The opinion of the court was delivered by: NOONAN
This is a motion by plaintiff for summary judgment directed to the second and third separate defense, challenging the legal sufficiency thereof.
This action arises out of the crash of the defendant's aircraft near Dallas, Texas, on November 29, 1949. Recovery is sought for damages suffered by the two surviving infant children of Harry and Sophie Goldberg, who died in the crash.
The plaintiffs here challenge the second and third defenses. The second defense pleads limitation of liability under the provisions of the Warsaw Convention of October 12, 1929, which has been adhered to on behalf of the United States pursuant to a Presidential Proclamation of October 29, 1934, 49 Stat. Pt. 2 at pp. 3000 et seq. In the third defense, defendant alleges that by the terms of the contract of transportation the carrier and the deceased herein were made subject to the limitations of the Warsaw Convention.
Plaintiffs in support of their motion urge:
a. The particular flight in issue was not one in international transportation within the purview of the Warsaw Convention.
b. It was not the intention of the parties to consider the flight one in international transportation.
c. Even if within the terms of the Warsaw Convention, the defendant failed to comply with the strict requirements of the provisions of the Convention.
These points shall be considered in the order stated.
a. The particular flight in question, designated Flight 157 by defendant, was one originating at New York, with scheduled stops at Washington, Dallas and Mexico City. It is admitted by both parties that there were passengers on the plane destined for Washington and Dallas. On these facts plaintiffs argue that this flight was not one in international transportation, and so not within the meaning and intention of the Warsaw Convention.
Article 1 of the Convention provides that the Convention "shall apply to all international transportation of persons * * *". Article 1, (2) defines what constitutes "international transportation" and reads in part:
"(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 * * *".
The United States of Mexico became a high contracting party to this convention on February 14, 1933. It is undisputed, therefore, that at the time of the carriage herein, the United States and Mexico were adherents to the Warsaw Convention.
Accordingly, I do not find persuasive plaintiffs' argument that a single plane engaged in a single flight may not be international in respect to some ...