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EICHLER v. LUFTHANSA GERMAN AIRLINES

July 7, 1992

LUCIA EICHLER, Plaintiff, against LUFTHANSA GERMAN AIRLINES, Defendant.

HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 Plaintiff Lucia Eichler, a passenger on an international flight operated by defendant Lufthansa German Airlines ("Lufthansa"), commenced this personal injury action in New York Supreme Court, New York County. Lufthansa removed the case to this Court pursuant to 28 U.S.C. § 1441. The basis for removal was this Court's original jurisdiction under the Foreign Sovereign Immunities Act of 1976. Lufthansa asserts without contradiction that it is a German corporation, a majority whose shares is owned by the Federal Government of Germany. Accordingly Lufthansa is an agency or instrumentality of a foreign state as defined by the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603(a), and original jurisdiction exists in this court under § 1330.

 Plaintiff now moves for summary judgment on her claim for $ 75,000 in damages or in the alternative for summary judgment on the issue of liability. Lufthansa opposes that motion and cross-moves to strike plaintiff's jury demand.

 I.

 Plaintiff alleges that on November 3, 1991 she was booked on Lufthansa flight 404 departing Frankfurt, Germany at about 5:30 p.m. bound for Kennedy Airport, New York. In her affidavit accompanying her motion for summary judgment, plaintiff gives this account of her accident:

 On November 3, 1991 I was a ticket [sic] passenger on Lufthansa Flight 404 departing Frankfurt for Kennedy Airport. At approximately 5:15 P.M. I had already been checked in, had proceeded through the gate, and had arrived on the tarmac to within a few feet of the airplane. Various items of luggage had been left on the tarmac within a few feet of the airplane. I tripped and fell on one of these pieces of luggage severely injuring myself, particularly in the area of the right wrist.

 The parties agree that the case is governed by the Warsaw Convention *fn1" and by the Montreal Agreement. *fn2" Article 17 of the Convention provides:

 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.

 Plaintiff contends that Article 17 of the Convention imposes absolute liability upon Lufthansa for her injury sustained by reason of an "accident," subject to the Montreal Agreement's $ 75,000 limitation on damages, which plaintiff does not seek to exceed. Plaintiff seeks summary judgment in that amount, or in the alternative, summary judgment on the issue of liability and trial on the quantum of damages.

 Resisting that motion, Lufthansa points to Article 21 of the Convention, which provides:

 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.

 Lufthansa contends that the New York Law of comparative negligence constitutes the forum law made applicable by Article 21, and that a triable tissue of fact precluding summary judgment ...


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