. at Imesin

Airport that baggage is not delivered at _planeside> Such ©

a rule was agreed to by the managers of all the airlines

using the airport and the rule was posted on the bulletin

board in Delta’s baggage room. The rule was in accordance:

with the accepted practice and custom in all airports in this

country, that no person may enter the public cargo Tamp

and apron area of an air ‘terminal without permission ex-

cept, of course, authorized airport representatives.

The rule was incorporated in Delta’ s Standard Prac-

_ tice Operation Manuel under the caption: Ramy and Office

Safety, to wit: . ; fe

‘* Protection of Passengers and Visitors (p. 2):

* .8 “®, ‘

“J. Do not allow passengers to walk under any.

. part of the airplane or in close ‘proximity of pro-

— or Latcaes trucks’’.(App. p. 29a).

‘*B. Prorectine Carco (p. 7): os, Oe

. Cargo should be protected at-all times’ from dam-

age by weatuer, equipment, and pilferage. -The fol-

lowing rules should be observed...

F ‘eae ea “eee

* This report was produced. from Delta’ s own files at. the time the.

‘depositions were taken (App. p. 43a).

* °&

chim the’ claim check saying, ‘* Porter, will you get-my- bags.

for mel’’s also, **1 got a quick connection to make. Will -

2. Allow only authorized. ‘personnel. in cargo

handling and storage area. ‘All unatithorized per- -—

., sons found there should be ch: eee (App. p.

* 29a).

W iley specifically admitted personal know ledge of the

rules and safety regulations forbidding delivery | of baggage —

at. planeside. ° Phillips demonstrated his personal knowl.

edge when he directed the stranger to the baggage ‘claim

area in front of the terminal. building. Nonetheless, W ‘iley

~ admitted prior violations of the rule when he testified. that

the rule is broken ‘‘ quite often’’ in instances where ‘‘some-

one wanting’jo get his bag, claims he has a fast connee- :

tion’’ to make (App. p. 78a).

With respect to claim aime the contract condition on

the reverse side of the passenger. ticket further provided:

«© * * * (5) Baggage carried hereunder will be

delivered to the bearer hereof upon return to carrier

of the baggage (claim), tag(s) ° ear ee (App. Ex, C.,

opp. P. 14a). Ae

This condition is further ‘eahensented by the safety regu-

lation in the manual entitled ‘*Claim Checks’.

‘*Claim checks will be obtained for all- baggage de-

livered to deplaning passengers. Passengers often

_ point out a bag which@hey believe is theirs, but later

proves otherwise. Each claim check must ‘be paired

with the number. on the baggage strap check.’’ (App.

pp. 30a-3la) (Italics as in original). .

In the District Court, Sugarman, D. J., held that Delta’

could not obtain complete exoneration from liability under

-the tariff rules because-where 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 ‘purpose of his

‘trip’ .within the meaning of the tariff’’. As to the alternate

branch of the motion dealing with limitation, the court held

that Delta’s claim of $100 ‘‘is sound’’.and ‘‘the tariff

provisions are to be given effect to the extent that they are

—

applicable to » plaintiffs? claim”’ upon the puihieitier of Lich-

ten v. Eastern Airlines, 189 F. 2d 939. (C. A..2) ac pp.

84a-85a).

Cross- appeals were taken by the parties (App. pp. 88a-

90a). . Upon argument Delta withdrew its appeal from that

part of the judgment which ' denied complete exoneration

(infra, p. 22). On this phase of the case, therefore, the

District Court’s opinion became the law of the case. Thus,

in the posture in which the appeal came to the Court of

~ Appeals, Schmits’ had every right under the tariff to check

his jewelry as baggage and Delta could not have refused

to carry it within the meaning of the tariff, but whether

the District Court was right in upholding the tariff limi-

tation as a matter of law was the issue presented.

- The Court of Appeals affirmed the _judgment. below on.

the opinion of Friendly, C. J. (infra, pp. 21-29). The

_ court cautiously avoided the precise issue posed by the peti-

tioners in this case and, for that matter, never once used -

or referred to the words, wanton or wilful misconduct. - In-

stead, the affirmance was predicated on the theory that

Schmits’ bag was misdelivered and, by law, limitations

have always been ypheld in misdelivery cases and, sec-

ondly, the reasonableness of Rule 71(A) should have been

‘submitted to the Civil Aeronautics Board in the ‘first: in-

~ stance for” review, despite the fact that petitioners at. no °

time questioned the oases aaa of that rule:

-“

- Reasons Relied Upon for Allowance of the Writ

POINT 1

‘The Court below erred whe it ignored all the

-- uncontroverted acts of wrongful conduct ‘and upheld .

the limitation as a matter of law upon its prior decision

in Lichten v. Eastern Airlines, 189 F. 2d 939. Peti- ,

tioner, who had a right under the tariff to check his

case of jewelry as baggage’ was thereby penalized

for Delta’s intentional, wanton and wilful misconduct

which caused the loss. Neither public policy nor

_ morality can ‘support such a holding which has as its

basis the right to use a tariff as a shield in aad face.

‘of one’s own wrongful acts.

This case inv oly os an. important que stion of federal

law, of direct interest to ev ery air traveler in this country,

which has riever been, but should be, settled by this court.

' It is common knowledge that, for valid safety reasons,

the traveler boarding a plane has no choice but to surrender

complete control aud dominion of his baggage to the care»

. and custody of the airline company. In the instant case the -

baggage checked by petitioner contained jewelry, which was

‘fully permissible atid acceptable under the tariff. Accept-

‘ing this. baggage’ with its &ttendant responsibilities, the

carrier, Delta in this case, provides in‘its passenger ticket |

that baggage will be returned to the bearer of the baggage

tag and that carriage is subject to rules and regulations of

the airline (App. p.. 28a). Delta’s previously promulgated

safety rules and regulations: provided that no baggage shall

be delivered at planeside (App. pp. 38a-39a), that. no pas-

-senger shall walk under any-part of the airplane or in close _ |

proximity to the propellers, that all unauthorized persons

in eargo handling areas shall be challenged, and that all

claim checks must be. paired (App. pp. 29a-30a).

Where, with knowledge of the rules, Delta and its em- ©

' ployees, acting within the scope of their employment, have

deliberately violated these rules and-in addition, as here,

havé been guilty of wanton or wilful misconduct which was

the immediate :and ‘proximate cause of the loss suffered

by: the passenger, Schmits, then, as a matter of public

policy and good conscience, Delta should not be permitted

to use the tariff as a shield in order to limit its liability. ©

Such a resuf would be manifestly unfair and contrary to

the fundamental rule of law that no one may avail himself

- of the benefit of his own wrongful acts (Stearns v. United

- States, 291 U.S. 54, 61- 62).

Limited liability seein. such as Rule 71(A) (App. Ex.

_ Aj opp. p. 10a) which limits liability ‘‘for the loss of’ Wg.

- gage, are intended as a reasonable protection to the carrier ©

against ordinary negligence in interstate commerce (Mag-

. nin v. Dinsmore, 70 N. Y. 410). The courts have consisténtly

applied the rule to every type of loss resulting from ordinary

negligence such as, for example, a failure to deliver (Georgia

F. € A. R. Co, v. Blish Milling Co., 241 U. S. 190 (misde-

livery); Adams Express: Co. v. Croninger,226 U.S. 491 " +

(noftdeliv rery) as well as ordinary losses ini transit (South-

ern Exp. Co. v. Pastime Amusement Co., 299 U.S: 28 (delay

in transit) ; American Ry. Exp. Co. v. ee 260 U.S.

“584 (damage in transit)).

The exception to the rile has been made where the

carrier is guilty of misfeasance or a wrongful delivery of

the property not consistent With or inthe course of the

performance of its duty as a carrier (Magnin v. Dinsmore,

“ supra, 70 N. Y. 410; D’Utassy v. Barrett, 219 N. Y. 420;

Gillespie v. Platt, 19 Mise. ‘-43).\ In its application, the ex-

ception has been applied to a single type of loss, namely,

the so-called ‘‘true’’ conversion cases where the carrier

itself is the wrongdoer and beneficiary (Glickfield v. Howard

Van Lines, 213 F. 2d 723, 727 (C. A. 9); Moore'v. Duncan, —

237 Fed. 780, 782 (C. A. 6); Dezrter & Carpenter v. Davis,

281 Fed. 385, 388 (C. A: 4)).

Thus is reached the pivotal point in this case which is, °

whether the exception should be applied toa loss occurring

by reason of the carrier’s wanton or wilful misconduct.

No case has been found in which the facts or pleadings

raise this precise issue.. There would appear to be no valid

reason why a lesser degree of accountability should be

applied in cases of wanton or wilful misconduct which -is

as. niuch an intentional tort as ‘‘true’’ conversion.

Wanton or wilful misconduct lies on a different plane

' than ordinary negligence. It is a reckless disregard of

another’s rights ‘and denotes intentionally doing that .which.

should not be done, or failing to do that which should be

done with knowledge, express or implied, that injury may

result (Evans v. Texqgs Pac.-Missouri Pac. Terminal R. R.,

(134 F. 2d 275 (C. A. 5); Hazle v. Southern Pac. Co., 173

Fed. 431 (Cir, D. Or.) 5 Restatement of the Law, Torts, Vol.

2, Sec. 500):

A loss sustained by. reason of wanton or. wilful mis- sare

-conduct justifies an award of punitive-damages “‘if the

' defendant has acted wantonly or oppressively, or with such.

malice as implies a spirit of mischief or eryninal indiffer-

ence to civil obligations’’ (Lake Shore & M. S. Railway Co:

v. Prentice, 147°U..S. 101, 107; Wills v. Trans World Air-

lines, Inc., 200 ¥F. Supp. 360, 367 (S. D. Cal. C. D:)) and

. contributory negligence by the plaintiff is not a defense.

(Prosser, Torts, (1941) p. 261; 29 Cye. 509). It would

follow, therefore, that Schmits’ ‘faildre j in this case. to de-

clare a higher valuation under the tariff cannot be used to

_ invoke the doctrine of estoppel. The very nature of Delta’s

_ misconduct has taken this case owt of the regime of unin-—

‘ tentional tortious actions. Any other result would condone

the wrongful conduct of ‘the carrier and. ” contrary to

_ public policy. ~ oe ae

* In the analogous ‘‘free pass” cases, this Court has held

that ‘a stipulation releasing the carrier from all liability

+from negligence cannot protect carrier from the conse-

‘

, ~

quences of its wilful and wanton negligénce (New York

"Central R.R. Co. v. Mohney, 252 U. S. 152). The Mohney

case was cited with approval in Martin v. Greyhound Corp.; —

227 F. 2d 501 (C. A. 6) which involved issuance of a bus .

pass as provided in 49 U.S. C. A. See. 317 (b) and in

Braughton v.. United Air Lines, Inc., 189 F. Sapp. 137

(W.D. Mo. ) which involved an airline pass as provided in

49: U. S.C. A. See. 483(b).

These cases demonstrate that despite the release in the

free pass from liability for negligence, it is the policy of the

- courts that demonstrable wanton or wilful negligence will

_ require the carrier to assume its full liability. It will be

noted that in the case at bar the tariff does not even contain

specific language limiting liability in the event of ‘‘negli-

gence.’’ The tariff limits liability in the event @ “loss”’

without defining the term.. =

Is the term*loss’” so broad i ii scope as to include a

———~" degree of negligence? Obviously not, when we consider

that loss does not encompass a ‘‘true’’ conversion. So,

too, where the carrier has been guilty of wanton or wilful

- misconduct the property cannot be said to be lost in the

sense in which the term is used in the tariff, if, indeed, it can

be considered lost in any sense. The tariff and passenger

ticket were drawn by the defendant and the law requires

that the passenger thus be permitted the most favorable

interpretation thereof. If it was Delta’s intention to limit

liability even ‘in the event of its own wanton or wilful mis-

conduct, the tariff shoyld have’so provided. In accordance

with the applicable law, the/ferm ‘‘loss’’ must be defined -

to mean loss by ordinary n panes not-loss by wanton or

wilful miséonduct.’ ¢

“It is respectfully submitted that asa deterrent to the

carrier’s affirmative acts of intentional wrongdoing, the law

must step between the parties and ‘impose full liability upon

the carrier. This.is both wise and-desirable and recom- «

“mends itself to the best interests of the general public. —

Such a principle was recognized and incorporated in Article

25 of the Warsaw Convention (49 Stat. 300Q), to wit:

_ *(1) The carrier shall not be entitled to avail

himself of the provisions of this convention which

exclude or limit his liability, if the damage is caused

by his wilful misconduct or by such default. on his

part as, in accordance with the law of: the court to

which the case is submitted, is considered to’ be

a to wilful misconduct. jane

_—wT

_. While. -the Warsaw Convention owe no “apply to

; _ domestic flights, as in the case at bar, it is pertinent to note

‘that the term ‘“wilful misconduct’? ‘was not defined in the

articles. of the convention and ‘that the ¢ourts in this _

country have applied the term very much i the same sense

as it is used in other contexts. In one of the clearest defini- ©

tions of ‘‘wilful misconduct’’, and having particular appli-

_ eation to the case at bar, the Court in American AGlines,

Ine. v. Ulen, 186 F. 2d 529 (D. C. Cir.) quoted the Trial

Court’ s charge to the jury (p. 533): ,

“Now wilful misconduct is not, as | have said,

_merely misconduct but wilful misconduct. So if

the carrier, or its employees .or agents, wilfully per-

formed any act with the knowledge that the perform-

ance of that act was likely to result in injury to-a

_ passenger, or performed that act with reckless and

_wantun disregard of its probably consequences, then

that would constitute wilful misconduct; and if the

tesult of that wilful misconduct was injury to Mrs.

Ulen, then her recovery would not be, limited by this

sum of | some eight thousand dollars. :

} 6 @ & F

. ‘‘Now, the mere violation of those (safety rules.

‘ and regulations), * * * even if intentional, would not

necessarily constitute wilful misconduct, but if the

violation was intentional with knowledge that the —

violation. was likely to gause injury to a passenger,

then that would be wilful misconduct, and likewise, 7

if it was done with a wanton and reckless disregard

of the. a ’” (italics ours)

——

In the case at bar, there were the intentional violations

_of safety rules in delivering baggage at planeside with the

‘ knowledge that such violation might cause injury’ or less to

a passenger ; reckless and wanton failure to pair the checks ;

‘failure to exchange the proper check for petitioners’ bag;

deliberate failure to challenge the stranger’s appearance -

on the flying field and permitting him to enter forbidden

territory. All these were defaults or conscious omissions

of the performance of positive duties relating directly to

the safety of petitioners” bag. Coupled with this was the

‘ineredible act of encouraging, aiding and abetting the

‘ stranger engaged in stealing petitioners’ bag. There is, and

can be, no claim that this was either innocent, or e mere

negligent conduct. These were manifestly intentional and

wilful acts done with’a wanton and reckless disregard of

their probable consequences and involving a high degree

of probability that .substantial harm would result to

petitioners (Restatement, supra): The fact that Wiley

conceded prior violations of the rule prohibiting delivery

of baggage at planeside {App. pp. 78a-79a) clearly evi-

- dences a conscious ‘knowledge that the rule was being

violated. Just as there is, and can be, nothing in the tariff |

whieh prevents the exception applied in the ‘‘true’’ convert-

sion cases, so there is nothing which prevents its application |

in those instances’ which the Warsaw Convention teyme :

‘*wilful misconduct.”’» ———

Furthermore these affirmative and intentional acts of

- wrongdoing constituted’ a violent departure from the con- |

tfact of carriage, thereby causing a breach so substantial ..

as to go to its essence and amounting to a rescission. It is

elementary that a party to a contract cannot repudiate

burdensome covenants therein and at,the same time enforce

beneficial ones, (Lynch v. N. Y. Cent. € H. 8. R. Co., 89 *

Mise. 472, affirmed 172 App. Div..934). This principle ‘has

been consistently applied in admiralty (The Sarnia, 278

Fed. 459 (C. A. 2) certiorari denied 42 Ct. 382 (improper ,,

“stowage of goods)) ard common carriage (1 ynch v. N. y.

Cem. & H. RR. Co., supra, 89 Mise. 476 (failure ‘to _iee

cargo as required) ; McK ahan v. Amer. Exp. Co., 209 Mass.

270 (failure to maintain attendant with cargo ond to deliver

with a stated period); Ward v. Gulf, M. dN. BR. Co., 23

Tenn. App. 523 ees in type of vehicle not contemplated

by the contract) ).

In each of the above cases the courts held that the breach

of an ‘essential contractual or tariff rulezhad oceurred and

that the shippers were thus privileged to consider the con-

tract at an end. Accordingly, any limitation of liability ,

or other defense beneficial to the carrier in the origin:

contract of transportation was completely abrogated.

