Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WINDBOURNE v. EASTERN AIR LINES

May 11, 1979

WINDBOURNE, Plaintiff,
v.
EASTERN AIR LINES, INC., et al., Defendants; DOMANGUE, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; MAHFOUD, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Behar), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Abbate), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Alzozo), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Daha), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; BRIGHT, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; HICKEY, Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (R. Bigio), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants (two cases); O'ROURKE (P. Hansen), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; Mary HANSEN (P. Hansen), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (W. Hansen), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; Karin M. HANSEN (W. Hansen), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Merkouris), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; JENNINGS (Merkouris), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Priniotakis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; CAPPIELLO (Priniotakis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Alexandridis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; CAPPIELLO (Alexandridis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Manias), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; JENNINGS (Manias), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; O'ROURKE (Hadzis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants; CAPPIELLO (Hadzis), Plaintiff, v. EASTERN AIR LINES, INC., et al., Defendants.



The opinion of the court was delivered by: BRAMWELL

MEMORANDUM OF DECISIONS AND ORDERS

The motions and cross motions before the Court today comprise but another phase in the complicated legal motif emanating from the unwinding arabesque of MDL 227. While the first motion interposed by Eastern Air Lines appeared simple enough, its complexity grew with the stream of further motions, cross motions, reply affidavits and further reply affidavits that poured in quickly thereafter. Indeed, this litigation, which arises out of the tragic air crash of Eastern's flight 66 at Kennedy Airport on June 24, 1975, *fn1" is like writing the first sentence of a book that may never be completed. Like Hydra who grew back two heads to replace the one that had been severed, the resolution of one problem in this case appears to breed at least two additional new ones. And the Court not being Hercules, this regeneration continues.

 The origin of the plaintiffs' motions and cross motions and Eastern's motions and cross motions in the non-disputed representative cases *fn2" may be traced back to certain pre-trial events which transpired in the fall of 1978. To retreat to an earlier phase of this litigation, on September 15, 1978, the plaintiffs in these non-disputed cases approached the bench for the severance of their actions from the impending damage trial and for the entry of judgments on liability against Eastern Air Lines on the basis of the Warsaw Convention as supplemented by the Montreal Agreement. In each of these cases, Eastern Air Lines had interposed in its answer as a first affirmative defense that

 
(t)he travel of plaintiffs' decedent involved international transportation subject to all terms and conditions of the Warsaw Convention (49 Stat. 3000 et seq.), as amended by the Hague Protocol thereto (if applicable), and as supplemented by the Montreal Agreement of May 4, 1966 (if applicable), and defendant Eastern Airlines, Inc. therefore claims exemption from and limitation of liability in accordance with the terms and conditions of the said Warsaw Convention and/or Hague Protocol and/or Montreal Agreement.

 After hearing argument on this matter, and for reasons hereinafter discussed in section I, Infra, the Court granted the plaintiffs' motions from the bench over the objection of Eastern Air Lines. Thereafter, orders to this effect were drafted by Eastern Air Lines and signed by the Court on September 22, 1978.

 The autumn of 1978 was prolific regarding legal matters, for the motions in the disputed representative cases also possess this time as a common genesis. As more fully explained in section II, Infra, on September 15, 1978, Tierney O'Rourke, one of the plaintiff-representatives in each of these cases, appealed to this Court to enter liability judgments, predicated on the Warsaw/Montreal system, against Eastern Air Lines on behalf of the plaintiffs in these suits. In doing so, he noted that the above quoted defense was interposed by Eastern Air Lines in the disputed as well as the non-disputed representative actions. However, troubled by the visibly awkward posture of the plaintiffs in the disputed cases as they then stood at bar, Mr. O'Rourke's motions were not granted at that time. Some time later, however, after formal motions had been made and argument had been heard, on December 15, 1978 said motions were conditionally granted. See section II, Infra.

 Adhering to its hydra-headed nature, said rulings inspired the birth of the numerous motions before the Court today. In order to achieve some utility of insight into said motions, rather than setting forth the substance of each motion at this time, they have been divided into separate categories and will be discussed accordingly.

