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IN RE AIR CRASH DISASTER NEAR WARSAW

September 26, 1997

IN RE AIR CRASH DISASTER NEAR WARSAW, POLAND ON MAY 9, 1987; ISAAC KIRSCH, as Administrator of the Estate of Aniela Kirsch, deceased, Plaintiff, against LOT POLISH AIRLINES, a/k/a POLSKIE LINIE LOTNICZE, Defendant. ELIZABETH BAUER CWIK, Individually, and as Administratix of the Estate of her son, Vincent Joseph Cwik, Jr. deceased, and on behalf of her decedent's surviving wife, Marta K. Cwik and decedent's infant daughter, Natalia Joy Cwik, Plaintiff, ROSE NESGODA, Individually as Surviving Wife and as Trustee of the Estate of her husband, Robert Nesgoda, deceased, and on behalf of her decedent's surviving daughter, Rachel Nesgoda, Plaintiff, MARK BYRA, Individually and as administrator of the Estate of his father, Stanislaw Byra, Deceased, and on behalf of his decedent's wife, Maria Byra and decedent's surviving sons, Bogdan Byra and Mark Byra., Plaintiff, -against- LOT POLISH AIRLINES, a/k/a POLSKIE LINIE LOTNICZE, Defendant.

Eugene H. Nickerson, U.S.D.J.


The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge:

 Plaintiffs in these two actions are personal representatives of the estates of passengers killed in the May 9, 1987 crash of a LOT Polish Airlines (LOT) aircraft shortly after takeoff from Warsaaw, Poland. All cases relating to the crash have been consolidated as multidistrict litigation before this court.

 This case has a long history, and familiarity with the court's previous opinions is assumed. Plaintiffs Isaac Kirsch and Elizabeth Bauer Cwik now move for partial summary judgment requiring LOT to pay them $ 75,000.

 I.

 The following facts are undisputed. On May 9, 1987 LOT operated an Ilyushin-62M jet airplane on a flight from Warsaw, Poland, destined for John F. Kennedy International Airport in New York. The moving plaintiffs' decedents were fare paying passengers on the flight and held round-trip tickets from New York to Warsaw.

 Approximately twenty-three minutes after takeoff one of the jet's four engines exploded. The pilots discontinued the original flight plan and attempted to fly the plane back to Warsaw. Five kilometers from the Warsaw-Okecie airport, the plane crashed in the area of the Las Kabacki forest, killing all aboard. The crash occurred thirty-one minutes after the engine exploded.

 II.

 This litigation is governed in part by the Warsaw Convention, a multilateral treaty regulating international airline transportation (the Convention). See Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11 (hereinafter Warsaw Convention).

 The Convention imposes upon air carriers a presumption of liability for "damages sustained in the event of the death or wounding of a passenger . . . if the accident which caused the damage so sustained took place on board the aircraft . . . ." Warsaw Convention, art. 17. Under Article 20(1), a carrier may rebut this presumption if it proves that "all necessary measures" were taken "to avoid the damage or that it was impossible" for such measures to be taken.

 But the amount of a carrier's liability is limited. Under the Convention's original terms, an air carrier's liability could not exceed 125,000 francs, or approximately $ 8,300. See Warsaw Convention, art. 22(1). In 1955, pursuant to what is known as the Hague Protocol, the liability cap was increased to 250,000 francs or approximately $ 16,600.

 Under Article 25 of the Convention, a carrier may not avail itself of the limitation on liability if the "damage is caused by his wilful misconduct." Warsaw Convention, art. 25.

 The United States government, unhappy with the liability limit, never ratified the Hague Protocol and in 1965 threatened to denounce the entire Convention. See generally Andreas F. Lowenfeld and Allan I. Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497 (1967) (hereinafter Lowenfeld and Mendelsohn). To avert United States' denunciation, an interim arrangement known as the Montreal Agreement (the Agreement) was reached in 1966. See Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, Agreement CAB 18900, reprinted in 31 Fed. Reg. 7302. Under its terms, air carriers agreed, among other things, to waive the defenses available in Article 20(1) of the Convention, thereby submitting in effect to strict liability, and to increase the liability cap to $ 75,000.

 The Agreement is considered a "special contract" under Article 22(1) of the Convention, which allows a carrier and passenger to agree to a higher liability limit. The Agreement applies to flights traveling from, to, or stopping in the ...


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