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February 9, 1994

ANDREW GLUCKMAN, for himself and as representative of his dog, Floyd, golden retriever, now deceased, Plaintiff,

The opinion of the court was delivered by: SHIRLEY WOHL KRAM


 This action is for breach of obligation and various tort claims relating to American Airlines Inc.'s ("American") failure to safely transport Andrew Gluckman's ("Gluckman") pet dog, Floyd. Presently before the Court is defendant's motion, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56, to dismiss the complaint. In the alternative, American asks that, as a matter of law, the Court enter judgment in Gluckman's favor in the amount of $ 1250.00 for the breach of obligation claim, and find in favor of American for the remaining tort claims. For the reasons set forth below, American's motion is granted in part and denied in part.


 Upon graduation from high school in the spring of 1988, Gluckman went camping out west with two high school friends. His parents purchased his round-trip airline ticket, from New York to Phoenix, as a gift. Early in the trip, a golden retriever wandered into Gluckman's campsite; the boys took him in and gave him food and water. The dog joined the campers and became one of their party, attaching himself especially to Gluckman. Gluckman named him Floyd.

 On June 22, 1988, Gluckman, who had never before bought an airline ticket for himself, telephoned American asking if there was a way to bring Floyd, a perfectly healthy, two-and-one-half-year-old golden retriever, in the passenger cabin of the airplane on the flight home. The agent told Gluckman that, in order to bring Floyd home, Gluckman would have to put him in the baggage compartment. Gluckman could buy a special crate ($ 80.85) for Floyd to ride in, and pay an additional $ 30.00 for Floyd's transport.

 According to Gluckman, the ticket agent never disclosed that Floyd would be in any danger during the flight by virtue of the fact that he was travelling in the baggage compartment. Specifically, Gluckman claims that the ticket agent did not warn him that (1) the cargo hold was not air-conditioned while the plane was on the ground; (2) American could not monitor conditions in the cargo hold from the cockpit of the plane; (3) the crew could not control the cargo area temperature; or (4) the outdoor temperatures could exceed safety limits set by defendant's own policies. *fn2" Affidavit of Andrew Gluckman, sworn to on August 18, 1992 (the "Gluckman Aff."), at PP 10-12. Nor did the ticket agent reveal to Gluckman that Floyd was, in the eyes of American, merely baggage, that the airline's liability for his injury or death was limited, or that Gluckman could insure the dog for more than the standard, limited amount if he desired. Id. at PP 14-15.

 On June 23, 1988, Gluckman and Floyd arrived at the Sky Harbor Airport in Phoenix for their flight home. Gluckman paid a $ 30.00 fee for checking Floyd as excess baggage, but did not make a special declaration of value with respect to the dog nor pay any excess valuation charge.

 At the scheduled departure time, the plane taxied away from the gate. Because of mechanical difficulties, however, the plane was forced to return to the gate, where it remained for over an hour. In Arizona, on that June day, the temperature climbed to 115 degrees fahrenheit. The temperature in the unventilated baggage compartment, where Floyd was stowed, reached 140 degrees fahrenheit.

 As the time elapsed, Gluckman realized that the delay would cause him to miss his connection in Chicago. Accordingly, he disembarked the plane to make other arrangements, and asked American to bring him his dog.

 When American's agents brought Floyd to Gluckman, Gluckman was devastated to find that Floyd had collapsed from the heat. Floyd was lying on his side panting; his face and paws were bloody; there was blood all over the crate; and the condition of the cage evidenced a panicked effort to escape.

 American, after an unexplained delay of an additional forty-five minutes, arranged to bring Floyd to a veterinarian. The veterinarian advised Gluckman that Floyd had suffered heat stroke and brain damage. Although Gluckman stayed with Floyd all night in intensive care, Floyd had to be put to sleep the next morning.

 A. The Tickets

 Gluckman's airline ticket was purchased on or about June 4, 1988, by his parents as a graduation gift, and used by him on his outbound flight from New York to Phoenix on or about June 6, 1988 ("Gluckman's ticket"). The ticket, which provided for round trip transportation aboard American, consisted of approximately eight pages. The first four pages consisted of individual flight coupons. The remaining four pages were labelled as follows: NOTICE . . . CONDITIONS OF CONTRACT; NOTICE OF INCORPORATED TERMS; NOTICE OF BAGGAGE LIABILITY LIMITATIONS; and ADVICE TO INTERNATIONAL PASSENGERS ON LIMITATION OF LIABILITY. See Gluckman's Ticket, annexed to the Affirmation in Support of Defendant's Motion for Summary Judgment ("Def. Aff."), as Exhibit "D."

 Paragraph 3 of the portion of the ticket introduced by the words "NOTICE . . . CONDITIONS OF CONTRACT" advised passengers that

carriage and other services performed by each carrier are subject to: (i) provisions contained in this ticket, (ii) applicable tariffs, (iii) carrier's conditions of carriage and related regulations which are made part hereof (and are available on application at the offices of carrier).

 This portion of the ticket also indicated that claims for damage to baggage may be regulated by language contained in American's tariff. See id. at P 7 ("In case of damage to baggage . . . see tariffs or conditions of carriage regarding non-International transportation.")

 That portion of the ticket which was introduced with the words "NOTICE OF INCORPORATED TERMS" provided that

Effective January 1, 1983, air transportation to be provided between points in the U.S. . . . is subject to the individual terms of the transporting air carriers, which are herein incorporated by reference and made a part of the contract of carriage.
* * * *
Incorporated terms may include, but are not restricted to: . . . (2) Limits on liability for baggage, including fragile or perishable goods, and availability of excess valuation coverage. (3) Claims restrictions, including time periods in which passengers must file a claim or bring an action against the air carrier.
* * * *
You may obtain additional information on these items at any U.S. location where the transporting carrier's tickets are sold. You may inspect the full text of each transporting air carrier's rules at its airport and city ticket offices. You may also, upon request, receive free of charge the full text of the applicable terms incorporated by reference from each of the transporting air carriers. Information on ordering the full text of each air carrier's terms is available at any U.S. location where the air carrier's tickets are sold.

 That portion of the ticket introduced with the words "NOTICE OF BAGGAGE LIABILITY LIMITATIONS" provided further that:

Liability for loss, delay or damage to baggage is limited as follows unless a higher value is declared in advance and additional charges are paid: (1) for travel wholly between U.S. points, to $ 1250 per passenger on most carriers (a few have lower limits).

 On the day of his return flight, Gluckman also purchased an "Excess Baggage Ticket" ("Floyd's ticket"), representing American's receipt of Floyd. On the face of Floyd's ticket, in writing less than 1/16th of an inch high, appeared the following: "Subject to tariff regulations. For conditions of contract see passenger ticket & baggage check." See Excess Baggage Ticket, annexed to Def. Aff., as Exhibit "C."

 At the time of Floyd's transport, American's tariff rules *fn3" provided, in part, that:

Rules in this tariff constitute the conditions upon which AA [American Airlines] transports or agrees to transport and are expressly agreed to by the passenger to the same extent as if such rules were included as conditions in the contract of carriage.
* * * *
Written notice of any and all claims against AA must be given within 21 days of the incident. Any legal action must be commenced within one year. ...

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