 I

 PLAINTIFFS' REQUESTS FOR A RULE 54(b) AMENDMENT OF THE WARSAW/MONTREAL JUDGMENTS IN THE NON-DISPUTED REPRESENTATIVE CASES.

 A

 Background

 The plaintiffs in the Behar, Abbate, Daha, Bright, Hickey, Edmund Bigio, Raphael Bigio and Alzozo cases *fn3" move and the plaintiffs in the Windbourne, Domangue and Mahfoud cases crossmove for an order pursuant to Rule 54(b) of the Federal Rules of Civil Procedure amending their liability judgments entered against Eastern Air Lines on the basis of the Warsaw Convention as supplemented by the Montreal Agreement. Specifically, they ask that said judgments be amended to reflect that Eastern is not precluded thereby from raising any defenses it may have against them. Further relief is sought by the plaintiffs in the form of a request that this Court also reaffirm the grant of the motions which sired the disputed judgments.

 Adhering to its litigious nature, Eastern Air Lines vigorously opposes the grant of the instant motions. In doing so, it initially argues that Rule 54(b) provides neither the method nor the requirements for the amendment of a judgment. Accordingly, Eastern concludes that Rule 60 of the Federal Rules of Civil Procedure applies to the instant request, not Rule 54(b). Eastern also directly attacks the propriety of a Rule 54(b) amendment, noting that the plaintiffs have cited no authority supporting any such action.

 Additionally, Eastern maintains that this Court erred in granting the plaintiffs' Warsaw/Montreal motions in that it should have reviewed the individual facts and pleadings of each case, determined the applicable law, and then decided whether the actions could continue to be prosecuted. Considering that this Court did not adopt this approach, Eastern concludes that these issues cannot be resolved now. Rather, Eastern contends that they are to be resolved by the Second Circuit unless, of course, this Court vacates the Warsaw/Montreal judgments Sua sponte and sets the plaintiffs' motions down for a hearing on the merits. It bolsters its argument further by stating that, by virtue of the requested amendment, the plaintiffs are only trying to cure or mitigate the lack of due process which occurred when their motions were granted from the bench.

 The plaintiffs, on the other hand, note at the outset the significant absence of any claim by Eastern that the Warsaw/Montreal system is not applicable to and thus does not govern their cases. And even if Eastern was denied procedural due process at the time said motions were granted, the plaintiffs contend that their instant noticed motions have served the function of affording it due process now.

 B

 Discussion of Rule 54(b)

 In light of Eastern's allegation that this Court may not amend the disputed judgments pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, a discussion of the propriety of granting the plaintiffs' motions must necessarily start with an examination of Rule 54(b) itself:

 
When more than one claim for relief is presented in an action, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, And the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

 Fed.R.Civ.P. 54(b) (emphasis added).

 At this point in this litigation, the interlocutory nature of the Warsaw/Montreal judgments is not open to dispute. Such an issue was first resolved by this Court in its Decision and Order of December 1, 1978 and was finally put to rest by the Second Circuit's statement from the bench on January 16, 1979:

 
In the case of the summary judgment relating to the Warsaw Convention cases we find that we have no authority to overrule the Rule 60(a) change made by Judge Bramwell on the clerk's Rule 54(b) statement and since there has been no 1292(b), we are without jurisdiction at the moment.

 Since the Warsaw/Montreal system judgments are not final, the Second Circuit's statement in Acha v. Beame, 570 F.2d 57 (2d Cir. 1978), is of direct significance:

 
Under the express directives of Rule 54(b) itself, such An interlocutory judgment is "subject to revision at any time before the entry of judgment adjudicating all of the claims and the rights and (the) liabilities of all of the parties." . . . . Whether such revision is appropriate in any given case is within the sound discretion of the trial judge.

 Id. at 63 (citations omitted and emphasis added). Accord, Bache & Co., Inc. v. Taylor, 458 F.2d 395, 396 (5th Cir. 1972) (per curiam); Fireman's Fund Insurance Co. v. Myers, 439 F.2d 834, 838 (3d Cir. 1971); United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970); Carey v. Greyhound Co., 424 F.2d 485, 487 (9th Cir. 1970); Premier Industrial Corp. v. McGuire, 423 F.2d 1198 (5th Cir. 1970) (per curiam); United Bonding Insurance Co. v. Stein, 410 F.2d 483, 485 (3d Cir. 1968) (per curiam); Stewart v. Bishop, 403 F.2d 674, 680 (8th Cir. 1968). These cases also bear relevance on Eastern's assertion in its memoranda of law in opposition to the plaintiffs' Rule 54(b) motions that Rule 54(b)

 
merely defines the nature and character of a judgment upon multiple claims or involving multiple parties . . . (and) does not provide the method or requirements for an amendment of a judgment.

