Husserl v. Swiss Air Transport Company, Ltd., 71 Civ. 3515.

• Decision Date: 03 November 1972
• Docket Number: No. 71 Civ. 3515.,71 Civ. 3515.
• Parties: Greta HUSSERL, Plaintiff, v. SWISS AIR TRANSPORT COMPANY, LTD., also known as Swissair, Defendant.
• Court: U.S. District Court — Southern District of New York

351 F. Supp. 702

Greta HUSSERL, Plaintiff, v. SWISS AIR TRANSPORT COMPANY, LTD., also known as Swissair, Defendant.

No. 71 Civ. 3515.

United States District Court, S. D. New York.

November 3, 1972.

Gewurz & Gewurz, by Eric Gewurz, New York City, for plaintiff.

Condon & Forsyth, by George N. Tompkins, Jr., Thomas J. Whalen, and Ronald E. Pace, New York City, for defendant.

OPINION

TYLER, District Judge.

This is an action for $75,000 for bodily injury and mental anguish allegedly suffered by plaintiff as a result of a hijacking which occurred on September 6, 1970. Suit was commenced in the Supreme Court of New York, New York County on July 21, 1971, and removed here on August 9, 1971. The complaint asserts that plaintiff, a New York resident, was a passenger on defendant's aircraft, scheduled for a direct flight from Zurich, Switzerland to New York on September 6, 1970; that the "aircraft deviated from its scheduled course and thereafter landed on a desert airstrip located some distance from Aman, Jordan", Complaint, para. 8; that plaintiff remained therein for some 24 hours, and thereafter was "forced to remain" in Aman until the 11th of September. As appears from the depositions of plaintiff and of Fritz Schreiber, defendant's pilot for the flight, the "deviation" was a product of an armed takeover of the aircraft by members of the Popular Front for the Liberation of Palestine.

Plaintiff in her complaint alleges three "causes of action" deriving from the events summarized above: first, she claims under the Warsaw Convention, as modified by the Montreal Agreement¹; secondly, she asserts that defendant breached its contract to conduct her safely to New York; thirdly, she alleges that her injuries were the result of the defendant's negligence, or that of its agents.

Defendant has moved, pursuant to Rules 12(b)(6) and 56, F.R.Civ.P., to dismiss the complaint for failure to state a claim upon which relief can be granted. The grounds for the motion, as set out in the Affidavit of George N. Tompkins, Jr., verified on 17 August 1972, and in defendant's brief in support of the motion and reply brief, are that the Warsaw Convention, as modified by the Montreal Agreement, exclusively govern the liability of the air carrier engaged in international transportation; that liability arises only upon proof of the occurrence of an "accident"; that a hijacking is not an "accident" within the intendment of the Convention; that plaintiff's alleged injuries were not the product of an "accident" as contemplated by the Convention and Agreement; and that therefore defendant is not liable to plaintiff.

For the reasons discussed below, I conclude that defendant is not "entitled to judgment as a matter of law", and that there are outstanding material issues of fact which are not resolved on the record presently before the court. Rule 56(c), F.R.Civ.P.

The threshold question to be considered is one which, so far as I can determine, is of first impression in this court — namely, whether the Warsaw Convention, as modified by the Montreal Agreement, applies in a hijacking context.

Article I of the Convention in part provides:

"(1) This convention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire. It shall apply equally to gratuitous transportation by aircraft performed by an air transportation enterprise.

"(2) For the purposes of this convention the expression "international transportation" shall mean any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention. . . ." (Emphasis added.)

Thus "on its face, the Warsaw Convention seems to cover all international carriage by air, without any limitation whatever." Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir. 1967), cert. denied 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968). And, as the text indicates, "international carriage" is primarily a function of the intention of the parties, as expressed in the ticket or contract. L. Kreindler, 1 Aviation Accident Law, § 11.051 at 25-26 (1971 ed.).

The parties do not contest that Mrs. Husserl was a passenger on defendant's flight 100, with Zurich and New York the respective places of departure and destination, that both Switzerland and the United States are "High Contracting Parties" to the Warsaw Convention, and that defendant signed Agreement CAB 18900 and pursuant thereto filed a tariff with the CAB (the "Montreal Agreement"). The parties, however, do seek to draw sharply conflicting conclusions from the apparent fact of application of the Convention to this dispute. Plaintiff contends that the Convention and the Agreement, when read together, render defendant liable for all personal injuries sustained, ". . . which liability does not depend on negligence on the part of the defendant." Complaint, para. 14. Moreover, she asserts that her right of recovery under the second and third counts of the complaint are independent of the Convention. Defendant, on the other hand, argues that the Convention regulates liability between the parties, that this regulation preempts any and all common law rights of action, and that, absent an "accident", there is no liability.

Articles 17, 20, 21, and 25 provide the basic conditions for liability of the carrier under the Warsaw Convention:

Article 17 "The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking (Emphasis added)

. . . . . .

Article 20 "(1) The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures. . . .

Article 21 "If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.

. . . . . .

Article 25 "(1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.

"(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment."

Article 22 limits the liability of the carrier for each passenger to about $8,300. By the Montreal Agreement, this limit was raised to $75,000, and the defenses available under Article 20(1) were waived by the carriers.

As I understand it, the Convention does not "exclusively regulate" the relationship between passenger and carrier on an international flight, but rather sets limits on and renders uniform certain of the aspects of that relationship. Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L. Ed.2d 262 (1957); Zousmer v. Canadian Pacific Air Lines, Limited, 307 F.Supp. 892 (S.D.N.Y.1969); Komlos v. Compagnie Nationale Air France, 111 F. Supp. 393 (S.D.N.Y.1952), rev'd on other grounds, 209 F.2d 436 (2d Cir. 1953); Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, supra n. 1, 80 Harv.L.Rev. at 519. Indeed, it has been held that the Convention creates no new right of action, but rather creates ". . . a presumption of liability, leaving it for local law to grant the right of action." Noel v. Linea Aeropostal Venezolana, supra, 247 F.2d at 679. Since it is a treaty, it is the supreme law of the land, preempting local law in the areas where it applies. U.S.Const. Art. VI; United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937); Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798 (2d Cir. 1971). Thus, it would seem to follow that if the Convention "applies", it applies to limit — not eliminate — liability; if it does not apply, it leaves liability to be established according to traditional common law rules.

To invoke the Convention, there must be an "accident" within the contemplation of Article 17, and the burden of proof is upon the plaintiff to establish that such an accident occurred. MacDonald v. Air Canada, 439 F.2d 1402 (1st Cir. 1971). Defendant argues strenuously that if the "cause" of the damage is intentional, it is not an "accident", and that the proposed amendment to the Warsaw Convention known as the Guatemala City Protocol² bears out this construction by substituting the word "event" for "accident" in Article 17.

Although hijacking was probably not within the specific contemplation of the parties at the time the Warsaw Convention was promulgated, the Montreal Agreement seems to resolve whatever doubt might have existed over the construction of the word "accident". It is significant that press releases of the State Department and the order of the Civil Aeronautics Board do not mention the word "accident" in the context of recovering for personal injury, but rather accept the proposition that the Montreal Agreement imposes a system of "absolute liability" upon the carrier.³ C.A.B. Order No. E-23680, 31 Fed.Reg. 7302 (1966); Department of State Press...