
    Jean-Michel Robert, Appellant, v. Pan American World Airways, Respondent.
    Supreme Court, Appellate Term, First Department,
    October 13, 1972.
    
      
      Max J. Gwertsman and Milton B. Pfejfer for appellant Haight, Gardner, Poor é Havens (Donald F^Driver of counsel), for respondent.
   Per Curiam.

Defendant moved for summary judgment on the basis of plaintiff’s bill of particulars, his examination before trial, and its passenger tariff rule on file with the Civil Aeronautics Board setting time limitations on baggage claims.

Plaintiff states that his bag had been cut open and a fur jacket removed during the course of a domestic flight; that he discovered the loss when he arrived home that day; that he made no claim to any person but wrote a letter to defendant airline about the loss 24 days later.

The tariff rule requires complaint in writing to the carrier within 7 days in the case of damage to baggage, and within 21 days in the case of loss, but the rule then goes on to state that the failure to give written notice shall not be a bar to suit if claimant shows that it was not reasonably possible for him to give such notice or that the carrier had knowledge of the claim. Here not only was written notice not given until after the maximum 21-day period; plaintiff also had failed to do what any reasonable man would have done — orally complain or report the incident to the carrier within a reasonable time after discovery, which would have obviated the requirement of written notice. The rule quite reasonably sets a time limit so that a prompt investigation can be made in an endeavor to locate the item, verify the claim and identify the person or practice responsible.

Domestic flights are governed by the statute establishing the Civil Aeronautics Board (U. S. Code, tit. 49, § 401 et seq., now § 1301 et seq.) and the regulations of the board pursuant thereto (Code of Fed. Beg., tit. 14). These require the filing with the board of tariffs containing all provisions “which in any way increase , or decrease the value of the services rendered to the shipment or passenger or charterer ” (Code of Fed. Beg., tit. 14, § 221.38, subd. [a], par. [4]). In Herman v. Northwest Airlines (222 F. 2d 326), it was pointed out that this required carriers to file any rule limiting the time within which a claim was to be asserted. Herman then held that the ‘ ‘ authoritative ” principle whs that the carrier’s rule “must be deemed valid until the Board declares otherwise ” (p. 328; see, also, Lichten v. Eastern Airlines, 189 F. 2d 939; Alco-Gravure Div. of Pub. Corp. v. American Airlines, 173 F. Supp. 752; Mao v. Eastern Air Lines, 310 F. Supp. 844). The board, after an investigation of tariff liability rules relating to loss of or damage to baggage or cargo, as well as personal injury and death, made a regulation denying binding effect to any personal liability time limitation rule (Code of Fed. Beg., tit. 14, § 221.38, subd. [h]), but has made no ruling, decision or regulation affecting the validity of property time limitation tariff rules.

The fact that this tariff rule was printed in virtually invisible type on the plane ticket is immaterial, since the filing with the board of the tariff containing that rule constituted constructive notice, whether or not the passenger knew of the existence of the rule. The court may, of course, refuse to recognize what it deems to be an unreasonable time limitation until the board passes on the rule with appropriate review procedures available to the parties. But here, in light of the provisions of this tariff rule, the delay of 24 days must be deemed unreasonable as a matter of law and defendant held entitled to summary judgment upon the law and upon the facts assertedby plaintiff himself.

The cases cited in the dissenting memorandum are not applicable. They deal in the main with limitation of liability problems, and there is a significant distinction both in concept and practical application between limited liability and time limitation questions. A provision for limited liability is enforceable only if adequate notice thereof has been given to the passenger so that he may protect himself by declaring full value and paying a higher rate for his baggage, or obtaining flight insurance for himself. Thus, Lisi v. Alitalia-Linee Airee Italiane (370 F. 2d 508) and Egan v. Kollsman Instrument Corp. (21 N Y 2d 160) hold that a carrier is not entitled to invoke the provision for limited amount of damages recoverable for personal injuries or death on an international flight under the Warsaw Convention where the ticket, in exceedingly fine print, does not give sufficient notice that the rules of the Convention relating to limited liability are applicable. But the fact that the ticket is illegible and unreadable has been held not to affect the applicability of the Warsaw Convention’s special time limitation rule of a short Statute of Limitations (Molitch v. Irish International Airlines, 436 F. 2d 42; Bergman v. Pan Amer. Airways, 32 A D 2d 95). The remainder of the cases cited involve claims against steamship companies, which are not governed by a regulatory agency, such as the Civil Aeronautics Board, established by Congress under a law requiring the filing of tariff rules subject to the regulations and supervision of the board.

The order should be affirmed, with $10 costs.

Markowitz, J.

(dissenting). Defendant has been granted summary judgment, in an action to recover the value of a sable jacket stolen from plaintiff’s luggage while checked with defendant, on the ground that plaintiff failed to give the airline timely notice of the loss.

The motion was based on the defense in the answer that the airline had been exonerated from liability under the conditions of the contract between the parties and defendant’s applicable tariff. The moving affidavit puts it thus: “ A’provision of Pan American’s Passenger Rules Tariff on file with the Civil Aeronautics Board mandates that no action shall lie against the carrier unless written notice of a passenger’s claim is dispatched within seven days from the date of the receipt of his baggage.”

