Decision Date03 May 1965
Docket Number63C394,63C363,61C88-90,62C548,Civ. A. No. 61C993,62C151-56,and 63C396.,62C161,61C994,63C392,62C162,62C130,61C1031-33,62C409,62C131,62C135
Citation242 F. Supp. 129
PartiesVincent J. KELLEY, individually and as Administrator of the Estate of Gregory E. Kelley, deceased and Nathalie M. Kelley, Plaintiffs, v. SOCIETE ANONYME BELGE D'EXPLOITATION de la NAVIGATION AERIENNE, d/b/a Sabena Belgian World Airlines and Boeing Airplane Company, Defendants (and twenty-four other actions).
CourtU.S. District Court — Eastern District of New York


Berman & Frost, Emile Zola Berman, New York City, of counsel, Cahill, Gordon, Brindel & Ohl, Jerome Doyle, Henry G. Bisgaier, New York City, of counsel, Kreindler & Kreindler, Lee S. Kreindler, Stanley J. Levy, Jules Brody, New York City, of counsel, Speiser, Shumate, Geoghan & Law, Edward M. O'Brien, New York City, of counsel, for respective plaintiffs.

Haight, Gardner, Poor & Havens, New York City, William J. Junkerman, Peter L. Dawson, New York City, of counsel, for defendant Sabena Belgian World Airlines.

Consolidated with 61C993 by order entered April 30, 1962.

ZAVATT, Chief Judge.

Twenty-nine separate actions, each arising from the same basic facts, have been consolidated with the instant action for the alleged wrongful death of thirty passengers for hire aboard the ill-fated Sabena Flight 548 which crashed in the vicinity of Brussels Airport in Berg, Belgium, on February 15, 1961. All of said actions have been assigned to me for all purposes pursuant to Rule 2 of the General Rules for the Southern and Eastern Districts of New York. Societe Anonyme Belge D'Exploitation de la Navigation Aerienne (hereinafter Sabena) has been named as a defendant in twenty-five of these actions while the manufacturer of the airplane, Boeing Airplane Company (hereinafter Boeing) has been named as defendant in twenty-seven. Jurisdiction of this court is based upon the diversity of citizenship existing between the parties hereto — the plaintiffs being citizens of various states of the United States; the defendant Sabena being a Belgian corporation with its principal place of business in Brussels, Belgium; and the defendant Boeing being a Delaware corporation with its principal place of business in the State of Washington. The instant opinion concerns only those actions, twenty-five in number, in which the carrier Sabena is named as a defendant. The plaintiffs in those actions have moved to dismiss the affirmative defenses in and by which Sabena, in its several answers to the complaints, has pleaded the Warsaw Convention, 49 Stat. 3000 (1934), as a partial defense.

Each of the passengers was travelling on a round trip ticket from points within the United States to Brussels and other cities within Europe and return to the United States. For example, passenger Kelley's ticket covered the following itinerary: New York to Brussels to Prague to Zurich to Paris to Brussels to New York. It was on the first leg of this round trip that the crash occurred, as the plane was approaching its landing at Brussels.

In the multiclaim amended complaint, the plaintiffs set forth several basic theories of recovery against the defendant Sabena, including negligence, wilful misconduct and breach of contract. Some of the claims state that the action arises under the Convention for the Unification of Certain Rules Relating to International Transportation by Air, otherwise known as the Warsaw Convention (hereinafter Convention), while others treat the action as being wholly separate and apart from the Convention. Sabena pleads that any liability it may have must be determined in accordance with the terms of the Convention. In light of its crucial bearing upon the further progress of this case, it has been agreed that this preliminary issue should be determined at this juncture. The present opinion, therefore, deals with only one aspect of the case against Sabena, i. e., the applicability of the Convention (and its monetary limitation of recovery) to the facts of these cases.

The Convention is a multination agreement designed to regulate "in a uniform manner the conditions of international transportation by air in respect of the documents used for such transportation and of the liability of the carrier." Reduced to its most elementary form, it provides that in all cases, other than those involving the "wilful misconduct" of the carrier, there shall be a presumption of liability on the carrier and a monetary limitation of approximately $8,300 upon the recovery which may be had by a passenger or one suing on his behalf. It is this latter aspect of the Convention that the plaintiffs seek to avoid. Their contention that the Convention is inapplicable may be summarized as follows:

1. The Convention is, by its very nature, reciprocal and cannot be applied so as to extend protection to a carrier which is a citizen of a nonratifying, nonadhering power.

2. Belgium, owing to a fatal variation from the terms of the Convention in its purported ratification by the Law of April 7, 1936, did not effectively ratify the Convention and was not bound thereby at the time of the accident.

3. This court, therefore, may not apply the Convention to this case, since to do so would result in an extension of the protection of the Convention to Sabena, a citizen of a nation which is not bound thereto.

There are additional arguments set forth by the plaintiffs to defeat application of the Convention's limitation of $8,300 to the facts of this case which will also be considered. But for the reasons hereinafter stated, this court is constrained to find that the Convention is applicable, and that the liability of the defendant Sabena must be determined in accordance with the terms thereof.

The Convention and its Ratification

The Convention was concluded in Warsaw, Poland, on October 12, 1929. Article 1 thereof provides that:

"(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. Transportation without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party shall not be deemed to be international for the purposes of this convention."

With regard to such "international transportation," Article 17 of the Convention provides that:

"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."

This presumption of liability is coupled with a monetary limitation upon recovery in all cases other than those involving the "wilful misconduct" of the carrier under Article 25(1). This limitation of damages is set out in Article 22:

"(1) In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs. Where, in accordance with the law of the court to which the case is submitted, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
* * * * * *
"(4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65½ milligrams of gold at the standard of fineness of nine hundred thousandths. These sums may be converted into any national currency in round figures."

The Convention further provides:

"Article 24
"(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
"(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights."1
"Article 37
"(1) this convention shall be ratified. The instruments of ratification shall be deposited in the archives of the Ministry for Foreign Affairs of Poland, which shall give notice of the deposit to the Government of each of the High Contracting Parties.
"(2) As soon as this convention shall have been ratified by five of the High Contracting Parties it shall come into force as between them on the ninetieth day after the deposit of the fifth ratification. Thereafter it shall come into force between the High Contracting Parties which shall have ratified and the High Contracting Party which deposits its instrument of ratification on the ninetieth day after the deposit.
"(3) It shall be the duty of the Government of the Republic of Poland to notify the Government of each of the High Contracting Parties of the date on which this convention comes into force as well as the date of the deposit of each ratification."
"Article 38
"(1) This convention shall, after it has come into force, remain open for adherence by any state.
"(2) The

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