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O'ROURKE v. EASTERN AIR LINES

December 14, 1982

TIERNEY A. O'ROURKE, Public Administrator of Queens County, New York, as Administrator of the Estate of ALEXANDROS HADZIS, Deceased Plaintiff,
v.
EASTERN AIR LINES, INC., and UNITED STATES OF AMERICA Defendants



The opinion of the court was delivered by: BRAMWELL

DECISION AND ORDER

 BRAMWELL, D.J.:

 INTRODUCTION

 On June 24, 1975, Eastern Airlines's ill-fated flight 66 crashed on its final approach to New York's John F. Kennedy International Airport. An action was thereafter commenced in June 1976 in this Court by the Public Administrator of Queens County against Eastern Airlines and the United States of America to recover damages for the wrongful death of Alexandros Hadzis, a passenger on the plane.

 On January 29, 1982, this Court granted Eastern's motion for partial summary judgment, holding that Eastern could invoke the damage limitations of the Warsaw Convention and Montreal Agreement. O'Rourke v. Eastern Airlines, 16 Avi. L. Rep. 18,367 (E.D.N.Y. Jan. 29, 1982). Subsequently, on March 1, 1982, Eastern deposited $75,000 with the Clerk of this Court. Plaintiff now seeks an order directing defendant Eastern Airlines, Inc. to pay the plaintiff prejudgment interest of $31,604.79 in addition to the $75,000. Thus, the issue to be decided is whether the Warsaw/Montreal $75,000 limit on liability is an absolute ceiling on an airline's liability or whether interest can be added to that amount. *fn1" This is a question which has apparently not yet formed the basis of a published opinion in this circuit.

 WARSAW CONVENTION/MONTREAL AGREEMENT

 The Warsaw Convention, *fn2" as modified by the Montreal Agreement, *fn3" is an international treaty signed by, among others, the United States. As such, it, like the United States Constitution, represents the supreme law of the land. See, e.g., Reed v. Wiser, 555 F.2d 1079, 1093 & n.19 (2d Cir.), cert. denied, 434 U.S. 922, 98 S. Ct. 399, 54 L. Ed. 2d 279 (1977); Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801 (2d Cir. 1971). Accordingly, the determination of whether or not prejudgment interest is recoverable over and above the $75,000 damage limitation must be determined solely with respect to the Warsaw Convention/Montreal Agreement. All local law to the contrary, including any arguably applicable provision of the New York Estates Powers & Trusts Law must therefore be preempted. *fn4" See Causey v. Pan American World Airways, Inc., 684 F.2d 1301 (9th Cir. 1982).

 The Montreal Agreement specifies that the limit of an airline's liability for each international passenger for bodily injury or death, shall be the sum of $75,000. ". . . inclusive of legal fees and costs." 31 Fed. Reg. 7302 (1966). *fn5" The Agreement, however, does not specifically address itself to the question of prejudgment interest. Accordingly a more in depth look at the treaty is warranted.

 In analyzing a treaty a court is bound to look, in the first instance, to the face of the treaty itself and to "give the specific words of a treaty a meaning consistent with the genuine shared expectations of the contracting parties." Maximov v. United States, 299 F.2d 565, 568 (2d Cir. 1962), aff'd, 373 U.S. 49, 10 L. Ed. 2d 184, 83 S. Ct. 1054 (1963). See also Board of County Com'rs v. Aerolineas Peruanasa, 307 F.2d 802, 806-07 (5th Cir. 1962).

 The Montreal Agreement provides in pertinent part that

 
"The limit of liability for each passenger for death, wounding or other bodily injury should be the sum of U.S. $75,000 inclusive of legal fees and costs."

 31 Fed. Reg. 7302 (1966) (Emphasis the court's)

 Plaintiff argues that because the emphasized language does not specifically provide for prejudgment interest the limitation necessarily excludes such sums. The court, however, cannot agree. The courts which have addressed this argument as well as analogous arguments leveled at the wording of other portions of the Warsaw/Montreal Treaty have uniformly rejected them.

 For example, in Domangue v. Eastern Airlines, 542 F. Supp. 643 (E.D. La. 1982) the court held that the treaty's silence on the issue of prejudgment interest could not be construed as an intention that such interest not be included in the $75,000 limitation. In Block v. Compagnie Nationale Air France, 386 F.2d 323 (5th Cir. 1967), cert. denied, 392 U.S. 905, 20 L. Ed. 2d 1363, 88 S. Ct. 2053 (1968) the Fifth Circuit held that the absence of an express provision governing charter flights could not be interpreted as excepting their coverage under Warsaw/Montreal. Finally, in Reed v. Wiser supra, the Second Circuit rejected the contention that an air carrier's employees be subjected to liability in excess of $75,000 because the treaty did not specifically address employees. 555 F.2d at 1089. Thus it is clear that the wording of the treaty, standing alone, furnishes no basis for the award of prejudgment interest. A look at the history of the Warsaw Convention makes it clear that one of the intentions of the parties drafting the treaty was to establish a limitation on liability designed to ...


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