Hawaiian Airlines v. American Samoa Government ex rel. Uikirifi

13 Am. Samoa 2d 5
High Court of American Samoa·Decided October 10, 1989·No. AP No. 5-89; AP No. 6-89·Published

Opinion

Per Thompson, J.:

Facts

The Uikirifi Case

Appellee Uikirifi made two trips on Hawaiian Airlines from Honolulu to Pago Pago, one on August 7, 1987, and another on [7]*7September 17, 1989. On the August 7th trip the airline lost two of Uikirifi’sbags containing clothing which he valued at $1,926.64. On the September 17th trip the airline lost nine pieces of luggage containing clothing and "fine mats" valued by Uikirifi at $5,055.24. In a trial de novo in the Trial Division, the trial court rendered judgment in favor of Uikirifi but limited his recovery to $1,250.00 for each of the two trips, a total of $2,500.00, plus $129.00 which Uikirifi had paid in excess baggage charges. [ASG ex rel Afaese Uikirifi v. Hawaiian Airlines, Inc., 10 A.S.R.2d 31 (1989).]

The Neru Case

Appellee Neru made one trip on Hawaiian Airlines on February 8, 1987. The airline lost two of Neru’s bags. The lost bags contained auto parts which Neru valued at $2,286.70. In a trial de novo in the Trial Division, the trial court awarded Neru the full amount of his claim, $2,286.70. [Id.\

The Appeal

Hawaiian Airlines appeals. Uikirifi and Neru do not. Hawaiian argues that by its Contract of Carriage, incorporated by reference into the airline tickets which Uikirifi and Neru bought, Hawaiian is exempt from any liability for the lost baggage claims asserted against it. Hawaiian contends that its Contract of Carriage exclusion applies, because Uikirifi’s clothing and fine mats and Neru’s auto parts were the kind of baggage described in Hawaiian’s Contract of Carriage Rule 26(B)(2), for which Hawaiian has no liability in the event of loss or damage. Alternatively, Hawaiian argues its liability for the lost baggage is limited to $1,250.00 per passenger per trip, and the trial court should have limited Neru’s recovery to this amount.

Discussion

Hawaiian’s Contract of Carriage Rule 26(B)(2) provides in pertinent part:

HA [Hawaiian Airlines] assumes no liability for irreplaceable articles and/or valuable items; . . . religious or ceremonial mats and artifacts; . . . samples and goods for resale; . . . included in a passenger’s baggage with or without knowledge of HA. [emphasis added].

[8]*8This section differs from subsection (B)(1) immediately preceding it in the Contract of Carriage. Subsection (B)(1) begins with a modifying introductory clause: "When HA has exercised the ordinary standard of care it shall not be liable for . , ." damage to perishable or fragile «rticles under certain circumstances. Thus, while subsection (B)(1) purports to absolve Hawaiian from liability only when it has not been negligent, subsection (B)(2) purports to absolve Hawaiian from all liability in any case in which a passenger’s baggage is lost, if the baggage is of a type described in the subsection.

Hawaiian’s Rule 26(B)(2), at least insofar as Hawaiian seeks to apply it to the kind of baggage Uikirifi and Neru shipped, is contrary to public policy and void; the rule attempts to exonerate Hawaiian Airlines from all liability due to its own negligence for the loss of or damage to baggage it carries on the airline. See Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1313-14 (9th Cir. 1977). Hawaiian argues that it has no .vay, short of disruptive and time consuming searches of passengers’ baggage, to know what its passengers are shipping, and therefore it should be liable only for the loss of or damage to the kind of baggage a passenger typically takes along for his own personal use and comfort.

■ Hawaiian suggests that there are, at minimum, two categories of baggage which come into play in the cases now before us: "passenger baggage" which it defines as that taken for personal usé and comfort, and "unusual or valuable items of inventory"; it argues that while it might be appropriate to impute to it knowledge, and hence its acceptance for carriage, of personal • property within its definition of "passenger baggage," it should not be forced to assume liability, even in a limited amount, for its carriage of other classes of baggage. It argues that Uikirifi’s and Neru’s lost baggage fits into the category of "unusual or valuable items of inventory," and as a result Hawaiian is contractually exonerated from all liability for the loss of this baggage. We disagree.

First, Hawaiian’s argument overlooks 14 C.F.R. § 254.4 (1984). This section provides in pertinent part that: [9]*9Id. (emphasis added). A reasonable reading of this section would be that Hawaiian may not limit its liability down to zero. The section expressly applies to "personal property, including baggage." It does not limit its application only to "baggage." Since the claims made by Uikirifi and Neru were for personal property which was contained in the bags which they shipped with Hawaiian, Hawaiian should not be able to limit its liability to less than the $1,250.00 prescribed by 14 C.F.R. § 254.4.

[8]*8[A]n air carrier shall not limit its liability for provable direct or consequential damage resulting from the disappearance of, damage to, or delay in delivery of a passenger’s personal property, including, baggage, in it's custody to an amount less than $1250 for each passenger.

[9]*9Second, and of equal if not greater significance, the lost baggage in the present cases does not involve fragile or perishable items, nor does it involve personal property such as live animals, jewelry, or inherently dangerous items or items having a unique value which an airline may be permitted to reject from carriage altogether, or for which it may require an increased payment, or for which it may demand a release or other condition before agreeing to carry the goods. We deal here only with auto parts, clothing, and "fine mats." Insofar as the "fine mats" are concerned, the shipment was for 270 mats which Uikirifi valued at a total of $2,700.00, or the rather modest amount of $10.00 per mat. As to the clothing, there is nothing unusual about baggage containing clothing, and as to the auto parts, it certainly cannot be said they represented items of any unique nature or special value.

We conclude that Hawaiian Airlines may not absolve itself from all liability for the loss of the Uikirifi and Neru baggage. We turn now to a consideration of the question whether Hawaiian Airlines effectively limited its liability to $1,250.00 for Neru’s lost baggage.1

In Neru’s case, the trial court concluded that Hawaiian Airlines’ notice of the limitation of its liability for lost baggage contained in the ticket Neru bought was ineffective because, although the notice was sufficiently "conspicuous," the language of the notice was deficient. It also concluded that, while the language of the notice of Hawaiian Airlines’ liability limitation which appeared in the jacket into which the ticket was placed was adequate, this notice in the jacket was not sufficiently "conspicuous" because the notice was hidden from view by an inside jacket flap.

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Hawaiian Airlines v. American Samoa Government ex rel. Uikirifi, 13 Am. Samoa 2d 5 (amsamoa 1989).

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