[239 NJSuper Page 106] Defendant American Airlines, Inc. moved for summary judgment in this action in which plaintiffs allege that defendant lost plaintiffs' luggage on a round-trip flight between Kennedy Airport, New York, and Montego Bay, Jamaica. The basis for the motion was that the Warsaw Convention limits defendant's liability for lost luggage to a maximum of $9.07 a pound ($20 a kilogram) and that since plaintiffs, admittedly, did not know the weight of the lost luggage, there was no basis upon which damages could be calculated, and that therefore, the claim must be dismissed as a matter of law. Plaintiffs produced their "claim checks" in opposition to the motion. There was no notation of the weight thereon, nor elsewhere on any ticket or the like given to plaintiffs by American. The inference from the production of the claim checks is that the luggage was given to a person or persons who did not present the claim checks that should have been required for this luggage, or that
defendant must account for the luggage otherwise. The loss of the luggage was not denied by defendant.
In the foregoing context, the issue is whether the complaint must be dismissed based on the Warsaw Convention where plaintiffs cannot prove the weight. I resolve this issue in favor of plaintiffs and deny the requested summary judgment.
The Warsaw Convention, officially entitled "Convention for the Unification of Certain Rules Relating to International Transportation by Air" became effective in the United States on October 29, 1934. It is cited as 49 Stat. 3000; T.S. 876; 49 U.S.C.A. 1502 note. The convention gives the passenger the benefit of a presumption of liability of the air carrier for the loss or destruction of, or damage to, baggage checked for international travel. Maghsoudi v. Pan American World Airways, Inc., 470 F. Supp. 1275 (D.Hawaii, 1979).
(1) The carrier shall be liable for damage sustained in the event of the . . . loss of . . . any checked baggage . . . if the occurrence which caused the damage so sustained took place during the transportation by air. [Emphasis supplied]
Section 2 of that article defines the phrase "transportation by air" to include "the period during which the baggage or goods are in charge of the carrier."
Articles 19 and 20 provide for the avoidance of what would have been absolute liability for the loss in circumstances not relevant to this action. Because of that possible avoidance of absolute liability, art. 18, § 1 is considered to have raised a presumption of liability, or in other words, absolute liability under certain circumstances.
The "trade off" for the benefit to the international traveler of a presumed liability was that international air carriers were given the benefit of a limit to the extent of their liability (i.e., the quantum of damages) for those losses.
However, that benefit to the carriers was conditioned upon the carrier satisfying certain requirements as follows, as material:
1) delivery of a baggage check, sec. II, ...