Kahn v. Trans World Airlines, Inc.

• Decision Date: 05 October 1981
• Citation: 82 A.D.2d 696,443 N.Y.S.2d 79
• Parties: Tova KAHN et al., Respondents-Appellants, v. TRANS WORLD AIRLINES, INC., Appellant-Respondent. Second Department
• Court: New York Supreme Court — Appellate Division

Page 79

443 N.Y.S.2d 79

82 A.D.2d 696

Tova KAHN et al., Respondents-Appellants, v. TRANS WORLD AIRLINES, INC., Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Oct. 5, 1981.

Curtis, Mallet-Prevost, Colt & Mosle, New York City (John N. Romans, New York City, of counsel), for appellant-respondent.

Berlack, Israels & Liberman, New York City (Rosalind Fuchsberg Kaufman, New York City, of counsel), for respondents-appellants.

Before DAMIANI, J. P., and GULOTTA, O'CONNOR and THOMPSON, JJ.

GULOTTA, Justice.

The question posed is whether the two-year time limitation contained in article 29 of the Warsaw Convention (Convention) ¹ is a condition precedent absolutely barring any claims which have not been brought within two years after accrual, or whether it constitutes a Statute of Limitations subject to the infancy tolling provisions of CPLR 208. We hold that the two-year time limitation is a condition precedent to suit, and that it cannot, therefore, be affected by the infancy tolling provisions of the CPLR.

On September 6, 1970 plaintiff Tova Kahn and her infant children, coplaintiffs Judy and Daniel Kahn, were passengers on board Trans World Airlines (TWA) Flight No. 741 en route from Tel Aviv, Israel to New York City. Following an intermediate stopover in Frankfurt, Germany, the airplane was suddenly hijacked by armed members of the Popular Front for the Liberation of Palestine and flown to a desert near Amman, Jordan. Plaintiffs, along with the other passengers, were subsequently held captive on board the airplane until September 12, 1970.

It is undisputed that the plaintiffs commenced the instant action on or about December 5, 1972 (i. e., more than two years after the hijacking) for damages sounding in negligence arising out of the "physical privation" and "emotional distress" suffered by each of them as a result of his or her ordeal. In addition to the individual claims of each of the plaintiffs, the complaint also asserted a derivative cause of action on behalf of the parent, Tova Kahn, regarding each of the children, as well as a claim for punitive damages based upon the alleged wanton and reckless behavior of TWA in failing to provide adequate security. TWA asserted in its answer, as an affirmative defense, that the claims were barred by the two-year time limitation contained in article 29 of the Warsaw Convention, and thereafter moved for summary judgment dismissing the complaint on the ground that the time limitation was a condition precedent which effectively extinguished all claims which had not been brought within the designated two years. By order dated July 27, 1973 Special Term held that the claims of the parent were time-barred by article 29 of the Convention, and accordingly granted summary judgment in favor of TWA dismissing those causes of action. ² As to the infant plaintiffs, however, the court opined that since the Convention itself did not create an independent cause of action, an essential ingredient for finding the two-year provision to be a condition precedent was absent (see, e. g., Romano v. Romano, 19 N.Y.2d 444, 280 N.Y.S.2d 570, 227 N.E.2d 389). Accordingly, the court construed the time limitation in article 29 to be a Statute of Limitations which was subject to the infancy tolling provisions of CPLR 208, and therefore denied summary judgment as to each of the infants' causes. ³ TWA appeals from this aspect of the order. ⁴

As a preliminary matter, since the case comes before us in the posture of a motion for summary judgment, we note that the Warsaw Convention is a treaty of the United States and, as such, is the supreme law of the land (U.S.Const., art. VI, cl. 2) of which the courts of New York are required to take judicial notice (CPLR 4511, subd. Moreover, since the "precise meaning" of the terms of the Convention "is to be determined by the court as a question of law (CPLR 4511, subd. and cannot be treated as a triable issue of fact" (Rosman v. Trans World Airlines, 34 N.Y.2d 385, 392, 358 N.Y.S.2d 97, 314 N.E.2d 848), the issue before us is a proper one for summary determination.

