United States District Court, Northern District of Illinois, E.D
March 16, 1955
NAT TUROFF, PLAINTIFF,
EASTERN AIRLINES, INC., A CORPORATION, AND DAVID W. BRACK, DEFENDANTS.
The opinion of the court was delivered by: Campbell, District Judge.
The plaintiff brings this action seeking to recover damages for
personal injuries alleged to have been sustained by him as a
result of the alleged negligent landing of one of the corporate
defendant's airplanes at the Municipal Airport, Chicago,
Illinois, on March 3, 1954. The plaintiff was a passenger for
hire on said airplane which was piloted by, and in the control
of, the individual defendant, David W. Brack.
Jurisdiction is based on the alleged diversity of citizenship
of the parties to the case, with the amount in controversy
exceeding $3,000, exclusive of interests and costs.
The case is now before the court on the plaintiff's motion to
strike the affirmative defense of Eastern Airlines, the corporate
defendant, hereinafter referred to as Eastern. In its affirmative
defense, Eastern alleges that, in effect, the ticket sold and
delivered to the plaintiff bore the printed notation on the back
thereof that the ticket was "Sold subject to tariff regulations."
The affirmative defense further alleges that at the time of the
accident there was in full force and effect a tariff filed by
this defendant which provided in part as follows:
"(A) Personal Injury and Death-Time Limitations.
"(1) No action shall be maintained for any injury
to or the death of any passenger unless notice of the
claim is presented in writing to the general offices
of the participating carrier alleged to be
responsible therefor within ninety (90) days after
the alleged occurrence of the events giving rise to
the claim, and unless the action is commenced within
one (1) year after such alleged occurrence."
Accordingly, Eastern argues that said tariff regulation became
a part of the contract of carriage between the parties and
alleges that this action was not commenced within one year, nor
was notice filed within ninety days, as provided by the tariff
regulation in question.
The issue presented for decision is whether a common carrier
can abrogate, by filing a tariff which includes limitation
provisions, the statutory period of limitations of a state in
which it operates.
The applicable statutory authority pertaining to tariffs, 49
U.S.C.A. § 483, provides as follows:
"(a) Every air carrier and every foreign air
carrier shall file with the Board, and print, and
keep open to public inspection, tariffs showing all
rates, fares, and charges for air transportation
between points served by it, and between points
served by it and points served by any other air
carrier or foreign air carrier when through service
and through rates shall have been established, and
showing to the extent required by regulations of the
Board, all classifications, rules, regulations,
practices, and services in connection with such air
transportation. Tariffs shall be filed, posted, and
published in such form and manner, and shall contain
such information, as the Board shall by regulation
prescribe; and the Board is empowered to reject any
tariff so filed which is not consistent with this
section and such regulations. Any tariff so rejected
shall be void. The rates, fares, and charges shown in
any tariff shall be stated in terms of lawful money
of the United States, but such tariffs may also state
rates, fares, and charges in terms of currencies
other than lawful money of the United States, and
may, in the case of foreign air transportation,
contain such information as may be required under the
laws of any country in or to which an air carrier or
foreign air carrier is authorized to operate."
It is quite obvious that the statute does not authorize or
the inclusion in a tariff of any provisions relating to
limitations in personal injury actions. It cannot be denied that
with respect to matters authorized or required to be included in
a tariff, the tariff regulations do as a matter of law control
the carrier and passenger, and this without any actual notice or
knowledge other than the constructive notice rendered by the
filing of the tariffs so required. However, the tariff provision
in issue is a mere gratuitous insertion with regard to a matter
not contemplated or authorized by the Act of Congress, or the
regulations promulgated pursuant thereto. As such, a passenger is
not chargeable with notice as a matter of law with respect to
such provisions. See Shortley v. Northwestern Airlines, D.C.,
104 F. Supp. 152.
Reaching this conclusion, the issue then presented for decision
is whether the plaintiff by virtue of the act of purchasing a
ticket which contained, on the back thereof, the notation, "Sold
subject to tariff regulations," entered into an agreement
regarding the limitation as to claim for injuries and
commencement of actions.
It has been held that, with respect to claims for personal
injury and suits thereon, a contract may be made imposing
conditions as to reasonable time for making claims and for the
institution of actions. Gooch v. Oregon Short Line R.R. Co.,
258 U.S. 22, 42 S.Ct. 192, 66 L.Ed. 443. The rule has been succinctly
stated, however, that the terms of such a contract must be
"`distinctly declared and deliberately accepted.'" The Majestic,
166 U.S. 375, 17 S.Ct. 597, 602, 41 L.Ed. 1039. The ticket sold
the instant plaintiff did not "distinctly declare" thereon the
limitation provisions in issue. It merely referred to the tariff
regulations filed by Eastern. The word "tariff" as commonly
understood connotes a system of rates and charges. It would be
violative of the fundamental principles of contract law to assert
that a passenger enters into an agreement limiting the time in
which to file suit for personal injuries by purchasing a ticket
which bears the notation that said ticket was "Sold subject to
tariff regulations." It must also be observed that Eastern has
not alleged that the present plaintiff had knowledge of the
limitation provision contained in the tariff and, nevertheless,
knowingly accepted them as part of the contract of carriage.
Accordingly, it follows that the affirmative defense must be
stricken from Eastern's answer.
In reaching this conclusion, I am not unmindful of the
authorities that seemingly hold otherwise; however, I believe the
better reasoned cases support the position expressed in this
Since the matter alleged in the affirmative defense does not
constitute a defense to the plaintiff's action, the defendant
Eastern Airlines' affirmative defense is hereby stricken from its
answer to the plaintiff's complaint.
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