Opinion
Argued October 16, 1980
Decided November 18, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, THOMAS J. HUGHES, J.
Jacob Oliner and John L. Conners for respondent-appellant.
Samuel Gottlieb, Milton Shalleck and Shelley L. Wallace for appellant-respondent.
MEMORANDUM.
On cross appeals, the resettled order of the Appellate Division should be modified to dismiss the defendant's second and third counterclaims in their entirety and to vacate the stay of the execution of the judgment granted to the plaintiff, and it is otherwise affirmed, with costs to the plaintiff. Accordingly, the question certified is answered in the negative.
The second counterclaim, for breach of contract, alleges the defendant shipper was damaged by plaintiff carrier's breach of an agreement to transport the goods on one aircraft and on one waybill and to hang them in special containers. The third counterclaim in essence casts the same charge in a negligence pleading mold. It is a complete and dispositive answer to each of these counterclaims that no written notice of claim was presented by the defendant within the time limitations called for by rule 23 B of the tariffs plaintiff, as an air carrier, was required to file pursuant to Federal law (see Federal Aviation Act of 1958, US Code, tit 49, § 1301 et seq). Constituting the written contract of carriage under a regulatory scheme in which Congress has pre-empted this field (Crosby Co. v Compagnie Nationale Air France, 76 Misc.2d 990, affd 42 A.D.2d 1050, cert den 416 U.S. 986; Lichten v Eastern Airlines, 189 F.2d 939, 941), the tariffs are binding upon shipper and carrier, regardless of the shipper's lack of actual knowledge of their provisions (see Butler's Shoe Corp. v Pan Amer. World Airways, 514 F.2d 1283; Tishman Lipp v Delta Air Lines, 275 F. Supp. 471, affd 413 F.2d 1401).
Similar legal considerations, aptly articulated in so much of the Appellate Division's memorandum as dismisses the first counterclaim and upholds Special Term's grant of summary judgment on the plaintiff's affirmative cause of action, compel us to support those determinations.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order modified, with costs to plaintiff, in accordance with the memorandum herein and, as so modified, affirmed. Question certified answered in the negative.