 A reading of the above cited cases indicates that Rule 54(b) revisions are often accomplished by use of the same procedure employed here, that is, by way of noticed motion.

 As has been noted, Eastern additionally argues that a Rule 54(b) revision can only be accomplished by reference to Rule 60's limitations on amendment of a judgment and to its procedure. Worthy of mention, however, is that Rule 60(b) applies only to a "final judgment, order or proceeding." Since Rule 54(b) speaks only of non-final judgments and since said judgments by their very nature are inconsistent with final judgments, in advancing this argument Eastern Air Lines is unsuccessfully attempting to harness a paradox.

 Eastern's reliance on Rule 60(a) is similarly unavailing. While Rule 60(a) applies broadly to judgments, orders or other parts of the record, it is the medication to be applied to cure clerical errors. Unlike the situation presented to this Court on December 1, 1978, no clerical errors are claimed to exist regarding these judgments at this time. Moreover, if use of Rule 54(b)"s broad revisionary powers was to be limited to cases where a Rule 60(a) amendment is proper, not only would the legislature have so stated but also there would be absolutely no reason for the existence of that portion of Rule 54(b) relied on herein.

 In light of the incontestable nature of these judgments, coupled with the clear import of Rule 54(b)"s directive and the abundant case law supporting a court's revisionary power, this Court fails to see any merit in Eastern's argument that this Court cannot revise these judgments. Of further note in this regard is the apparent inconsistency in Eastern's position. At the outset, it tells the Court it cannot amend the judgments. Despite this claimed lack of power, however, it argues that this Court can vacate them Sua sponte. Indeed, it appears that the Court can do either. See United States v. Desert Gold Mining Co., supra at 715.

 Now that it has been established that the Court possesses the power to revise the Warsaw/Montreal judgments, the next question to be answered is whether it should exercise its discretion and do so. See Acha v. Beame, supra at 63. In order to answer this question as well as to reach a decision on the plaintiffs' requests that the Court affirm the grant of their Warsaw/Montreal motions, the reasoning underlying this ruling must be explored. The logical starting point for such an examination is a discussion of the Warsaw/Montreal system itself.

 C

 The Warsaw/Montreal System

 Despite the infancy of the aviation industry in 1929, numerous nations "(s)aw the heavens fill with commerce, argosies of magic sails." Tennyson, "Locksley Hall." Accordingly, in order to protect the industry in its earliest stages from an apocalyptic financial fate and to establish uniformity in the laws among nations in the event of aircraft accidents, numerous nations entered into the Convention for the Unification of Certain Rules Relating to International Transportation by Air. 49 Stat. 3000 (1934) (reprinted in supplement to 49 U.S.C. § 1502). *fn4" While the United States was not one of the original participating parties, adherence to this treaty was advised by the United States Senate on June 15, 1934 and was proclaimed by the President on October 29, 1934. *fn5"

 Commonly known as the Warsaw Convention, this treaty is a major unilateral agreement among nations which, according to Article 1, governs the rights and responsibilities of carriers with respect to the international transportation for hire of persons, baggage or goods. While one of the central purposes of the Warsaw Convention was to limit the potential liability of a carrier by providing a maximum damage recovery of 125,000 gold francs or approximately $ 8,300.00 for personal injury or death arising out of an air disaster, this Argus of the aviation industry was not exacted without a price. In exchange for this protection, Article 17 was included to provide that

 
(T)he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of operations of embarking or disembarking.

 However, still possessing parental concern for the infant industry, the mother nations softened the harsh effect of Article 17 by also including in the treaty Articles 20(1) and 21:

 Article 20

 
(1) The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

 Article 21

 
If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.

