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April 21, 1981

Grigorios GEORGAKIS, Plaintiff,
EASTERN AIR LINES, INC., and United States of America, Defendants

The opinion of the court was delivered by: BRAMWELL


The plaintiff, Grigorios Georgakis, has moved for summary judgment on defendant Eastern Air Lines, Inc.'s first affirmative defense to his complaint in this action for personal injuries that had its genesis in the June 24, 1975 crash of Eastern Air Lines Flight 66 at John F. Kennedy Airport. The affirmative defense in question alleges that the air travel of Mr. Georgakis that gave rise to this action was international in character, thereby bringing this case within the reach of the provisions of the Warsaw Convention as supplemented by the Montreal Agreement ("Warsaw/Montreal"). *fn1" If valid, this affirmative defense would limit the plaintiff's recovery in this action to $ 75,000 as against Eastern Air Lines. *fn2"

 The facts relevant to the instant motion reveal that Mr. Georgakis, a Greek seaman, halted his duties aboard the S.S. Paros in June of 1975 in Baton Rouge, Louisiana. *fn3" Acting through its agent, Orion & Global Chartering Company ("Orion"), Mr. Georgakis' employer then took steps to secure Mr. Georgakis' passage to his home in Greece where he intended to vacation.

 To this end, Mr. Georgakis was issued a plane ticket on June 23, 1975 that authorized him to travel on Delta Air Lines Flight 412 from Baton Rouge, La. to New Orleans, La., and on Eastern Flight 66 from New Orleans to John F. Kennedy Airport in the City of New York. For Mr. Georgakis' intended trip to Greece, Orion had contacted Olympic Airways at Kennedy Airport, requesting that a prepaid ticket be prepared for Mr. Georgakis. Such a ticket was prepared on June 24, 1975. This ticket, however, never was delivered to Mr. Georgakis. In fact, it eventually was cancelled.

 The Delta/Eastern ticket used by Mr. Georgakis for his travel from Baton Rouge to New York contained the following language:


If the Passenger's journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss of or damage to baggage.

 In 1975, however, Mr. Georgakis could not read English. *fn4"

 Seated next to Mr. Georgakis on the ill-fated Eastern flight 66 was Efstratios Stratis, another Greek seaman who disembarked from the S.S. Paros in Baton Rouge, La. in June of 1975. Orion had booked the identical travel itinerary for Mr. Stratis as it did for Mr. Georgakis. Unlike Mr. Georgakis, however, Mr. Stratis chose to challenge Eastern's Warsaw/Montreal affirmative defense to his action in this Court prior to the trial of his case.

 On August 3, 1979, this Court granted Mr. Stratis' motion for summary judgment on Eastern's Warsaw/Montreal affirmative defense. In so ruling, the Court stated that the relevant Warsaw/Montreal case law, as well as the tenor of the Convention provisions themselves, uniformly instruct that the critical inquiry on the issue of whether a passenger is in "international travel" *fn5" so as to invoke Warsaw/Montreal "must focus upon the terms of the contract of carriage, which, in the case of a passenger, is evidenced by the passenger's ticket or tickets." Transcript of August 3, 1979 proceedings in Stratis v. Eastern Air Lines, Inc., et al, 75 Civ. 1151 (HB) (hereinafter referred to as "Stratis") at 15 (citing Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir. 1967), cert. denied, 392 U.S. 905, 88 S. Ct. 2053, 20 L. Ed. 2d 1363 (1968); Kelley v. Societe Anonyme Belge D'Exploitation, 242 F. Supp. 129 (E.D.N.Y.1965); Grey v. American Air Lines, Inc., 95 F. Supp. 756 (S.D.N.Y.1950), aff'd 227 F.2d 282 (2d Cir. 1955), cert. denied, 350 U.S. 989, 76 S. Ct. 476, 100 L. Ed. 855 (1956); Egan v. Kollsman Instrument Corp., 21 N.Y.2d 160, 234 N.E.2d 199, 287 N.Y.S.2d 14 (1967), cert. denied, 390 U.S. 1039, 88 S. Ct. 1636, 20 L. Ed. 2d 301 (1968); Varkonyi v. S.A. Empresa DeViacao Airea Rio Grandense, 71 Misc.2d 607, 336 N.Y.S.2d 193 (Sup.Ct.N.Y.Cty.1972); Burdell v. Canadian Pacific Airways Ltd., 17 Av.Cas. P 17,356 (Ill.Cir.Ct.1969)). See also In re Air Crash in Bali, Indonesia, 462 F. Supp. 1114 (C.D.Cal.1978). Since the only ticket held by Mr. Stratis at the time of the crash authorized purely domestic transportation between Baton Rouge, New Orleans and New York, *fn6" this Court concluded as a matter of law that he was not, in fact, proceeding in "international travel" when Eastern Flight 66 crashed. *fn7" Stratis at 16. Accordingly, the Court held that Eastern could not "slip into the protective garb" of Warsaw/Montreal in Mr. Stratis' action for personal injuries. Id. at 23.

 In reaching this conclusion, the Court found Mr. Stratis' ultimate intention to return to Greece, as manifested by United States Immigration Laws and by the document prepared by Olympic Airways representatives, not to be determinative. Id. at 9. This finding dispelled Eastern's argument that Mr. Stratis' flight on Eastern should be treated as one prong of an "undivided" international journey commencing in Baton Rouge and ending in Greece. *fn8" Id. at 19-20. Moreover, this Court refused to characterize the Olympic Airways document as a "ticket in fact," *fn9" id. at 17, adding that it more closely resembled a reservation which did not transpose Mr. Stratis' New Orleans-New York domestic travel into international travel. Id. at 22.

