UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: December 16, 1966.
JOHN LISI, ETC., ET AL., APPELLEES,
ALITALIA-LINEE AEREE ITALIANE, S. P. A., APPELLANT
Kaufman, Circuit Judge. Moore, Circuit Judge (dissenting).
KAUFMAN, Circuit Judge:
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 language of Article 3 cannot be considered in isolation; rather, it must be viewed in light of the other Articles and the overall purposes of the Convention. See Eck v. United Arab Airlines, supra.
This is not the first occasion on which we have been called upon to interpret the language of the Convention's delimiting provisions. For example, in Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir.), cert. denied, 382 U.S. 816, 15 L. Ed. 2d 64, 86 S. Ct. 38 (1965), we were asked to decide whether presenting a ticket to a passenger after he boarded the carrier's plane, constituted a "delivery" within the meaning of Article 3(2). We stated:
We read Article 3(2) to require that the TICKET BE DELIVERED TO THE PASSENGER IN SUCH A MANNER AS TO AFFORD HIM A REASONABLE OPPORTUNITY TO TAKE MEASURES TO PROTECT HIMSELF AGAINST THE LIMITATION OF LIABILITY. Such self-protective measures, could consist of, for example, deciding not to take the flight, entering in a special contract with the carrier, or taking out additional insurance for the flight. The Convention specifically provides that "the carrier and the passenger may agree to a higher limit of liability," (Article 22(1)) and there would be little reason to make this provision, to require that the ticket state that the liability of the carrier is limited (Article 3(1)(e)), and to require that such a ticket be delivered to the passenger unless the Convention also required that the ticket BE DELIVERED IN SUCH CIRCUMSTANCES AS TO AFFORD THE PASSENGER A REASONABLE OPPORTUNITY TO TAKE THESE SELF-PROTECTIVE MEASURES." Id. at 856-57.
We held, accordingly, that the delivery was inadequate, and the Convention's fixed limits of liability were not available.
Later, a similar result was reached by the Ninth Circuit in Warren v. Flying Tiger Line, Inc., 352 F.2d 494 (1965). There the passenger was given a "boarding ticket" or "pass" at the foot of the ramp leading to the aircraft. The Court decided that the "delivery" must be made sufficiently in advance so that the passenger will have the opportunity to take self-protective measures, such as purchasing additional insurance if he so chooses. The "delivery" of a boarding ticket at the foot of the ramp as the plane was about to depart, did not suffice therefor. The carrier, accordingly, was barred by Article 3(2) from availing itself of the Convention's liability limitation provisions.
We believe that the reasoning of the Mertens and Warren decisions is apposite to the case now before us. The Convention's arbitrary limitations on liability -- which have been severely and repeatedly criticized*fn7 -- are advantageous to the carrier. But the quid pro quo for this one-sided advantage is delivery to the passenger of a ticket and baggage check which give him notice that on the air trip he is about to take, the amount of recovery to him or his family in the event of a crash, is limited very substantially. Thus the passenger is given the opportunity to purchase additional flight insurance or to take such other steps for his self-protection as he sees fit.
This notice to passengers is especially important in this country where the overwhelming number of people who travel by air do so on domestic flights, for which the Convention's restrictions on liability are inapplicable. It is too much to expect these passengers to be sufficiently sophisticated to realize that although they are traveling the same number of miles on an international flight that they have frequently traveled domestically, the amount they may recover in the event of an accident is drastically reduced. In short, it is clear from the ratio decidendi of the Mertens and Warren cases, that the inquiry that must be made if the Convention's Articles are to be given meaning, is "whether the ticket was delivered to the passenger in such a manner as to afford him a reasonable opportunity to take self-protective measures . . . ." Mertens v. Flying Tiger Line, Inc., supra 341 F.2d at 857.*fn8
We proceed to determine, therefore, whether the particular tickets and baggage checks involved in the present case gave the appellees adequate notice.*fn9 On the front of the ticket and baggage check, in exceedingly small print, was the following message: "Each passenger should carefully examine this ticket, particularly the Conditions on page 4." And, at this point, we note that one of our reasons in Mertens v. Flying Tiger Line, Inc., supra, for precluding the carrier from limiting its liability under the Convention was that the required statement on the ticket "was printed in such a manner as to virtually be unnoticeable and unreadable . . . ." Id. at 857.
Judge MacMahon appropriately characterized the "notice" to the passengers in his pithy conclusion as "camouflaged in Lilliputian print in a thicket of 'Conditions of Contract'. . . . 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."*fn10 253 F. Supp. at 243. Accord, Warren v. Flying Tiger Line, Inc., supra 352 F.2d at 497. But see Seth v. British Overseas Airways Corp., 329 F.2d 302 (1st Cir.), cert. denied, 379 U.S. 858, 13 L. Ed. 2d 61, 85 S. Ct. 114 (1964).
We agree that a jury could not reasonably have found that the tickets and baggage checks gave the passengers the required notice. The District Court properly granted partial summary judgment striking out these affirmative defenses of appellant.
MOORE, Circuit Judge:
The majority in their opinion indulge in judicial treaty-making. The language of the treaty (referred to as the Warsaw Convention) is clear. Its provisions are not difficult to comprehend. Its mandates are simply stated. Ascertainment of compliance should, therefore, present no real problem.
Passenger tickets were delivered to plaintiffs and their decedents on various dates between January 20, 1960 and February 20, 1960. The flight on which they travelled pursuant to their tickets did not depart until February 25, 1960. The ticket contained the particulars specified in Article 3(1) of the Convention, albeit the reference to the provisions of the Convention with respect to death or injury was in exceedingly small type.
The majority do not approve of the terms of the treaty and, therefore, by judicial fiat they rewrite it. They think a "one-sided advantage" is being taken of the passenger which must be offset by a judicial requirement that the passenger have notice of the limitation of liability. To support their argument they refer, quite illogically in my opinion, to cases in which the courts have held that there was no real delivery of a ticket to the passenger as contemplated by the treaty. Cases based upon facts tantamount to no effective pre-flight ticket delivery,*fn1 are scarcely relevant to this case where the passengers had their tickets from 3 to 36 days before departure. Were actual notice to be the requirement, every airline would have to have its agents explain to every passenger the legal effect of the treaty and, in all probability, insist that each passenger be represented by counsel who would certify that he had explained the import of the Convention to his client who, in turn, both understood and agreed to the limitation.
The original limitations in the Convention may well be outmoded by now. Substantial revisions upward have been made but they have been made, as they should be, by treaty and not by the courts. Judicial predilection for their own views as to limitation of liability should not prevail over the limitations fixed by the legislative and executive branches of Government even though this result is obtained by ostensibly adding to the treaty a requirement of actual understanding notice. Furthermore, for the courts to say that a jury could not reasonably have found that the ticket gave the passenger the required notice is, upon a motion for partial summary judgment, to usurp the time-honored function of the jury.
For these reasons, I would reverse.