and January 17, American employees gave the Sibens numerous assurances that the luggage would be found or had been found and that the luggage would be delivered to them. The information given by American employees was known to be false when made, and/or made with a pretense of actual knowledge when knowledge did not actually exist, and/or was given with the intent to deceive and defraud the Sibens.
During this time, the Sibens travelled repeatedly to the airport to retrieve the lost luggage, not knowing the truth as to the luggage, and, based on American's assurances of the luggage's imminent arrival, refrained from purchasing necessary items. On the return of the missing bag the night before the Sibens' flight back to JFK, it was apparent that the luggage had been opened and items were missing. These events resulted in lost as well as misplaced property, emotional distress, interruptions of the Sibens' honeymoon, and the ruination of their honeymoon trip, damaging the Sibens in the amount of Five Hundred Thousand Dollars.
The Sibens have also submitted affidavits which provide much greater detail than the complaint, including one from Andrew Siben that incorporates a complaint letter to American's consumer relations department. The letter, in turn, refers to attached copies of baggage claim checks.
The claim checks show no indication either of number of bags checked or the weight of the bags. The misplaced bag weighed approximately eighty pounds and contained approximately ninety to ninety-five percent of the Sibens' clothing for their vacation. Airport personnel informed Mr. Siben that the bag would be delivered the following morning. Two days later, the bag not having arrived, an American representative authorized the Sibens to buy some clothing. On January 12, the wrong bag was delivered to the Sibens' room. That evening, an American representative informed Mr. Siben that the bag would be sent from JFK to the Anguilla airport by the next morning. The Sibens went to the airport the next day, but did not find their bag.
Two days later, an hour before the Sibens' departure for Jumby Bay Island, off Antigua, an American representative gave the Sibens a check for $ 400 and a travel voucher worth $ 1,336 toward a future flight on American.
In the next few days, American personnel gave the Sibens "numerous" assurances, which proved empty, that their bag would be delivered. Then, the night before the Sibens were to return home, the bag arrived at Jumby Bay. A number of items were missing, including a 40-year-old shawl of sentimental value.
Among the grievances arising from this episode was that because the missing bag included needed clothing, the Sibens were unable to engage in activities such as tennis, jogging, and various water sports. Mr. Siben had a similar experience in 1994: American misplaced his bag for five days when he flew from JFK to San Diego.
I. Legal Standards
A. Standards For Summary Judgment
A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Rodriguez v. Sweeney, 72 F.3d 1051, 1995 U.S. App. LEXIS 36120, 1995 WL 753997 (2d Cir. Dec. 19, 1995); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Brady, 863 F.2d 205, 210; Pittston Warehouse Corp. v. American Motorists Ins. Co., 715 F. Supp. 1221, 1224 (S.D.N.Y. 1989), aff'd, 954 F.2d 62 (2d Cir. 1992).
Summary judgment is viewed "as an integral part of the Federal rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327 (citations omitted). Once the moving party has met its burden of coming forward with evidence to show that no material fact exists for trial, the non-moving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Anderson, 477 U.S. at 252 ("the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact").
B. The Liability Limitations of the Warsaw Convention Do Not Apply
The Warsaw Convention
creates an exclusive cause of action for damage sustained in international air travel, establishing an absolute right to compensation while limiting the recovery available in all suits to which it applies. See Article 1 ("This convention shall apply to all international transportation of person, baggage, or goods performed by aircraft for hire"); see also In re Air Disaster at Lockerbie Scotland on Dec. 21, 1988, 961 F.2d 26, 28-29 (2d Cir. 1992); Pflug v. Egyptair Corp., 961 F.2d 26, 28 (2d Cir. 1992).
The Convention provides for liability for lost baggage in Article 18
and, in Article 19 for baggage delayed in transportation.
Article 24 of the Convention limits damage actions covered by articles 18 and 19 to the limits set out by the Convention.
Among other things, the Convention limits liability for lost or damaged baggage, according to the terms of Article 22, to an amount currently equivalent to $ 9.07 per pound.
Articles 25 and 4 of the Convention remove this limitation of liability in certain instances which are described below:
Article 25: (1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his ability, if the damages is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.