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REED v. WISER

April 19, 1976

RUTH ANN REED, ET AL., Plaintiff
v.
FORWOOD CLOUD WISER, JR., ET AL., Defendants


Frankel, District Judge.


The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge:

On September 8, 1974, Trans World Airlines ("TWA") Flight 841, en route from Athens, Greece, *fn1" and bound for the John F. Kennedy Airport in New York City, crashed in the Ionian Sea, approximately 100 miles west of Araxos, Greece. All persons aboard were killed. The crash has given rise to a number of suits here and in other federal courts, all of which are now in this court for pretrial purposes pursuant to a ruling of the Multidistrict Litigation Panel.

 The instant action was brought in New Jersey, and transferred to this district, by the personal representatives, heirs, and next of kin of nine of the passengers who died in the crash. Named as the only defendants are the President and the Staff Vice President in charge of Audit and Security of TWA. The complaint alleges that the crash was due to the explosion of a bomb aboard the aircraft shortly after the takeoff from Athens. Further, it is alleged that the defendants, in their respective capacities at TWA, were responsible for the institution and maintenance of a security system sufficient to prevent placing of explosives on the aircraft, and that defendants' negligent failure to institute or maintain a satisfactory security system was the proximate cause of the disaster.

 Defendants have interposed as a second affirmative defense the assertion that damages are limited to $75,000 for each decedent by the terms of the Warsaw Convention, *fn2" as supplemented by the Montreal Agreement. *fn3" Plaintiffs now move for an order, pursuant to Fed. R. Civ. P. 12(f), striking this second affirmative defense or, alternatively, for partial summary judgment under Rule 56.

 The question thus raised is whether the Warsaw Convention's limitation of liability provisions are applicable to defendants, as employees of TWA, should they eventually be found liable.

 Article 17 of the Warsaw Convention states:

 
"The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

 Article 22, as modified by the Montreal Agreement, provides:

 
"In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of [$75,000]."

 Thus the relevant question, more precisely put, is whether the term "carrier" refers only to the corporate or other owning entity as such, here TWA, or also includes the employees and agents acting on the carrier's behalf.

 The question has been ably and exhaustively briefed. It is by no means susceptible of a clear and entirely confident answer. It is answered here, for reasons which follow, in plaintiffs' favor.

 1. The inquiry begins, though it cannot end, with the language of the treaty and its drafting history. See Day v. Trans World Airlines, Inc., 528 F.2d 31, 33, 34 (2d Cir. 1975); McNair, The Law of Treaties 411-23 (1961). The Convention contains no definition of "carrier." Plaintiffs derive some textual support, if not a compelling argument, from the fact that the treaty language includes separate, distinguishing references to carriers and their agents. *fn4" There is no indication, however, of deliberate attention to the question now confronted. *fn5"

 The uncertainty resulting from the silence of the Warsaw Convention on our problem is reflected by a split in the sparse decisional authorities. *fn6" The two federal district courts that have passed on closely analogous issues have reached opposite results. Compare Pierre v. Eastern Air Lines, Inc., 152 F. Supp. 486, 489 (D.N.J. 1957), *fn7" with Chutter v. KLM Royal Dutch Airlines, 132 F. Supp. 611, 613 (S.D.N.Y. 1955). *fn8"

 2. With no unequivocal message from the language and history, we come to questions of policy. Here, again, there are pressures in both directions. The Warsaw Convention policy limiting liability, defendants' strongest support, had the well understood aim to protect infant air carriers from what were feared to be potentially fatal burdens of compensation to people injured or left bereaved while efforts to fly safely were proceeding. *fn9" It would be consistent with that policy to extend the protection to employees and agents, who might otherwise press for insurance or other forms of indemnity. And it is somewhat at odds with that policy to hold otherwise. It is not insignificant to note, ...


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