The opinion of the court was delivered by: LEIBELL
On October 28, 1949, Emery Komlos was a passenger on an airplane operated by the defendant (Air France), on a flight from Paris to New York. He lost his life when the plane crashed on the island of San Miguel, Azores, Republic of Portugal.
Komlos was a citizen of the United States and a resident of the State of New York. He was in the employ of Refugee Economic Corporation and was engaged in the work of the corporation at the time of his death. The Royal Indemnity Company had issued a workmen's compensation policy, which covered Komlos and other employees of the Refugee Economic Corporation under the workmen's Compensation Laws of the State of New York.
Komlos was 32 years old and was unmarried. He left him surviving his mother, Bertha Komlos, and a sister, Edith Komlos. After his death payments were made to his mother under the compensation policy. The attorney for the administratrix raises a question as to whether an 'award' had been 'made' and the 'claim' for compensation 'determined' under section 20 of the Compensation Law. I believe that the provisions of the Law were complied with. This will be discussed near the end of this opinion.
On October 3, 1951, Royal Indemnity Company instituted an action (hereinafter called the Royal Indemnity action) in this court against Air France for the wrongful death of Emery Komlos, claiming that Royal Indemnity is the statutory assignee of the 'cause of action' under section 29, subd. 2, of the N.Y. Compensation Law, in that a claim had been filed with the Workmen's Compensation Board by he next of kin of the decedent, Bertha, the mother; that an award had been duly entered and filed by the Board on March 6,1950; and that pursuant to the award the Royal Indemnity had paid $ 400 for funeral expenses, and certain sums in weekly and bi-weekly payments to the mother, which up to September 28, 1950, amounted to $ 2,100. Royal Indemnity alleged that the 'cause of action' of the next of kin against the defendant for the death of Emery Komlos was assigned to the Company under section 29, subd. 2, by operation of law, by reason of the failure of the next of kin to institute an action against Air France within the time fixed by the New York Workmen's Compensation Law, that is, 'within six months after the awarding of compensation'.
The Surrogate's Court, New York County, issued Letters of Administration on the estate of Emery Komlos, to his sister, Edith. On October 26, 1950, as such Administratrix of the Komlos estate, she instituted in the Supreme Court of the State of New York an action (hereinafter called the Komlos action) against Air France on behalf of Bertha Komlos and Edith Komlos and the estate of the decedent. The action was removed to this Court on grounds of diversity of citizenship. The original complaint was an ordinary negligence suit. It made no reference to the Warsaw Convention
; nor did it use any of the language thereof. Subsequently an amended complaint was served in the Komlos action. It was used as a model for the complaint in the Royal Indemnity action.
The complaints in the two actions are now similar in the claims they assert.
Each pleads six claims or causes of action. Each complaint claims $ 150,000 as the loss of next of kin for the wrongful death of Emery Komlos and $ 550 for burial expenses. A claim of $ 1,500 is also pleaded in each action for the loss of decedent's baggage and personal belongings.
The defendant answered the Komlos amended complaint November 2, 1951, but has not yet answered the Royal Indemnity complaint. In the answer to the Komlos complaint the defendant has pleaded that the entire 'cause of action' for wrongful death alleged in the Komlos complaint belongs to the Royal Indemnity Company, under the assignment provision of Section 29, subd. 2, of the New York Workmen's Compensation Law, subject to the obligation of the insurer to account to decedent's dependents for a certain part of the recovery as provided in the said section.
As to the claim of $ 1,500 for loss of baggage and personal belongings, the defendant asserts that it is for a sum less than the $ 3,000 pecuniary jurisdiction requirement of this Court, in an action where jurisdiction is based on diversity of citizenship.
In the Komlos action the defendant has moved for summary judgment on the grounds that the plaintiff does not own the claims asserted therein, thereto have been assigned by operation of law to the Royal Indemnity Company which has commenced an action in this court for the same relief. In the Royal Indemnity Company action, the defendant has moved to dismiss the complaint, on the grounds that the complaint fails to state a claim on which relief can be granted, in that Royal Indemnity Company does not own the claim. Defendant argues that both complaints are for the same relief and that there cannot be a recovery for wrongful death under both the Komlos and Royal Indemnity complaints; that one of the actions is not brought by the real party in interest and should be dismissed; that the documentary proof shows that Royal Indemnity owns the cause of action for wrongful death and that the Komlos complaint should be dismissed; but that if the court should decide that Royal Indemnity does not own the claim for wrongful death then the Royal Indemnity complaint should be dismissed.