 The August 3, 1979 Stratis decision alternatively concluded that Warsaw/Montreal could not be applied to Mr. Stratis' action in this Court due to the uncontroverted fact that Mr. Stratis never was delivered a plane ticket for international travel, and, as a result, never was notified in the context of an international ticket of the Warsaw/Montreal limitation of liability provisions "so as to (be afforded) a reasonable opportunity to take measures to protect himself" against these provisions. Stratis at 25-26. *fn10" Under Article 3, Section 2 of the Warsaw Convention, such delivery is a prerequisite to a proper invocation of Warsaw/Montreal by a carrier. Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir.), cert. denied, 382 U.S. 816, 86 S. Ct. 38, 15 L. Ed. 2d 64 (1965). *fn11" See Molitch v. Irish International Airlines, 436 F.2d 42 (2d Cir. 1970).

 In view of the fact that the travel arrangements at issue are identical for Mr. Stratis and Mr. Georgakis, it is readily apparent that the impact of the Stratis decision on the instant motion should be substantial. In this regard, the plaintiff has asked this Court to rule that the August 3, 1979 Stratis decision collaterally estops Eastern from litigating the issue of whether Warsaw/Montreal applies to this case.

 The doctrine of collateral estoppel, or issue preclusion, recognizes "the need for finality of judicial decision and allow(s) litigants to put an end to further litigious activity as to matters already decided." Comment, Preclusive Effect of State Adjudications In Section 1983 Actions, 45 Brooklyn L.Rev. 1169, 1180 (1979). Generally, for collateral estoppel to attach under New York law


(t)here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.

 Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 246 N.E.2d 725, 729, 298 N.Y.S.2d 955, 960 (1969). See generally Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979); Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978).

 Under the above test, the Court initially must ascertain whether the issues raised by Mr. Stratis' attack on Eastern's Warsaw/Montreal affirmative defense are identical to those involved in the instant motion. The mutuality of the travel itinerary of Mr. Stratis and Mr. Georgakis leads this Court to conclude that this prong of the Schwartz test has been met. *fn12" Eastern argues that the contrast between Mr. Stratis' deposition testimony that he intended to remain in New York for awhile before returning to Greece and Mr. Georgakis' trial and deposition testimony that he intended to return to Greece within a day of arriving in New York negates such a conclusion. This argument, however, easily is countered by this Court's holding in Stratis that the intent of Mr. Stratis to return to Greece was irrelevant to the Warsaw/Montreal issue in view of his possession of a ticket for domestic air travel at the time of the crash of Eastern Flight 66.

 This Court also believes that Eastern had a "full and fair opportunity" to litigate the Warsaw/Montreal issue in Stratis. In lengthy briefs, reply briefs and oral argument, Eastern fully, fairly and vigorously contested the issue of whether Warsaw/Montreal applies to Mr. Stratis' case.

 Finally, Eastern opposes the plaintiff's collateral estoppel claim on procedural grounds. Specifically, Eastern maintains that the interlocutory nature of the Stratis decision precludes resort to the doctrine of collateral estoppel. Zdanok v. Glidden Company, Durkett Famous Foods Division, 327 F.2d 944 (2d Cir.), cert. denied, 377 U.S. 934, 84 S. Ct. 1338, 12 L. Ed. 2d 298 (1964), however, lays this claim to rest. In Zdanok, the Second Circuit explicitly stated that


collateral estoppel does not require a judgment "which ends the litigation ... and leaves nothing for the court to do but execute the judgment," Catlin v. United States, 324 U.S. 229 (65 S. Ct. 631, 89 L. Ed. 911) (1945), but includes many dispositions which, though not final in that sense, have nevertheless been fully litigated. Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961), cert. denied, 368 U.S. 986 (82 S. Ct. 601, 7 L. Ed. 2d 524), and cases cited.

 327 F.2d at 955. Quoting from the Lummus case, Judge Friendly, writing for the court in Zdanok, also related that


"Finality" in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.

 327 F.2d at 955 (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d at 89). See also Usery v. International Organization of Masters, 422 F. Supp. 1221 (S.D.N.Y.1976).

 Under the authority of Zdanok and its progeny, this Court concludes that the interlocutory setting of the disposition of the Warsaw/Montreal issue in Stratis does not prevent that disposition from collaterally estopping Eastern from litigating the identical issue on identical facts in the instant case. In other words, this Court is of the opinion "that the litigation of (the applicability of Warsaw/Montreal to the situation presented by the facts in Stratis and the instant case) has reached such a stage that (this) Court sees no really good reason for permitting it to be litigated again." 297 F.2d at 89. *fn13"

 In sum, therefore, on the basis of the legal pronouncements in Stratis, this Court holds that Warsaw/Montreal does not apply to Mr. Georgakis' action in this Court. This holding derives primarily from the fact that Mr. Georgakis possessed a ticket for purely domestic travel at the time of the crash of Eastern Flight 66. Moreover, this Court finds the alternative holding in Stratis that Warsaw/Montreal could not be applied to Mr. Stratis' case because he was not adequately notified of Warsaw/Montreal's limitation of liability provisions to be of extreme significance in Mr. Georgakis' case. *fn14" This is particularly so in light of the fact that Mr. Georgakis lacked the ability to read the notice pertaining to Warsaw/Montreal on his domestic ticket. *fn15"

 Accordingly, it is hereby

 ORDERED that the plaintiff's motion for summary judgment on defendant Eastern Air Lines, Inc.'s first affirmative defense is GRANTED.

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