UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK.
May 20, 1977.
NORTH AMERICAN PHILIPS CORPORATION
EMERY AIR FREIGHT CORPORATION
The opinion of the court was delivered by: GAGLIARDI
GAGLIARDI, District Judge: This is an action by plaintiff North American Phillips Corporation ("Norelco") against defendant Emery Air Freight Corporation ("Emery") to recover damages in the sum of $114,003.00. This sum represents the value of a truckload of plaintiff's Norelco Speed Shavers which were hijacked while in the defendant's possession. The case was removed to this court from the Supreme Court of the State of New York on the ground that the rights and liabilities of the parties are determined by the Federal Aviation Act of 1958, 49 U.S.C. 1301 et seq. The case was submitted to the court on the pleadings, transcripts of pre-trial testimony and stipulated facts.
Plaintiff imports, distributes, and sells Norelco Speed Shavers. Defendant as an air freight forwarder is an indirect "air carrier" within the meaning of the Federal Aviation Act, 49 U.S.C. § 1301(3), and is certified as such by the Civil Aeronautics Board ("CAB") pursuant to that Act. On or about October 28, 1971, plaintiff requisitioned 1,250 cartons of Norelco Speed Shavers from the Pacific Freeport Warehouse in Sparks, Nevada, to be delivered to plaintiff in New York City. Pacific Freeport Warehouse, acting as Norelco's agent, retained Emery to deliver the shipment. Pacific Freeport Warehouse prepared a Straight Bill of Lading - Short Form, which originally designated a motor carrier as the means of transportation from Nevada to New York, but was later changed to designate "Air Freight" as the means of transportation. This bill of lading contained no declaration of value for the shipment. It was signed by Mr. E. J. Tosolini, the owner of Parcel Delivery Service, acting as Emery's agent, when the goods were accepted from Pacific Freeport Warehouse.
The shipment was delivered overland to San Francisco where Emery engaged United Air Lines to transport it, by air, to New York. Two days after arrival in New York, Emery divided the shipment into two truckloads and dispatched them to Norelco in Long Island City. One, containing 795 cartons of Norelco Speed Shavers, having a market value of $114,003.00, was hijacked, and its contents were never recovered.
On December 7, 1971, Norelco submitted a written claim for the entire value of the lost shipment. On December 21, 1971, Emery responded by tendering a check for $10,527.50, accompanied by an explanation that its liability was limited to 50 cents per pound since no higher value had been declared.
A little over a year later, on December 28, 1972, counsel for plaintiff returned the check with a covering letter disputing Emery's claim of limited liability. Norelco instituted suit on January 30, 1973 for the full market value of the shipment.
Two of the defendants' asserted affirmative defenses,
which the court finds applicable to this case as elaborated infra, bar plaintiff's claim for relief. These defenses are predicated upon the applicability of Emery's Airfreight Rules Tariff No. 2, CAB No. 45 on file with the CAB pursuant to the Federal Aviation Act, 49 U.S.C. § 1373(a).
Predicated upon the application of its tariff rules, Emery asserts as a first affirmative defense that pursuant to Tariff Rule 50(A) it "shall not be liable for any loss... or non-delivery or other result not caused by its own negligence", and, therefore, it cannot be liable for the loss due to hijacking. For its second affirmative defense, Emery relies on tariff Rule 120(A) which provides that Emery shall not be liable for any claim unless the action "is brought within one (1) year after the date written notice is given to the claimant that [Emery] has disallowed the claim in whole or in part." Under this Rule, Emery claims that since this suit was commenced more than one year after it gave Norelco written notice of partial disallowance of the claim, the action is time-barred.
Plaintiff contends that these affirmative defenses cannot be applied because the underlying tariff provisions are inapplicable. Plaintiff cites a regulation of the CAB, 14 C.F.R. § 296.73
which requires the defendant as an air freight forwarder to prepare an airway bill and supply copies at the time of shipment to the plaintiff-consignee. According to the regulation, the airway bill shall contain notice of the applicable limitation of liability and the declared value of the shipment. Plaintiff asserts that the regulation requires the delivery of the airbill as a condition precedent to the enforcement of Emery's tariff provisions on file with the CAB, that defendant failed to deliver the airbill, and that, therefore, defendant cannot rely upon affirmative defenses based upon its tariff rules.
