In re Air Crash Disaster at Warsaw, Poland, etc.

• Decision Date: 10 February 1982
• Docket Number: CV-80-2511 and CV-81-0741. MDL No. 441.,CV-80-1665,No. CV-80-1290,CV-80-1291,CV-80-1408,CV-80-1473,CV-80-2977,CV-80-1290
• Citation: 535 F. Supp. 833
• Parties: In re AIR CRASH DISASTER AT WARSAW, POLAND, ON MARCH 14, 1980.
• Court: U.S. District Court — Eastern District of New York

535 F. Supp. 833

In re AIR CRASH DISASTER AT WARSAW, POLAND, ON MARCH 14, 1980.

Nos. CV-80-1290, CV-80-1408, CV-80-1665, CV-80-2977, CV-80-1291, CV-80-1473, CV-80-2511 and CV-81-0741. MDL No. 441.

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

February 10, 1982.

Speiser & Krause, P.C. by Frank Granito, New York City, for plaintiff.

Condon & Forsyth by George N. Tompkins, New York City (Desmond T. Barry, Jr., Lawrence Mentz, Katherine B. Posner and Peter A. Axelrod, New York City, on the brief), for defendant.

MEMORANDUM AND ORDER

SIFTON, District Judge.

I INTRODUCTION

All of the above cases arise out of the crash of an aircraft owned and operated by defendant, Polskie Linie Lotnicze ("LOT"), in Warsaw, Poland, on March 14, 1980, which resulted in the deaths of all persons on board, including a group of young American boxers. On April 14, 1981, plaintiffs in Angela Y. Robles et al. v. Polskie Linie Lotnicze, CV-80-2977, filed a motion for partial summary judgment in their favor with regard to defendant's sixth affirmative defense which asserted that its liability is limited, "in accordance with the provisions of the Warsaw Convention, defendant LOT's conditions of carriage and tariffs, and defendant LOT's counterpart to CAB Agreement No. 18900, to an aggregate sum not in excess of $75,000." The plaintiffs asserted four arguments:

(1) that the decedents were not given unequivocal notice by LOT that damage recoveries would be limited since the notice in the LOT ticket stock stated only that "the Warsaw Convention may be applicable" (emphasis supplied), in violation of Article 3's requirement that the carrier must deliver to each international passenger a ticket which contains "a statement that the transportation is subject to rules relating to liability established by this convention" (emphasis supplied);

(2) that the controlling damage limitation is that set forth in the Warsaw Convention, calculated by reference to the free market value of gold, since the limitation so calculated is greater than the $75,000 liability limitation set forth in the Montreal Agreement and since Article 23 of the Warsaw Convention prohibits agreements providing for limitations of liability lower than those proscribed by Article 22(1);

(3) that damages under the Warsaw Convention may be recovered in actual gold; and (4) that the Warsaw Convention and the Montreal Agreement are contracts between the airlines and the passengers and plaintiffs are not bound by the liability limitations set forth in them but may sue under applicable state law.

After plaintiffs had filed and served their initial motion, they received from defendant a blank LOT ticket stock which is stipulated to be identical to the one allegedly delivered to plaintiffs' decedent, Yrenio Roman Robles, Jr. a/k/a Junior Robles. On the basis of this new factual information, plaintiffs in the Robles case asked for partial summary judgment in their favor with regard to the limitation of liability defense on the following ground: The LOT ticket stock contains the "Advice to International Passengers on Limitation of Liability" ("notice") required by the Warsaw Convention, the Montreal Agreement (also referred to herein as "CAB Agreement No. 18900"), and LOT's conditions of carriage and tariff filed with the CAB pursuant to the Montreal Agreement; however, that notice does not conform with the requirements of those agreements because it is printed in type which is smaller than the "10 point modern type" required under the Montreal Agreement in order for the limitation of liability to be effective. As a result, plaintiffs argue, defendant is not entitled to any limitation of its liability.

On August 3, 1981, asserting only the type size argument, plaintiffs in the seven other above mentioned actions filed a separate motion for partial summary judgment dismissing LOT's affirmative defense based on the limitation of liability provisions of the Montreal Agreement and seeking to impose absolute liability for damages resulting from the deaths of plaintiffs' decedents. The basis for this additional request for relief is plaintiffs' argument that defendant remains bound by its waiver of defenses to liability in the Warsaw Convention even though it fails to qualify for limitation of its liability, as a result of its delivery of a defective notice.

