The opinion of the court was delivered by: CEDARBAUM
Plaintiff sues for the loss of a suitcase he carried on board defendant's flight to Cotonou, Republic of Benin on July 18, 1992 ("the flight"). A bench trial was held on May 1 and 2, 1996, at which five witnesses testified. Plaintiff's witnesses were El Hadj Diop, another passenger on the flight; Jean-Marie Chapoteau, an Air Afrique customer relations representative; and plaintiff. Defendant's witnesses were Rita Yelouassi, an Air Afrique cabin attendant; Cyrille Agavon, Air Afrique's station manager in Cotonou; and Mr. Chapoteau.
At the close of plaintiff's case, I granted defendant's motion to dismiss plaintiff's claims relating to his return flight to the United States. Defendant also moved to dismiss plaintiff's claims with respect to five suitcases he had checked at John F. Kennedy Airport in New York before boarding the flight. Defendant conceded that plaintiff was entitled to compensation of $ 840 for the two suitcases that have never been returned, and plaintiff withdrew his claims with respect to those two suitcases on the understanding that defendant would pay that compensation. Plaintiff also withdrew his claim of willful misconduct by defendant with respect to the other three checked bags, which were delayed but eventually delivered to plaintiff in Cotonou.
At the close of defendant's case, I dismissed plaintiff's claims with respect to the three delayed suitcases on the ground that plaintiff had presented no evidence of damages with respect to those bags. I reserved decision on plaintiff's claim for the loss of a suitcase he claimed to have carried on board the flight. After considering the evidence and observing the demeanor of the witnesses and considering the plausibility and credibility of their testimony, I make the following findings of fact and conclusions of law with respect to that claim.
It is undisputed that plaintiff traveled to Cotonou on Air Afrique flight number RK 050, which left John F. Kennedy Airport in New York City on July 18, 1992. The plane stopped first in Dakar, Senegal and then in Abidjan, Ivory Coast. The plane continued to Cotonou as flight number RK 022.
Plaintiff testified that he carried a large suitcase on board the plane, and that an Air Afrique crew member took custody of the suitcase. According to plaintiff, the crew member gave him the bottom part of a two-layered "baggage identification tag." (Pl. Ex. F.) The crew member attached the top part of the tag to plaintiff's suitcase. The tag contains the information that plaintiff's destination is Cotonou and that the flight number is RK 022, and that he is traveling via Abidjan on flight number RK 050. The tag does not contain the number of plaintiff's passenger ticket or the number and weight of plaintiff's baggage. The back of the tag reads:
BAGGAGE IDENTIFICATION TAG ONLY
Carrier will not be liable for baggage not claimed immediately upon arrival.
This is not the luggage ticket (baggage check) described in Article 4 of the Warsaw Convention or the Warsaw Convention as amended by the Hague Protocol, 1955. Baggage checked subject to tarriffs [sic], including limitations of liabylity [sic], therein contained.
When the Air Afrique crew member took plaintiff's suitcase from him on the plane, she told him that the suitcase would be returned to him in Cotonou. When plaintiff arrived in Cotonou, however, his suitcase was not returned to him. Plaintiff immediately notified Mr. Hashima, an Air Afrique customer relations representative, that his luggage was missing and completed a "Property Irregularity Report." He gave Mr. Hashima the tag that he had received from the Air Afrique crew member who took the suitcase. Mr. Hashima retained the tag. Plaintiff also notified Mr. Hashima that the five suitcases he had checked at Kennedy Airport in New York had not arrived, and he gave Mr. Hashima the baggage checks he had received for those five bags, (Pl. Ex. B). Each baggage check contains the words "Air France" at the top. Air France is Air Afrique's baggage handling agent.
Plaintiff was in the import/export business at the time of the flight and was carrying electronic equipment which he planned to sell in Benin. This was plaintiff's first trip on Air Afrique, although he had previously made approximately one or two trips to Africa during which he sold goods he brought from the United States, and had also made a small number of similar trips to Europe.
Defendant denies that plaintiff carried a suitcase on board the plane and that he received the tag from anyone on board the flight. I accept plaintiff's account. Although Mr. Chapoteau testified that this type of tag is never used in Air Afrique flights from New York to Africa, he admitted that such checks are used for checked baggage on flights from Africa to New York. I did not find credible the testimony of Mme. Yelouassi, who denied that such tags were on board during any flight. Indeed, Air Afrique's response to interrogatories ...