CARR, District Judge.
These 4 cases in admiralty seek damages under Section 761 of Title 46, U.S. C., for the wrongful death of certain military passengers who were aboard a Flying Tiger Line plane traveling from Travis Air Force Base in California to Saigon, Vietnam. These cases were consolidated for trial on the issue of the applicability of the Warsaw Convention.
On March 14, 1962, Flying Tiger Line, hereinafter referred to as "FTL," flight No. 7815/13 departed Travis Air Force Base, California, at approximately 5:45 a. m., carrying 96 passengers—92 members of the armed services of the United States, 3 Vietnamese soldiers, and one person in civilian clothes. The status of this passenger is not entirely clear. The 92 United States soldiers were destined for the Tan Son Nhut Air Base, Saigon, Vietnam, by way of Honolulu, Wake Island, Guam, and Manila. The Military Air Transportation Service of the United States, hereinafter referred to as "MATS," had entered into a service order
On March 14, 1962, the servicemen appeared at the MATS window with their orders and were processed and they were given a MATS boarding pass and a MATS claim check. They went to the boarding gate where they were checked through by military personnel. They then proceeded to the ramp of the plane at which point a stewardess passed to each a ticket which is sometimes in the record referred to as a boarding ticket. The passengers then entered the plane and chose their seats since no prearrangement for seats was made. Very shortly thereafter a stewardess went through the emergency procedures and at that time told the passengers that they should write their ticket number on their claim check.
The tickets which had been prepared by FTL did not contain the names of the passengers and were given to the stewardess who distributed them at the ramp of the plane as the passengers approached to board the plane. The evidence indicated that the stewardesses were under instructions that no passenger was to board the plane without a boarding ticket. In fact, these instructions were in writing which stated: "Under no circumstances will any passenger be permitted aboard an FTL aircraft without a Boarding Ticket." [Emphasis original.]
Stewardess Hernandez testified that she distributed boarding tickets to all of the passengers at the foot of the ramp to the plane. She and 3 other stewardesses were relieved at Wake Island and thereby escaped the catastrophe.
The evidence relating to the control of the plane and the flight established that Max Oldford, the station manager for FTL at Travis, prepared the flight plan and prepared boarding tickets without the names of passengers on them. The boarding tickets were prepared on a duplicating machine. Usually approximately 10% more tickets were prepared than the estimate supplied by MATS of the number of passengers. Approximately 20 minutes prior to boarding time, Oldford delivered the manifest to an FTL employee aboard the plane. MATS determines the destination, the official stopping points, the time of departure, and also designates the passengers.
FTL staffs and maintains its planes. FTL pilots operate the planes, and FTL employees attend to all phases of service on the plane while en route.
The flight in question is generally referred to as a chartered flight arranged between MATS and FTL. The service and call agreement does not mention the Warsaw Convention. It does provide that FTL is to be paid by MATS on a per passenger basis.
The plane proceeded to Honolulu, Wake Island, and arrived at Guam at 15/1114 and departed there at 15/1257, supposedly traveling to Clark Air Force Base, Manila. The last word heard from the plane was at 1422 GMT, approximately one hour and a half after it had departed from Guam. Thereafter the plane disappeared and has not been heard from since.
The boarding pass issued by MATS did not contain a reference to the Warsaw Convention. The boarding ticket passed out to the servicemen at the foot of the ramp to the plane made reference to the Warsaw Convention both on the front of the ticket and in the conditions on the back of the ticket, which is set out as follows:
Issued by THE FLYING TIGER LINE INC.Lockheed Air Terminal Burbnk, California BOARDING TICKET B 13646------------------------------------------------------------------------------- | Charter | | Group | |-----------| Issued at | Name of | _______________________________________________________ | Passenger | _______________________________________________________ |------------------------------------------------------------------------------- | FLIGHT INFORMATION DATE: _________________________________________________ |------------------------------------------------------------------------------- | FROM | TO | DATE | TIME | FLIGHT No. This Boarding Ticket is subject to all of the |------------------------|-----------------|---------|---------|---------------- terms and conditions of the contract between | | | | | the Carrier and the Charter Group named hereon, |------------------------|-----------------|---------|---------|---------------- which terms and considerations are incorporated | | | | | by reference, and to the conditions on reverse |------------------------|-----------------|---------|---------|---------------- side hereof. | | | | | Transportation under this Boarding Ticket, hereinafter |------------------------|-----------------|---------|---------|---------------- called "ticket," is subject to the rules | | | | | relating to liability established by the Convention |------------------------|-----------------|---------|---------|---------------- for the Unification of Certain Rules Relating to Intenational Transportation by Air signed at Warsaw, October 12, 1929, if such transportation Is "International transportation" as defined by said Convention. Always keep in possession as this is your only ticket. Show to Passenger Agent when checking in and to Stewardess when boarding plane, and elsewhere as required.
