Mohammed v Air France
Annotate this CaseDecided on March 28, 2006
Civil Court, Kings County
Wali Mohammed, Claimant,
against
Air France, Defendant.
4668/05
Plaintiff appeared pro se; Defendant appeared by R. Brent English, Esq.
Jack M. Battaglia, J.
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 (apparently) during international travel, Air France's liability for the loss is controlled by the Montreal Convention (see Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on May 28, 1999), which entered into force on November 4, 2003 (see Kodak v American Airlines, 9 Misc 3d 107, 108 [App Term, 9th and 10th Jud Dists 2005]). Like its predecessor, the Warsaw Convention (see Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed in Warsaw on October 29, 1929), the Montreal Convention "preempts state laws for claims covered by it, while at the same time enables plaintiffs to sue directly under its terms." (See Pakistan Arts & Entertainment Corp. v Pakistan International Airlines Corp., 232 AD2d 29, 31 [2d Dept 1997].) "[T]he damages legally cognizable under the Convention", however, "are those cognizable under New York law." (See id., at 32-33.)
"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." (Young v Delta Air Lines, Inc., 78 AD2d 616, 616 [1st Dept 1980].) Generally, "[t]he measure of [a passenger's] damages for loss of...personal property is the actual value of such property taking into account [*2]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." (Kodak v American Airlines, 9 Misc 3d at 110.) 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." (Lake v Dye, 232 NY 209, 214 [1921]; see also Kennedy v McKesson Co., 58 NY2d 500, 507 [1983]; Fairfax v New York Central and Hudson River Railroad Co., 73 NY 167, 172 [1878].)
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." (MacGregor v Watts, 254 AD 904, 904 [2d Dept 1938].) "[T]here may be either nominal or substantial damages." (Id.) The owner's own estimate of the value of personal belongings and household items may be credited (see Fassett v Fassett, 101 AD2d 604, 605 [3d Dept 1984]; Kodak v American Airlines, 9 Misc 3d at 110; Kemp v Mid-Town Movers, 2003 NY Slip Op 51154[U], *3 [App Term, 2d and 11th Jud Dists]), but for more uncommon items some demonstrated expertise of the owner may be necessary (see Kiros v St. Stephen's Bible College Realty Management, 2001 NY Slip Op 40622[U], *4-*5 [Civ Ct, New York County].)
These principles apply to actions in the Small Claims Part (see Correa v Midtown Moving, 4 Misc 3d 135[A], 2004 NY Slip Op 50798[U][App Term, 1st Dept]; Kemp v Mid-Town Movers, 2003 NY Slip Op 51154[U]), and 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." (See id., at 301.) 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".
In an even earlier case than Twersky , a passenger on a steamship, after traveling from Costa Rica to New York, learned on arrival that a box of negatives and photographic prints placed in the vessel's storeroom could not be found. Addressing the manner of determining the "actual value of the contents of the box" and the "value of the property to the plaintiff", the Appellate Division stated: "The fact that the negatives were not good ones and were not well [*3]taken was, of course, to be considered, but in addition to that the jury might also consider that when one has gone a long way to obtain photographs of the scenery of a foreign land which is difficult to reach, or where the photograph is of some incident which is not likely to be repeated, even a poor representation may be of considerable value if a picture can be printed from it, because, as far as it goes, it is a correct representation of what occurred." (Wamsley v Atlas Steamship Co., 50 AD 199, 203 [1st Dept 1900], rev'd on other grounds 168 NY 533 [1901].)
Similarly, 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. (See Taft v Smith, Gray & Co., 76 Misc 283, 285-87 [App Term, 1st Dept 1912]; Veeco Instruments, Inc. v Candido, 70 Misc 2d 333, 335 [Sup Ct, Nassau County 1972]; Traveltown, Inc. v Gerhardt Inv. Group, 586 FSupp 256, 258 [NDNY 1983]; Stark v Photo Researchers, Inc., 77 FRD 18, 20 [SDNY 1977].)
And "[w]hen 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." (Taft v Smith, Gray & Co., 76 Misc at 285.) 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." (See Kiros v St. Stephen's Bible College Realty Management, 2001 NY Slip Op 40622[U], at *5.)
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.
March 28, 2006
Judge, Civil Court
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