 Nurtured by industrial advancements in science and technology, between 1929 and 1965 the aviation industry matured into a comparatively safe, swift and profitable business. Disturbed by the fact that Warsaw's damage limitation had not also grown up with the industry, and faced with the economic reality of the passing years, in November of 1965 the United States gave the requisite notice of its denunciation of the Warsaw Convention. In doing so, it emphasized that its action was motivated solely by the low limits of liability to passengers. Department of State Press Release No. 268, Nov. 15, 1965.

 Presented with this eventuality, the aviation industry decided "(t)o take arms against a sea of troubles." Shakespeare, Hamlet, Act III, scene 1. Accordingly, two days before the United States' denunciation was to become effective, an interim agreement was entered into among a substantial number of air carriers. *fn6" This agreement provided that the carriers were to file tariffs with the Civil Aeronautics Board which would raise the limits of liability and waive Warsaw's Article 20(1) defenses. The basic agreement, the tariff, see 31 Fed.Reg. 7302 No. 97, May 19, 1977, and the CAB order, see Agreement CAB 18900, CAB Order No. E-23680, are commonly known as the Montreal Agreement. With respect to the increase in the damage limitation, the airlines agreed to enlarge the maximum limitation to $ 75,000 per passenger.

 The airlines' waiver of the Article 20(1) defenses effected a change in the substantive approach to air carrier liability. While cases apparently unaffected by the Montreal Agreement speak in terms of a "presumption" of liability, See, e.g., Benjamins v. British European Airways, 572 F.2d 913, 917 (2d Cir. 1978), Cert. denied, 439 U.S. 1114, 99 S. Ct. 1016, 59 L. Ed. 2d 72 (U.S.1979), cases affected by the Montreal Agreement employ the language of absolute liability. To illustrate, in Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), Cert. denied, 429 U.S. 890, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976), the Second Circuit stated:

 
Under the Montreal Agreement, Liability for injuries described by Article 17 of the Warsaw Convention Became absolute and the maximum damages were increased to $ 75,000.

 Id. at 33 (emphasis added). Accord, Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1259 (9th Cir.), Cert. denied, 431 U.S. 974, 97 S. Ct. 2939, 53 L. Ed. 2d 1072 (1977).

 Such a characterization of the nature of liability under the Montreal Agreement finds support in the Civil Aeronautics' Press Release regarding the Agreement:

 
(By) agreeing to forego certain defenses which they could raise under the terms of the Convention, the participating carriers are accepting the principle of Absolute liability, i.e., liability without fault on the part of the airline.

 CAB Press Release 66-61; 382-6031, May 13, 1966 (emphasis added). Furthermore, the State Department similarly remarked:

 
Airlines in international travel will be Absolutely liable up to $ 75,000 per passenger regardless of any fault or negligence. Recovery by those who need it most will thus be maximized and expedited.

 Department of State Press Release No. 110, May 13, 1966 (emphasis added).

 Thus, as the Warsaw/Montreal system stands now, unless a plaintiff wishes to seek unlimited recovery against the airline by virtue of its willful misconduct, See Art. 25 of the Warsaw Convention, or has contributed to the accident, See id. Art. 21, the need for litigation of the issue of the airline's liability for fault has been eliminated. This does not mean, however, that a plaintiff is automatically entitled to the receipt of a $ 75,000 check from the airline. To the contrary, he must still prove his damages and is entitled to recover the damages so proved up to the ceiling amount of $ 75,000.

 Having highlighted the underpinnings of the Warsaw/Montreal system, the reasoning behind the grant of the autumn Warsaw/Montreal motions is now appropriate for discussion.

