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April 19, 1976

RUTH ANN REED, ET AL., Plaintiff

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, however, that the original policy has lost a great deal of its persuasive force: air travel is no longer an infant industry. *fn10"

 On the other side is a powerful national policy favoring compensatory damages from tortfeasors who cause personal injury. A corollary principle of equal importance is the aversion of our law toward stipulations by common carriers "without congressional authority * * * against their own negligence or that of their agents or servants." United States v. Atlantic Mutual Insurance Co., 343 U.S. 236, 242, 72 S. Ct. 666, 96 L. Ed. 907 (1952); New York Central Ry. Co. v. Lockwood, 84 U.S. (17 Wall.) 357, 21 L. Ed. 627 (1873). The absence of any express absolution in the Warsaw Convention embracing "agents or servants" must be deemed a cogent factor in the setting of American law. American adherence to the Warsaw Convention was not prompt, nor has it ever been particularly enthusiastic. *fn11" As all agree, the liability of the wrongdoing agent is a separate and clear source of redress, distinct from and logically prior to that of the principal. When the United States adhered to the Convention, it was not so exuberant a move as to warrant expansive constructions to amend firm national policies. This is, then, a fitting case in which to remember that a provision limiting liability for negligent injury is not readily to be inferred. *fn12" See, e.g., Brady v. Roosevelt S.S. Co., 317 U.S. 575, 580-81, 87 L. Ed. 471, 63 S. Ct. 425 (1943).

 On an issue not entirely dissimilar to the present one -- on a claim perhaps less compelling, because dealing with property, not persons -- the Supreme Court, in Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 3 L. Ed. 2d 820, 79 S. Ct. 766 (1959), considered the reach of limitation of liability provisions in the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(5). *fn13" Refusing to extend to a negligent stevedore the provision limiting an ocean carrier's liability to $500 per package of a shipper's cargo, the Court said, id. at 301-02:


"There is * * * nothing in the language, the legislative history or environment of the Act that expressly or impliedly indicates any intention of Congress to regulate stevedores or other agents of a carrier, or to limit the amount of their liability for damages caused by their negligence. It must be assumed that Congress knew that generally agents are liable for all damages caused by their negligence. Yet Congress, while limiting the amount of liability of 'the carrier [and] the ship,' did not even refer to stevedores or agents of a carrier. 'We can only conclude that if Congress had intended to make such an inroad on the rights of claimants it would have said so in unambiguous terms' and 'in the absence of clear Congressional policy to that end, we cannot go so far.' Brady v. Roosevelt S.S. Co., 317 U.S. 575, 581, 584, 87 L. Ed. 471, 63 S. Ct. 425."

 That interpretation of the Carriage of Goods by Sea Act is not conclusive, to be sure. But it is a highly persuasive analogy opposing the view of the defendants before us.

 We are cited to authorities counseling strict construction of treaties, e.g., Continental Dredging Co. v. County of Los Angeles, 366 F. Supp. 1133, 1136 (C.D. Cal. 1973); cf., Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 96 L. Ed. 1294, 72 S. Ct. 1011 (1951); Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 51 L. Ed. 553, 27 S. Ct. 350 (1907), along with others suggesting liberality, e.g., United States v. Pink, 315 U.S. 203, 86 L. Ed. 796, 62 S. Ct. 552 (1942); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 81 L. Ed. 5, 57 S. Ct. 100 (1936); Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir. 1966). See generally McNair, The Law of Treaties 364-92 (1961). Without resting too heavily upon canons, we know this is not a case for loose interpretations. The limitation for agents and employees would have been easy enough to specify. It was not stated. Those who acted for the United States in adhering to the Warsaw Convention had among their premises a strong animus against discovering liability limitations by implication. The totality of circumstances counsels against our inferring any such provision.

 If the policy of protection of carriers were to be gutted by an interpretation against defendants, the demand for a less equivocal test might be untenable. But the fact is that a perfectly plausible compromise was possible that left the employees exposed. Indemnity was by no means automatic. Separate claims against employees, as the slight litigation history suggests, need not have been foreseen as major threats. Whatever speculative reasons may account for it, the drafters left out what defendants now seek, and the omission cannot be said to have been stultifying. Moreover, since the removal of the "due care defense," *fn14" liability under the Warsaw Convention is certainly found under a different standard than liability outside it. See note 12, supra.

 In short, if only the conflicting policies just noted were at stake, the court would incline to an interpretation favoring plaintiffs. But there is, as we proceed to note, at least a bit more to their position.

 3. In 1955, most of the adherents and signatories to the Warsaw Convention adopted the amendments known for short as the Hague Protocol, officially "Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929." *fn15" Among the amended provisions is a new Article 25A, which expressly resolves the issue before this court by extending the Warsaw limits of liability to the carrier's servants and agents acting within the scope of their employment. *fn16" The United States has declined to adhere to the Hague Protocol.

