IRVING R. KAUFMAN, Circuit Judge:
The question presented on this appeal is whether Alitalia's liability, arising from the crash of one of its planes, is limited by the provisions of the so-called Warsaw Convention.
On February 26, 1960, while en route from Rome to New York, Alitalia's airplane crashed shortly after taking off from Shannon, Ireland. Five suits were brought and consolidated in the District Court for wrongful death, personal injuries and property damage, allegedly suffered by thirteen of the passengers aboard the craft at the time of the disaster. The appellees are citizens of New York, while appellant is an Italian corporation. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332 (a) (2).
In answering the complaints, Alitalia pleaded as affirmative defenses those Articles of the Convention which serve to exclude or limit an airline's liability to its passengers. Prior to trial, the appellees moved for a partial summary judgment to dismiss these affirmative defenses, asserting that they were not available because appellant had failed properly to notify the passengers of the applicability of the Convention. Judge MacMahon agreed with appellees and granted their motion. He also stayed the trial pending decision by us "on the controlling question of whether the challenged affirmative defenses are available to defendant [Alitalia] in the light of the facts shown here." 253 F.Supp. 237, 243 (S.D.N.Y. 1966). This Court granted appellant's application for leave to appeal pursuant to 28 U.S.C. § 1292(b).
It is conceded that the flight in question meets the definition of "international transportation" contained in Article 1 of the Convention.
Alitalia's main argument can be stated quite simply. Under Articles 17 and 18 of the Convention, 49 Stat. 3018-3019, the carrier is liable for the death or bodily injuries suffered by passengers while on board its aircraft, and for destruction or loss of checked baggage.
It is clear, however, that under other Articles of the Convention, these limitations on liability are not applicable if the carrier fails to deliver to the passenger a ticket or a check for baggage.
Alitalia responds, however, by arguing that there is a crucial difference in the language between Articles 3 and 4. While Article 4(4), it says, denies the carrier limited liability "if * * * [it] accepts baggage without a baggage check having been delivered, or if the baggage check does not contain the particulars" specified (emphasis added), the only ground stated in Article 3(2) for denying limited liability for the personal injuries or death of passengers, is the carrier's failure to deliver a ticket. Thus, we are asked to apply the principle expressio unius est exclusio alterius and to hold that failure to give notice on the passenger ticket that the flight is subject to the Convention's rules, will not deprive the carrier of the substantial delimitation of liability for personal injuries or death. All that is required, urges Alitalia, for this right to vest, is that a ticket be delivered to the passengers.
It is apparent that Alitalia relies on a literal reading of the Convention for its assertions. We reject the interpretation it urges upon us. While it is true that the language of the Convention is relevant to our decision, it must not become, as Justice Frankfurter stated it, a "verbal prison." Sullivan v. Behimer, 363 U.S. 335, 358, 80 S.Ct. 1084, 4 L.Ed. 2d 1254 (1960) (Frankfurter, J., dissenting). The task of ascertaining the meaning of words is difficult, and one
This is not the first occasion on which we have been called upon to interpret the language of the Convention's delimiting provisions. For example, in Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64 (1965), we were asked to decide whether presenting a ticket to a passenger after he boarded the carrier's plane, constituted a "delivery" within the meaning of Article 3(2). We stated:
We held, accordingly, that the delivery was inadequate, and the Convention's fixed limits of liability were not available.
Later, a similar result was reached by the Ninth Circuit in Warren v. Flying Tiger Line, Inc., 352 F.2d 494 (1965). There the passenger was given a "boarding ticket" or "pass" at the foot of the ramp leading to the aircraft. The Court decided that the "delivery" must be made sufficiently in advance so that the passenger will have the opportunity to take self-protective measures, such as purchasing additional insurance if he so chooses. The "delivery" of a boarding ticket at the foot of the ramp as the plane was about to depart, did not suffice therefor. The carrier, accordingly, was barred by Article 3(2) from availing itself of the Convention's liability limitation provisions.
We believe that the reasoning of the Mertens and Warren decisions is apposite to the case now before us. The Convention's arbitrary limitations on liability — which have been severely and repeatedly criticized
This notice to passengers is especially important in this country where the overwhelming number of people who travel by air do so on domestic flights, for which the Convention's restrictions on liability are inapplicable. It is too much to expect these passengers to be sufficiently sophisticated to realize that although they are traveling the same number of miles on an international flight that they have frequently traveled domestically, the amount they may recover in the event of an accident is drastically reduced. In short, it is clear from the ratio decidendi of the Mertens and Warren cases, that the inquiry that must be made if the Convention's Articles are to be given meaning, is "[w]hether the ticket was delivered to the passenger in such a manner as to afford him a reasonable opportunity to take self-protective measures * * *." Mertens v. Flying Tiger Line, Inc., supra, 341 F.2d at 857.
We proceed to determine, therefore, whether the particular tickets and baggage checks involved in the present case gave the appellees adequate notice.
