The opinion of the court was delivered by: WYATT
This is a motion by plaintiff for summary judgment "interlocutory in character", in her favor on the issue of liability, leaving for trial only the amount of damages. Fed.R.Civ.P. 56(e).
The action was commenced in the New York Supreme Court, New York County. The claim averred in the complaint is that plaintiff bought from defendant Air France a ticket for air travel to Belgrade, Yugoslavia, by way of Paris; that returning from Belgrade the aircraft landed at Munich; that in the course of disembarking plaintiff sustained personal injuries; that the contract for air travel between plaintiff and Air France was subject to the Warsaw Convention; and that under the terms of the Warsaw Convention the air carrier is absolutely liable for any personal injury sustained by a passenger in the course of disembarking from the aircraft.
The defendant timely removed the action to this Court on the basis of diversity of citizenship.
It appears without dispute that on August 10, 1967, plaintiff bought from Air France in New York a ticket for air travel by Air France from New York to Paris by specific flight on August 31, from Paris to Belgrade by specific flight on September 1, from Belgrade to Paris on a date and flight number not specified, and from Paris to New York on a date and flight number not specified. On the ticket to the left of the final destination, New York, is the date September 21, 1967, apparently indicating the date plaintiff expected to arrive back in New York; this would mean a departure from Belgrade on September 20, 1967.
The initials "AF" for Air France appeared on the ticket to indicate the air carrier New York to Paris, from Paris to Belgrade, from Belgrade to Paris, and from Paris to New York. The ticket as issued contemplated that the return trip from Belgrade would be by Air France.
It also appears that when plaintiff decided to return from Belgrade she wished to return starting from Belgrade on Thursday, September 14, 1967. At that time Air France had no flights from Belgrade to Paris on Thursdays; the Air France flights from Belgrade to Paris were on Wednesdays and Fridays.
Yugoslav Airways, however, did have a flight (No. 240) from Belgrade to Paris on Thursdays. This flight stopped en route at Munich.
In order to permit plaintiff to start her flight on Thursday, September 14, Air France in Belgrade changed her ticket to substitute Yugoslav Airways as the carrier from Belgrade to Paris and to provide for passage for plaintiff on Flight No. 240 of Yugoslav Airways on September 14. The substitution was made by sticking a "revalidated form" on the original ticket at the place where the original ticket provided for transport from Belgrade to Paris by Air France. The "revalidated form" shows the carrier from Belgrade to Paris to be "JU", concededly referring to Yugoslav Airways; shows the flight number to be 240; and shows the date to be September 14.
Plaintiff did take Yugoslav Airways Flight No. 240 on September 14 and suffered her injuries as averred when the Yugoslav plane stopped at Munich.
It is agreed by both sides that the Warsaw Convention (49 Stat. 3000) is applicable to the contract of carriage.
Admittedly plaintiff was injured while on a flight of Yugoslav Airways.
Whether Air France is liable to plaintiff depends on whether Yugoslav Airways was a "successive carrier" within the meaning of Article 30 of the Convention which reads in relevant part as follows (49 Stat. at 3021):
"(1) In the case of transportation to be performed by various successive carriers and falling within the definition set out in the third paragraph of article 1, each carrier who accepts passengers, baggage or goods shall be subject to the rules set out in this convention, and shall be deemed to be one of the contracting parties to the contract of transportation insofar as ...