2. (a) Carriage hereunder is subject to the rules relating to liability established by the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw, October 12, 1929 (hereinafter called "the Convention") unless such carriage is not "international carriage" as defined by the Convention.
(b) To the extent not in conflict with the foregoing, carriage hereunder and other services performed by each carrier are subject to (i) applicable laws (including national laws implementing the Convention), government regulations, orders and requirements; (ii) provisions herein set forth.
3. Insofar as any provision contained or referred to in this "Boarding Ticket" may be contrary to mandatory law, government regulations, orders or requirements, such provision shall remain applicable to the extent that it is not over-ridden thereby. The invalidity of any provision shall not affect any other part hereof.
4. Except as the Convention or other applicable law may require otherwise: (a) Carrier is not liable for any death, injury, loss or claim of whatsoever nature (hereinafter collectively referred to as "damage") arising out of or in connection with carriage or other services hereunder, unless such damage is proved to have been caused by the negligence or wilful fault of the Carrier and there has been no contributory negligence of the passenger; (b) Carrier is not liable for any damage directly or indirectly arising out of compliance with laws, government regulations, orders or requirements or from any cause beyond Carrier's control; (c) in any event liability of Carrier for death, injury or delay of a passenger shall not exceed 125,000 French gold francs (consisting of 65½ milligrams of gold with a fineness of 900 thousandths) or its equivalent; (d) liability of Carrier in respect of baggage and other personal property is limited to its declared value which shall not exceed $100 (U. S. currency) or its equivalent per passenger; (e) a Carrier issuing a ticket or checking baggage for carriage exclusively over the lines of others does so only as sales-agent; (f) no action shall be maintained in the case of damage to baggage or other property unless written notice of the claim is presented to the office of carrier within three days from the date of receipt thereof, and in the case of delay or loss, unless such written notice is so presented within 14 days from the date the baggage or other property is placed at the passenger's disposal (in case of delay) or should have been placed at passenger's disposal (in case of loss). Any right to damages against the Carrier shall be extinguished unless an action is brought within two years after the occurrence of the events giving rise to the claim.
5. This "Boarding Ticket" is good for carriage for the person named hereon from the place of departure to the place of destination at the approximate times and on the scheduled dates listed hereon. Times shown hereon are approximate and not guaranteed. Schedules are subject to change without notice. Carrier assumes no liability for making connections. Carrier may, without notice, substitute alternate carriers or aircraft, and, if it deems advisable because of any fact beyond its control, divert, postpone or delay any flight without any liability, and determine if any departure or landing should be made.
6. The passenger shall comply with all government travel requirements, present all exit, entry, or other documents required by law, and arrive at the airport by the time fixed by Carrier, or, if no time is fixed, sufficiently in advance of flight departure to permit completion of government formalities and departure procedure. Carrier is not liable for loss or expense due to passenger's failure to comply with this provision.
7. No agent, servant or representative of Carrier has authority to alter, qualify or waive any provision hereof.
Article 1, paragraph (2), of the Convention provides in part as follows:
Although in the instant case the place of departure and place of destination are situated within territories of two high contracting parties, libelants contend that the Convention is not applicable since the passengers were military men traveling under military orders and thus were not free to contract for the travel in question.
This contention of libelants appears to run counter to the adjudicated meaning of article 1, paragraph (1) of the Convention. In Ross v. Pan American Airways, 299 N.Y. 88, 85 N.E.2d 880, 13 A.L.R.2d 319, the court pointed out that the limitation was created by the Convention and was not the product of consensual arrangement between the parties. The court said at 85 N.E.2d 885, 13 A.L.R.2d 327-328:
It has been held that a charter flight for transportation of military personnel from the territory of one signatory power to that of another is international transportation within the meaning of the Warsaw Convention. (Mertens v. Flying Tiger Line, Inc., 35 F.R.D. 196 (S.D. N.Y., 1963).) See also Grey v. American Air Lines, 95 F.Supp. 756 (S.D.N.Y., 1950), 227 F.2d 282 (2 Cir., 1955).