Because it is my conclusion that, as to the plaintiffs who are suing as a result of the death of LOT ticket holders, the type size is dispositive of the motions to strike defendant's affirmative defense of limitation of liability, I do not address the lack of unequivocal notice argument raised in the April 14, 1981 Robles motion. I will, however, deal with the other three arguments raised by the plaintiffs in Robles, since they appear of significance in other cases arising out of the same air crash and part of this multi-district litigation involving passengers who were not LOT ticket holders.

II DISCUSSION

It is undisputed that the passenger ticket pursuant to which plaintiffs' decedents were traveling provided for "international transportation" within the meaning of Article 1(2) of the Warsaw Convention. Since it is also undisputed that the Peoples' Republic of Poland and the United States are both High Contracting Parties to the Warsaw Convention, the Convention unquestionably applies to these actions and governs the rights of the parties herein.

It is also common ground that the Montreal Agreement, which modified certain terms of the Convention relating to limitation of liability, was entered into in 1966 by foreign air carriers, including defendant LOT. There is also no dispute that the agreement was drafted with the participation of the Department of State, the CAB, and the private International Air Transport Association and served as the basis for the United States' withdrawal of its notices of denunciation of the Warsaw Convention because of the Convention's low liability limitations. See Reed v. Wiser, 555 F.2d 1079, 1087 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977).

THE TYPE SIZE ARGUMENT

As evidenced by its terms, the signatories to the Montreal Agreement agreed (1) to file a tariff with the CAB providing for a "special contract" pursuant to Article 22(1) of the Convention between themselves and their passengers in which they would agree to increase the limit of their liability to $75,000 and to waive their defenses under Article 20(1) of the Convention¹; and (2) to include within their tickets "a notice in 10 point modern type"² advising international passengers of the newly applicable limitation of liability.

There is no question that the Montreal Agreement was intended to inure to the benefit of American passengers and their heirs at law. These persons are, accordingly, if not persons in whose favor a cause of action was created by international agreement, see Benjamin v. British World Airways, 572 F.2d 913 (2d Cir. 1978), third-party beneficiaries of the Montreal Agreement entitled to enforce its terms. See Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir. 1979); Port Chester Electrical Construction Corp. v. Atlas, 40 N.Y.2d 652, 655, 389 N.Y.S.2d 327, 330, 357 N.E.2d 983, 985 (1976); Lawrence v. Fox, 20 N.Y. 268 (1959); Goodman-Marks Associates, Inc. v. Westbury Post Associates, 70 A.D.2d 145, 420 N.Y.S.2d 26, 28-29 (2d Dep't 1979). See also, Solmo v. Rosenberg, 31 Misc.2d 911, 221 N.Y.S.2d 56, 57-58 (Sup.Ct. Nassau Co. 1961).³

It is also clear that defendant's use of 8.5 point, rather than the specified 10 point, type constitutes a breach of that contract. Defendant argues, however, (1) that its breach was "purely technical," (2) that the 8.5 point type substantially complies with the purpose of the 10 point type requirement, which, as expressed in Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., 370 F.2d 508 (2d Cir. 1966), aff'd by an equally divided court, 390 U.S. 455, 88 S.Ct. 1193, 20 L.Ed.2d 27 (1968), is to give passengers adequate notice of the applicability of the Convention in order to afford them a reasonable opportunity to take self-protective measures, and (3) that the only penalty for failure to comply is a civil penalty of $1,000, pursuant to 42 U.S.C. §§ 1374 and 1471, for failure to comply with LOT's tariffs on file with the CAB.⁴

Article 3 of the Warsaw Convention requires that the passenger ticket contain a "statement that the transportation is subject to the rules relating to liability established by this convention" and that "if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability." This language has been interpreted to require that in order for the carrier to limit its liability pursuant to Article 3 the ticket delivered to a passenger must adequately notify him of the applicability of the Warsaw Convention and must be delivered to him "in such a manner as to afford him a reasonable opportunity to take measures to protect himself against the limitation of liability," for example, by purchasing insurance or deciding not to board the plane. Lisi v. Alitalia-Linee Aeree Italiane, S.p.A., supra, 370 F.2d at 512; accord, Mertens v. Flying Tiger Line, Inc., 341 F.2d 851, 856 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64 (1965); Warren v. Flying Tiger Line, Inc., 234 F.Supp. 223 (S.D.Cal.1964), rev'd, 352 F.2d 494 (9th Cir. 1965). In Lisi, which involved a ticket issued before the effective date of the Montreal Agreement, the Second Circuit stated that, because the "arbitrary limitations on liability" contained in the Convention are advantageous to the carrier, "the quid pro quo for this one-sided advantage is delivery to the passenger of a ticket ... which gives him notice that on the air trip he is about to take, the amount of recovery to him or his family in the event of a crash is limited very...