damages to local law, by which the plaintiffs mean state law. Without delving too deeply into the Convention at this point, we see no reason to believe that the drafters meant to denote the laws of subdivisions within nations.
(first emphasis added, second in original).
Accordingly I understand the present law in the Second Circuit to be that in a case falling under the Warsaw Convention, federal common law governs the effect of contributory negligence.
It makes no difference to the result, since the federal common law of tort applies the principle of comparative negligence. The federal common law of tort is frequently drawn from the general maritime law, as witnessed by the Second Circuit's reference to Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970) for the proposition that "federal common law of tort recognizes the right to a wrongful death recovery." 928 F.2d at 1279. It is well settled that the contributory negligence of passengers on vessels serves to reduce, not bar their recovery. See, e.g., Andrews v. United States, 801 F.2d 644, 650 (3rd. Cir. 1986); Palmer v. Ribax, Inc., 407 F. Supp. 974, 979 (M.D. Fla. 1976). See also United States v. Reliable Transfer Co. 421 U.S. 397, 407, 44 L. Ed. 2d 251, 95 S. Ct. 1708 (1975), in which the Court did away with the rule requiring an equal division of damages in every case of collision at sea based on mutual fault ("Every other major maritime nation has evidently been able to apply a rule of comparative negligence without serious problems,. . .and in our own admiralty law a rule of comparative negligence has long been applied with no untoward difficulties in personal injury actions.")
Plaintiff's possible contributory negligence poses a significant issue in the case. To the extent that she was herself at fault, her recovery will be reduced. Plaintiff moves for summary judgment. On such a motion, "a court's responsibility is to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (citing Knight v. U.S. Fire Insurance, 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987)). It is clear that plaintiff's own account of the accident permits (and accordingly requires for summary judgment analysis) the drawing of a reasonable inference of contributory negligence. She says that she had arrived on the tarmac within a few feet of the airplane. "Various items of luggage had been left on the tarmac within a few feet of the airplane." She tripped and fell over one of these pieces of luggage. We do not know what the condition of the lighting was in the area, or whether plaintiff could have avoided tripping over the piece of luggage. If plaintiff tripped over a visible piece of luggage which without difficulty she could have avoided, she was contributorily negligent.
This is not an appropriate case for summary judgment on the issue of liability.
Lufthansa's motion to strike plaintiff's jury demand is granted. This Court's subject matter jurisdiction over Lufthansa derives solely from the Foreign Sovereign Immunities Act. The statute provides only for a non-jury civil action. See e.g., Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872, 875-76 (2d Cir. 1981). While as noted the case also falls under the Warsaw Convention, nothing in that treaty confers a right to a jury trial. Furthermore, the removals statute explicitly provides that upon removal of an action by a foreign state as defined in § 1603(a), the action shall be tried in federal court "without jury." 28 U.S.C. § 1441(d). See Ruggiero at 876. n.9.
For the foregoing reasons, plaintiffs motion for summary judgment is denied. Defendant's motion to strike plaintiff's jury demand is granted.
The parties are directed to attend a status conference in Room 307 on September 25, 1992, at 2:30 p.m.
It is SO ORDERED.
Dated: New York, New York
July 7, 1992
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE