Opinion
CIVIL ACTION 00-2092, SECTION "T"(4)
April 8, 2002
Before the Court are the Cross Motions for Summary Judgment filed on behalf of the defendant, Delta Air Lines, Inc. and the plaintiffs, Luis A. Balart and Harriet W. Balart, respectively. The parties waived oral argument and the matter was submitted for the Court's consideration on the briefs alone December 5, 2001. The Court, having considered the memoranda of counsel, the Court record, the applicable law and jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
Plaintiffs originally filed suit in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, on June 14, 2000. Plaintiffs submit that on June 20, 1999, they were ticketed passengers aboard a Delta Airlines flight from Atlanta, Georgia to New Orleans, Louisiana. The plaintiffs contend that unbeknownst to them their luggage was shipped on an earlier flight arriving in New Orleans two to three hours prior to their arrival, rather than being shipped on the plane in which they flew. Plaintiffs assert that after the luggage arrived in New Orleans it was left unattended in the baggage claim area. The plaintiffs retrieved only one of three bags checked. The plaintiffs seek damages for the economic loss of the luggage, general damages for pain and suffering, and intentional and/or negligent inflection of emotional distress.
On July 14, 2000, Delta Air Lines, Inc. ("Delta") removed the case to this Court based upon federal question jurisdiction, namely that claims against interstate air carriers which seek damages for lost goods arise under federal common law. The plaintiffs' motion to remand was denied by this Court. Each side now moves for summary judgment.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of the Defendant in Support of its Motion for Summary Judgment:
Delta seeks to dismiss the claims of Mrs. Balart because the contract of carriage between Delta and Mrs. Balart limits Delta's liability for lost baggage to $1,250.00 per passenger. It is submitted that Mrs. Balart was given reasonable notice of the limitation of liability in the contract of carriage. First, the face of the contract of carriage prominently provides the "Notice of Baggage Liability Limitations." Second, the airport check-in counters provided notice to passengers of the $1,250.00 limitation via conspicuous signs posted. Third, Delta contends that the published tariffs incorporated by reference in the contract of carriage gave additional notice of the $1,250.00 liability limitation. Fourth, Mrs. Balart's extensive air travel experience with Delta, evidenced by her frequent flier miles, provided her with ample opportunity to become familiar with the baggage liability limitations and to declare a higher value for her checked baggage and obtain protection in an amount greater than $1,250.00. Finally, Delta submits that general information published in Delta's time table, given to its passengers, clearly states that Delta's liability for lost baggage is limited to $1,250.00. Because Delta has paid $1,250.00 to Mrs. Balart, Delta's obligation has been discharged and Mrs. Balart's claim should bet dismissed, with prejudice.
Delta likewise seeks to dismiss the claims of Mr. Balart as she failed to file a written notice of claim with Delta as required by the contract of carriage.
B. Arguments of the Plaintiffs in Opposition in Support of their own Motion for Summary Judgment:
Plaintiffs argue that because the baggage was not transported on the same flight with them, the contract of carriage, which contains the limitation of liability, is inapplicable. The plaintiffs were issued a ticket aboard Flight 351 departing Atlanta, and arriving in New Orleans. The multi-page ticket insert attached to that ticket does not grant Delta the right to ship or carry plaintiffs' luggage on anything other than the ticketed flight, or depart from the terms of the contract. Delta cannot assert a limitation of liability on luggage which was not carried pursuant to a contract of carriage or baggage claim check.
Delta's action in carrying the luggage on an earlier flight, materially increased the risk of loss. The plaintiffs never received reasonable notice that their luggage would not be on the plane in which they flew and were ticketed. Delta cannot rely on the contractual limitation of liability where here it materially deviated from the contract of carriage by not transporting the baggage on the ticketed flight to ensure that the plaintiffs could retrieve their baggage at the conclusion of the flight. As such, Delta's breach and deviation of the contract of carriage rescinds the contract and voids any reliance on the limitation of liability clause.
Finally, Delta was timely put on notice that plaintiffs had suffered a loss of two pieces of luggage. Plaintiffs contend that the Notice of Loss does not require the names of individual claimants. The contract of carriage merely requires written notification of a loss within twenty-one days. Furthermore, it is submitted that since Delta materially breached the contract of carriage, the notice requirement is not enforceable. As such, the claims of Mr. Balart should not be dismissed.
