Lloyd's Maritime and Commercial Law Quarterly
AIRLINE PASSENGER TICKETS AND THE DUTY TO GIVE NOTICE
Under this heading brief consideration was given in the February, 1978, issue of this journal [1978] 1 LMCLQ 70, et seq. to the pitfalls facing the draftsmen of tickets issued for the international carriage of passengers by air. Attention was drawn in particular to the fact that insufficiently distinct references to the Warsaw Convention and those of its provisions which entitle the carrier to limit its liability might in certain circumstances cause courts to deny the carrier the right to limitation.
Two recent cases—one in the United States and one Canadian—have added to the jurisprudence on this subject.
The first case—that of Greenberg v. United Airlines Inc. (citation not yet available)— does in fact concern domestic carriage within the U.S.; but its outcome has served to highlight the dangers of exclusive preoccupation by ticket draftsmen with the need for clear guidance to the international passenger.
The plaintiff before the New York State court was a school teacher who flew to San Francisco on vacation. The luggage she checked for the flight never arrived. The conditions of carriage contained in the United Airlines tariff filed with the Civil Aeronautics Board included a clause limiting liability for loss or damage to luggage to $750. The tariff also incorporated the following proviso paralleling that found in the Hague Protocol amendments to the Warsaw Convention:
“The above maximum liability shall be waived for an individual claimant where it can be shown that with respect to that claimant the carrier failed to provide notice of limited liability for baggage …”.
The ticket issued to Ms Greenberg was in standard form and included an appropriate notice. However, the layout of the ticket clearly indicated that United Airlines Inc. regarded it as a primary objective to avoid the danger of a court finding an international passenger had not been given proper notice of applicable limitations. Accordingly, despite the fact that United Airlines is principally a domestic operator, the conditions set out in the ticket were headed in bold type “Advice to International Passengers on Limitation of Liability”. Farther down the page appeared another section headed “Notice of Baggage Liability Limitations” in which appeared the relevant notice applicable to the plaintiff.
Judge Fuchs, neatly emphasising the distinction between domestic and international carriage, drew inspiration from the judgment of Judge McMahon in Lisi v. Alitalia (370 F.2d 508) and concluded that:
“any reasonable person, let alone a harried tourist, would conclude that the described page, under its top line, applied solely to international passengers. The format is perfectly calculated to obscure from a domestic traveller’s view the presence there of an applicable limit of baggage loss liability … A notice so elusive cannot fulfil the office provided for it in the tariff. In order to succeed, defendant’s communication must be positioned and identified so as to penetrate the travelling public’s reasonably focused consciousness. Instead defendant has set before the traveller a morsel of nourishment hidden in a banquet of dust. Authority and principle combine to deny its effect”.
In consequence the court held that Ms Greenberg was entitled to recover the full value of her pecuniary loss from the air carrier.
The second recent case is another decision of the Canadian Supreme Court arising out of the fatal accident to a Canadian Pacific Airlines DC-8 at Tokyo in 1966. It will be recalled that in Montreal Trust Company et al. v. CPA, discussed in the February,
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