 D

 Reasoning Underlying the Grant of the Autumn Warsaw/Montreal Motions in the Non-Disputed Cases

 Cognizant of the character of the Warsaw/Montreal system, and there being no dispute regarding its applicability to the cases then at hand, when faced with the plaintiffs' requests on September 15, 1978, the Court opined that, as to liability and liability only, no question of fact existed. See Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 392, 358 N.Y.S.2d 97, 103, 314 N.E.2d 848, 852 (1974). In so deciding, the term "liability" was employed in its purest sense, that is, as synonymous with fault. Indeed, this was the common usage of the term with respect to the Warsaw/Montreal system. See Day v. Trans World Airlines, supra at 33; CAB Press Release 66-61, Supra ; Dept. of State Press Release No. 110, Supra. In granting the requested relief, therefore, the Court passed only on the issue of fault. No judgment was passed on the issue of whether Eastern Air Lines was liable in damages to the plaintiffs, especially in light of Eastern's multifarious defenses of lack of capacity to sue, application of foreign law, and, in all but the Behar, Hickey and Bright cases, lack of authorization by decedents' next of kin. Seeing these defenses in a light more closely related to the issue of liability for damages, the plaintiffs' motions for entry of judgments on the issue of liability for fault were granted. See Rosman v. Trans World Airlines, Inc., supra at 400, 358 N.Y.S.2d at 110, 314 N.E.2d at 857.

 While this approach may be somewhat unorthodox in the face of Eastern's defenses, it must be remembered that this litigation is not the garden variety negligence case. The very definition of multidistrict litigation encompasses suits commenced in various federal courts throughout the nation and synthesized in one federal court. In granting the plaintiffs' motions, this Court did not scorn the individual personalities of Eastern's defenses in search of a procrustean solution of the issues before it. Rather, the complex nature of the litigation coupled with the myriad of particular problems attendant to Eastern's defenses were compelling factors in the decision to grant the plaintiffs' motions.

 To illustrate, turning first to Eastern's defenses of lack of capacity to sue, it was realized that said defense contests a party's right to come into court and, consequently, is usually decided as a threshold issue. Nonetheless, the unique questions raised by the multidistrict character of this case prompted the Court to do otherwise.

 Rule 17(b) of the Federal Rules of Civil Procedure provides that the question of a representative's capacity to sue is governed by the law of the state where the district court is situated. At first glance, it appears that New York law would therefore govern the capacity issue in all of these cases. However, in Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964), the Supreme Court held otherwise. Ironically, the novel issue raised in Van Dusen resulted from the multitude of actions commenced after an air crash disaster in Boston. There, the Court was faced with the potential transfer of forty cases pending in a Pennsylvania Court, where the plaintiffs had capacity to sue, to a Massachusetts Court, where 100 similar actions were pending and where the Pennsylvania plaintiffs would not have capacity to sue. In finding that a transfer would only result in a change of courtrooms, not a change of law, the Court stated:

 
Since in this case the transferee district court must under § 1404 apply the laws of the State of the transferor district court, it follows in our view that Rule 17(b) must be interpreted similarly so that the capacity to sue will also be governed by the laws of the transferor State.

 Id. at 639, 84 S. Ct. at 822.

 At this point, mention must be made of the varied birthplaces of the suits at bar. The Domangue, Mahfoud, Hickey and Windbourne plaintiffs commenced their suits in Louisiana federal courts. Actions were commenced by the Behar, Abbate, Daha and Alzozo plaintiffs in the Southern District of New York. The Bigio suits are the only actions native to the Eastern District of New York. While the Van Dusen holding would not affect the New York born suits, it would affect the Louisiana actions. As to this group, Van Dusen dictates that Louisiana law would apply to the resolution of the capacity issue. Moreover, Eastern's defenses of lack of authorization of the decedents' next of kin appear to come within the breadth of Rule 17(b) and the rationale of Van Dusen. Consequently, Louisiana law would also apparently apply to the resolution of these defenses in the Domangue, Mahfoud and Windbourne cases. Since a remand of the Louisiana cases to their respective home districts was contemplated by the Court when it granted the September motions, in light of the foregoing, it appeared that judicial economy would best be furthered if the resolution of Eastern's capacity defenses was deferred until a later pre-damage trial stage or, if necessary, when a settlement was near.