The Administratrix of the Komlos estate has moved to consolidate the Komlos action and the Royal Indemnity action for trial.
Although both complaints allege a claim for the loss of decedent's baggage and personal effects, valued at $ 1,500, that claim is separate and distinct from the death claim- to this extent at least, that it did not pass to the Royal Indemnity Company by statutory assignment under the New York Workmen's Compensation Law. It belongs to the decedent's estate and is subject to the provisions of the Warsaw Convention in relation to destruction or loss of baggage.
The claim for funeral expenses may be recovered in the action for wrongful death, § 132 of the N.Y. Decedent Estate Law. Royal Indemnity, under the compensation award, paid $ 400 for funeral expenses. Either the administratrix or the Royal Indemnity Company would be entitled to recover for the funeral expenses, because it is part of the claim in the death action under section 132. If the administratrix recovered on that claim, she would have to pay $ 400 to Royal Indemnity.
The Claim for Wrongful Death
The principal questions presented by defendant's motions are these: (A) Has decedent's sister, Edith, a beneficial interest in the cause of action, the right of Action, for wrongful death? (B) Who has the right to because such claims and all rights bring suit for the wrongful death of Emery Komlos, the Administratrix of the Komlos estate or the compensation Diane Madison insurer, Royal Indemnity Company? In answering those questions it will be necessary to consider the Warsaw Convention, the New York doctrine of conflict of law, the applicability of the law of the Republic of Portugal and the applicability of certain statutes of the State of New York.
The attorney for the Komlos Administratrix argues that the persons who have the right of action for wrongful death should be determined by the lex loci delicti, the law of Portugal; that the Warsaw Convention does not create a right of action; that section 29, subd. 2, of the N.Y. Compensation Act has no extra-territorial effect; that a right of action arising under Portuguese law would not be assigned to the insurer under section 29, subd. 2, of the N.Y. Compensation Act; that under Portuguese law the sister Edith as well as the mother, Bertha, own the right of action; and that they may assert that right through the Administratrix.
The attorney for the defendant, Air Force, argues that the cause of action for wrongful death is created by the Warsaw Convention; that the lex fori, the law of New York, determines who have the right to bring the suit and who are entitled to share in any recovery; that the mother, Bertha, is the sole next of kin of the decedent under New York law and she was also found to be decedent's sole dependent by the New York Workmen's Compensation Board; that the cause of action for wrongful death passed to the insurer, Royal Indemnity Company, under section 29, subd. 2, of the New York Workmen's Compensation Law, because decedent's sole dependent (the mother, Bertha) received the compensation award and failed to bring an action against the defendant through the Administratrix until more than six months after the compensation award was made.
Before arriving at a conclusion as to what parts of the lex fori or the lex loci delicti apply to the facts in this case, it is necessary to consider a preliminary question. Did the Warsaw Convention itself create the cause of action for the wrongful death of Emery Komlos, a passenger on an international airplane flight?
Counsel for defendant, Air France, contends that the Warsaw Convention created a cause of action 'ex contractu'; and that the law of Portugal the place of the accident, has no application. Counsel for plaintiff Komlos denies that the Convention created a new right of action. He argues that plaintiff's action is based on a tort and that it is created under the lex loci delicti, the law of Portugal, and that Portuguese law should be applied in determining who owns the right of action. Article 24(2) of the Convention.
