Kaufman, Circuit Judge. Moore, Circuit Judge (dissenting).
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.*fn1
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 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).*fn2
It is conceded that the flight in question meets the definition of "international transportation" contained in Article 1 of the Convention.*fn3 Therefore, the provisions of the Convention quite properly govern the present action. See Eck v. United Arab Airlines, 360 F.2d 804, 808 (2d Cir. 1966).
Alitalia's main argument can be stated quite simply. Under Articles 17 and 18 of the Convention, 49 Stat. 3018-19, 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. But, this liability, it says, is limited by Article 22, 49 Stat. 3019, which provides:
(1) In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs . . . . Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.*fn4
(2) In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. . . .
(3) As regards objects of which the passenger takes charge himself the liability of the carrier shall be limited to 5,000 francs per passenger.
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.*fn5 These Articles, moreover, provide that the ticket and check shall contain certain specified information, including "a statement that the transportation is subject to the rules relating to liability established by this convention."*fn6 Thus, it would appear, that unless the carrier furnishes to the passenger a ticket or baggage check containing the appropriate statement, it may not restrict its liability as circumscribed by the Convention Articles.
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, 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, 4 L. Ed. 2d 1254, 80 S. Ct. 1084 (1960) (Frankfurter, J., dissenting). The task of ascertaining the meaning of words is difficult, and one certain way of misinterpreting them is by a literal reading. As Learned Hand put it, "words are such temperamental beings that the surest way to lose their essence is to take them at their face." 1942 Address by Judge Hand to the Massachusetts Bar Association. Thus, the ...