O'ROURKE v. Eastern Air Lines, Inc.

Decision Date14 December 1982
Docket NumberNo. 76-CV-1025.,76-CV-1025.
Citation553 F. Supp. 226
PartiesTierney A. O'ROURKE, Public Administrator of Queens County, New York, as Administrator of the Estate of Alexandros Hadzis, deceased, Plaintiff, v. EASTERN AIR LINES, INC., and United States of America, Defendants.
CourtU.S. District Court — Eastern District of New York

Kreindler & Kreindler by Milton G. Sincoff, Steven R. Pounian, New York City, for plaintiff.

Haight, Gardner, Poor & Havens by Walter E. Rutherford, Alan D. Reitzfeld, New York City, for defendants.


BRAMWELL, District Judge.


On June 24, 1975, Eastern Airlines's illfated flight 66 crashed on its final approach to New York's John F. Kennedy International Airport. An action was thereafter commenced in June 1976 in this Court by the Public Administrator of Queens County against Eastern Airlines and the United States of America to recover damages for the wrongful death of Alexandros Hadzis, a passenger on the plane.

On January 29, 1982, this Court granted Eastern's motion for partial summary judgment, holding that Eastern could invoke the damage limitations of the Warsaw Convention and Montreal Agreement. O'Rourke v. Eastern Airlines, 16 Avi.L.Rep. 18,367 (E.D. N.Y. Jan. 29, 1982). Subsequently, on March 1, 1982, Eastern deposited $75,000 with the Clerk of this Court. Plaintiff now seeks an order directing defendant Eastern Airlines, Inc. to pay the plaintiff prejudgment interest of $31,604.79 in addition to the $75,000. Thus, the issue to be decided is whether the Warsaw/Montreal $75,000 limit on liability is an absolute ceiling on an airline's liability or whether interest can be added to that amount.1 This is a question which has apparently not yet formed the basis of a published opinion in this circuit.


The Warsaw Convention2, as modified by the Montreal Agreement3, is an international treaty signed by, among others, the United States. As such, it, like the United States Constitution, represents the supreme law of the land. See, e.g., Reed v. Wiser, 555 F.2d 1079, 1093 & n. 19 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977); Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801 (2d Cir.1971). Accordingly, the determination of whether or not prejudgment interest is recoverable over and above the $75,000 damage limitation must be determined solely with respect to the Warsaw Convention/Montreal Agreement. All local law to the contrary, including any arguably applicable provision of the New York Estates Powers & Trusts Law must therefore be preempted.4 See Causey v. Pan American World Airways, Inc., 684 F.2d 1301 (9th Cir.1982).

The Montreal Agreement specifies that the limit of an airline's liability for each international passenger for bodily injury or death, shall be the sum of $75,000. "... inclusive of legal fees and costs." 31 Fed. Reg. 7302 (1966).5 The Agreement, however, does not specifically address itself to the question of prejudgment interest. Accordingly a more in depth look at the treaty is warranted.

In analyzing a treaty a court is bound to look, in the first instance, to the face of the treaty itself and to "give the specific words of a treaty a meaning consistent with the genuine shared expectations of the contracting parties." Maximov v. United States, 299 F.2d 565, 568 (2d Cir.1962), aff'd, 373 U.S. 49, 83 S.Ct. 1054, 10 L.Ed.2d 184 (1963). See also Board of County Com'rs v. Aerolineas Peruanasa, 307 F.2d 802, 806-07 (5th Cir.1962).

The Montreal Agreement provides in pertinent part that

"The limit of liability for each passenger for death, wounding or other bodily injury should be the sum of U.S. $75,000 inclusive of legal fees and costs."

31 Fed.Reg. 7302 (1966) (Emphasis the court's)

Plaintiff argues that because the emphasized language does not specifically provide for prejudgment interest the limitation necessarily excludes such sums. The court, however, cannot agree. The courts which have addressed this argument as well as analogous arguments leveled at the wording of other portions of the Warsaw/Montreal Treaty have uniformly rejected them.

For example, in Domangue v. Eastern Airlines, 542 F.Supp. 643 (E.D.La.1982) the court held that the treaty's silence on the issue of prejudgment interest could not be construed as an intention that such interest not be included in the $75,000 limitation. In 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) the Fifth Circuit held that the absence of an express provision governing charter flights could not be interpreted as excepting their coverage under Warsaw/Montreal. Finally, in Reed v. Wiser supra, the Second Circuit rejected the contention that an air carrier's employees be subjected to liability in excess of $75,000 because the treaty did not specifically address employees. 555 F.2d at 1089. Thus it is clear that the wording of the treaty, standing alone, furnishes no basis for the award of prejudgment interest. A look at the history of the Warsaw Convention makes it clear that one of the intentions of the parties drafting the treaty was to establish a limitation on liability designed to protect the fledgling aviation industry from the alternatives of ruinous damage suits or exorbitant insurance premiums. See Reed v. Wiser, 555 F.2d at 1089. As Secretary of State Cordell Hull wrote in transmitting the Convention to the United States Senate for ratification in 1934:

"It is believed that the principle of limitation of liability will not only be beneficial to passengers and shippers as affording a more definite basis of recovery and tending to lessen litigation, but that it will prove to be an aid in the development of international air transportation, as such limitation will afford the carrier a more definite basis on which to obtain insurance rates, with the probable result that there would eventually be a reduction of operating expenses for the carrier and advantages to travelers and shippers in the way of reduced transportation charges."

