Kordich v. Butler Aviation Detroit, Inc.

• Decision Date: 05 February 1981
• Docket Number: Docket No. 43934
• Citation: 103 Mich.App. 566,303 N.W.2d 238
• Parties: Nicholas KORDICH and Dorothy Kordich, Plaintiffs-Appellees, v. BUTLER AVIATION DETROIT, INC., a Michigan Corporation, Defendant, and Yugoslovenski Aero Transport, d/b/a Yugoslav Airlines, a Foreign Corporation, Defendant-Appellant. 103 Mich.App. 566, 303 N.W.2d 238
• Court: Court of Appeal of Michigan — District of US

Page 238

303 N.W.2d 238

Nicholas KORDICH and Dorothy Kordich, Plaintiffs-Appellees, v. BUTLER AVIATION DETROIT, INC., a Michigan Corporation Defendant and Yugoslovenski Aero Transport, d/b/a Yugoslav Airlines, a Foreign Corporation, Defendant-Appellant.

Docket No. 43934.

103 Mich.App. 566, 303 N.W.2d 238

Court of Appeals of Michigan.

Feb. 5, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 567] Mark S. Hayduk, Detroit, for Yugoslovenski Aero and Yugoslav airlines.

C. Barry Wetherington, Southfield, for Butler Aviation.

[103 MICHAPP 566] Darrell M. Amlin, Detroit, for plaintiffs-appellees.

Before CYNAR, P. J., and BASHARA and BEASLEY, JJ.

PER CURIAM.

Plaintiffs filed this lawsuit on July 7, 1976, claiming damages as a result of personal injuries incurred by them while on board an aircraft, while in flight, en route from Detroit, Michigan, to Dubrovnik, Yugoslavia, on April 30, 1974. Defendant Yugoslovenski Aero Transport (hereinafter defendant) is alleged to have owned and operated the aircraft in question.

Defendant's original answer to the complaint was filed on October 20, 1976. On December 17, 1976, an order was entered by the trial court permitting defendant to amend its answer, which answer included the affirmative defense of the statute of limitations contained in Art. 29(1) of the Warsaw Convention. ¹ A motion for accelerated judgment based upon this affirmative defense was denied by the trial court on March 16, 1978. Subsequently, defendant filed a motion for rehearing of its previous motion for accelerated judgment, which motion was also denied.

The issue presented by this case is whether plaintiffs' cause of action is barred by their having failed to file their complaint within two years of the date on which the flight giving rise to this claim arrived at its destination in Dubrovnik, Yugoslavia.

It is undisputed that the Warsaw Convention is the controlling law in this case. Defendant relies [103 MICHAPP 568] upon the two-year statute of limitations in Art. 29(1), which reads:

"(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."

Plaintiffs rely upon Art. 25(1) of the Warsaw Convention, which prohibits a carrier from availing it of the provisions of the Convention which exclude or limit its liability if the damage is caused by its "wilful misconduct". Plaintiffs specifically alleged willful misconduct on the part of appellant when they filed their complaint. The provision relied upon by plaintiff reads:

"(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 on which the case is submitted, is considered to be equivalent to wilful misconduct."

The trial court denied the motion for accelerated judgment on the basis that Art. 25 applied to this case so as to preclude the two-year statute of limitations in Art. 29 from applying. We disagree.

While this is a question of first impression in this state, other jurisdictions have unanimously held that the statute of limitations in Art. 29(1) is not rendered inapplicable by Art. 25(1). ² We agree with the reasoning of the New York Supreme [103 MICHAPP 569] Court in Bergman v. Pan American World Airways, Inc.: ³

"It follows that the carrier may not avail itself of those provisions of the Convention which exclude or limit its liability. Is a statute of limitations a provision that excludes or limits liability? We think not for several reasons. Firstly, because a statute of limitations never limits liability, nor does it exclude it. Such a statute does render the existing liability unenforceable. The distinction is far from semantic. If by virtue of any state of facts the statute is tolled or waived, the liability is unaffected. The liability was not extinguished and revived. There was merely a bar to its enforcement which might or might not be overcome. Secondly, the internal evidence of the Convention indicates what provisions were meant to be excluded. Undoubtedly the most significant provisions of the Convention are those dealing with the monetary limitations on the carrier's liability in...