Despite the term ‘deviation’? which has sometimes

been applied in this area, it is clear that the doctrine merely

reflects the basiéprinciple of contract law that a breach go-

ing to the essence permits of a rescission. Although the

term was originally employed as.its lexicographiecal defini- ,

tion implies it has heen extended to comprehend all manner

of. substantial contractual breach. (The as D. -

171 Fed. 929.) ,

In fact the case at bar presents two ieiptiinics tedliéos

not usually present in the ‘‘deviation’’ cases. In‘ none of

‘the cases cited above does it appear that the carrier’s

employees knowingly breached the contract, while the

instant case bristles with intentional and wilful actions.

‘Despite the accidental or unintentignal nature of tlie breach

in those cases it was sufficient to deprive the carrier. of its

protective contractual provisions. Furthermore, the breach

of contract here committed was the: immediate and direct

cause of petitioner’s loss, and not merely an event which

placed the goods iia situation where they were subsequently -

é destroyed by an Act of God, or by third persons, without the

earrier’s fault or neglect. The loss here was simultaneous in

time and place with the breach. <

s ; . «

- The Court of Appeals sought comfort ‘on this phase of

the case in the dissenting opinion of Frank, C. J., in the

Lichten case by poiuting out that the possible validity of a

reasonable limitation of liabi lity was conceded, and that no

suggestion was made concerning’ its inapplicability if the .

carrier’s misconduct was extreme (infra, p. 28). However,

Judge Frank's positi n on this point was made perfectly .

clear ‘in the conclusion of his opinion where he stated (p.

950, 189 F’. 2d):

‘*But J incline to believe that this valuation pro-

vision my colleagues apparently recognize) did

not here apply since defendant’s tariff provided that -

it was not liable in any amount for loss to plaintiff’s

jewelry. However that may ‘be, this provision did

not, u think, survive the déviation.”’ (italics added)

Recent airline cases have recognized that this con-

tractual principle would - be applicable in a proper setting

(Braughton v. United Airlines, Inc., supra, 189 F. Supp.

37; Franklin v. United Airlines, Inc., 184 F. Supp. 814

(8S. D. N. Y.)). In the Franklin case, supra, the court

phrased it thus:

‘46 © © © Where there has been no wilful wrong-

doing by or unjust enrichment of the defendant car-

‘ rier, plaintiff cannot avoid the contractual limita-

tion of defendant’ 8 liability ae (italies added)

. The Court of Appeals seems to have. aveided' ‘the pre

cise issue raised. in this case ‘by adopting the theory that

‘sthe loss happened by reason of a ‘‘misdelivery’’, thereby -

grouping this case with those dealing with ordinary negli-

_ gence; this, despite the fact. that, there -is no evidence. in

the record to support such a theory.. In fact such a theory

is in direct confliet with all the evidence in the case. The

record shows that we deal\in this case with tnuch more

thin a misdelivery, as the term is popularly known; there

are presented a series of circumstances spélling out inten- .

tional and reckless conduct, wilfully and wantonly per- °

- formed with the knowledge that harm might result—or so

ae ts)

_ @ jury could well find. To characterize such acts, which

would ordinarily shock the public conscience, as a mis-

delivery and, therefore, a ‘‘loss’’ within the meaning of

the tariff, is to open the door to the grossest frauds and to

perform a great disservice to the general: public.

Consistent with its theory of misdelivery, the statement

of facts in the opinion below omitted the conversation’ be-

tween the stranger and. Phillips wherein Phillips admittedly ~

said, ‘‘ However; if you see your bag it is alright to take it”’

(App. p. 47a). This after having given the proferred

claim check ‘right back to him’’. (App. p. 71a).

‘What did Phillips intend by this statement? It re-

quires no great stretch of. the imagination to visualize

- what can happen under such circumstances and what did

‘happen in this case. Phillips wilfully exposed petitioners’ °

. property to a greater risk than provided for in the con-

_ tract of carriage and thus knowingly and deliberately caused

the loss, while his superior, Wiley, stood by mutely. This,

we submit, satisfied the requirements of the intentional tort,

known as wantgn or wilful misconduet, as defined in 29

Cyc. 510: - %

‘In order that one may be held guilty of wilful. ©

or wanton conduct, it must be shown that he was con-

scious of his conduct, and conscious, from his knowl-

edge of existing conditions, that’ the injury would

likely or probably: result from his conduct, and that

with reckless indifference to consequences he con-

sciously and intentionally did some wrongful act or

committed some known a which preemnee the in-.

jurious result. = :

‘The wrongful nature of Delta’s pan is further .

demonstrated by the prior violations of the safety rules

which Wiley testified ‘‘happens quite often and has hap:

pened quite often, close connection for one thing’’ (App.

p. 78a). Despite the Court of Appeals characterization

thereof as oceasiorial breaches (infra, pp. 24-25) such a

(16

history has been held a significant factor in determining’

issues of wilful misconduct. . In American Airlines, Inc. y.~

Ulen, supre, 186 F, 2d’'529, the same Second Circuit noted

that. there was knowledge that. the violations would be

likely to cause injury siace ‘‘the same pilot had flown this

.same route in the same manner several times before’’ and

concluded :

‘*This is only evidence of deliberateness aa full

knowledge which renders Appellant’ s actions the

more reprehensible. ”? (p. 534) 4 +

A single violation of rules ‘especially designed for the

safety and protection of life and property is evidenee of

negligence. Repeated violations, for whatever reason, can

onlySstem from a callous indifference to human life and

property and are intolerable. Both Wiley and Phillips

were acquainted with the safety rules and should have

governed themselves according}y. It is here that the wanton -

and wilful misconduct is in plain view, justifying peti-

tioners’ position that Delta cannot invoke its claimed _

limitation.

