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Bary v. Delta Airlines

October 9, 2009


The opinion of the court was delivered by: Trager, J.


Mohamed Bary ("plaintiff") brings this action against Delta Airlines, Inc. ("defendant" or "Delta"), alleging that the air carrier discriminated against him, in violation of 42 U.S.C. § 1981 ("Section 1981"), Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI") and the New York Civil Rights Law ("NYCRL"), when it prevented him from carrying his bag onto a Delta flight. Plaintiff also seeks relief, under state law theories of negligence and bailment, for the jewelry he alleges was missing from the bag when he went to collect it after Delta forced him to check the bag. Defendant has moved for summary judgment on all of plaintiff's claims. For the reasons set forth below, defendant's motion is granted in part and denied in part.



Plaintiff is a former resident of Sri Lanka who identifies himself as a Muslim Arab. Dep. of Mohamed Bary ("Bary Dep.") at 113. While living in Sri Lanka, plaintiff was in the jewelry business and transported jewelry into the United States on numerous occasions. Id. at 13-15. He moved to the United States in September 2000 in order to improve this business. Id. at 10-11. Here, he incorporated Bary Gems, Inc., of which he is the current owner and sole proprietor. Def.'s Statement Pursuant to Local Rule 56.1 ("Def.'s 56.1") ¶ 4; Bary Dep. at 20-21.

On November 8, 2001, plaintiff was a ticketed passenger on a Delta flight from LaGuardia Airport ("LaGuardia") to Denver, with a stop in Cleveland. Def.'s 56.1 ¶ 1. He purchased the tickets for his original flight through the website.*fn1 Bary Dep. at 78. The purpose of the trip was to attend an international gem and jewelry trade show where plaintiff hoped to sell some of his jewelry. Id. at 24, 89-90; Def.'s 56.1 ¶ 3. Plaintiff generally traveled to 25 or 30 similar trade shows each year. Bary Dep. at 24-25.

For his trip to Denver, plaintiff had packed two bags, one containing clothes, which he planned on checking in, and the other containing gems and jewels, which he expected to carry onto the plane (hereinafter, the "merchandise bag"). Id. at 75. He placed a lock on the merchandise bag to ensure that its contents would be secure. Id. at 76. The gems and jewels contained in the merchandise bag were comprised mostly of items that plaintiff had obtained from several different vendors on a consignment basis. Id. at 25-27, 62-66. In other words, much of the gems and jewels in the merchandise bag were not actually owned by plaintiff, but were loaned to him by vendors who expected that the jewelry would either be returned to them or that plaintiff would sell the jewelry and then pay them a certain price. Id. at 27.

Having arrived early for his originally scheduled flight, plaintiff approached the Delta ticket counter to inquire about taking an earlier flight. Id. at 81. He was greeted at the counter by Vera Hall, a Delta customer service agent. Bary Dep. at 81-82; Dep. of Vera Hall ("Hall Dep.") at 6. Plaintiff presented his ticket to Hall, who then looked up his record on her computer. Bary Dep. at 81. Hall informed plaintiff that he was on a "random checklist," which required that his bags be hand-searched. Id. at 82-83, 104. She asked that plaintiff accompany her to a search area, which was located to the right of the ticket counter. Id. at 83, 93. Plaintiff followed Hall without protest. Id. at 83-84.

At the search area, plaintiff informed Hall that the merchandise bag contained jewelry and that although he did not mind having it searched, he wanted to carry the bag on the plane with him. Id. at 84-85. Hall then returned to her station at the ticket counter. Id. at 85. A security officer proceeded to look through plaintiff's merchandise bag, inspecting each item individually. Id. at 85, 87. Hall later returned with a baggage tag. Id. at 88. The security officer continued searching through the merchandise bag with Hall present. Id. at 89. Plaintiff, therefore, claims that Hall saw what was inside the merchandise bag. Id. at 89, 91. Plaintiff also explained to the security officer that he was on his way to a gem and jewelry trade show. Id. at 89-90. Once the security officer finished looking through the merchandise bag, plaintiff, once again, secured it with a lock. Id. at 92. Hall then placed a tag on the merchandise bag. Id. at 90. The security officer completed the search by briefly looking through plaintiff's clothing bag. Id.

After both bags had been searched, Hall told plaintiff that he would not be permitted to carry the merchandise bag on board.*fn2 Id. at 90. Plaintiff was, therefore, forced to check both of his bags, despite having made it clear to Hall that he wanted to carry the merchandise bag on the plane with him. Id. at 90, 127. In return, Hall presented plaintiff with two baggage tag receipts.*fn3 Id. at 125-27. When plaintiff asked Hall why other passengers were permitted to carry their bags onto the plane, Hall explained that Delta had discretion to decide who could carry baggage onto the plane. Id. at 90-91, 94. Plaintiff alleges that he was the only passenger who was not permitted to bring his bags on board. Id. at 113-14, 123-24. He further asserts that his merchandise bag met Delta's carry on size requirement. Id. at 107.

The merchandise bag was the same bag in which plaintiff generally carried his jewelry when he traveled to trade shows. Id. at 70, 77. According to plaintiff, he had never before been prevented from carrying his merchandise bag on board prior flights with any airline. Id. at 77.


