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The Rogak Report: 31 March 2006 ** Airlines - Baggage Claims **

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  • Lawrence Rogak
    Message 1 of 1 , Mar 30, 2006

      Wali Mohammed v Air France, 2006 NY Slip Op 50462(U) (Civil Court,
      Kings County) (Battaglia, j)

      Decided on March 28, 2006

      On August 10, 2004, Wali Mohammed flew Air France from New York to
      Nigeria to participate in a religious ceremony that, he testified at
      trial, could be fairly characterized as an "ordination". Over a
      period of seven days, ten people, including Mr. Mohammed, produced a
      number of religious artifacts from iron, wood and other materials
      that were not purchased, but "came from the land". When Mr. Mohammed
      left Nigeria on August 28, he placed a box containing the artifacts
      in the possession of Air France. During a stopover in Paris,
      apparently for security reasons Mr. Mohammed was asked to identify
      the box and open it for inspection. When he arrived in New York,
      however, the box did not arrive with his flight, and he has not seen
      it or any of its contents again.

      Because Mr. Mohammed's property was lost during international travel,
      Air France's liability for the loss is controlled by the Montreal
      Convention, which entered into force on November 4, 2003. Like its
      predecessor, the Warsaw Convention, the Montreal Convention "preempts
      state laws for claims covered by it, while at the same time enables
      plaintiffs to sue directly under its terms. The damages legally
      cognizable under the Convention", however, "are those cognizable
      under New York law."

      "New York law does not recognize recovery for mental suffering and
      emotional disturbance as an element of damages for loss of a
      passenger's property. Generally, the measure of a passenger's
      damages for loss of personal property is the actual value of such
      property taking into account the original cost and relative newness
      and the extent, if any, to which it has deteriorated or depreciated
      through use, damage, age, decay or otherwise." The "actual value" is
      the "real value to the owner and of the loss by being deprived of the
      property, not including, however, any sentimental or fanciful value
      the owner may for any reason place upon it."

      The "real value to the owner" is "determined by considering all of
      the circumstances in a rational way and assessing damages through the
      exercise of good sense and judgment. There may be either nominal or
      substantial damages. The owner's own estimate of the value of
      personal belongings and household items may be credited, but for more
      uncommon items some demonstrated expertise of the owner may be

      "These principles apply to actions in the Small Claims Partand they
      apply to the valuation of the lost property in this action. Indeed,
      at the February 23, 2006 trial, at which Air France appeared by
      counsel and presented no evidence, the only dispute was as to Mr.
      Mohammed's damages. Among other things, Air France contended that in
      no event could Mr. Mohammed's damages exceed $1,437.58, the maximum
      permitted under the Montreal Convention."

      "In Twersky v Pennsylvania Railroad Co. (152 Misc 300 [App Term, 1st
      Dept 1934]), the plaintiff, a rabbi, sued the carrier for the value
      of the contents of a lost trunk, including an old manuscript
      concerning the Talmud that was in the handwriting of plaintiff's
      father and grandfather and a parchment scroll of the Old Testament
      that had also been owned by plaintiff's father. The appellate court
      held that the trial court erred in allowing the jury to consider the
      sentimental value of the scroll and the manuscript, if they had no
      actual market value, in arriving at the amount of damage. Here, there
      was no evidence at trial that the religious artifacts created in
      connection with Mr. Mohammed's ordination ceremony had any actual
      market value."

      "The labor required to create an original work, or to reproduce it if
      possible, has served as a basis for a damage award for its loss."

      And "when reproduction of the thing converted is not possible and the
      thing itself is of such a nature that its value cannot be definitely
      ascertained, the question of estimating the value to the owner rests
      necessarily in the discretion of the jury subject to the limitation
      that their verdict must not be inadequate or excessive. In one case,
      the court awarded $1,500.00, representing 75% of the 'expert'
      plaintiff's estimate, for the loss of 'plaintiff's only copy of his
      own poetry written 35 years ago in an ancient language on parchment,'
      which the court characterized as an 'irreplaceable, unique work.'"

      "Those with a strong religious, racial or ethnic identification might
      find it inappropriately characterized as 'sentiment', and any related
      association inadequately assessed as 'sentimental value'. Perhaps
      they would be right. But any special value contributed by group
      identification and association would presumably be reflected in, what
      we call, 'market value', and in this case the property has not been
      shown to have any market value."

      "Mr. Mohammed provided no evidence of value other than his own
      estimate of $5,000.00, the jurisdictional limit of the Small Claims
      Part. But that estimate was supported by no demonstration of
      expertise, nor any evidence of the value of comparable objects,
      either functional, such as the drums, or ornamental or decorative.
      Even assisted by the Court's questions, Mr. Mohammed did not provide
      testimony as to materials and labor that could support valuation
      based upon the cost of creation or reproduction."

      "In short, accepting that the religious artifacts were both
      irreplaceable and unique, the Court has no basis for making an award
      that is not 'inadequate or excessive.' At most, then, the Court can
      only make an award of 'nominal' damages.

      "Judgment is awarded to Mr. Mohammed for $10.00, with disbursements."

      Comment: This is a somewhat arbitrary decision. The judge could just
      as easily have made some calculation based on the number of hours the
      plaintiff spent making the items and the estimated value of materials
      used, but it seems that the plaintiff did not help his case during
      his testimony by providing enough details for the court to make a
      larger award.

      Larry Rogak
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