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HEXTER v. AIR FRANCE

December 20, 1982

PAUL L. HEXTER and HELEN H. HEXTER, Plaintiffs, against AIR FRANCE, ADMIRAL INSURANCE CO., JERSEY INTERNATIONAL, INC., GIBSON-McGRATH & CO., BOLTON & COMPANY, Defendants.


The opinion of the court was delivered by: SWEET

SWEET, D.J.

Defendant Compagnie Nationale Air France ("Air France") moves pursuant to Fed.R.Civ.P. 56 for partial summary judgment limiting its liability in this action to $400.00 pursuant to Article 22 of the Warsaw Convention. *fn1" Plaintiffs Paul L. Hexter and Helen H. Hexter, husband and wife ("the Hexters"), claim that certain jewelry with an estimated value of $123,200 was stolen from a suitcase during a flight on the Concorde due to Air France's negligence. They resist summary judgment on the grounds that there are material issues of fact and that summary judgment is inappropriate here as a matter of law. For the reasons stated below, the motion for partial summary judgment in favor of Air France will be denied.

 Background

 This lawsuit arises from an occurrence that frequently confronts, and occasionally confounds, air travelers and on at least two occasions, judges, this being the second. On October 6, 1980, the Hexters boarded the Concorde in Paris for Flight 001 to New York. They carried with them an overnight bag that contained the jewelry in question. All their other baggage was checked prior to boarding. At some point during the flight, the bag was given over to a flight attendant. The attendant placed it in a closet to the rear of the seats occupied by the Hexters. The bag was returned to the Hexters at the termination of the flight. The Hexters carried the bag off the plane and took a taxi to a hotel in New York City where while unpacking they discovered that the jewelry was missing.

 The foregoing facts are undisputed for the purposes of this motion. On the basis of these facts Air France seeks summary judgment limiting its liability pursuant to the Warsaw Convention.The Hexters oppose the granting of the motion as a matter of law, and on the grounds that there are material issues of fact as to whether the Hexters maintained "access" to their bag during the flight. To address these questions, an understanding of the liability limitation of the Warsaw Convention is required. *fn2"

 The Warsaw Convention

 Article 22 of the Convention provides for limitations on the carrier's liability in the transportation of passengers and baggage. *fn3" Subsection (1) limits the carrier's liability for damages to passengers to 125,000 francs each. Subsections (2) and (3) limit the liability for checked baggage and for objects of which the passenger takes charge as follows:

 (2) In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor at delivery.

 (3) As regards objects of which the passenger takes charge himself the liability of the carrier shall be limited to 5,000 francs per passenger.

 In addition, Article 4 of the Convention specifies the requirements for the baggage check, and reads in full:

 Article 4

 (1) For the transportation of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check.

 (2) The baggage check shall be made out in duplicate, one part for the passenger and the ...


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