The Court of ‘aiid based its decision’ upon its earlier

holding in Lichten v.-Eastern Airlines, 189 F. 24 939 which

contained a forceful dissent by Frank, C. J. The case

stands primarily for the proposition that, despite the .

absence in the Civil Aeronautics Act of 1938-(49 U.S: C. A.,

Sec. 401, et seq.) of provisions comparable to the Carmack.

Amendment (49 U. 8, C. A., See. 20(14}), afi. airline, like

a railroad, may publish and file a tariff as if Congress had _

‘expressly given it the right to do so and that the passenger — ’

and airline are bound by the tariff. This right to file bind-

ing tariffs, does not mean, as the Court below held, that the

_ tariff is applicable irrespective of wrongful conduct.

Whether Lichten is sound law or ‘not, it fiffers essentially -

from the case at bar in that there the Second Circuit did

not. considet the question of ‘limitation because of the

17 Cerne)

operation of the exculpatory clause which provided that’ .

jewelry was carried ‘‘only at the risk of the passenger’’.

~. Here, liability is conceded. and the issue is/the extent

thereof.' Also important is ‘the’ fact that there was no

evidenceghi Lichten that the loss was the result of wanton

or wilful misconduct.) It was decided on an agreed stipula-

tion of facts which contained no hit that/w at the Court

‘] labelled a ‘‘misdelivery’’ was caused other tha | by ordinary :

be ‘negligence. On the other hand, the case at bar is: based ©

upon vialations of safety rules and regulations and sworn

depositions reciting, among other things, prior. violations

and an invitation to a thief to steal /Schmits’ bag. ~*

Finally, the exercise of domiylion over Schmits’ bag

“in this wanton and wilful manner has deprived him

_ of his property as surely as if it had been actually converted

by Delta itself. If such a taking is intended by the terms _

— , ‘of its tariff, then the tariff permits a deprivation of prop-

_erty without due process of, law, and cannot, be permitted ©

* to stand. Neither the Constitution nor-the enabling legis-

lation authorizes a regulation which permits such a taking

without compensation. :

-Itis respeetfully submitted that there is * re presented

a proper occasion for the exercise of the supervisory. power

of this Court. | es ,

‘ t /

/ POINT MH

_ The Court hie aed when it held that the Civil

Aeronautics Board had primary jurisdiction in a case

such as this since, in the light of Delta’s wrongful

conduct, the real issue was the’ applicability or legality

of the rule, which only the Charts may determine.

~ Delta; ‘in moving for pat -w \R judgment, mr rg a ju-

dicial determination on the merits go that the jurisdiction

of the court, and not the Board, was conceded. Jurisdic-

_ tion was accepted by the District Court in its decision.

. f - .

. ;

LA :

tere

In fact petitioners in the Court below asserted that they

“questioned not the reasonableness of Rule 71 (A), but

Delta’s right to inv oke it. I.

The issue Of primary jurisdiction was introduced in

this case for the first time by the Court of Appeals which

held that “the true thrust’’ of petitioners’ argument was

that Rule 71 (A) was ‘‘unreasonable”’ (infra, p. 28) des-

pite the fact, that, as the court intimated, resort to the -

Civil Aeronautics peared would be futile (infra, pp. 28-29).

\Actually, we respectfully submit, ‘‘the true thrust” of

“petitioners? argument is, firstly, that Rule 71 (A) should -

not be interpreted to permit a limitatioa of: liability in the

event of a loss caused by the cargier’s ’s wanton or wilful

misconduct. It has en, held. that where the rule itself 1s° -

not being questioned but the applicability of the rule i is at

diction. (Great Northern Ry. Co. v. Merchants Elevator Co.,

. 259 U.S. 285; Penn. R. R. Co. v. - Puritan al’ Mining Co.,

237 U.S. 121).

‘issue, the administrative body does. ia ‘juris-

Rule 71 (A) ‘provides ies Liability for ‘‘loss’’. The

words are used in their plain, ordinary -sense. Their

construction involves fio technical considerations ‘calling

for administrative discretion .or specialized administra-

tive knowledge. It presents a question of law no different

- in character from the construction of any other document i in

dispute (Great Northern Ry. Co. v. Merchants Elevator Co.,

supra, p. 291 259 U. S.).

Secondly, by reason of the special circumstances in this

case, we are dealing with a breach of the contract of car- .

' riage going to its essence, thereby rescinding the contract

- -arid vitiating, the limitation provision. Clearly, thé courts -

are peculiarly and exclusively qualified to make such a

determinatian.

; Thirdly’ if the Board intended to authorize Delta to

limit its liability irrespective of ”" wrongful conduct

/ fl , & s

/ ; |

_ ther the question to be ‘determined is the power of the -

Board to do so. Again, the courts, and not the Board, are

the proper forums for such a determination (Boston and -,

Maine Railroad v. Piper, 246 U. S. 439). 3

Thus, it will be seen that whatever view is taken of the

issues, their resolution is a judicial and not.an administra-

tive ‘function. To demand a prior Board determination

under these circumstances is to require the sort of nugatory

act with which courts dispense in all sorts of situations.

! Upon: this ground alone, certiorari should be granted and

ie judgment below reversed.” |

¥ 4

; Conclusion

The issues involved herein are of natidnal importance.

” They affect all those using airlines in this country for

business or pleasure. The decision of the Court of Appeals,

followi ing the Lichten case, means that the established pub-

lic policy i in these cases.will permit a carrier, under the guise

of ‘‘misdelivery’’, to claim the. benefit of a tariff limitation

: where its wanton or wilful misconduct resulted in loss to

‘the passenger’s property, and, furthermore, would foreclose

court consideration of the applicability of the tariff rule’

under the guise of ‘‘reasonableness’’. To permit the matter

to remain in its present posture is to condone the wrongful

aets of the carrier and to. put the general public at the -

complete mercy of the carriers’ every act and omission. It

‘is for-the Supreme Court to draw that line: beyond’ which

the carrier may not stray without assuming full respon-

sibility for its conduct. For the foregoing reasons, it is.

respectfully submitted that this petition for a writ- of

ceriiorati should. be granted. ae?