Senate Comm. on Foreign Relations, Message from the President of the United States Transmitting a Convention for the Unification of Certain Rules. Sen.Exec. Doc. No. G, 73rd Cong.2d Sess. 3-4 (1934).

The adoption of the Montreal Agreement in 1966, revising the damage limitation upward to $75,000, is a telling indication of the continued desire to fix a definite limit on an airline's liability. The Agreement was adopted due to an evergrowing amount of United States' criticism that the Warsaw limitation of liability was unrealistically low.6 This criticism culminated in the State Department's filing of a formal notice of denunciation of the Warsaw treaty on November 15, 1965, to take effect 6 months later. Faced with losing the United States' membership, the international air carriers convened in Montreal in the Spring of 1966 to raise the international damage limitation which theretofore had been $8,300. After months of negotiation the signatory airlines, on May 13, 1966, concluded what has come to be known as the Montreal Agreement. The Agreement raised the liability ceiling to $75,000, as suggested by the United States, as well as making liability absolute by preventing the airlines from raising the defense of due care. CAB Order No. E-28680, May 13, 1966, 31 Fed.Reg. 7302. Significantly, the waiver of this key defense was given as quid pro quo for the guarantee that the absolute limit of the airlines' liability would be $75,000. Id. See also Day v. Trans World Airlines, 528 F.2d 31, 36 (2d Cir.1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976). It is against this background that plaintiff now asks this court to set aside this ceiling and award the plaintiffs interest which would raise Eastern Air Lines total liability here to $106,604.79.

The plaintiff contends that prior case law indicates that the $75,000 ceiling was not meant to include prejudgment interest. However, the court finds that the cases relied on by plaintiff are, for various reasons, unpersuasive. In Leppo v. Trans World Airlines, Docket No. 21770-1973 (Sup.Ct.N.Y. County Mar. 10, 1976), relied on by plaintiff, the trial court held that interest was recoverable over and above the $75,000 limitation of liability. This holding was based on the trial judge's findings that had the drafters intended that the "legal fees and costs" language of the Montreal Agreement include prejudgment interest they would have said so. Leppo v. Trans World Airlines, slip. op. at 3.7 As previously discussed, however, it is not necessary for interest to have been mentioned in the Agreement for it to be included in the $75,000 limitation. And while it is true that the Leppo decision was, in fact, affirmed by the Appellate Division, First Department, the issue of prejudgment interest was not there an issue. See Leppo v. Trans World Airlines, 56 A.D.2d 813, 392 N.Y.S.2d 660 (1st Dep't 1977).

Plaintiff next cites to the decisions Hickey v. Eastern Airlines, Inc., 76 Civ. 237 (E.D.La.1981) and Dispenza v. Eastern Airlines, Inc., 76 Civ. 2412 (E.D.La.1982). Neither of these decisions, however, has achieved any precedential value, as neither one ever proceeded to final judgment but settled. In fact, the court in Hickey never really reached any final conclusion as to whether interest should be included in the damage limitation.8 Significantly, the decision in Domangue discusses the Hickey and Dispensa decisions and rejects them. See Domangue v. Eastern Airlines at 653.

Finally, plaintiff relies on the decision in Winbourne v. Eastern Airlines, Inc., Civil No. 75-2715 (E.D.La.1982). In that case the district judge justified the awarding of prejudgment interest on the equitable basis that it would be unjust to permit an airline to interminably litigate the case while holding on to the $75,000 it is strictly liable to pay under the Montreal...

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3 cases
  • O'Rourke v. Eastern Air Lines, Inc., s. 56
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 2, 1984
    ...of the Convention and Agreement were inclusive of prejudgment interest, the lower court denied the motion. O'Rourke v. Eastern Air Lines, Inc., 553 F.Supp. 226 (E.D.N.Y.1982). Since we do not agree with the plaintiff-cross-appellant that the district court erred in its rulings on the prejud......
  • Floyd v. Eastern Airlines, Inc.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 5, 1989
    ...difficulty determining exactly when a local law damage provision conflicts with the Convention. See, e.g, O'Rourke v. Eastern Air Lines, Inc., 553 F.Supp. 226, 228 (E.D.N.Y.1982) (determination whether prejudgment interest available in action arising out of plane crash "must be determined s......
  • Baker v. Lansdell Protective Agency, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • June 26, 1984
    ...v. Wiser, 555 F.2d 1079, 1093 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977); O'Rourke v. Eastern Air Lines, Inc., 553 F.Supp. 226, 228 (E.D.N.Y.1982), "`equal in stature and force to the domestic laws of the United States.'" In re Air Craft Disaster at Warsaw, P......

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