 Both the Hague document and the nonassent of the United States are subjects arguable pro and con. The new Article 25A, it may be said, merely affirmed the pre-existing position. *fn17" Against that is the slightly stronger point that careful treaty drafters had omitted in Warsaw, then added at The Hague (using more than a few words for the purpose) what defendants claim was always there. *fn18" As to this country's nonadherence, it may be argued that such post-Warsaw events are not authoritative concerning what the Convention as agreed to should be taken to mean. On the other hand, the Senate has a large hand in the business of treaty-making and a duty of knowledgeable response preceding that of the courts. The failure to adopt the Hague Protocol, considered always in the setting of apposite national policies, and in the swirl of dissatisfaction with any limitations in the Warsaw Convention, see note 11, supra, is a datum "relevant in ascertaining the proper construction * * * [of] the treaty's various provisions," Day v. Trans World Airlines, Inc., 528 F.2d 31, 35 (2d Cir. 1975).

 4. Defendants raise several other issues in resisting this motion. First, they contend that the contract of carriage between TWA and the decedents, *fn19" as well as TWA's tariff provisions, filed with the Civil Aeronautics Board, *fn20" entitle them to the $75,000 limitation because both the contract and the tariff explicitly extend the carrier's limitation of liability to cover "agents, servants and representatives" of the carrier. Reference has been made in this connection to 14 C.F.R. § 221.38(j) (1975), which provides, inter alia, that


"each air carrier and foreign air carrier shall publish in its tariffs a provision stating whether it avails itself of the limitation on liability to passengers as provided in Article 22(1) of the Warsaw Convention or whether it has elected to agree to a higher limit of liability by a tariff provision. Unless the carrier elects to assume unlimited liability, its tariffs shall contain a statement as to the applicability and effect of the Warsaw Convention * * *."

 It has been established, however, by authoritative rule that the tariff provisions of an international carrier, whatever their effects in other countries, cannot impose limits of liability more stringent than those under the Warsaw Convention. *fn21" TWA, in its tariff, recognizes this rule:


"Rules stating any limitation on, or condition relating to, the liability of carriers for personal injury or death are not permitted to be included in tariffs filed pursuant to the laws of the United States, except to the extent provided in Rule 16(B)(1) with respect to Tariff C.A.B. No. 17, any [ sic ] such limitation or condition in any rule herein is not a part of Tariff C.A.B. No. 17, except to the extent provided in Rule 16(B)(1) with respect to Tariff C.A.B. No. 17, filed with the Civil Aeronautics Board of the United States. Nothing in this Tariff modifies or waives any provision of the [Warsaw] Convention." *fn22"

 The quoted exception referring to Joint Tariff Rule 16(B)(1) is no help to defendants; that Rule simply refers to Article 22(1) of the Warsaw Convention. To the extent any other limitations are included, TWA goes on to acknowledge, they are applicable only in tariffs filed in other countries. *fn23"

 It is evident, in sum, that the tariff provision defendants invoke gives them no more immunity than they may have under the Warsaw Convention.

 Defendants' arguments from the tickets decedents bought are more clearly unavailing: the ticket clearly cannot create limitations forbidden by the tariff. *fn24"

 5. Finally, defendants argue that as corporate officers of TWA acting within the scope of their employment, they could be liable, if at all, only for misfeasance or malfeasance, not nonfeasance. The parties discuss this contention variously in terms of New Jersey and New York law without touching explicitly on the possible conflicts of law issue.

 Plaintiffs, all residents of states "other than New Jersey," filed this action in New Jersey, where defendants are residents. The case was thereafter transferred to this court. The complaint alleges jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1333, 46 U.S.C. § 761 et seq. ("Death on High Seas Act"), and general maritime law. It is not at all clear at this stage what law will be deemed applicable in determining the liability vel non of defendants as officers of TWA. Nor is it possible at this stage to know what the consequences of applying any particular body of law will come to be.

 While New York, with varying degrees of rigor, still applies in certain situations the misfeasance-nonfeasance distinction for corporate agents Jones v. Archibald, 45 A.D.2d 532, 360 N.Y.S.2d 119 (4th Dept. 1974); Michaels v. Lispenard Holding Corp., 11 A.D.2d 12, 201 N.Y.S.2d 611 (1st Dept. 1960), the distinction has disappeared in other states, see, e.g., Miller v. Muscarelle, 67 N.J. Super. 305, 170 A.2d 437, 445-51 (A.D.), certification denied, 36 N.J. 140, 174 A.2d 925 (1961). Although TWA is headquartered in New York, it is impossible to say at this moment that New York law necessarily should control, especially when considering the interests of decedents and the policies of their respective states.

 It is also to be noted that the nonfeasance-misfeasance distinction, itself never very clear, *fn25" has exceptions, even where it is found to apply, depending, inter alia, on the power and responsibility of the corporate officers. *fn26" This issue, as well as the basic factual question whether the asserted negligence constituted nonfeasance or misfeasance, depends on evidence yet to be adduced.

 In conclusion, the motion to strike defendants' second affirmative defense will be granted, as the Warsaw Convention does not limit the liability of employees or agents of a carrier, and TWA's tariff does not purport to otherwise limit its, or its employees', liability.

 So ordered.

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