Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
Defendant, American Air Lines, Inc., appeals from a judgment entered by the trial court in favor of plaintiff Dover Farms, Inc. in the sum of $2240 plus interest and costs.
Dover Farms, Inc. (hereafter plaintiff), a baby chick hatchery, made arrangements with defendant, an interstate air freight carrier, to transport 8000 baby chicks to the buyer thereof, plaintiff Martin H. Bernstein, at Los Angeles, California, C.O.D.
Pursuant to those arrangements, boxes containing the chicks were delivered by plaintiff's truck to defendant's air terminal in Newark on April 16, 1968.
Plaintiff's truck driver testified as to the delivery of the boxes of chicks to defendant's receiving clerk. The driver secured an application -- apparently the blank form of an air bill -- from an inside clerk and delivered it to the "receiver." The latter, after weighing the chicks, partially filled out the air bill and returned it to plaintiff's driver. In turn, he gave the partially completed air bill to the inside clerk, who "filled the rest out."
The driver further testified that at the same time he also gave the inside clerk a copy of plaintiff's invoice to which there was attached, by a paper clip, an instruction sheet. The invoice showed the value of the chicks, $2240, defendant's flight number, and the departure and arrival times. The invoice was signed by defendant's clerk and returned to him. He also stated that the instruction sheet contained among other things, "how much it was supposed to be insured for."
Plaintiff's president testified that an instruction sheet was prepared and attached to the invoice which was given to the driver. It instructed defendant to insure the chicks for the "full value" as noted thereon. Nevertheless, the completed air bill, returned by defendant's clerk to plaintiff's driver, contained no "Declared Value." It merely disclosed 81 boxes at a total weight of 950 pounds, a weight rate shipping charge of $418.30, and a total charge of $439.96.
Defendant presented no witnesses and did not deny negligence in the transportation of the chicks. First, it argued that the air bill was clear on its face and that since no declared value was set forth thereon, defendant's filed tariff (Rule 52) limited plaintiff to a recovery of 50 cents per pound or a total of $475. Next, it contended that plaintiff's action was barred by Rule 60 (c)(1) of its filed tariff until the freight charges have been paid.
The trial court found as follows:
It is true that the Civil Aeronautics Board tariff (Rule 60(c)(1)) provides that "no claim for loss or damage to a shipment will be entertained until all transportation charges thereon have been paid." In this case the plaintiff was not charged with nor informed of the proper transportation charges because of the error of defendant's agent and the defendant [ sic , plaintiff] has not yet been so informed. Therefore the Court holds that the aforementioned rule does not apply.
Since the defendant failed to follow the instructions of the plaintiff's agent with regard to the manner in which the domestic airbill should have been completed and the same was therefore not properly prepared in one of its essentials, the ...