The opinion of the court was delivered by: EDELSTEIN
Plaintiff has brought an action against KLM Royal Dutch Airlines and Allied Aviation Service International Corporation for damages for personal injuries she sustained as a result of the alleged negligence of both defendants. Allied, the aviation service company, has cross-claimed against KLM, the carrier, for indemnification in the event of a recovery against it by the plaintiff. The case was tried to the court without a jury.
The facts, for the most part, are not in serious dispute. The plaintiff had purchased a ticket for an international flight commencing in New York and terminating in Athens, via stopovers in Amsterdam, Madrid and Rome, and there can be no doubt that the transportation contracted for was 'international transportation' within the Warsaw Convention, 49 Stat. 3000 et seq., Proclaimed Oct. 29, 1934. After boarding the plane and being escorted to her seat, the plaintiff, while the 'fasten seat belt' sign was lighted, got up from her seat and proceeded to the rear toward the open door of the aircraft in order to wave a farewell to her daughter. at that moment, the ramp or loading stairs were being pulled away from the plane by employees of the defendant Allied upon a signal from an employee of the defendant KLM. The plaintiff testified that she had stepped out onto the ramp, from which she fell, but it appears to me, in accordance with the testimony of certain of defendants' employees, that the plaintiff stepped from the plane into a space between it and the ramp, falling to the ground.
Both defendants rely upon Article 29(1) of the Warsaw Convention which provides that the right to damages shall be extinguished if an action is not brought within two years, and this action was not filed within the two year period. Without embarking upon a detailed analysis of the plaintiff's physical position at the time of her fall, I am satisfied that the accident causing the damage occurred, within the terms of Article 17 of the Convention, 'on board the aircraft or in the course of any of the operations of embarking or disembarking.' To hold otherwise would be an unwarranted dissection of minute and almost undefinable areas from the coverage of the Convention. Hence, the suit against the defendant KLM must fail for want of timely commencement.
Whether Allied, the aviation service company in charge of moving the ramp, can claim the benefit of the time limitation in the Warsaw Convention is not entirely clear, but a close analogy is found in cases involving the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq., 46 U.S.C.A. § 1300 et seq. It has been held by the Court of Appeals for this Circuit that the limitation provisions of the statute inured to the benefit of a stevedore, independently contracted for by the carrier. United States v. The South Star, 2 Cir., 210 F.2d 44. The case in is accord with a similar view expressed by the Fifth Circuit, Collins & Co. v. Panama R. Co., 5 Cir., 197 F.2d 893. The basis for these decisions is that the stevedore is engaged by the carrier to perform a part of the contract of carriage, and it is impractical to distinguish the carrier from the community of persons whose joint activity is the carrier's activity. In selling a ticket to the plaintiff the air carrier obviously assumed the obligation of affording her a means of entrance and egress from the aircraft; in delegating the function of ramp handling to the defendant aviation service company, the carrier made it the agency by which a part of the contract of transportation was to be fulfilled. It seems immaterial whether the service company be regarded technically as an agent or an independent contractor. Therefore, the analogy of the Carriage of Goods by Sea Act is quite persuasive. And it is the more persuasive because the Carriage of Goods by Sea Act merely refers to the liability of the carrier, while the Warsaw Convention, in Article 24, refers to an action for damages (for passenger bodily injury) 'however founded'. Consequently, this action was not timely commenced against the defendant Allied. Cf. Wanderer v. Sabena, Sup.Ct.N.Y.County, Feb. 10, 1949, No. 6015-1947, 1949 U.S. Aviation Reports 25.
But in any event, I have found as a fact that the plaintiff was contributorily negligent, and whether her action against the defendant Allied by founded on the Warsaw Convention or on New York law, she cannot recover.
Accordingly, I make the following findings of fact and conclusions of law.
1. Defendant, KLM Royal Dutch Airlines, is, and at all times mentioned in the complaint herein was, a corporation duly organized and existing under and by virtue of the laws of the Kingdom of The Netherlands with its principal office in The Hague, The Netherlands, and with a local office in the City, County and State of New York.
2. At all times mentioned in the complaint defendant, KLM Royal Dutch Airlines, was, and now is, a common carrier engaged in the business of international transportation of passengers and their baggage for hire by airplane, and was, and is, engaged in such business in the State of New York and elsewhere.
3. Defendant, Allied Aviation Service International Corporation, is a corporation duly organized and existing under and by virtue of the laws of the State of New York, and is engaged in rendering various cargo and line services to airlines using the facilities of New York International Airport (Idlewild) under a permit from The Port of New York Authority.
4. Plaintiff, Adriana Chutter, is, and was at all times mentioned in the complaint, a citizen and resident of the State of Pennsylvania.
5. On or about November 14, 1950, plaintiff, Adriana Chutter, purchased and defendant, KLM Royal Dutch Airlines, issued a ticket, which was subject to all the rules and conditions related and/or referred to therein; under the agreement evidenced by said ticket plaintiff was entitled to transportation by air from New York, United States of America, to Amsterdam, The Netherlands, by defendant, KLM Royal Dutch Airlines; and was entitled to transportation by air between Amsterdam, The Netherlands, and Madrid, Spain, by defendant, KLM Royal Dutch Airlines; and was entitled to transportation by air between Madrid, Spain, and Athens, Greece, by another air carrier.
6. The transportation by air provided for in said ticket issued by defendant, KLM Royal Dutch Airlines, to plaintiff, Adriana Chutter, was to be performed under a contract of transportation wherein the place of departure was New York, New York, in the United States of America, the agreed stopping places were Amsterdam, The Netherlands, Madrid, Spain, Rome, Italy, and the place of destination, Athens, Greece; such transportation was 'international transportation,' within and subject to the 'convention for the unification of certain rules relating to international transportation by air and an additional protocol', signed at Warsaw, October 12, 1929 (otherwise known as the 'Warsaw Convention'), said Convention having been duly adhered to by the United States of America and Greece.
7. The contract of transportation, evidenced by the ticket issued by defendant, KLM Royal Dutch Airlines, to plaintiff, specifically stated: 'Carriage/Transportation under this Passenger Ticket and Baggage Check, hereinafter called 'ticket', is subject to the rules relating to liability established by the Convention for the Unification of Certain Rules Relating to International Carriage/Transportation by Air signed at Warsaw, October 12, ...