Reference to the discussions at the Hague Conferences in 1955, called to consider changes in the Warsaw Convention, gives some indication relative to the interpretation placed upon the Warsaw Convention respecting international transportation. The Hague Protocol
In considering the questions presented in this case, the purposes of the Warsaw Convention must be kept in mind. As former Secretary of State Hull pointed out in his letter to the President sending the Convention to him for transmission to the Senate, the Convention benefited passengers by creating a presumption of liability on the mere happening of an accident and described the beneficial purposes of the Convention to be:
The Warsaw Convention eliminates many conflict of law questions which would have otherwise confronted passengers, shippers, and airlines. The Convention also placed the burden of proof on the carrier by providing that the carrier is liable for damage unless it proves that it and its agents have taken all necessary measures to avoid damage. In the absence of the Convention, the law
As pointed out in Ross, the aims of the Convention would be poorly served if it were held that the limitation of liability is available only where the carrier proved a consensual agreement. It seems evident that the Convention anticipated the application of the limitation of liability where the carrier complied with article 3, which, among other things, required that a ticket be delivered to the passenger with a statement on it that the transportation was subject to the rules relating to liability established by the Warsaw Convention.
Libelants' next contention is that there was no delivery of a requisite ticket as required by article 3. In particular, libelants assert that paragraph (2) of article 3 applies upon the premise that no ticket was actually delivered. That paragraph provides that, if the carrier accepts a passenger without a passenger ticket's having been delivered, the carrier shall not be allowed to avail itself of the provisions of the Convention which limit its liability. Libelants' contention cannot be sustained, for the evidence clearly establishes that a ticket was delivered to each and every passenger at the ramp of the plane and prior to the passengers' actually boarding the plane. As heretofore indicated, the evidence also showed that the stewardess advised the passengers at the time of the presentation of the emergency procedures to note their ticket number on their claim check, apparently doing this to call their attention to their ticket. The front of the ticket clearly indicates that the transportation under the boarding ticket was subject to the Warsaw Convention. See Seth v. British Overseas Airways Corporation, 329 F.2d 302 (1 Cir., 1964). Also, there were conditions printed on the back of the ticket referring to the Warsaw Convention; but it must be said, in all frankness, that it would be most difficult for one to read the fine print without a magnifying glass.
It appears that the delivery of the ticket did meet the requirements of article 3, although the evidence did indicate that the ticket did not set forth the agreed stopping places. Apparently the purpose of setting forth the stopping places is to make known to the passengers the possibility that the trip might involve international transportation— for example, a trip from Detroit to New York by way of Canada where a stop was to be made in Canada. In the instant case, since the ticket showed the destination to be Vietnam, there could be no question regarding the "international transportation" and thus there was no compelling reason for setting forth the stopping places between the United States and Vietnam.
The other point made by libelants respecting the ticket's not meeting the requirements of article 3 cannot be sustained since it is well established that the absence of the name of the passenger on the ticket is not an irregularity which precludes the carrier from asserting the limit of liability under the Convention.
In Ross, the court pointed out that there is no need for the carrier which claims the limitation to show more than the delivery of an appropriate ticket and the travel of the passenger pursuant to the ticket. In that case the ticket was picked up by an agent of the plaintiff who claimed that she had never seen it. The evidence would indicate that it had been placed in front of her at the counter when
Libelants also contend that the flight is subject to the reservation
In the instant case, the aircraft was owned, operated and controlled by respondent Flying Tiger.
Libelants assert that all of the governmental agencies dealing with international air transportation have interpreted and construed the Convention to be inapplicable (without the necessity of the adoption of the Hague Protocol) to military charter flights. The only such interpretation of a governmental agency which has come to the attention of this court is that of the Department of Defense which is indicated in a letter from Alfred P. Rubin, Assistant General Counsel of the Office of International Affairs. (Exhibits 3, 4, and 7.) In his letter he states that the Department of Defense has been of the opinion that the reservation excludes chartered aircraft for international carriage by the United States Government. In the very same letter, he stated:
While this interpretation may be of some assistance, it is not necessarily persuasive.
Libelants also assert that the legislative history of the Warsaw Convention and proposed amendments thereto demonstrates that the Convention is inapplicable to MATS chartered flights. A careful search of the material available does not indicate any information to show what the specific intent was with respect to the reservation. Libelants claim that the proposed adoption of the Hague Protocol affirms the nonapplicability of the Convention to MATS flights; but a review of the Hague Protocol indicates
It should be noted that in 1947 the Legal Committee of the International Civil Aviation Organization undertook to study this matter and draft a proposed protocol to the Convention known as "the Rio Draft," which it presented to the I.C.A.O. Council for further action. In 1953, the Rio Draft was circulated to all members of the I.C.A.O. and thereafter the Hague Conference was called to consider the Rio Draft, but it was rejected. That draft had provided that "The Convention shall not apply to * * * Carriage of persons, cargo and baggage for military authorities by aircraft the whole capacity of which has been reserved by such authorities." (International Civil Aviation Organization, Doc. 7424—LC/135; or see 20 Jour. of Air Law & Comm., at p. 326.) In place thereof, the Hague Conference substituted Article XXVI, which provided:
The legislative history more persuasively supports the conclusion that the reservation did not apply to military chartered flights.