 Although New York law would determine the issue of capacity to sue in the Behar, Abbate, Daha, Alzozo, and two Bigio cases, it must be remembered that the Warsaw/Montreal judgments were directed solely to the issue of fault, not damages. Thus, Eastern was not thereby compelled to pay any damages to an improper plaintiff. Moreover, at the time the subject motions were granted, neither party had informed the Court what law would govern the capacity issue. Although the actions are native New Yorkers, the respective decedents did not and their next of kin do not hail from New York. Having not been apprised of the relevant law, therefore, in September this Court was troubled by the possibility that New York law might refer to Venezuelan law in the Behar and Bigio cases, Syrian law in the Alzozo case and Italian law in the Abbate case for the resolution of the capacity issue. If this was so, to paraphrase Judge Friendly's remarks in the air crash case of Nolan v. Transocean Air Lines, 290 F.2d 904 (2d Cir.), Cert. denied, 368 U.S. 901, 82 S. Ct. 177, 7 L. Ed. 2d 96 (1961), Quoting 276 F.2d 280, 281 (2d Cir. 1960), Vacated and remanded, 365 U.S. 293, 81 S. Ct. 555, 5 L. Ed. 2d 571 (1961), this Court opined that it would have to

 
determine what the New York courts would think the (Italian, Venezuelan and Syrian) courts would think on an issue which neither has thought.

 290 F.2d at 905. Such legal labyrinths, in the Court's view, were better left for resolution immediately before the commencement of separate damage trials or, if necessary, before settlement.

 Eastern Air Lines, however, takes issue with this Court's approach to its capacity defenses. Meeting this reasoning head-on, Eastern claims its capacity defenses should have been determined prior to the grant of the plaintiffs' motions since, if proven, said defenses would mandate the dismissal of these actions. While some of the legal authority cited by Eastern gives the color of support to the view it advances, heed must be given to those cases which hold that where the defect may be cured by the substitution of the proper representative, dismissal is not warranted. Instead, such cases grant the plaintiff leave to amend his complaint. See, e.g., St. Louis, San Francisco & Texas Railway Co. v. Seale, 229 U.S. 156, 162, 33 S. Ct. 651, 57 L. Ed. 1129 (1913); Marston v. American Employers Ins. Co., 439 F.2d 1035, 1041 (1st Cir. 1971); Hunt v. Penn Central Transportation Co., 414 F. Supp. 1157, 1160 (W.D.Pa.1976); Weinstein v. Medical Center Hosp. of Vermont, Inc., 358 F. Supp. 297, 299 (D.Vt.1973). See also cases cited in section VII, Infra.

 Of significance to those cases governed by New York law is the New York Court of Appeals' approach to the issue of a representative's capacity. In Stolz v. New York Central Railroad, 7 N.Y.2d 269, 196 N.Y.S.2d 969, 164 N.E.2d 849 (1959), much to the defendant's dismay, the Court of Appeals refused to sanction the dismissal of the plaintiff's wrongful death and survival actions with prejudice, notwithstanding her apparent lack of capacity to sue.

 
By declaring plaintiff's appointment invalid and thereupon dismissing these actions, Trial Term appropriated to itself certain discretionary powers which the Legislature confided only in the Surrogate.
 
Here, the Trial Judge not only improperly exercised the discretion which the Legislature reposed in the Surrogate's Court but, indeed he virtually assumed there was no room for the exercise of any discretion. When at the close of trial he was alerted to the fact that there was a question as to the validity of plaintiff's appointment, he should have recognized that the Surrogate, with full knowledge of the facts, could have authorized the administratrix to continue these actions. It was, therefore, error to dismiss them.

 Id. at 272-74, 196 N.Y.S.2d at 971-73, 164 N.E.2d at 850-51.

 The Stolz Court additionally noted that a dismissal

 
would consequently not prejudice (the administratrix) individually in any respect. It would, however, if the limitations period barred future actions, prejudice the rights of the ultimate beneficiaries and promote a windfall for defendant railroad.

 Id. at 275, 196 N.Y.S.2d at 973, 164 N.E.2d at 852.

 The reasoning underlying this decision is noteworthy, not only to the instant New York cases but also to the other capacity defense cases as well. Of additional note is that the Stolz Court breathed life into the foregoing considerations by fashioning a procedure to be followed in representative capacity cases:

 
A suspension of these (wrongful death and survival) actions, however, pending action by the Surrogate's Court which may be the retention of plaintiff as administratrix or the appointment of a new administrator who could be substituted as party plaintiff in these suspended actions within a reasonable time, would preserve the rights of the ultimate beneficiaries since these actions were timely brought in the first instance.

