144 N.E.2d 878 | Ohio Ct. App. | 1956
Lead Opinion
This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of the plaintiff in the sum of $835 and costs. The judgment was rendered by the court without the intervention of a jury upon an agreed stipulation of facts.
On March 20, 1952, plaintiff purchased a ticket for transportation from Columbus, Ohio, to New Orleans, Louisiana, for the sum of $64. On March 21, 1952, prior to boarding defendant's plane at Columbus, Ohio, plaintiff checked her suitcase, which with its contents was worth $835, with defendant for transportation to New Orleans. The suitcase was not delivered to plaintiff upon her arrival, or thereafter. At the time of the purchase of her ticket and also when she checked her suitcase, plaintiff declared no value on it. Defendant made no extra charge based on value in excess of $100. As a matter of fact, no discussion was had between the parties pertaining to the value of the luggage or the insuring of it.
In March 1952, defendant had on file with the Civil Aeronautics Board a tariff which was duly filed, posted and published, as required by the Civil Aeronautics Act. So far as is pertinent to this case, this tariff provided that the total liability of the defendant occasioned by reason of any loss of, injury to, or delay in the delivery of any personal property accepted for transportation as baggage would be limited to $100 for each passenger unless at the time of acceptance for transportation, when, for checking in for flight, the carrier has accepted greater liability; that "upon request and declaration, and payment of an additional transportation charge computed at the rate of ten (10) cents for each $100 or fraction thereof, of excess value declared, the carrier will accept liability for loss of, injury to, or delay in the delivery of such baggage up to the amount declared for each piece, with a maximum limit per passenger" of $25,000. In checking baggage with defendant and receiving a check therefor, plaintiff was unaware of and had *174 no knowledge of the published tariff and plaintiff did not read the conditions in small print on her ticket and baggage check referring to limited liability.
Inasmuch as this litigation involves an interstate shipment of baggage with a common airline carrier, the rights and liabilities of the parties are to be determined by federal law. Cf. Patton v. Pennsylvania Greyhound Lines,
The sole question to be determined upon this appeal is whether the tariff limiting liability on baggage to $100, unless excess value is declared and the extra charge based on such valuation has been paid, was authorized to be filed under the provisions of the Civil Aeronautics Act and the regulations of the board.
There is a general rule of law that common carriers can not stipulate for immunity from their own or their agent's negligence. While this rule was fashioned by the courts, it has been continuously accepted as a guide to common-carrier relationships for more than a century and has acquired the force and precision of a legislative enactment. United States v.Atlantic Mutual Ins. Co.,
But at common law, a distinction was made between a contract immunizing a carrier from liability for negligence and a contract limiting liability upon an agreed valuation at a higher charge or rate. As early as 1848, in New Jersey Steam Navigation Co. v.Merchants Bank of Boston, 47 U.S. (6 How.), 344, 384,
In Hart v. Pa. Rd. Co. (1884),
"Where a contract of carriage, signed by the shipper, is fairly made with a railroad company, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations."
The language employed by the court in its opinion, at page 337, is significant:
"The presumption is conclusive that, if the liability had been assumed on a valuation as great as that now alleged, a higher rate of freight would have been charged. The rate offreight is indissolubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was because it was a rate measured by the valuation expressed. If the valuation was fixed at that expressed, when the real value was larger, it was because the rate of freight named was measured by the low valuation. The plaintiff cannot claim a higher valuation, on the agreed rate of freight." (Italics supplied.)
Further in the opinion, at pages 340 and 341, the court goes on to say:
"The limitation as to value has no tendency to exempt from *176 liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater."
The foregoing decisions were rendered prior to the enactment of the Carmack amendment in 1906. As originally enacted, the Carmack amendment merely required the carrier to issue a bill of lading and provided that the carrier should be liable to the holder thereof for any loss, etc., caused by the carrier or a connecting carrier, and that no contract should exempt such carrier from the liability thereby imposed. 34 Stats. at L., 595. No reference was made to limited liability upon agreed valuation such as is presently found in the second exception in Section 20(11), Title 49, U.S. Code.
Adams Express Co. v. Croninger (1912),
"That a common carrier can not exempt himself from liability for his own negligence or that of his servants is elementary.York Mfg. Co. v. Illinois Central Railroad, 3 Wall., 107;Railroad Co. v. Lockwood, 17 Wall., 357; Bank of Kentucky v.Adams Express Co.,
The court went on to say (page 509):
"It has therefore become an established rule of the common law as declared by this court in many cases, that such a carrier may by a fair, open, just and reasonable agreement limit the amount recoverable by a shipper in case of loss or damage to an agreed value made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk. * * *
"That such a carrier might fix his charges somewhat in proportion to the value of the property is quite as reasonable and just as a rate measured by the character of the shipment."
The court further indicated that such a contract is not an exemption from liability for negligence, but is a contract as to what the property is, in reference to its value; the purpose of it is not to change the nature of the undertaking of the carrier or limit his obligation in the care and management of that which is entrusted to him.
Again, in Boston Maine Rd. Co. v. Hooker, supra
(
In Western Union Telegraph Co. v. Esteve Bros., supra
(
It seems to be the position of the plaintiff that decisions in railroad cases have no bearing upon the instant case because cases involving carriers under the Interstate Commerce Act are authorized to limit their liability upon a declared valuation *179 under the specific provisions of the Carmack amendment whereas the Civil Aeronautics Act contains no such provision.3
As indicated above, the right to so limit liability arises at common law independent of federal statute, except as provision is made requiring the filing of tariff rates and schedules, which, if reasonable, become binding alike upon the carrier and its patron.
Section 483(a) of the Civil Aeronautics Act (Title 49, Section 483, U.S. Code) requires every air carrier to file, post and publish tariffs showing all rates, fares and charges for air transportation, and, to the extent required by regulations of the board, showing all classifications, rules, regulations, practices, and services in connection with such air transportation. Section 483(b) contains the customary prohibition against discrimination by providing that no air carrier shall charge a greater or less or different compensation for air transportation, or for any service in connection therewith, than the charges specified in the currently effective tariffs. In its regulations, the board defined tariff as follows:
"`Tariff' means a publication containing rates applicable to the transportation of persons or property, and rules relating to or affecting such rates or transportation." Paragraph (d) Economic Regulation 221.1, Civil Aeronautics Board.
In the light of the above decisions of the Supreme Court, it seems clear to a majority of the court that the limitation of liability clause in the tariff applicable herein does not constitute an exemption from liability for negligence, but is a regulation fixing and determining the amount of recovery for lost baggage premised upon the amount to be charged for the carriage in *180 view of the responsibility assumed. It is therefore valid and binding upon the carrier and the passenger alike.
We agree to the general principle asserted by plaintiff that there must be statutory authority for filing a particular clause in a tariff before persons affected thereby are charged with notice thereof or bound by its terms. Southern Pac. Co. v.United States,
Thus it has been held that under the Civil Aeronautics Act, a clause in a tariff prescribing a limitation of time for the filing of notice of claims and suits for personal injury is not authorized and is not binding upon the passenger, because it has no relation to rate for transportation. Shortley v.Northwestern Airlines (1952),
On the other hand, a tariff regulation that no action shall be maintained for injury to a passenger unless written notice of claim be presented within a limited time has been held reasonable and valid. Wilhelmy v. Northwest Airlines (1949),
It has been specifically held that liability of an air carrier in respect to baggage is limited under such carrier's tariff to the value stated therein, or its equivalent per passenger, unless a higher valuation is declared in advance and additional charges are paid pursuant to the carrier's tariff.Radinsky v. Western Air Lines, Inc. (1952),
The cases cited above are United States District and state court decisions. Lichten v. Eastern Airlines, Inc. (1951),
In Herman v. Northwest Airline, Inc. (1955),
In conclusion, it is regrettable that a passenger on a carrier wholly unaware of the provisions of a tariff schedule should suffer loss as the result of the carrier's failure to advise him of his right to recover full value of his baggage upon the payment of a slight additional charge. The Aeronautics Board might well adopt a regulation requiring the tender of a valuation slip to the passenger, incident to the checking of baggage. But in view of the foregoing all-too extended observations, the judgment of the Common Pleas Court must be modified by reducing the amount thereof to the sum of $100, and as so modified *183 the judgment is affirmed at appellee's costs. The cause is remanded to the Common Pleas Court for execution.
Judgment modified, and, as modified, affirmed.
HUNSICKER, J., concurs.
FESS and DEEDS, JJ., of the Sixth Appellate District, and HUNSICKER, J., of the Ninth Appellate District, sitting by designation in the Second Appellate District.
Dissenting Opinion
It is my opinion that Section 483 of the Civil Aeronautics Act requiring carriers by air to file "tariffs showing all rates, fares and charges for air transportation between points served by it," etc., did not authorize the carrier to limit its liability under the law as established and applicable in determining the air carrier's responsibility in the circumstances as shown to exist by the evidence in this case, and it is therefore my view that the judgment of the trial court should be affirmed. Texas Pac. Ry. Co. v. Mugg,