From the foregoing it appears that the court must conclude that the chartered flight in the instant case was not international transportation by air performed directly by the state.
Another contention advanced by libelants is that respondent contractually waived the liability limitations of the Warsaw Convention. Reliance is placed upon article 22(1) of the Convention which provides:
Libelants predicate the instant contention upon the fact that Attachment B to the call agreement (Exhibit 1) provided that FTL should obtain, for all charter flights, passenger bodily injury liability insurance in the amount of $50,000 per passenger. This, libelants say, demonstrates a contractual waiver of the liability limitations of the Warsaw Convention. There appear to be many reasons why this contention cannot be sustained.
First, it will be noted from the above quoted portion of article 22 that provision is made for a special contract between "the carrier and the passenger." The contract of insurance here was not between the passenger and respondent but was between MATS and respondent.
There are many other reasons which could well account for the insurance requirement in the call agreement other than a waiver of the limit of liability. For example, it appears that the Department of Defense was not entirely certain as to whether the limit of liability under the Warsaw Convention applied and undoubtedly was seeking to protect the servicemen who were making the flight, in the event such was the case. The insurance might well have been a protection in a situation where either there was wilful misconduct or a passenger ticket had not been delivered. In both cases the limitations of liability are not applicable.
Another thing which suggests a reason for the insurance is found by reading the call agreement which clearly indicates the possibility of the transportation of non-military personnel on chartered flights, in particular, dependents. Those civilian passengers would not be prevented from suing the government under Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which
Libelants appear to place some reliance upon a memorandum addressed to FTL, dated July 10, 1963, to which is attached what purports to be a superseding Attachment B Insurance (Exhibit E). Both the memorandum and this Attachment B refer to the Warsaw Convention. While these documents came into existence more than a year after the disappearance of the plane in question, they do throw considerable light on the particular matter which is under consideration. The memorandum specifically advises that, in the event the transportation is determined by a court of competent jurisdiction to be subject to the Warsaw Convention, the insurance required by the contract shall be considered to be "a higher limit of liability agreed to by special contract as contemplated by the last sentence of Article 22(1) of that Convention." The memorandum also obviously attempts to avoid the application of the limitation of liability to transportation on MATS flights. It states in substance that, if the carrier is required by law or regulation to issue charter tickets to all passengers including MATS passengers which advise of the limitation of liability under the Warsaw Convention, that "MATS does not concur and does not authorize issuance of such tickets to MATS passengers unless * * *." Thereafter follows the language suggested to be placed upon the ticket which states that if transportation is determined by a court of competent jurisdiction to be subject to the Warsaw Convention then the insurance required by the contract shall be considered to be the higher limit of liability agreed to by special contract as contemplated by article 22(1). It should be noted that the memorandum states, "Compliance with this request is mandatory."
While the superseding Attachment B was not in effect at the time of the instant catastrophe, it does prompt the question as to why the necessity of such a document providing for a special contract limiting liability if there was such a limitation under the service and call agreement in effect at the time of the disappearance of the plane.
Article 22 requires a definite and explicit contract by its terms in that it provides that a higher limit may be provided for "by special contract." To support libelants' contention it would be necessary to create a contract by implication upon facts which are, to say the least, equivocal.
These cases are the kind that present a great temptation to resort to interpretive ingenuity, but, after careful consideration, it must be concluded that the limitation of liability provided by the Warsaw Convention limits the recovery of libelants to the amount specified in such Convention. Judgment will be entered accordingly.
In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, this opinion shall serve as findings of fact and conclusions of law.
This opinion actually constitutes a final determination, after a trial, on the issue as to the limitation of liability under the Warsaw Convention in 40 pending cases, 36 of which are in the Northern District of California and 4 in this District. This is agreed to by stipulation. If this opinion has interpreted the law correctly, it is quite unlikely that the trial of these cases will consume any appreciable period of time, if any. If an appeal is not now taken and allowed, it will be necessary for a full and complete trial of all of the other issues remaining in the cases and in particular it will be necessary for each libelant to proceed to prove the damages which are claimed despite the ruling of this court respecting the limitation of liability. Under these circumstances, it may well be anticipated that these trials will exceed all-told at least 100 days. Further-more, many of the litigants are the wives and dependents of servicemen who, perhaps, are not financially able to afford the trials of these cases, particularly if in the end it is determined that the limitation of liability applies.
A stay of proceedings will be ordered pending the application for an allowance of an appeal to the Court of Appeals.
"The High Contracting Parties reserve to themselves the right to declare at the time of ratification or of adherence that the first paragraph of article 2 of this convention shall not apply to international transportation by air performed directly by the state, its colonies, protectorates, or mandated territories, or by any other territory under its sovereignty, suzerainty, or authority." 49 Stat. 3025.