It is this court's conclusion that the delivery of the airbill is not a condition precedent to the applicability and enforcement of Emery's tariff provisions. As a result, the court need not decide the only factual dispute in this case, submitted for determination on the basis of deposition testimony, namely whether Emery's agent, Tosolini, prepared an Emery Air Freight Corporation Airbill and deposited it with Norelco's agent, Pacific Freeport Ware-house, at or about the time shipment was delivered to Tosolini. Emery's two affirmative defenses are valid irrespective of the delivery of the airbill.
In this case the valid Emery tariff on file with the CAB as required by 49 U.S.C. § 1373(a) constitutes the contract of carriage between the parties as a matter of law. In Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403-04 (2d Cir. 1969), the Second Circuit Court of Appeals held:
Tariffs filed with the Civil Aeronautics Board if valid, are conclusive and exclusive, and the rights and liabilities between airlines and their passengers are governed thereby. Slick Airways, Inc. v. United States, 292 F.2d 515, 154 Ct. Cl. 417 (1961); Lichten v. Eastern Air Lines, Inc., 189 F.2d 939, 25 A.L.R.2d 1337 (2d Cir. 1951), 49 U.S.C. § 1373. Limitations of liability in tariffs required to be filed by air carriers with the Civil Aeronautics Board are binding on passengers and shippers whether or not the limitations are embodied in the transportation documents. Vogelsang v. Delta Air Lines, Inc., 302 F.2d 709 (2d Cir. 1962), cert. denied, 371 U.S. 826, 83 S. Ct. 46, 9 L. Ed. 2d 65 (1962); cf. Herman v. Northwest Airlines, Inc., 222 F.2d 326 (2d Cir.), cert. denied 350 U.S. 843, 76 S. Ct. 84, 100 L. Ed. 751 (1955).
Plaintiff attempts to analogize to cases involving the Warsaw Convention and the Interstate Commerce Act, 49 U.S.C. § 1 et seq. in support of its claim that a failure to deliver an airbill precludes the application of the tariff provisions. See, e.g., Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., 370 F.2d 508 (2d Cir. 1966), aff'd, 390 U.S. 455, 88 S. Ct. 1193, 20 L. Ed. 2d 27 (1968); Chandler v. Aero Mayflower Transport Co., 374 F.2d 129 (4th Cir. 1967). Neither situation is analogous. See, Vogelsang v. Delta Air Lines, Inc., supra at 712-13 (Warsaw Convention);
Slick Airways, Inc. v. United States, 154 Ct. Cl. 417, 292 F.2d 515, 518-20 (Ct. Cl. 1961); Lichten v. Eastern Airlines, 189 F.2d 939, 941 (2d Cir. 1951) (Interstate Commerce Act). The language of the Warsaw Convention specifically requires delivery of a passenger ticket or baggage check as a precondition to the effectiveness of provisions of the convention which exclude or limit liability. Articles 3(2) and 4(4), 49 Stat. 3015, 3016 (1929).
Similarly, the Interstate Commerce Act specifically mandates that a receipt or bill of lading issue and that a released value be in writing as a condition precedent to a carrier's limiting its liability. 49 U.S.C. § 20(11).
The Federal Aviation Act contains no comparable provision which would indicate that the issuance of an airbill is a condition precedent to the applicability of a tariff rule duly filed pursuant to § 403 of the Federal Aviation Act, 49 U.S.C. § 1373. The Act itself makes no mention of an airbill requirement. The regulations promulgated by the CAB contained in 14 C.F.R.§ 296.73 do state that a copy of an airbill "shall" be issued and that it "shall" contain, inter alia, a statement of limitation of liability. However, there is nothing to indicate that the CAB in promulgating this regulation intended that non-compliance with this requirement would preclude application of a shipper's duly filed tariff.