Respectfully submitted,

Simon GreEeNHILL,

Joun M. Speyer,

sir Counsel for Petitioners.

APPENDIX

(Opinion of the United States Court of Appeals

| for the Second Circuit)

U NITED STATES COURT OF APPEALS

For THE Seconp Circuit .

No. 310—September Term, 1961. .

thieaed April 4, 1962 Decided April 30, 1962 Ce

Docket No. 27108

a’

ray bn

-“V “

JosEPpH VoGELsaNGc and Grorce Scumits, co-partners doing

business under the firm name end — of W HITEHOUSE

.Bros.,

—_—Vi.— %

Deus ken Lines, Inc., ae

" Defendant- Aue llee.

Before:

| Crark, Hincks ‘and Fsrewpuy, | ee

\ , Cirewit Sudges.

“oO \

7 ae: | |

Plaintiffs appeal from a judgment of the District pen

_ for the Southern District of New York, Sidney Sugarman,

_ Judge, 193 F. Supp. 613, limiting th ir recovery from an

- airline for misdelivered baggage to $100. ——

tf.

Simon GreENHILL (Greenhill & Speyer, John M.

- Speyer of Counsel), New York, New York,

for Plaintiff s-A ppeltants.

‘Joun L. Conners (Bigham, Englar, Jones &

Houston, John M. Aherne of Counsel), New

‘York, New York, for natant te

oe of the United States’Court of ici for the -

Second dashed

_ ‘Plaintiffs appeal froma judgment of*Judge Sugarman |

in the Southern District of New York,-193 F. Supp. 613,

which granted a motion of defendant, Delta Air Lines, Inc.,

for summary judgment limiting to $100 its liability for

loss. of a bag owned by plaintiffs and checked in connection. °

with the air transportation of one of them.' We affirm. —

The facts, contained in affidavits, Delta’s answer to in-~

terrogatories, and depositions, are as follows:

Plaintiffs are partners, engaged in the sale of loose dia- ;

monds and the manufacture of platinum, gold and diamond

jewelry for sale to retailers. In the fall of . 7, plaintiff

Schmits made .a flight from the *firm’s headquarters in

_ Cincinnati, ‘Ohio, to Jacksonville, Florida, on a Delta plane

whose final destination was Miami. His transportation was’

under a coupon ferming part of a round trip interstate

ticket previously purchased. He checked two bags. The

- airline affixed a numbered ‘‘strap check’’ to each’ bag and

gave Schmits ‘‘claim stubs,’* bearing the, same numbers,

which formed the lower part of the tags. One of the pieces

of luggage was a small leather bag containing personal

articles ; the other’was a fibre bag encased in a canvas cover

and allegedly containing assorted jewelry worth $69,275.87,

intended for display to customers of Schmits’ firm.

1 The jurisdiction of the District Court was based on diverse

citizénship, 28 U. S. C. § 1332. ‘

In ihe District Court, Delta also claimed complete exemption under.

_ Rule 70(B) of its tariff, which disclaimed liability “for’ the ‘loss of,

injury to, or delay in the delivery of personal property which is not

acceptable for transportation pursuant. to Rule 65 (Acceptance of

Baggage ).” Rule 65 limited the carrier's acceptance obligation to —

“such personal property as is necessary or appropriate for the wear,

use, comfort, or convenience of the passenger for the purposes of his

trip.” Judge Sugarman overruled this claim; Delta has withdrawn its

appeal from his si

— of the United States Court of Appeals for the

Second Circuit

At the time of Schmits’ journey, Delta was a participant

in Local and Joint Passenger Rules Tariff No. PR-4 gov-

ae the transportation of passengers .and baggage be-

tween points within the United States,? filed with the Civil

Aeronautics Board. Rule 71 of the tariff provided, insofar

as pertinent, as’ follows :

{Rule 71—Limitation of Liability _ eee

(A) The liability, if any, of all participating car-

riers for the loss of, damage to, or delay in the de-

livery of any personal property, including baggage

(whether or not such property bas been checked or

otherwise delivered into the custody of the carrier) -

shall be limited to-an amount equal to the value of

such property, which shall not exceed the following

amounts for each ticket: |

. $100.00 when any other carrier [including Delta]

_is- responsible for the loss, damage or delay **;

; i . o * ie,

unless the passenger, at the time of presenting such -

property for transportation, when checking in for

flight, has declared a higher value and paid an ad-

ditional transportation charge, at the rate of 10 cents

for each $100.00 or. fraction thereof, by which such

higher declared value, exceeds the applicable amount

set forth above, in which event carrier’s liability shall

not exceed such higher declared value.’’®

The ticket sain to Schmits ‘scteibiad under the head-

ing “Conditions of Contract, ’” a provision under (4) that:.

2 The tariff also applied betwvene points in the Continental United

_ States and points in Canada, and between points in Canada. oad.

- 3 Certain other ‘airlines accepted basic liability of $250.

Opinion of the United States Court a Appeals for the

Second Circuit

“(d) liability of Carrier in respect of baggage

‘ and other personal property i is limited to its deck#red -~-

value which shall not exeeed $100 (U. S. currency) —

or its equivalent per passenger, unless a higher valua-

tion is declared in advance and additional charges —

are paid pursuant to Carrier’s tariffs ;’’

and another provision

‘*(5.) Baggage iti siiahiie. will be deliv-

ered to the bearer hereof upon return to Carrier of.

the baggage (claim) tag(s).’’