 Id., 196 N.Y.S.2d at 973, 164 N.E.2d at 852.

 In light of the foregoing, this Court was not persuaded that Eastern's capacity defenses, even if proven, would mandate the dismissal of the actions at hand. This being so, when considered in conjunction with the additional reasoning behind the grant of the subject motions, the Court thought it best to defer ruling on the capacity questions until a later, more appropriate time.

 Continuing on with the exploration of the unique problems presented by an immediate September resolution of Eastern's defenses and an explanation regarding the deferment of their resolution, Eastern's defense of the application of foreign law appears next on the agenda. At the outset, it must be noted that this defense is yet another mystery that remains untold in this case. Although Eastern asserted this as a second affirmative defense in each of the instant cases, and in doing so, assured that

 
notice thereof will be given in accordance with Rule 44.1 of the F.R.C.P. upon ascertainment of applicable law(,)

 to date, no specifics as to which foreign law or how its application would bar the prosecution of these actions has been forthcoming. No enlightenment was provided by Eastern in September when the Warsaw/Montreal motions were argued and, despite adequate opportunity to do so now, Eastern has still not come forward with any specifics or arguments that would warrant a vacatur of the Warsaw/Montreal judgments on the basis of this defense.

 The decedents and next of kin in the Windbourne, Domangue, Hickey and Bright cases resided and reside in Louisiana. The Windbourne action concerns the husband of one decedent and the father of two decedents suing as plaintiff. In the Domangue case, plaintiff is the decedent's widow who apparently qualified in Terrebonne, Louisiana as the tutrix of the only children of the decedent. In the Hickey case, Edgar Bright and Mansuel Hickey were apparently appointed by Will as executors of the estate of Jane Bright Hickey. Similarly, in the Bright case, Edgar Bright was apparently appointed executor of the estate of Ethel Bright. While Eastern sets forth its defense of the application of foreign law in these cases with a thrust akin to athletic energy, it remains mute as to which law is to be applied and how its application bars the continuation of these actions.

 Similarly, in the Behar case, Eastern merely points out that the decedent's home was Venezuela and concludes, therefore, that Venezuelan law must have some relevance to the action. The same opinion is attached to Eastern's observation that Edmund and Raphael Bigio were unmarried Venezuelan citizens who are survived by two brothers who are Israeli citizens and one sister who is a Swiss citizen. Again, Eastern concludes that foreign law must have some relevance regarding the Daha, Alzozo and Mahfoud cases, all of which concern Syrian decedents and beneficiaries. The only instance where Eastern is even vaguely specific regarding the application of foreign law is the Abbate case wherein it notes that a workman's compensation lien apparently exists under an unspecified Italian law against the proceeds of a damage recovery or settlement. By its own terms, however, the existence of such a lien would have no bearing on the issue of fault but only on the distribution of any damages.

 Faced with a rainbow chain of neon signs blinking diverse nationalities, Eastern's observation that foreign law may apply is certainly not without merit. This Court, however, fails to see how this would affect Eastern's liability for fault. According to Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), Cert. denied, 439 U.S. 1114, 99 S. Ct. 1016, 59 L. Ed. 2d 72 (U.S.1979), the Warsaw Convention provides a universal source of a cause of action. *fn7" Id. at 919. Thus, it would appear that, this being a policy of international law, any application of foreign law could not obstruct access to this source. Cf. Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir. 1962) (en banc), Cert. denied, 372 U.S. 912, 83 S. Ct. 726, 9 L. Ed. 2d 720 (1963); Rosman v. Trans World Airlines, Inc., supra, at 398, 358 N.Y.S.2d at 108, 314 N.E.2d at 856. Rather, following along the channels of diplomacy, foreign laws could be employed to provide the details for the enforcement of this policy, such as providing guidelines to which relatives are to be the beneficiaries. Cf. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961). Thus, it appears that if foreign law is to be applied at all, it would be relevant only to issues which may arise in the event of a damage trial or settlement.

 Even if this Court steps aside from the new era marked by Benjamins on the basis that Benjamins' new expression may be limited to those cases where jurisdiction is unavailable under 28 U.S.C. § 1332 (1976), Benjamins, supra at 919, and that such jurisdiction exists here, the application ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.