The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
These are consolidated actions for death, personal injuries or property damage suffered by passengers in a crash of defendant's airplane on February 26, 1960, in Shannon, Ireland, while en route from Rome to New York. Plaintiffs are residents and citizens of New York, and defendant is an Italian corporation. Jurisdiction is based on diversity.
Plaintiffs move for partial summary judgment dismissing all affirmative defenses which are based on the exclusion or limitation of liability provisions (Articles 20 and 22) of the Warsaw Convention,
49 Stat. 3000 (1934). All of the evidentiary facts material to the motion appear on the face of the tickets issued to the passengers on the flight involved, and there is no dispute about them.
Plaintiffs claim that these exculpatory defenses are not available to an airline unless the airline delivers a passenger ticket and, where applicable, a baggage check, which notify the passenger that the exclusion or limitation of liability provisions of the Warsaw Convention are applicable to the flight, and that the tickets and checks delivered here did not notify the passengers of such provisions. Defendant claims that if a ticket and check are delivered to a passenger before departure, such defenses are automatically applicable to flights between nations adhering to the Convention even though the ticket and check do not notify the passenger of such provisions, and that, in any event, the tickets and checks delivered here so notified the passengers.
The Warsaw Convention specifies that the provisions of the Convention which exclude or limit an airline's liability are unavailable unless the airline delivers a passenger ticket and baggage check.
The Convention also requires that the ticket and check contain "[a] statement that the transportation is subject to the rules relating to liability established by this convention."
Read together, the intent of these requirements is to afford the passenger a reasonable opportunity to take measures to protect himself against the airline's exclusion or limitation of its liability. Indeed, the Convention specifically provides that "the carrier and the passenger may agree on a higher limit of liability."
Manifestly, if the ticket and check delivered by the airline fail to notify the passenger that the exclusion or limitation provisions of the Convention are applicable, the passenger is not afforded a reasonable opportunity to protect himself by deciding not to take the flight, entering into a special contract with the carrier, or taking out additional insurance.
We hold, therefore, that compliance with the Convention requires not mere physical delivery of a ticket and check before departure but delivery of a ticket and check which notify the passenger that the provisions of the Convention which exclude or limit liability are applicable.
Cf. 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); Warren v. Flying Tiger Line, Inc., 352 F.2d 494 (9th Cir. 1965); Block v. Compagnie Nationale Air France, 229 F. Supp. 801, 808 (N.D.Ga.1964); Sand, Air Carriers' Limitation of Liability and Air Passengers' Accident Compensation under the Warsaw Convention, 28 J. Air L. & Com. 260, 262-263 (1962). Thus, if the tickets and checks issued here did not so notify the passenger, the challenged affirmative defenses are unavailable and must be dismissed.
We are of the opinion that a jury could not reasonably find that the passenger tickets and baggage checks delivered here notified the passengers that the exclusion or limitation provisions of the Convention were applicable and, accordingly, hold as a matter of law that defendant cannot exclude or limit its liability under the Convention in the case at bar. We think one look at the tickets and checks, which were combined in the form of small printed booklets, compels this conclusion. We set forth below replicas of the only applicable pages of typical tickets delivered here:
[SEE ILLUSTRATION IN ORIGINAL]
[SEE ILLUSTRATION IN ORIGINAL]
[SEE ILLUSTRATION IN ORIGINAL]
The footnotes printed in microscopic type at the bottom of the outside front cover and coupons, as well as condition 2(a) camouflaged in Lilliputian print in a thicket of "Conditions of Contract" crowded on page 4, are both unnoticeable and unreadable. 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.
"Lilliputian typography," Eck v. United Arab Airlines, Inc., 20 App.Div.2d 454, 457, n. 2, 247 N.Y.S.2d 820, 824, rev'd on other grounds, 15 N.Y.2d 53, 255 N.Y.S.2d 249, 203 N.E.2d 640 (1964), which must be read through "a magnifying glass," Warren v. Flying Tiger Line, Inc., 234 F. Supp. 223, 230 (S.D.Cal.1964), aff'd, 352 F.2d 494 (9th Cir. 1965), is at war with the intent of the Convention. This was recognized by our Court of Appeals in Mertens where one of the reasons for precluding the carrier from limiting its liability under the Convention was that the required statement "was printed in such a manner as to virtually be unnoticeable and unreadable * * *." Mertens v. Flying Tiger Line, Inc., supra, 341 F.2d at 857.
We hold, therefore, that defendant failed to comply with Articles 3(1)(e) and 4(3)(h) of the Warsaw Convention and that the challenged affirmative defenses are unavailable to defendant in these actions.
Our decision involves a controlling question of law which we think should be immediately appealed under 28 U.S.C. § 1292(b). Cf. Warren v. Flying Tiger Line, Inc., supra, 352 F.2d at 495. We have done our best to reconcile Mertens and Grey (see footnote 6), but until the Court of Appeals has had the last word, there will remain substantial ground for difference of opinion on whether failure to notify in accordance with Article 3(1)(e) has the effect we say, and whether the defendant failed to notify here as a matter of law. To clear the air on the law applicable to the facts shown here, an appeal is advisable. Moreover, an immediate appeal may materially advance the ultimate termination of this litigation.
Accordingly, plaintiffs' motions for partial summary judgment dismissing defendant's affirmative defenses are granted, and trial of the actions stayed pending decision of the Court of Appeals on the controlling question of whether the challenged affirmative ...