III. LAW AND ANALYSIS:
A. Law on Motion for Summary Judgment:
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco. Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. The Court's Analysis:
An air carrier is permitted to incorporate by reference in a ticket or written instrument any term of the contract for providing interstate air transportation. 49 U.S.C. § 41707, 14 C.F.R. § 253.4 (a). If an air carrier chooses to incorporate contract terms by reference, notice to the passenger must be provided. 14 C.F.R. § 253.4 (a). If the carrier fails to give the required notice, the carrier loses the benefit of those incorporated terms and the passenger cannot be bound by them. Id. These incorporated terms include an air carrier's limits on liability for lost, damaged or delayed baggage. 14 C.F.R. § 253.5 (b)(1).
A Contract of Carriage was entered into between Delta and the Balarts which incorporated certain contract terms by reference. The multi-page ticket insert provided to plaintiffs stated, in boldface, capitalized letters, "NOTICE OF INCORPORATION OF TERMS." (Defendant's Exhibit 1). It provided that all air transportation within the U.S. is "subject to the individual contract terms (including rules, regulations, tariffs and conditions) of transporting air carriers, which are herein incorporated by reference and made part of the contract of carriage." (Defendant's Exhibit 1). The notice also states that incorporated terms may include, "claims restrictions, including time periods in which passengers must file a claim or bring an action against the air carrier." (Defendant's Exhibit 1).
The Contract of Carriage further contained a bold-faced, capitalized notice entitled "NOTICE OF BAGGAGE LIABILITY LIMITATIONS." The Notice provides that liability for lost, delayed, or damaged baggage is limited to $1,250.00 per passenger unless a higher value is declared in advance and additional charges are paid. (Defendant's Exhibit 1).
Likewise, Delta's published tariff rules are incorporated by reference into the Contract of Carriage and provide that "written notification of loss must be received by [Delta's] system baggage within 21 days after the alleged occurrence." (Defendant's Exhibit 9). Finally, the general information provided in Delta's Timetable provides notification to passengers of the $1,250.00 limitation of liability unless an excess value is declared and charges paid before departure. (Defendant's Exhibit 12).
However, the plaintiffs can only be bound by these incorporated terms, including the limitation of liability, if reasonable notice was provided. In making this determination, the Court must determine "whether the liability limiting provisions were sufficiently plain and conspicuous to give reasonable notice of their meaning." Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 930 (5th Cir. 1997). First, the court must examine the physical characteristics of the contract of carriage to determine whether they provide "reasonable notice" to the passenger. Id. The court looks to the features such as size of type, conspicuousness and clarity of notice on the face of the ticket, and the ease with which a passenger can read the provisions in question. Deiro v. American Airlines, Inc., 816 F.2d 1360 (9th Cir. 1987). Next, the circumstances surrounding the purchase and subsequent retention of the ticket is to be considered. Sam L. Majors, 117 F.3d at 930. The passenger's familiarity with the ticket, the time and incentive under the circumstances to study the provision of the ticket, and any other notice that the passenger receives outside of the ticket. Id.
While the plaintiffs have not argued that they were not provided reasonable notice, the Court will look to the factors delineated by our jurisprudence. Looking first to the physical characteristics of the contract, as provided above, the terms and conditions incorporated into this Contract of Carriage were bold-faced and capitalized providing in clear and plain language the limitation of liability. Moreover, Delta's records show that Mrs. Balart was an experienced traveler who had traveled dozens of times in the past six years, accumulating at least 139,093 frequent flyer miles. (Defendant's Exhibit 8). Mrs. Balart purchased her ticket on June 11, 1999, and had it in her possession between three and nine days before checking her baggage on June 20, 1999. As such, Mrs. Balart had ample opportunity to become familiar with the limitations. Additionally, evidence has been submitted to establish that the limitation of liability was conspicuously posted at the airport check-in counter. Specifically, a sign displayed at the check-in counter at the airport entitled
"LIMITATIONS OF LIABILITY," states:
[L]iability for loss[,] delay or damage to baggage is limited to . . . $1,250 per passenger for most carriers whom travel between U.S. points (unless a higher value is declared and an extra charge is paid).
(Defendant's Exhibit B, 10).
Accordingly, upon consideration of the enumerated factors, it is the finding of this Court that reasonable notice was provided to the plaintiffs that a $1,250.00 limitation of liability was made part of the Contract of Carriage to which plaintiffs became legally bound.
Moreover, to address the assertions of the plaintiffs, in support of their cross-motion for summary judgment, it is the opinion of this Court that said arguments lack merit. As this Court has found that no genuine issues of material fact exist with regard to reasonable notice being provided, the limitation of liability provision applies whether the bags were placed on flight 351 or some other flight. Specifically, the baggage liability tariff, incorporated into the Contract of Carriage, provided that it would apply to "baggage or temporary storage at a city or airport ticket office or elsewhere before or after the passenger's trip." (Defendant's Exhibit 11). Moreover, the Conditions of Contract provides that the:
Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch. Times shown in timetable or elsewhere are not guaranteed and form no part of this contract. Cater may without notice substitute alternate carriers or aircraft, and may alter or omit stopping places shown on this ticket in case of necessity. Schedules are subject to change without notice. Cater assumes no responsible for making connections.