In Wyman v. Pan American Airways, Inc., 1943, 181 Misc. 963, 43 N.Y.S.2d 420, 423, affirmed 267 App.Div. 947, 48 N.Y.S.2d 459 and 293 N.Y. 878, 59 N.E.2d 785, certiorari denied 324 U.S. 882, 65 S. Ct. 1029, 89 L. Ed. 1432, the airplane was lost at sea. Judge Schreiber held that the applicable statute was the Federal Death on the High Seas Act. He stated:
'The right to bring a death action is purely statutory. It did not exist at common law (Debevoise v. New York, L.E. & W.R.R. Co., 98 N.Y. 377) and depends upon the existence of a statute creating a right of action at the place where the 'force impinged' causing injuries and death. Whitford v. Panama R.R. Co., 23 N.Y. 465; Kristansen v. Steinfeldt, 165 Misc. 575, 300 N.Y.S. 543, reversed on other grounds 256 App.Div. 824, 9 N.Y.S.2d 790. No new substantive rights were created by the Warsaw Convention and all the rules there laid down are well within the framework of existing legal rights and remedies. * * *
'The right to any recovery in this action thus must depend on some statute. The New York Decedent Estate Law, § 130, can have no application as the injury and death did not occur within the territorial confines of the States. Whitford v. Panama R.R. Co., supra. The only possible relevant statute, therefore, is the federal 'Death on the High Seas Act' * * *.'
Another case which discusses the Warsaw Convention is Garcia v. Pan American Airways, Inc., 1945, 269 App.Div. 287, 55 N.Y.S.2d 317, affirmed 1946, 295 N.y. 852, 67 N.Ed.2d 257, certiorai denied 329 U.S. 741, 67 S. Ct. 79, 91 L. Ed. 640. The following is quoted from Judge Hagarty's opinion, 269 App.Div.at page 292, 55 N.Y.S.2d at page 321:
'Inasmuch as the Convention, as a treaty, constitutes part of the law of this land, overriding state law and policies (U.S. Const. art. VI, clause 2; Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S.2d 420, affirmed 267 App.Div. 947, 48 N.Y.S.2d 459 (affirmed) 293 N.Y. 878, 59 N.E.2d 785, certiorari denied (324 U.S. 882) 65 S. Ct. 1029 (89 L. Ed. 1432); United States v. Pink, 315 U.S. 203, 230, 231, 62 S. Ct. 552, 86 L. Ed. 796), its provisions supercede the usual doctrine that the right and measure of recovery are governed by the lex loci and not by the lex fori. It comes to this: One is not bound to seek redress in the courts of this country. He may submit to the jurisdiction of the foreign state and, presumably, have his rights determined in accordance with the law of that place. That is not our concern. But if he institutes action here, the law which we will apply is that set forth by the terms of the Convention, even though it be inconsistent with the law of the place. Comity is abridged to that extent. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171; Royal Mail S. Packet Co. v. Companhia de Nav. Lloyd Brasileiro, D.C., 31 F.2d 757; The Mandu, 2 Cir., 102 F.2d 459.'
In Ross v. Pan American Airways, 299 N.Y. 88, 85 N.E.2d 880, 881, 13 A.L.R.2d 319, Judge Desmond states that the Warsaw Convention 'regulates and limits the liability of air carriers engaged in international transportation, as 'international transportation' is defined in the Convention.'
Salamon v. Koninklijke Luchtvaart Maatschappij, Sup., 107 N.Y.S.2d 768, 773, is a case relied on by defendant, Air France, to justify its contention that the Convention has created a new right of action. In that case the court used the following emphatic language:
'If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do.'
The court's decision is on appeal to the Appellate Division, First Department.
If an aerial flight comes within the Convention's definition of 'international transportation'
and the passenger is killed in the course of the flight, the provisions of the Convention attach to the right of action created by the lex loci delicti. Such was the situation in Ross v. Pan American Airways, Inc., supra, and Garcia v. Pan American Airways, Inc., supra. Both those actions arose out of the crash of an airplane in Portugal, at a time when Portugal had not yet adhered to the Convention. (At the time Emery Komlos lost his life in a crash, Portugal had already signified its adherence to the Warsaw Convention.) The defendant interposed defenses in its answers in the Ross and Garcia suits, which invoked the provisions of the Convention. In both cases the defenses were ruled valid. It matters not that a plaintiff does not allege that the cause of action is subject to the provisions of the Warsaw ...