The opinion of the court was delivered by: BONSAL
Plaintiff Progress Jewelry Co., Inc. (Progress) instituted this action against defendant Northwest Orient Airlines, Inc. (Northwest) in the Supreme Court, New York County, alleging that Northwest had negligently lost a sample case containing jewelry worth in excess of $100,000. Northwest removed the action to this court on the grounds that diversity of citizenship existed and that the action arose under the laws of the United States.
Northwest now moves, pursuant to Rule 56, F.R.Civ.P., for summary judgment in favor of Progress, limiting Progress' recovery to $250.00. Progress cross-moves for partial summary judgment in its favor, holding Northwest liable without limitation, and reserving for trial the amount of its damages.
On March 19, 1964, Martin Pokrass, a salesman for Progress, which company sold expensive jewelry to retail stores throughout the United States, made a reservation for Northwest's Flight No. 316 from Detroit to Cleveland. He checked in at the Northwest ticket counter one hour before the scheduled departure of the flight, gave to the Northwest ticket agent three pieces of baggage, consisting of a bag of personal belongings and a sample case which was separated into two sections, and received three baggage claim checks, each of which stated on the back:
"BAGGAGE CHECKED SUBJECT TO TARIFFS: INCLUDING LIMITATIONS OF LIABILITY THEREIN CONTAINED."
Pokrass did not reveal the contents of the sample case to the ticket agent because he was under instructions from Progress not to tell anyone that it contained jewelry (which Progress claims was worth more than $100,000). The three pieces of baggage checked with Northwest by Pokrass weighed 72 pounds more than the weight allowed per passenger, but Northwest failed to charge Pokrass for excess baggage as required by Rule 69
of the Local and Joint Passenger Rules Tariff (the tariff rules), filed with the Civil Aeronautics Board (the C.A.B.) pursuant to 49 U.S.C. § 1373(a).
Pokrass boarded Flight No. 316. When he arrived in Cleveland he did not find the two sections of his sample case at the baggage counter, and to date they have not been recovered.
Pokrass testified at his examination before trial that he knew the three bags he was carrying were subject to the tariff rules limiting liability and that if he declared the true value of the contents of the sample case it would exceed $5,000, which was the limit of Northwest's liability for over-valued items.
While Northwest states that it is not liable to Progress under Rule 70(C) of the tariff rules, which provides:
"* * * NW [Northwest] * * * [is] not liable for loss, damage to, or delay in the delivery of fragile or perishable articles, money, jewelry, silverware, negotiable papers, securities or other valuables, business documents, or samples which are included in the passenger's checked baggage, whether with or without the knowledge of carrier."
it contends that even if it is liable, its liability is limited to $250.00 under Rule 71 of the tariff rules, which provides:
"(A) The liability, if any, of all participating carriers for the loss of, damage to, or delay in the delivery of any personal property, including baggage (whether or not such property has been checked or otherwise delivered into the custody of the carrier) shall be limited to an amount equal to the value ...