Schmits did not avail himself of the siete, to declare a

higher value than $100 and pay the corresponding charges,

‘which, for the value now claimed, would have considerably

“. exeeeded his fare for this leg of the trip.

On arriving at Jacksonville, Schmits went to a self-claim

. baggage area in the terminal. When the truck with luggage

. from his flight arrived Schmits saw, and received the leather

bag containing personal effects; the canvas-covered bag .

_with the jewelry was not_on the truck and has never been

- located.’ Investigation revealed that as thé plane was being

unloaded on the ramp, a man holding a claim check ap-

proached the porter who was receiving baggage from the>__

bin in the belly of. the plane, and asked for. his bag; the

porter declined to search for it. --The man thén made a

’ similar request of another employee, who having finished

his task of unloading. the mail bin in the tail of the plane,

had joined the porter in receiving baggage. The man gave .

this employee a claim tag; the latter handed the tag to the

_porter; the man took a bag, presumably Schmits’, and de-

parted; no one ever looked at the proffered claim tag.

Although Delta‘s internal rules required surrender of the

claim tag. and prohibited ramp. delivery, both — |

: 29

” Qpiaien of the Unite a: States Court of fisiaihs for the

. Second Cireuit

were occasionally breached when passengers. -songht quick =~

_—delivery-of haggage to : assist in making connections.

Section 403(a) of the ¢ e Civil Avronauties.Act of 1938,

. 49 U.S. C. § 483{a), then in e ffect [now § 403(a) “of. the.

Federal Aviation Act of 1958, 49 U.S. C. § 1373(a)1, obliged

Delta to.file with the Civil Aeronauties Board ** tariffs show-

ing all rates, fares, and charges for air transportation be-

‘tween points served by it *’* * and showing ‘to the extent

required by regulations of the Board, all classifications,

' rules, regulations, practices, and services in connection ”

with such air transportation.”’ The Board’ required, 14

- C.F. R. § 221,38(a), that ‘‘the rules and regulations of cach

tariff shall contain’’ inter alia:

#6 (4) All other provisions and charge s'W hie hin

any way increase or decrease the amount to be paid

on any shipment or by any passenger or by any

charterer or which in any way@ncrease or decrease

the value of the services rendered to the shipment or

passenger or charterer.""* *

A provision limiting liability for baggage unless a bigher

Valuation is declared and higher charges paid is within this

requirement, Cf. Herman v. Northwést Airlines, Inc., 222

F. 2d 326 (2 Cir.), cert. denied 350.U. S: 8438 41955).

A long line of decisions, too familiar to warrant “com-

plete citation, has settled that limitations of liability in

_railroad tariffs required to be filed with the Interstate

Commerce Commission are binding on-shippers and pas-

sengers, whether the limitation was also embodied. in the

transportation documents, as in Adams Express Co. v.

Croninger, 226 U.S. 491 (1913), or was not, as in Boston

449 C. F. R. § 221.38(g) previded that “Where it is desirable or’

found more practicable, the rules and regulations. required by: this

section may be published in separate governing tariffs * * *.”

| Opinion of ‘the United States Court of pane vad the ’

Second Circuit

& Maine R.R. v. Hooker, 233 U. S. 97 (1914). In Western

Union Telegraph Co. vy. Esteve Brothers & Co., 256 U.S.

566 (1921), the principle was extended to tariff provisions

of a telegraph company filed with the Commission, although

not. then required: to be. Inevitably, therefore, the same

rule has been applied to tariffs of air carriers +filed with

the Civil Aeronauties Board under 49 U. S. C. $483(a),

Lichten vy. .Eastern Air Lines, Ine., 189 F. 2d 939 (2 Cir.

1951); Herman vy. Northwest Airlines, Inc., supra.

Plaintiffs contend that what happened here did not con-

stitute ‘‘the loss of, damage to; or delay in the delivery

vof any personal property’’ within Rule 71(A). They say

_ the bag was not lost, damaged or delayed, but misdelivered.

‘We would not read ‘‘loss’’ so narrowly. For all practical |

. purposes‘a bag is just as much ‘‘lost’’ to the owner when

_ it is delivered to someone else who does not retarn it, as

- when it has been misplaced or pilfered. The purpose of

_ Rulé 71(A) was to protect the airline directly, and other

users of its service indirectly, from large baggage claims

- of the sort here presented unless the carrier was advised

of the need for taking special .precautions and adequately

_ paid for their cost and the enlarged responsibility assumed.

This forbids a construction, not called for by the words,

that would eliminate so common a cause of ‘‘loss’’ as a

misdelivery; a true ‘‘conversion’’ by the carrier itself, see

Glickfela v. Howard Van Lines, Inc., 213 F, 2d 723, 727

(9 Cir. 1954), would be another matter.. The Carmack

Amendment, 49 U. S$. C. § 20(11), making an initial carrier

- of property liable ‘‘for any loss, damage, or injury to such -.

property’’ caused by a connecting carriér, has. always been -

held to inehide misdelivery, King v. Barbarin, 249. F. 303, _

305 (6 Cir, 1917); Winget v. Grand Tank Western Ry.,

210 Mich. 100, 177 N. W. 273 (1920) ; and misdelivery comes’

withiti the phrase ‘‘failure to make delivery”? i in a bill of

lading requiring timely notice of claim in that event,

cp”

; Bea |

Opinion “d the United Slates Cone of Aspens for the

Second C ircuit

Georgia, Florida & Alabama Ry. v. Blish Milling Ca., 241

U.S. 190 (1916). Lichten. v. Eastern Air Lines, supra, also

is directly in point on the facts, although the argument

seems not to have been made in exactly the formrin which

plaintiffs make it here; there too the tariff spoke of. ** the

loss of, or.any damage to, or any delay iw the délivery of’

- articles ‘included in baggage and the Jag was delivered to

an unknown person without produgtion | of the claim tag,

189 F. 2d at 940.

Plaintiffs appear to argue in the alternative that if the

tariff provision applies. to conduct which they regard as so

_ reprehensible as, Delta’s, it was one that the Civil Aero-

nauties Board could not lawfully accept. They ‘point, by

way of analogy, to Article 25(1) of the Warsaw Conven-

tion, 49 Stat. 3000, 3020, relating to certain international

air carriage, whereby ~ .