Delta's version of the events is different in certain critical aspects. Hall admits that she was aware that plaintiff only wanted to check in one piece of luggage. Hall Dep. at 37-38, 40. Accordingly, she generated only one baggage tag. Id. at 38. That tag, however, indicated that plaintiff was designated as a "selectee." Id. at 38. Hall's understanding was that anyone designated as a "selectee" had to have his bags hand-searched and could not carry bags onto the plane. Id. at 38. Hall did not offer any explanation as to the basis of this belief. She, therefore, generated a second tag, and explained to plaintiff why he would be unable to bring his merchandise bag on board. Id.

According to Hall, plaintiff informed her that the reason he did not want to check in the merchandise bag was because it contained jewelry. Id. at 40-41. He also told Hall that, because of the bag's contents, he did not want it opened in front of a large group of people. Id. at 24. Hall then left the counter to inform her supervisor, James Wlodarczyk, that a passenger was refusing to have his bag searched. Id. at 41. Hall claims to have no knowledge of what transpired after Wlodarczyk took control of the situation. Id. at 26.

According to Wlodarczyk, once it became clear that plaintiff was a jeweler, he agreed to perform a more private search, as per Delta's established procedure for dealing with individuals who were transporting valuables. Wlodarczyk Dep. at 15, 30-31. The hand-search was, therefore, performed in a completely enclosed area behind a drawn curtain. Id. at 17, 43. The only individuals that Wlodarczyk claims were present at the search were himself, plaintiff, a security supervisor and the individual who actually conducted the search. Id. at 17. Additionally, Wlodarczyk testified that the merchandise bag was the only bag searched. Id. at 23, 31-32. According to Wlodarczyk, once the search was completed and it was determined that the bag did not contain any hazardous material, plaintiff was not prevented from carrying the merchandise bag onto the plane. Id. at 21, 29. Wlodarczyk specifically recalls watching plaintiff make his way to the gate with the merchandise bag in his hand. Id. at 21, 31.


Plaintiff boarded his flight and was transported to Denver with no further delays. Bary Dep. at 110. He arrived in Denver at approximately 4:00 pm. Id. at 133. After landing, plaintiff collected his two checked bags from baggage claim, but did not open the merchandise bag at that time. Id. at 128-29. The merchandise bag was still locked and it appeared not to have been opened since being hand-searched at LaGuardia. Id. at 129. Plaintiff then ran into M.S. Shafi, a dealer who was also attending the trade show. Id. at 131. Shafi, who had rented a car, drove plaintiff and himself to the Merchandise Mart, where the trade show was set to take place. Id. at 130-33. Plaintiff then prepared his display, but still did not open the merchandise bag. Id. at 133, 136. Plaintiff and Shafi then drove to the hotel where they were both staying. Id. at 136.

It was only the following morning, November 9, 2001, when plaintiff was placing the actual sale items on display, that he discovered that two pouches containing jewels and a box holding rings were missing from the merchandise bag. Id. at 132. While still in Denver, plaintiff called Delta's toll-free number to determine the procedure for reporting the missing items. Id. at 141-42. He was instructed to prepare a written claim, which he submitted to Delta on November 20, 2001. Id. at 142-43. Plaintiff attached, to his written claim, a three-page list of items that he believed were missing, and estimated their value at $373,186.81. Id. at 143.

Plaintiff remained in Denver for the duration of the three-day trade show and then flew back to New York. Id. at 163. He reported the lost items to the Denver airport police while departing from Denver International Airport. Id. at 165. He also appears to have reported the stolen items to the police at LaGuardia. See id. at 162-63. Additionally, plaintiff wrote two letters to Delta concerning the loss of the jewels - one on November 18, 2001 and another on December 3, 2001. Id. at 117-20. Plaintiff did not accuse Delta of discrimination in either letter. Id. at 117-19.


Delta submitted an affidavit from its in-house counsel affirming that Delta's domestic tariff ("Delta's tariff") was "published" pursuant to its business practice. Aff. of David A. Seiler ("Seiler Aff.") ¶ 3. According to the affidavit, the version of Delta's tariff that was in effect on November 8, 2001 listed jewelry among the "items considered unacceptable for transportation in checked baggage with/without carrier's knowledge." Exhibit to Seiler Aff. ("Delta's Domestic Tariff"). Furthermore, Section J(1)(A) of Delta's tariff limited its liability for the loss of "baggage or other property" to $2,500:

[L]iability, if any, for the loss . . . of a fare-paying passenger's baggage or other property (whether checked or otherwise delivered in to the custody of [Delta]), shall be limited to an amount equal to the value of the property, plus consequential damages, if any, and shall not exceed the maximum limitation of USD 2500.00 for all liability for each fare-paying passenger (unless the passenger elects to pay for higher liability as provided for in paragraph 3) below). The passenger shall not be automatically entitled to USD 2500.00 but must prove the value of losses or damages.

Id.; see also Def.'s 56.1 ¶ 9.

Additionally, Section J(2)(F) of Delta's tariff excluded liability for jewelry unless excess insurance was purchased:

[Delta] is not responsible for jewelry, cash, camera equipment, or other similar valuable items contained in checked or unchecked baggage, unless excess valuation has been purchased. These items should be carried by the passenger.

Delta's Domestic Tariff (emphasis added).

Section J(3) of Delta's tariff permitted a passenger to declare a higher value for checked-in luggage by paying a fee:

A passenger may, when checking in for a flight and presenting property for transportation, pay an additional charge . . . and declare a value higher than . . . [certain specified] maximum amounts . . . in which event ...

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