Plaintiffs were passengers on T.W.A. They claim that $9,232.59 worth of jewelry and other valuables is missing from their luggage. Defendant's motion limiting its liability pursuant to the Warsaw Convention is granted. This Court disagrees with the only reported New Jersey decision, Lessie Hill v. American Airlines, Inc., 239 N.J. Super. 105, 570 A.2d 1040 (Law Div.1989).
On January 24, 1988 plaintiffs and their two minor daughters were passengers on T.W.A. Flight 33 from Nassau, Bahamas to J.F.K. Airport in New York City. The Flight was canceled due to technical difficulties. The Lourencos and their children were later flown to Miami, Florida on Bahamas Air. The group then boarded a Pan American flight to J.F.K.
Their luggage, last seen in Nassau, was shipped separately and lost. It was delivered to plaintiffs' home three days later. Plaintiffs allege the luggage was broken into and that $9,232.59 worth of jewelry and other valuables is missing.
Plaintiff, Mario Lourenco, is an employee of T.W.A. Neither he nor his wife made a special declaration of value concerning the contents of their luggage. Plaintiffs did not request special
handling of the baggage or purchase special insurance covering the full value of their possessions.
Defendant's Civil Aeronautics Board (CAB) Tariff provides that the weight of a passenger's checked baggage shall be deemed the maximum allowable weight for each piece of baggage, 70 lbs. per bag, unless the actual weight is stated on the baggage check. Defendant did not state the weight and number of pieces of luggage on plaintiffs' ticket or baggage check. The total weight of the items missing is stipulated as less than (50) fifty pounds.
T.W.A. argues that its liability is limited by the Warsaw Convention.*fn1 Reprinted at 49 Stat. 3000; 49 U.S.C. Section 1502 note. The Convention is an international treaty that limits the liability of airlines for death, injury, property damage or loss and delay. It applies to all international transportation of persons, baggage or goods performed by aircraft for hire. Art. 1. The carrier is liable for loss or damage to any checked baggage occurring during transportation by air, including the period baggage is in charge of the carrier whether in an airport or on an aircraft. Art. 18. Liability is limited to $9.07 per pound of lost baggage,*fn2 except in cases of willful misconduct.*fn3
The parties agree the baggage was in international flight and is governed by the Warsaw Convention.
In return for limited liability, the air carrier is presumed liable to a passenger unless the carrier can show that it had taken all necessary measures to avoid damages, or that it was impossible for it to take such measures. Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 104 S. Ct. 1776, 80 L. Ed. 2d 273 (1984) rehearing denied 467 U.S. 1231, 104 S. Ct. 2691, 81 L. Ed. 2d 885; Lowenfield and Mendleson, "The United States and the Warsaw Convention," 80 Harvard Law Review 497 (1967).
The Convention permits an airline to limit its liability if the provisions of Article 4 are complied with. Article 4 of the Convention states:
(1) For the transportation of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check.
(2) The baggage check shall be made out in duplicate, one part for the passenger and the other part for the carrier.
(3) The baggage check shall contain the following particulars:
(a) The place and date of issue;
(b) The place of departure and of destination;
(c) The name and address of the carrier or carriers;
(d) The number of the passenger ticket;
(e) A statement that delivery of the baggage will be made to the bearer of the baggage check;
(f) The number and weight of the packages;
(g) The amount of the value in accordance with ...