Airlines have carried live animals since the 1930s culminating in a pets-only airline in 2009.31 According to IATA, the number of pet shipments increased 3.3% in 2016 as against 2015, although revenue from these shipments fell 2.5%.32 Animals are
30 Supra, note 28.
31 See Bomkamp (2009).
32 Krems (2017). On a regional basis shipments from Latin America region increased 22.4% / rev- 4.6 Carriage of Live Animals
transported either in the cabin (in case of small pets such as cats and dogs); as excess baggage or accompanied baggage and as cargo. Boeing states that “the safe transportation of live animals as air cargo is based on controlling three environmen- tal factors: temperature, relative humidity level, and cargo compartment carbon dioxide (CO2) concentration. Each type of animal has unique environmental require- ments for optimal health. Failure to properly control these environmental factors may have an impact on animal welfare, comfort, and survivability, affecting animal cargo revenue”.33
In Gluckman v. American Airlines Inc.,34 The plaintiff sued the defendant American Airlines for emotional distress damages, inter alia, suffered as a result of his dog dying of a heatstroke while being transported in the cargo hold of defen- dant’s aircraft where the heat had reached 140 °F—a temperature that was in viola- tion of applicable guidelines. in violation of the airline’s cargo hold guidelines. The court held that a value could not be placed on emotional damage caused by loss of companionship and that the plaintiff’s only recourse could be the recovery of the value of the pet. The basis of the court’s decision was that under the applicable jurisdiction’s laws (New York), a cause of action for negligent infliction of emo- tional distress “arises only in unique circumstances, when a defendant owes a spe- cial duty only to plaintiff, or where there is proof of a traumatic event that caused the plaintiff to fear for her own safety.”35
In the 1987 case of Deiro v. American Airlines36 where the Plaintiff-appellant appealed from a district court order granting partial summary judgment for defendant- appellee American Airlines, Inc. The district court held that the Airlines’
liability for the death of seven greyhound racing dogs and injuries to two others, caused by heat exposure while the dogs were being transported in the cargo area of a jet on which plaintiff was a passenger, was limited to a total of $750 pursuant to a liability limitation provision in Deiro’s passenger ticket. Diero claimed that the dogs were not baggage. the court denied Deiro’s cross-motion for partial summary judg- ment, rejecting his argument that animals are not “baggage” and therefore not sub- ject to American’s baggage liability limitation. That ruling was not appealed.
Second, the court held as a matter of law that, under Oregon law, Deiro was not entitled to punitive damages. Although this second ruling was appealed, we do not reach it because our decision upholding the $750 liability limitation makes the puni- tive damages issue moot. The court of first instance ruled that Deiro’s cross-motion for partial summary judgment was denied, rejecting his argument that animals are not “baggage” and therefore not subject to American’s baggage liability limitation.
That ruling was not appealed. Second, the court held as a matter of law that, under
enue grew 12.9% YOY § Shipments from Asia Pacific decreased 7.8% / revenue fell 13.5% YOY
§ Revenue from all other regions was plus or minus 1–3%.
33 Safe Transport of Live Animal Cargo, Aero: Qtr. 02:12. http://www.boeing.com/commercial/
aeromagazine/articles/2012_q2/4/.
34 844 F.Supp. (151 S.D.N.Y., 1994).
35 See also, Cucchi v. New York City Off-Track Betting Corp., 818 F.Supp. 647, 656 (S.D.N.Y.1993).
36 816 F.2d 1360.
155
Oregon law, Deiro was not entitled to punitive damages. Although this second rul- ing was appealed, we do not reach it because our decision upholding the $750 liabil- ity limitation makes the punitive damages issue moot.
The Court of Appeal affirmed the district court’s order and said “we find it dif- ficult to imagine how any passenger with Deiro’s experience, planning to check a quarter of a million dollars worth of baggage, could have had more opportunity or incentive to familiarize himself with the baggage liability provisions. We conclude that under the two-pronged reasonable communicativeness test, Deiro is contractu- ally bound by the limitation of liability. We next consider whether American gave Deiro reasonable notice and a full and fair opportunity under the released valuation doctrine to declare a higher value for his baggage and obtain protection in an amount greater than $750”.37
References
Bomkamp S (2009) All-pet airline hits skies. http://www.heavenlycreatures.ca/blog/?p=470 Krems J (2017) Live animal transport flying high – safeguarding animal safety and welfare. https://
www.iata.org/events/wcs/Documents/WCS_2017/Live-Animals-Final.pdf
37 https://www.casemine.com/judgement/us/59148ca2add7b04934535980.
References
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© Springer Nature Switzerland AG 2018 R. Abeyratne, Law and Regulation of Air Cargo, https://doi.org/10.1007/978-3-319-92489-2_5
Price Fixing and Anti Competitive Conduct in Air Cargo Operations
The International Air Transport Association (IATA) records that 35% of global trade by value can be ascribed to air cargo, and that, in the context of combined passenger and cargo airlines, the cargo business generates 9% of airline revenues on average.1 According to IATA, the value of international trade shipped by air in 2017 was fore- cast as amounting to USD 5.5 trillion, representing less than 1% of world trade by volume, but over 35% by value. This turns out to be the equivalent of USD18.6 bil- lion worth of goods every day.2 Totally dependent on air carriers for the carriage of their goods with speed and efficiency that other modes of trade transport cannot provide are pharmaceutical industries (for the carriage of vaccines and essentially needed pharmaceutical products), producers of perishable goods, live animals, goods needing express delivery, electronic devices and products contracted through e-commerce that necessitate speedy delivery.
Early trends in commercial practice indicate that price fixing was a stabilizer of the market. During the first half of the last century, price fixing was found accept- able in the United Kingdom on the basis that such a practice would balance the cyclical recessions afflicting trade and competition from foreign countries. This was despite restrictions on price fixing brought to bear by such legislation as Monopolies and Restrictive Practices Act of 1948. However, with the advent of free trade, inter- nationalization of trade and globalization emerged a cautious legislative approach not only in Europe but elsewhere as well. Restrictions against cartelization as well as collusion by traders with a view to establishing predatory practices and price fix- ing has been common since. For example, The Australian Trade Practices Act of 1974, which is administered through the Australian Competition and Consumer Commission, provides in Section 46 that, when a firm takes control of dominant market power, particularly with intent to lessen or eliminate competition, the onus is on the person holding the position of dominance to prove his actions are not
1 IATA Cargo Strategy July 2017, at 3. See http://www.iata.org/whatwedo/cargo/Documents/
cargo-strategy.pdf.
2Id. 5.
158
tantamount to predatory practices. The criterion used is that recoupment through pricing at supra competitive levels was a sine qua non to prove predatory pricing.
The advantage of speed inherent to air transport has regrettably led, in certain quarters to price fixing cartels among air carriers. European Commissioner Margrethe Vestager said in March 2017 that millions of businesses depended on air cargo services, which carry more than 20% of all E.U. imports and nearly 30% of E.U. exports,3 and that cartelizing the air cargo industry was anti-competitive. This statement was made in the wake of the EU’s imposition of fines of €776 million on ten carriers operating cargo air services to Europe.4 The EU alleged that the said carriers participated in a price fixing cartel that unjustly enriched them at the expense of their customers. Elsewhere, in the United States, a class certification hearing at the end of 2013 in the federal U.S. Eastern District of New York brought to bear a global conspiracy to inflate prices of airfreight shipping services by several carriers.5