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WALKER v. EASTERN AIR LINES

March 9, 1992

THELMA WALKER, Individually and as Administratrix of the Estate of Father PATRICK DeSOUZA WALKER, Deceased, Plaintiff, against EASTERN AIR LINES, INC., Defendant.

Leisure


The opinion of the court was delivered by: PETER K. LEISURE

ORDER AND OPINION

LEISURE, District Judge:

 This is a negligence action under New York law brought by plaintiff Thelma Walker ("plaintiff"), individually and as administratrix of the estate of her deceased husband, Father Patrick DeSouza Walker, against defendant Eastern Air Lines, Inc. ("Eastern"). Eastern previously moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the ground that the Warsaw Convention *fn1" precludes plaintiff's state-law negligence action. In an Order and Opinion dated September 26, 1991, this Court denied Eastern's motion for summary judgment. Walker v. Eastern Air Lines, Inc., 775 F. Supp. 111 (S.D.N.Y. 1991). Eastern has now moved for reargument pursuant to Civil Rule 3(j) of the Local Rules of this District or, in the alternative, for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the reasons stated below, Eastern's motion is denied.

 Background

 On July 14, 1988, plaintiff's husband was a ticketed passenger on Eastern's Flight No. 208 from Miami to New York. The ticket on which he was travelling provided for round trip transportation between Jamaica and New York, with an agreed stopping place in Miami. Plaintiff's husband died during the flight. Plaintiff filed a state-law negligence action against Eastern in a New York state court, alleging, inter alia, that Eastern had a duty not to board passengers potentially not physically able to fly and a duty to render aid, assistance, and care to ill and infirm passengers on their flights, but that Eastern failed to discharge these duties properly as to her husband. Plaintiff's complaint alleges a total of $ 11 million in damages. Eastern removed the action to this Court on the basis of diversity of citizenship, pursuant to 28 U.S.C. § 1441.

 Plaintiff claims that her husband had a congenital asthmatic condition and that, after flying from Jamaica and having a stop-over at Miami International Airport but before embarking on the Eastern flight to New York, he experienced an asthmatic attack. Plaintiff contends that Eastern was negligent in allowing her husband to board the plane and in not providing him with adequate care after boarding, and that Eastern's actions aggravated her husband's preexisting condition and contributed to his death.

 Eastern denied the allegations of negligence, and subsequently moved for summary judgment pursuant to Fed. R. Civ. P. 56(c). Eastern contended that, because plaintiff's husband was travelling on a ticket that provided for round trip transportation between Jamaica and the United States, the Warsaw Convention should apply to this case. Eastern's argued that all claims against an air carrier by a passenger arising out of an international flight are governed by the Warsaw Convention; that the Convention preempts any such state law claims; that the Convention does not provide for liability of an air carrier for death or injury to a passenger not caused by an accident; and, because plaintiff's husband died of "natural" causes and not from an accident, plaintiff's action should be dismissed. In response to Eastern's summary judgment motion, plaintiff disputed the effect of the Warsaw Convention on her negligence action. Plaintiff argued that because her husband's death was not caused by an accident as contemplated by the Warsaw Convention, the Convention does not preclude her from maintaining her state-law negligence action.

 Discussion

 I. Motion for Reargument

 Motions for reargument will be granted only if the Court overlooked "matters or controlling decisions" which, if considered by the Court, would have mandated a different result. See Litton Industries Inc. v. Lehman Brothers Kuhn Loeb, Inc., 1989 U.S. Dist. LEXIS 9145, at *9-10 (S.D.N.Y. Aug. 4, 1989); Moll V. U.S. Life Title Insurance Co., 700 F. Supp. 1284, 1286 (S.D.N.Y. 1988); Bozsi Limited Partnership v. Lynott, 676 F. Supp. 505, 509 (S.D.N.Y. 1987). "The standard for granting a motion for reargument is strict in order to dissuade repetitive arguments on issues that have already been considered fully by the Court." Ruiz v. Commissioner of Dept. of Transportation, 687 F. Supp. 888, 890 (S.D.N.Y. 1988). In its motion for reargument, Eastern asserts that the text of the Warsaw Convention, the drafting history of the Convention, and the case law interpreting the Convention all support its position. The points that Eastern now raises, however, are either repetitious of its previous arguments or new arguments that are flawed, and Eastern has failed to set forth matters or controlling decisions that the Court has overlooked that would have mandated a different result with respect to its motion for summary judgment.

 A. Text of the Warsaw Convention

 "When interpreting a treaty, [the Court must] begin with the text of the treaty and the context in which the written words are used." Eastern Airlines, Inc. v. Floyd, 113 L. Ed. 2d 569, 111 S. Ct. 1489, 1493 (1991) (quotations omitted). The American translation of Article I of the Warsaw Convention provides in part that "this convention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire." Article 17 provides that:

 The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other 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 places limits on air carriers' liability in the transportation of passengers and cargo, and Article 25 provides that a carrier cannot avail itself of these limitations on liability if damage is caused by "willful misconduct." Article 24 provides in part that "in the cases covered by article 17," "any action for damages, however ...


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