(Defendant's Exhibit 1). As such, it is the finding of this Court that the Contract of Carriage allows for the transportation of either the plaintiffs or their baggage on a flight other than Flight 351 and therefore would not affect the limitation of liability in the Contract of Carriage.
Next, plaintiffs argue that Delta deviated materially from the contract thus rendering the limitation provision inapplicable. This Court does not agree. The plaintiffs in no way established that a special or separate promise from Delta was made to lessen the risk of harm associated with this baggage. See, Hill Construction Corp. v. American Airlines, Inc., 996 F.2d 1315 (1st Cir. 1993). This case is clearly distinguishable from those relied upon by the plaintiffs.
In Coughlin v. Trans World Airlines, Inc., 847 F.2d 1432 (9th Cir. 1988), the plaintiff wanted to carry the cremated remains of her husband on the plane with her. The airline personnel however refused to allow her to do so in direct contravention of its tariff agreement which provided that valuables should be carried personally by the passenger. As such, the Court found that the cater materially breached its tariff agreement rendering the limitation of liability unenforceable. By refusing to let Mrs. Coughlin protect her valuables by carrying them personally, she was denied the benefit of her bargain with respect to the tariff agreement. Id. In this case, Delta did not materially breach its tariff agreement as there was no promise made that the luggage would be shipped on the flight in which the Balarts were ticketed.
Moreover, in Philco Corp. v. Flying Tiger Line, Inc., 18 Mich. App. 206 (1969), the plaintiff specifically requested that a particular aircraft be used and that the electronic computer units be transported upright. The requested aircraft however was not used and the cargo was not shipped upright resulting in damage to the equipment. The Court determined that a material deviation in the contract had occurred which completely changed the risk and terms of the contract. Id. Likewise, in Information Control Corp. v. United Airlines Corp, 73 Cal.App.3d 630 (1977), the plaintiff requested that its computer equipment be shipped on a non-stop flight. Instead, the equipment was placed on a flight with an overnight warehousing stop-over. The limitation of liability in the tariff was found to be inapplicable because the rerouting of the cargo constituted a material breach in the shipment agreement. Id. In this case, the Balarts simply checked their baggage without special instruction or declaration of excess value. The cater did not make any special or separate promise with respect to the conditions of the carriage designed to lessen the risk of harm to the luggage. The record in no way provides a basis for finding that the circumstances involved herein fell outside the range of those in which the parties intended the liability limitation would apply. As such, this Court does not find a material deviation from a bargained-for contract term which would render the limitation provision inapplicable.
Finally, even if this Court had found that Delta had in some way breached the Contract of Carriage, our jurisprudence has made clear that a limitation of liability clause is designed for and survives a breach of the Contract of Carriage. See, Litchen v. Eastern Air Lines, Inc., 87 F. Supp. 691 (S.D.N.Y. 1949); Cantor v. Piedmont Aviation, Inc., 474 A.2d 839 (D.C. 1984) (tariff provision governs the rights and liabilities between the parties even if the loss of luggage resulted from defendant's gross negligence); Deiro, supra (if a liability limitation is valid, recovery cannot exceed that amount regardless of the degree of the cater's negligence).
Having found that the limitation of liability provision is applicable in the present case, it is undisputed that Delta paid to Mrs. Balart $1,250.00, in addition to $500.00 in travel vouchers and credited 5,000 SkyMiles to her frequent flier account. Furthermore, Mrs. Balart has cashed the check issued and further expended the travel vouchers. As such, Delta has met its obligation under the Contract of Carriage and is as a matter of law relieved of any farther liability with respect to Mrs. Balart.
With regard to the claims asserted on behalf of Mr. Balart, there is no dispute that he did not submit a written claim on his own behalf. Furthermore, the documentation submitted in support of the property loss claim only related to Mrs. Balart. (Defendant's Exhibit 3). As stated above, the Contract of Carriage incorporates by reference the provision of the tariff rules which requires that a written notification of loss be received by Delta within twenty-one (21) days after the alleged occurrence. (Defendant's Exhibit 9). As Mr. Balart has failed to comply with this provision, he is barred from any recovery as a result of failure to submit written notification of any loss.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of the defendant, Delta Air Line, Inc., be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of the plaintiffs, Luis A. Balart and Harriet W. Balart and the same is hereby DENIED.