There is no dispute between the parties as to the applicability of the terms and conditions of the Warsaw Convention to the matter under review. The Warsaw Convention is a major multilateral agreement governing certain aspects of the rights and responsibilities of passengers, shippers and carriers involved in international air transportation (see Rosman v. Trans World Airlines, supra, p. 390, 358 N.Y.S.2d 97, 314 N.E.2d 848; see, also, Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497), the primary purposes of which were the establishment of uniform rules relating to air transportation documents (e. g., passenger tickets) and the limitation of a carrier's liability in the event of an accident (see Block v. Compagnie Nationale Air France, (5th Cir.), 386 F.2d 323, 327, cert. den. 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363; see, also, Eck v. United Arab Airlines, 15 N.Y.2d 53, 59, 255 N.Y.S.2d 249, 203 N.E.2d 640). The present controversy stems from an interpretation of article 29 of the Convention, which reads as follows:

"(1) The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped.

"(2) The method of calculating the period of limitation shall be determined by the law of the court to which the case is submitted."

Simply stated, the plaintiffs would have us construe this section as a Statute of Limitations subject to the infancy tolling provisions of CPLR 208, while the defendant maintains that it is a condition precedent to suit which bars any action which has not been commenced within two years after accrual. As has already been indicated, we have concluded that it is the defendant which must prevail.

As Special Term correctly noted, the general rule in New York for distinguishing between conditions precedent and Statutes of Limitation may be stated as follows: If the statute containing the time limitation creates the cause of action, then the limitation will generally be regarded as an ingredient of the cause of action and, thus, a condition precedent to suit. If, on the other hand, the cause of action was cognizable at common law or is made such by virtue of another or different statute, then a validly enacted time limitation will generally be regarded as a mere Statute of Limitations, which may, if pleaded, preclude enforcement of the remedy, but does not extinguish the right (see Romano v. Romano, 19 N.Y.2d 444, 280 N.Y.S.2d 570, 227 N.E.2d 389, supra ; cf. Sharrow v. Inland Lines Ltd., 214 N.Y. 101, 108 N.E. 217; see, also, McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C201:7, pp. 62-64; 35 N.Y.Jur., Limitations and Laches, § 8). However, the further question of whether the Convention itself creates any cause of action remains unsettled, both in New York State and in the Federal courts.

In holding that the Convention did not "create" a cause of action, Special Term relied primarily upon an early New York case, Wyman v. Pan Amer. Airways, 181 Misc. 963, 43 N.Y.S.2d 420, affd. 267 App.Div. 947, 983, 48 N.Y.S.2d 459, affd. 293 N.Y. 878, 59 N.E.2d 785, cert. den. 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 and a later Second Circuit case, Noel v. Linea Aeropostal Venezolana, 247 F.2d 677, cert. den. 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262. Subsequently, however, the Second Circuit changed its position on the question of whether the Warsaw Convention "created" a cause of action, and in Benjamins v. British European Airways, 2nd Cir., 572 F.2d 913, cert. den. 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72, specifically overruled both Noel and the case upon which Noel was based, Komlos v. Compagnie Nationale Air France, 2nd Cir., 209 F.2d 436, revg. on other grounds 111 F.Supp. 393, cert. den. 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646.

Writing for the majority in Benjamins, Judge LUMBARD (who had also written the opinion in Noel ), noted that an inconsistency had developed within the Second Circuit between Noel and another line of Warsaw Convention cases (represented by Reed v. Wiser, 2nd Cir., 555 F.2d 1079, cert. den. 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279) in which the court had indicated that the Convention was intended to operate as a uniform body of international law and that the substantive law of the Convention was intended to be binding upon the various forums. Thus, he stated, "The time has come to examine the question whether our view of the Convention as an internationally binding body of uniform air law permits us any longer to deny that a cause of action may be founded the Convention itself, rather than on * * * domestic law" (572 F.2d at p. 917). Although noting that it was not literally inconsistent with the principle of "universal applicability" to require that a prospective plaintiff find an appropriate cause of action under the domestic law of the forum, Judge LUMBARD declared (in overruling Noel ) that such a requirement was inconsistent with the spirit of the principle, and that such inconsistency was contrary to the doctrine that "the Convention is to be so construed as to further its purposes to the greatest extent possible" (p. 918). In addition, Judge LUMBARD observed that both in Canada and the United Kingdom, the Convention has been more or less consistently construed as "the source of carrier liability" (p. 919, emphasis supplied). Accordingly, while some of the Federal courts have continued to apply the Noel/Komlos line of reasoning (see, e. g., Dunn v. Trans World Airlines, Inc., (9th Cir.) 589 F.2d 408; see, also, Note, The Warsaw Convention--Does It Create A Cause of Action? 47 Ford. L.Rev. 366), the Benjamins decision, in our view, significantly weakens...