In fact, the application of duly filed tariff provisions as the contract of carriage between the parties without preconditions or exceptions is an integral part of the policy behind 49 U.S.C. § 1373. In Lichten v. Eastern Airlines, supra, 189 F.2d at 942, the plaintiff argued that the carrier's breach of contract deprived it of the benefit of exculpatory provisions contained in the tariff. In rejecting that argument the court stated that "[it] overlooks... the far reaching effect of the principle of uniformity of treatment, which requires that the tariff be applied in all matters arising from the attempted performance of the contract." This "principle of uniformity" of air carrier rates and services to prevent discrimination and preferences is the fundamental policy behind 49 U.S.C. § 1373(b), prohibiting any deviation from the provisions of a duly filed tariff. Transcontinental Bus System, Inc. v. CAB, 383 F.2d 466, 474-5, (5th Cir. 1967), cert. denied, 390 U.S. 920, 19 L. Ed. 2d 979 2, 88 S. Ct. 850 (1968). Because of this policy of uniformity "[the] tariffs are both conclusive and exclusive; they may not be added to through references to outside contracts or agreements or understandings or promises." United States v. Associated Air Transport, Inc., 275 F.2d 827, 833 (5th Cir. 1960); see Tishman & Lipp v. Delta Air Lines, supra.
In consideration of the strong public policy of governing all rights and liabilities between the parties to an air freight contract according to the provisions of the tariff, Emery's duly filed air freight tariff is valid unless the Federal Aviation Act statute or CAB regulation clearly mandates a different result.
In contrast to the cases involving the Warsaw Convention and the Interstate Commerce Act, there is no indication that delivery of an airway bill is a necessary prerequisite to the validity of the tariff. The court, therefore, finds Emery's Airfreight Rules Tariff No. 2 CAB No. 45, to be valid and the effective contract of carriage between the parties.
Emery's first affirmative defense relies on the application of its tariff Rule 50(A) which provides:
The Forwarder shall not be liable for any loss, damage, delay, mis-delivery, or non-delivery or other result not caused by its own negligence.
This provision exempting Emery from liability without negligence is valid and must be given effect. Lichten v. Eastern Airlines, Inc., supra at 941. From the facts stipulated by both parties, the loss of the Norelco shavers was the result of a hijacking with no allegation of any negligent act or omission by the defendant. Therefore, under Rule 50(A), Emery is not liable for any damages resulting from the hijacking.
Alternatively, Emery's second affirmative defense also precludes Emery from paying any damages in this action. This defense relies on the application of Emery's Tariff Rule 120(A):
In the case of shipments destined to points in the United States..., the Forwarder shall not be liable in any action brought to enforce a claim... unless such action is brought within one (1) year after the date written notice is given to the claimant that the forwarder has disallowed the claim in whole or in part.
This tariff provision is valid and applicable to the facts of this case. Even if the court were to accept the plaintiff's analogy to the cases under the Warsaw Convention, holding that a failure to inform the passenger of limitation of liability contained in the Convention invalidates such limitations, the limitation on the time within which suit must be commenced contained in Emery's tariff Rule 120(A) would still be valid and the plaintiff's suit thus time barred.
The logic behind the distinction between limitation on liability and a limitation on the time in which suit must be commenced was clearly explained by the Second Circuit Court of Appeals in Molitch v. Irish International Airlines, 436 F.2d 42, 44 (2d Cir. 1970):
In Lisi the court said that its holding would give the passenger "the opportunity to purchase additional flight insurance or take such other steps for his self-protection as he sees fit." 370 F.2d at 513. Notification of a two-year limit on bringing an action would have no such effect. A prospective passenger is unlikely to care about the length of the statute of limitations and it is difficult to conceive of any protective measures that he might take prior to boarding the plane were he notified of the limitation. Extension of the requirement of notice to the statute of limitations would be both meaningless and unjustified.
The same reasoning is applicable to refute plaintiff's argument that failure to provide it with an airbill invalidates any provision in defendant's tariff limiting the time in which a claimant must bring suit.
According to the stipulated facts, Norelco submitted its initial claim for the entire loss, $114,003, on December 7, 1971. In response to that claim, Emery, on December 21, 1971, transmitted a check for $10,527.50 and annexed a memorandum explaining that "[because] no declared value was shown on our air bill, our liability is limited to $.50 per pound based on the shipment's total weight of 21,055 pounds." The check and memorandum constituted a disallowance in part and started the running of the one year limitation period. Norelco, on December 28, 1972, rejected Emery's offer, returned the $10,527.50 check, and renewed its claim to the full $114,003. This action was not commenced until January 30, 1973, approximately six weeks after the expiration of the time limitation of Rule 120(A). Consequently, plaintiff's commencement of this action was untimely and its claim must be dismissed.
In conclusion, under either of these affirmative defenses, Norelco is not entitled to damages and its claims must be dismissed. The clerk of the court shall enter judgment in favor of Emery dismissing the action with prejudice and without costs.