The opinion of the court was delivered by: CROAKE
Plaintiffs K. H. Mao and Diana Mao instituted the above-entitled action against defendant Eastern Air Lines Incorporated by filing a complaint in this Court on July 20, 1967. The complaint alleges that on or about November 5, 1966, Eastern negligently lost baggage containing jewelry owned by plaintiffs worth approximately $29,000.
Plaintiffs now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment in their favor, holding Eastern liable without limitation and reserving for trial the question of damages. Eastern cross-moves for summary judgment in its favor seeking a limitation of plaintiffs' recovery to $1,000, the maximum liability allowable under its tariff rules.
On November 5, 1966, plaintiffs purchased two regular passenger tickets from Eastern at New Orleans, Louisiana, for transportation to Washington, D.C. They reported at the Eastern ticket counter before the scheduled departure of their flight and turned over to the Eastern ticket agent three pieces of luggage. This baggage was duly checked by the defendant and claim tags were issued and delivered to the plaintiffs, which stated on the back:
"BAGGAGE CHECKED SUBJECT TO TARIFFS: INCLUDING LIMITATIONS OF LIABILITY THEREIN CONTAINED."
Among plaintiffs' baggage was a "three-suiter" suitcase which allegedly contained 23 items of jewelry given to plaintiffs on the occasion of their wedding in New York City on October 29, 1966 and worth approximately $29,000. The value ascribed to the jewelry, which had been passed from generation to generation in plaintiffs' families, represents the opinion of Mr. Mao, who is not in the jewelry business.
In its answer, Eastern admits that when plaintiffs submitted their baggage claim tags at their destination in Washington, D.C., the suitcase containing the jewelry could not be located and, as a consequence, the property could not be redelivered to plaintiffs.
The only affirmative defense interposed in behalf of Eastern is a partial one predicated upon Rule 71 of the tariff, the pertinent parts of which read as follows:
"Rule 71 LIMITATION OF LIABILITY
(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 of such property, which shall not exceed the following amounts for each ticket:
"$500.00 When * * * EA * * *
is responsible for the loss, damage or delay or when the transportation is entirely over the lines of two or more such carriers and it cannot be determined which carrier ...