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GILL v. LUFTHANSA GERMAN AIRLINES

November 5, 1985

G. HIRSCH GILL, Ph.D., Plaintiff, against LUFTHANSA GERMAN AIRLINES, Defendant


The opinion of the court was delivered by: WEXLER

MEMORA NDUM AND ORDER

WEXLER, District Judge

 On June 18, 1983, Dr. G. Hirsch Gill, Ph.D. arrived at JFK International Airport in Queens, New York to board Lufthansa German Airlines (Lufthansa) flight 401 to Frankfurt, Germany, connecting with flight 002 to Copenhagen, Denmark. Dr. Gill checked one suitcase and received a claim check for it. Nevertheless, at the gate as he attempted to board the plane a Lufthansa employee insisted that a bag Dr. Gill was carrying on board be checked. It is unclear why the employee insisted that the bag could not be carried on. Dr. Gill, a man well-prepared to match Lufthansa for precision and meticulousness, alleges that he ascertained Lufthansa's dimension limits for carry-on baggage and carefully selected a bag of the correct measurements. It may be that Dr. Gill had more than one piece of carry-on luggage, but this is not clear. In any event, after Dr. Gill was refused boarding unless he checked the bag, he relinquished it to the airline. He did not receive a separate claim check for it, it was not weighed, and it was not marked as a second checked bag on his ticket.

 The bag Dr. Gill was forced to check did not arrive with him in Copenhagen, Denmark. Instead, it was delivered some four hours later by SAS. It contained business documents and money and it is the gravamen of Dr. Gill's complaint that the four-hour delay scuttled his business deal in Copenhagen that day. Dr. Gill alleges that he had been working on the undescribed deal for some time, and this project was apparently the reason for his trip to Copenhagen. He claims actual damages of $6,200.00 and punitive damages of $43,800.00 against defendant Lufthansa.

 Lufthansa now moves for summary judgment limiting defendant's liability in accordance with the limitations on damages for delayed luggage set by Articles 19 and 22 of the Warsaw Convention, and awarding damages under the Convention's provisions. Specifically, Lufthansa maintains that under Article 22 of the Warsaw Convention damages must be fixed at $20.00 per kilogram for Dr. Gill's delayed baggage. Dr. Gill was so meticulous as to weigh the bag and alleges it weighed 9.45 kilograms. Lufthansa is willing to accept the alleged 9.45 kilogram weight and asks that judgment in plaintiff's favor be awarded in the amount of $189.00, that is $20.00 multiplied by 9.45 kilograms. Rule 56, Fed.R.Civ.P.

 Plaintiff pro se opposes and maintains that the hand baggage that he surrendered at the gate did not gain the status of "checked baggage" under the Warsaw Convention, and his damages should not be limited under the Convention provisions.

 I.

 The purpose of the Convention for the Unification of Certain Rules pertaining to International Transportation by Air, 49 Stat. 3000, T.S. No. 876, 49 U.S.C. ยง 1502, known as the Warsaw Convention, is to limit and render uniform airline liability in international transport. To this end, it sets out specific limits on recovery for death, injury, property damage, loss, and delay. While the Convention thus limits the risk to the airline, it also contains a presumption of carrier liability that works to the advantage of the passengers. Husserl v. Swiss Air Transport Company, Ltd., 388 F. Supp. 1238, 1244-45 (S.D.N.Y. 1975). In short, while the compensation received under the Convention may be less than an unrestricted jury award, the injured party has a presumption of liability in his favor.

 In order for the Warsaw Convention to be binding on a passenger, the passenger must have notice. Lisi v. Alitlia-Linee Aeree Italiane, S.p.A., 370 F.2d 508 (1966). That notice not only serves to make the passenger aware of the Convention and its effects, but gives him the opportunity to declare that the value of checked baggage is in excess of the standard limits and thereby to increase recovery under the Convention to the declared value. Warsaw Convention, Article 22(2). Of course, the airline is allowed to require payment of a supplementary sum to cover the excess value. Likewise, the passenger and airline can by special contract increase the passenger liability limit. Id., Article 22(1).

 Finally, the airline must satisfy certain conditions in order to avail itself of the Warsaw Convention's liability limits for checked baggage. See Lisi v. Alitalia, 370 F.2d 508. Article 4 addresses this clearly and directly by requiring that the carrier deliver a baggage check for checked items, that it issue the check in duplicate and that the baggage claim contain the following particulars:

 
(a) The place and date of issue;
 
(b) The place of departure and of destination;
 
(c) The name and address of the carrier ...

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