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December 12, 1949


The opinion of the court was delivered by: KAUFMAN

Defendant moves for summary judgment in its favor pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that as a matter of law it is not liable to the plaintiff for the loss of the property alleged in the complaint. Plaintiff presents a cross-motion for summary judgment in its favor.

Defendant is a common carrier licensed by the Civil Aeronautics Board (hereafter referred to as the C.A.B.). On January 18, 1947, plaintiff purchased from defendant passage for herself and her baggage and was a passenger on that date on Flight 630 from Miami to Philadelphia. Plaintiff checked two bags with defendant but only one bag was delivered upon her arrival in Philadelphia. Plaintiff was informed that the other bag had gone forward in error to Newark Airport. The bag was subsequently delivered by defendant to plaintiff at Philadelphia on January 28, 1947.

 Plaintiff alleges in her complaint as a first cause of action that three articles of jewelry valued at $ 3,187.95 were missing from the bag when finally delivered. As a second cause of action plaintiff alleges that defendant wrongfully delivered the bag to an unknown person at Newark Airport without proper identification, or surrender of a baggage tag, and accepted the return of the bag at some time thereafter from an unknown person without making a record of the identity of the person, and that the defendant thereby converted the missing jewelry to its own use.

 Defendant denies knowledge or information as to the existence or value of the jewelry in the bag, or the alleged misdelivery of the bag, but concedes the existence of these facts for the purposes of its motion for summary judgment. Defendant does not admit the existence of the aforementioned allegations for the purpose of a ruling on plaintiff's motion. Plaintiff submits, however, that there is no substantial issue as to these facts and that defendant's liability can be established on the basis of the affidavits submitted. Defendant's motion will be considered first, since if that motion is granted, plaintiff's must necessarily fall; and both sides agree that there is no material fact in question for purpose of defendant's motion, and that only an issue of law is presented.

 A preliminary matter which must be disposed of is the question of jurisdiction raised by the defendant.

 Plaintiff alleges in her complaint that she is a citizen of the State of Pennsylvania and that defendant is a corporation organized under the laws of the State of Delaware and doing business in the State of New York, and that the cause of action concerns the loss of property valued at $ 3,187.95. These allegations are sufficient to satisfy the diversity of citizenship jurisdictional requirements. Defendant contests the jurisdiction on the ground that, as a matter of law, plaintiff allegedly cannot recover the requisite jurisdictional amount. However, it is the good faith of plaintiff's claim, and not the amount of recovery, which determines whether that requirement has been satisfied. St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845; Gray v. Blight, 10 Cir., 1940, 112 F.2d 696, certiorari denied, 1940, 311 U.S. 704, 61 S. Ct. 170, 85 L. Ed. 457; Kratina v. South Atlantic S.S. Co., D.C.S.D.GA. 1945, 63 F.Supp. 895. Plaintiff has in good faith presented a claim for a loss suffered by her in excess of $ 3,000; therefore the Court has jurisdiction over the case.

 Furthermore a pleading that adequately discloses a present controversy dependent for its outcome upon the construction of a federal statute is one on which the district court can properly accept jurisdiction. Peyton v. Railway Express Agency, 1942, 316 U.S. 350, 62 S. Ct. 1171, 86 L. Ed. 1525. The present controversy falls within this category since the construction of the Civil Aeronautics Act of 1938, 52 Stat. 977, 49 U.S.C.A. § 401 et seq., is in question. Defendant previously raised the question of jurisdiction before Judge Ryan in its motion to dismiss the plaintiff's complaint, and Judge Ryan overruled the contention stating (8 F.R.D. 138, 139): 'It appears, from these allegations, that the transportation involved was interstate air transportation and that it is subject to the provisions of the Civil Aeronautics Act * * *.'

 Defendant's contention, in support of its motion for summary judgment, is that the transportation in question was governed by several tariffs filed by it with the C.A.B., which tariffs excluded or limited the liability of defendant.

 Section 483 of Title 49 U.S.C.A., the Civil Aeronautics Act of 1938, Sec. 403, provides for the filing, posting and publishing of tariffs by air carriers and requires that contracts of carriage shall correspond to such tariffs.

 The Rules Tariff governing the transportation by defendant are contained in Local and Joint Passenger Rules Tariff No. PR-1, C.A.B. No. 4, issued by M. F. Redfern, Agent, on behalf of the defendant and other air carriers of the Air Traffic Conference of America. Paragraph 1(IV) of these Rules Tariff provided that 'The provisions of this tariff * * *, including provisions as to liability, shall become a part of the contract of carriage.'

 The following are the pertinent sections of the Rules Tariff on the subject on liability for loss of baggage:

 'Rule 10. Baggage and Personal Property. (II.)

 'Articles Accepted as Baggage: Baggage shall consist only on(sic) wearing apparel, non-liquid toilet articles and similar effects for actual use which are necessary and appropriate for the comfort and convenience of the passenger for the purposes of the journey and not intended for other persons or for sale. Money, jewelry, silverware, samples, negotiable paper, securities and similar valuables ...

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