“The ¢arrier shall not be entitled to avail himself of

the provisions of this convention which exclude or

limit his liability, if. the damage is caused by hix

_ wilful misconduct or by such-default on his part as,

in accordance with the.law of the court to which the

case is submitted, is considered to be equivalent to

- wilful misconduct,”’ -

and argue that Delta’s conduct was of the sort there de-

scribed. The Warsaw Convention, however, does not affegt

the Board’s power to accept tariffs providing other regimes

of liability for transportation not coming within it- The

‘Lichten decision is a fortiori authority against plaintiffs

on this score. There the tariff completely exe mpted from

liability as regards jewelry ; ; the majority held the Board

could lawfully accept such a provision, and even the dis-

senting judge thought that ‘‘ possibly’? Eastern might have

provided for limitation of liability for baggage **to a cer-

28 .

| Opinion of the United States Court of ‘Appeals for the

Second Circuit

tain, reasonable amount, unless the passenger gave notice

of the presence of valuables in his baggage and paid an

additional sum for its transportatio ”? 189 F. 2d at 945,

without suggesting that such a limitation would not be valid

if the carrier’s misconduct were extreme. -

Indeed, the true thrust of plaintiffs’ argument is not

a the Board eduld not lawfully accept a tariff containing

71(A) but rather that it ought not to have done so

bee! se the Rule’ is unreasonable if it covers a case such

as: this. A claim that a tariff is unreasonable must be

passed \upon in the first instance by the- Board, United

States v\ Western Pac. R.R., 352 U. S. 59 (1956). Although,

in Continental Charters, Inc., Complaint of Mary Battista,

16 C. A. B. 772 (1953), a court referred such a claim to the

Board, which held the notice provision there in question to

be unreasonable, such retrospective invalidation of a tariff

properly filed with the Board may well be precluded in

the light of the Supreme Court’s subsequent decision in

T.1.M.E. Inc. v. United States, 359 U. 8. 464 (1959).* More-

over, nothing has been called to our attention that would

give any basis for belief that the Board is dissatisfied with —

contrary. In 1952 the Board. dismissed an investigation-

*The T. I. M. E. case arose urlder the Motor Carrier Act, on

which, as the Board pointed out in Continental Charters, 16 C. A. B.

‘at 777, the Civil Aeronautics Act was largely patterned. The Board .

there relied, 16 C. A: B. at 776-777, on Bell Potato Chip Co. v. Aber-

deen Truck Line, 43 M. C. C. 337, 341-342 (1944), in which the

Interstate Commerce Commision had held that despite the absence of

_ feparation provisions in the Motor Carrier Act in contrast to Parts I

and III of the Interstate Commerce Act, an absence paralleled in the

Civil Aeronautics Act, the Commission could nevertheless make an

administrative findirig of past unlawfulness of a tariff; Bell Potato

Chip was later specifically disapproved in 7; J. M. E., 339 U. ab at

476-477.

pecs

Opinion of the U wited States Court of Appeals for the

Second Circuit |

into liability rules insofar as it concerned a provision simi-

lar to Rule 71(A), subject only to a condition that ‘‘the —

carriers will give other notice of the $100 limitation. on

checked and unchecked baggage *: * *,”’ Order E-6538,

CCH Aviation Law Reports {21 501; very recently the

Board terminated what remained of the investigation, with

out prejudice, of course, tovany future one, Order K-15199

(April 10, 1962). Also the Board has apyfrov ed aly agree-

ment of the international carriers who are members of the

International Air Transport Association adopting Condi-

tions of Contract for the passenger ticket that limit: to _

the Warsaw Convention figures liability for baggage on

which a higher valusnes has not been declared, without

any exception for ul misconduct, so far as concerns

transportation n sabiedk to'the Convention. Pan Aimeri-—

can World ways, Inc., et al., Conditions of Carriage, 24

C. A. B. 575, 579 (1957). In the light of all this we are

_not diepostll to order, of our own motion, a reference to,

‘the Board that plaintiffs have not sought either below or

here. All other arguments of plaintiffs are —— of by

our Lichten and Herman decisions. :

Affirmed.

| Judgment

-U NITED STATES COURT OF ‘APPEALS wo '.

For tue Seconp Circurr

At a Stated Term of" the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Courthouse in the: ‘City of New York, on the

thirtieth day of Apri, one thousand nine ‘hundred and

sixty-two: .

‘-

Present:

‘Hos. Cuartes E. Cuark, |

~Hox. Carrot, C. Hincks,. - dis : :

How. Henry J. Frienby, ae

Circuit Judges.

_ — g

Josern Voceisane and Georce Scumirts, co-partners, do-

ing business under the firm name and style of Wurte-

HOUSE Bros., »

Plaintiffs-Appellants, a

ve *%

Dera Am Luivgs, Inc. a

‘Defendant-Appellant.

—w.

Appeal. from the United States Distriet Court for the

Southern District of New York. .

' This cause- came on to be heard on the transcript of

‘record from the United States District Court for the

Southern District of New York, and was argued by counsel. .

ON CONSIDERATION WHEREOF, it is now, hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed.

A: Dayren Fvsano;

A true copy. ;

Clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.