The opinion of the court was delivered by: POLLACK
Defendant, Trans World Airlines ("TWA") moves for summary judgment, in whole or in part, pursuant to Fed.R.Civ.P. 56(b) in this action against it and another for the loss of a piece of baggage containing a camera taken from the possession of the defendant T. F. Casey Trucking ("Casey") when the latter's truck, carrying the bag from the airport to a midtown hotel, was stolen at an intermediate stop and the bag abstracted therefrom. For the reasons indicated hereafter, the complaint against TWA must be dismissed.
The undisputed facts are as follows.
Mr. Hartley Cannon, an employee of plaintiff, and his film crew, were passengers on a TWA flight from Las Vegas to New York City on April 30, 1980. Before boarding the plane in Las Vegas, Cannon checked as ordinary baggage of undeclared value about 17 to 20 cases of camera equipment that plaintiff had rented from the Filmart Production Services, not a party to this action, together with other luggage containing personal articles. Cannon did not purchase any excess value baggage coverage for the items checked through to New York or even declare the value of that baggage and under the airline tariff became entitled to protection thereof only to the extent of $ 750 per bag.
All the baggage, including the missing item mentioned hereafter, arrived safely at JFK airport and all of it was placed on the baggage carousel by TWA personnel. Cannon retrieved the checked items, that is, all except one, which were on the carousel but overlooked and left one piece behind.
When he reached his Manhattan hotel, Cannon discovered that he was missing one piece of baggage containing a camera and he telephoned to the airport and spoke to a TWA service agent to find out if the case was there. The TWA agent checked and told Cannon that the missing case was still there. Cannon then requested TWA to turn the case over to a trucking delivery service with instructions to deliver the baggage to Cannon's hotel in midtown New York. Cannon was told that since the bag had duly arrived and was available to Cannon to have been picked up with the rest of his baggage, TWA would not pay the cost of delivery to the hotel; that this would be at Cannon's expense; and Cannon agreed.
TWA arranged for delivery of the case by defendant T. F. Casey Trucking ("Casey") an accredited delivery service located at the JFK Airport. A three part form, called a baggage delivery order, was used. TWA kept one part and Casey kept the other two, one of which was to have been signed by Cannon upon his receipt of the delivered goods. The price payable for the delivery was $ 10 C.O.D.
En route to Manhattan, the Casey driver made a delivery stop in Queens. While he was there, his truck was stolen. The truck was later recovered but Cannon's case had been abstracted therefrom and was never recovered.
Plaintiff now claims that the case contained $ 40,137 of camera equipment. Cannon testified at his deposition, however, that no record or packing list had been kept of what equipment was in any of the 17 to 20 cases.
TWA denied liability and asserted as an affirmative defense that under the applicable tariff for loss of baggage of undeclared value TWA's liability is in any event limited to $ 750; further, that plaintiff failed to give TWA notice of its loss within 45 days of the occurrence of the loss as it was required to do by the applicable tariff filed by TWA with the Civil Aeronautics Board; and that there cannot be and there is no proof available that TWA was guilty of the requisite standard of liability under all the circumstances, namely, gross negligence on the part of TWA.
After TWA moved herein for summary judgment, the plaintiff made a cross-motion to strike as insufficient in law, TWA's second affirmative defense, namely, that TWA's liability is limited at all events to $ 750 under the applicable tariff for lost baggage of undeclared and unpaid excess value.
It is well-established that valid tariffs filed with the Civil Aeronautics Board govern the rights and liabilities between airlines and their domestic passengers. See North American Phillips Corp. v. Emery ...