Judge MacMahon appropriately characterized the "notice" to the passengers in his pithy conclusion as "camouflaged in Lilliputian print in a thicket of `Conditions of Contract' * * *. Indeed the exculpatory statements on which defendant relies are virtually invisible. They are ineffectively positioned, diminutively sized, and unemphasized by bold face type, contrasting color, or anything else. The simple truth is that they are so artfully camouflaged that their presence is concealed."
We agree that a jury could not reasonably have found that the tickets and baggage checks gave the passengers the required notice. The District Court properly granted partial summary judgment striking out these affirmative defenses of appellant.
The majority in their opinion indulge in judicial treaty-making. The language of the treaty (referred to as the Warsaw Convention) is clear. Its provisions are not difficult to comprehend. Its mandates are simply stated. Ascertainment of compliance should, therefore, present no real problem.
Passenger tickets were delivered to plaintiffs and their decedents on various dates between January 20, 1960 and February 20, 1960. The flight on which they travelled pursuant to their tickets did not depart until February 25, 1960. The ticket contained the particulars specified in Article 3(1) of the Convention, albeit the reference to the provisions of the Convention with respect to death or injury was in exceedingly small type.
The majority do not approve of the terms of the treaty and, therefore, by judicial fiat they rewrite it. They think a "one-sided advantage" is being taken of the passenger which must be offset by a judicial requirement that the passenger have notice of the limitation of liability. To support their argument they refer, quite illogically in my opinion, to cases in which the courts have held that there was no real delivery of a ticket to the passenger as contemplated by the treaty. Cases based upon facts tantamount to no effective pre-flight ticket delivery,
The original limitations in the Convention may well be outmoded by now. Substantial revisions upward have been made but they have been made, as they should be, by treaty and not by the courts. Judicial predilection for their own views as to limitation of liability should not prevail over the limitations fixed by the legislative and executive branches of Government even though this result is obtained by ostensibly adding to the treaty a requirement of actual understanding notice. Furthermore, for the courts to say that a jury could not reasonably have found that the ticket gave the passenger the required notice is, upon a motion for partial summary judgment, to usurp the time-honored function of the jury.
For these reasons, I would reverse.
The Convention was concluded at Warsaw, Poland, on October 12, 1929, and proclaimed by President Roosevelt on October 29, 1934. Over ninety countries have become signatories to the Convention.
"(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 within the territories of two High Contracting Parties * * *." 49 Stat. 3014.
"[I]f the carrier accepts baggage without a baggage check having been delivered * * * the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability." Article 4(4), 49 Stat. 3016.
Criticism of the Convention's limits on liability began to crystallize in the early 1950's as a result of the impact on the public arising from a plane crash in 1943, in which the entertainer Jane Froman was seriously injured. Despite the extent of her injuries, the size of her medical bills, and the curtailment of her blossoming career, her award against Pan American was limited to $8300. Ross v. Pan American Airways, 299 N.Y. 88, 85 N.E.2d 880, 13 A.L.R.2d 319 (1949), cert. denied, sub nom. Froman v. Pan American Airways, Inc., 349 U.S. 947, 75 S.Ct. 874, 99 L.Ed.2d 1273 (1955). See Kreindler, "The Denunciation of the Warsaw Convention," 31 J. Air L. & Com. 291, 294 (1965).
In 1955, the Hague Conference was called, and from it came the so-called Hague Protocol, which would have doubled the limits on liability for personal injuries to $16,600. Although signed by the United States, it was not ratified by the Senate.
On November 15, 1965, the United States sent a Notice of Denunciation to the Polish Government stating that this country opposed the Convention's low limits on liability for personal injuries, and would withdraw from the Convention at the end of six months, pursuant to Article 39, 49 Stat. 3022. Id. at 303. The State Department made it known, however, that the denunciation would be withdrawn if the world's international air carriers agreed to raise the limitation first to $75,000 and ultimately to $100,000. An interim agreement was reached among the carriers, including Alitalia, in the Spring of 1966, providing for limits of liability of $58,000 plus costs of litigation, or $75,000 inclusive of costs of litigation, under conditions of absolute liability. On May 14, 1966, the United States withdrew its previous "Notice of Denunciation." See "The Warsaw Convention — Recent Developments and the Withdrawal of the United States Denunciation," 32 J. Air L. & Com., No. 2, p. 243 (1966).
Our decision in Grey is perfectly consistent with the holdings in Mertens and Warren, supra. In Grey, the plaintiffs boarded the plane in New York and were headed for Mexico City. The fact that the ticket failed to list the intermediate stops in Washington, D. C. and Dallas, in no way deprived them of "a reasonable opportunity to take self-protective measures," since those stops did not change the "international" character of the flight so far as plaintiffs were concerned. See Article 1. Therefore, "delivery" of the ticket had taken place, and the defendant was entitled to avail itself of the Convention's limits on liability.
In 1963, the Civil Aeronautics Board took cognizance of the difficulty that the average passenger would have interpreting this langage and issued what is now 14 C.F.R. § 221.175, which provides: