D’arrigo v. Alitalia

745 N.Y.S.2d 816 (2002)

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Nature of the Case

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Facts

P and his wife had flown to Italy on D's airline on September 3, 2001, and were to return to Newark Airport on September 11, 2001. P alleges that their luggage was first damaged in arriving in Italy and this was reported to D upon claimant's arrival in Naples. On the return trip on September 11, 2001 P and his wife boarded the airplane for their return flight to Newark; however, the attack on the World Trade Center required the flight to return to Milan. P was not given any new tickets by D after the flight landed in Milan. P remained in Milan until September 16, 2001, when D was finally able to provide a return flight to Newark. P did not receive a new ticket from D. Upon arrival, P noticed additional damage to his luggage and filed a claim with an employee of D. The claimant stated that the report was entered on a computer by D. P is suing for the value of a set of luggage since the individual pieces that were damaged cannot be repaired, and they are part of a set. D got the claim in Italy but not the claimant upon his return to New York. The Warsaw Convention requires notice to the airline to be in writing and D claims that entry of the information on the computer is not a writing. P claims no notice of the claims procedure since the D collected the ticket from the claimant on the September 11, 2001 flight and he never had a new ticket issued before finally leaving Italy on September 16, 2001. The Warsaw Convention creates an exclusive remedy in those cases where it is applicable although any cause of action is governed by state law. The Convention requires that every complaint must be made in writing upon the document of transportation or by separate notice in writing dispatched within the times aforesaid and in failing a complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part. P has submitted into evidence the receipt of complaint issued by D to P after the flight from New York to Italy. Article 22 limits the airlines liability to 250 francs per kilogram, which would amount to $1260. P contends that the value of the luggage is $2,565 and has submitted catalog descriptions of the items to substantiate these costs. D asserts that there was no written notice given because an entry on a computer by its employee does not qualify in this regard.