Plaintiff and his family were passengers aboard Pan American Flight 270 from St. Thomas to New York on December 29, 1968. When they got home, they found the jacket missing from one of the suitcases. Plaintiff wrote the airliné about the loss by letter dated January 22,1969 — some 24 days later.

Plaintiff’s position is that he had no notice of the time limitation provision in the tariff and that the ticket he received was printed in such small type as to make it virtually illegible and impossible- to read.

Notice on a plane ticket, .by microscopic type, unnoticeable, unreadable and virtually invisible, is insufficient to bring knowledge to the passenger that he must give written notice to the carrier of missing items in his baggage forthwith and at the latest, within seven days from the date of receipt of the bag, or lose his rights (Lisi v. Alitalia-Linee Aeree Italiane, 253 F. Supp. 237, affd. 370 F. 2d 508, affd. 390 U. S. 455, rehearing den. 391 U. S. 929, Egan v. Kollsman Instrument Corp., 21 N Y 2d 160; Stolk v. Compagnie Nat. Air France, 58 Misc 2d 1008, affd. 64 Misc 2d 859; KiKi Hart, Inc. v. Empire State Messenger Serv., Sept. 1968, No. 386). I am not jaersuaded that, despite

such lack of knowledge, plaintiff was bound, as a matter of law, by this requirement simply because a domestic flight was involved and the carrier had filed a tariff containing such a provision in its passenger rules.

(The 21-day provision in the same tariff rule does not apply. This applies only to “ delay” in returning the bag, in which case the applicable period is 21 days from the date on which the baggage is placed at the passenger’s disposal, and to “loss ” of the bag, in which case the applicable period is 21 days from the date the baggage “ should have been placed at his disposal ”.)

Notwithstanding the tariff, a carrier may not exclude or exonerate itself from liability in this fashion without bringing home knowledge by, or proper notice to, the passenger of the provision to that effect when the contract of transportation was made (The Majestic, 166 U. S. 375, 384 — 386; Maibrunn v. Hamburg-Amer. S. S. Co., 77 F. 2d 304; Azrak v. Panama Canal Co., 117 F. Supp. 334). The passenger’s lack of knowledge of the exclusion or exoneration provision precludes summary judgment in favor of the carrier based on that provision (Ager v. Den Norske, 336 F. Supp. 1187,1189).

Moreover, the period allowed for making' the claim must in any event be reasonable. A common carrier of passengers is not free to set as short a period as it pleases within which a passenger must give written notice of a claim or forfeit the claim. Requiring written notice forthwith, or no later than 7 days after the passenger picks up his bag, may or may not be ‘1 reasonable ” as a matter of fact; it is certainly not reasonable, beyond debate, as a matter of law.

The cases relied on by defendant are distinguishable. In Alco-Gravure Div. of Pub. Corp. v. American Airlines (173 F. Supp. 752) the court said (p. 755): “ But on examination it is found that all the federal district court cases cited [holding in effect that regulations as to the time of notice of claims in airline schedules were not binding on a plaintiff] were decided prior to the decision in the Herman case in the Second Circuit and all of them related only to claims by passengers and none of them involved provisions as to timely notice of damage to cargo shipments.”

The case before us relates to a claim by a passenger. It does not involve notice of damage to a cargo shipment.

Herman v. Northwest Airlines (222 F. 2d 326, supra) involved a contractual Statute of Limitations, not a severely limited period in which to give written notice of the passenger’s claim, at the risk of exonerating the carrier from liability. The court in Herman (222 F. 2d 326, supra) expressly stated that it was ignoring a similar requirement in the ticket in that case, i.e., that notice of the claim had to be given within 30 days (p. 327).

I note parenthetically the clause in the Per Curiam that plaintiff “ states that his bag had been cut open and a fur jacket removed during the course of a domestic flight”. The record shows the following: The bill of particulars alleges that defendant- ‘ permitted and allowed a piece of luggage to be opened and a fur jacket removed therefrom while in its exclusive custody and control.” The further bill of particulars alleges that defendant breached the contract with plaintiff ‘ in handling plaintiff’s bag so that it could be cut open and the fur jacket removed.” The moving affidavit makes no reference whatever to how the jacket was stolen from the bag. The letter of January 22,1969, states that the jacket was found to be missing when plaintiff arrived at his home, and that it ‘ must have been stolen from my bag while in your custody.” In this context the categorical clause in the Per Curiam, alluded to, finds scant justification in the record.

Issues of fact as to the readability of plaintiff’s ticket and the reasonableness of the provision relied on by defendant mandate denial of summary judgment to defendant. The order appealed from should, therefore, be reversed; and I so vote.

Gold and Streit, JJ., concur in Per Curiam opinion; Markowitz, J., dissents in memorandum.

Order affirmed, etc. 
      
      
        [Herman v. Northwest Airlines, 222 F. 2d 326, cert. den. 350 U. S. 843.]
     