Ross v. Pan American Airways , 299 N.Y. 88 ( 1949 )

Plaintiff-appellant, a passenger on one of defendant's transatlantic airplanes, was injured when the plane crash-landed in the Tagus River, near Lisbon, within the Republic of Portugal. Of her complaint against defendant, the first cause of action only is before us on this appeal, since that cause of action was dismissed at Special Term and the Appellate Division affirmed that dismissal and granted plaintiff leave to appeal to this court. What we have to determine is the meaning and application, as to the facts exhibited in this record, of certain provisions of the so-called "Warsaw Convention", a treaty to which thirty nations, including the United States, are parties and which treaty (printed in full in 49 U.S. Stat., part 2, p. 3000 etseq.) regulates and limits the liability of air carriers engaged in international transportation, as "international transportation" is defined in the Convention. The New York courts have dealt with the Convention, although not as to the precise point principally here involved, in Wyman v. Pan AmericanAirways (181 Misc. 963, affd. 267 App. Div. 947, affd. 293 N.Y. 878, certiorari denied 324 U.S. 882) and Garcia v. PanAmerican Airways (183 Misc. 258, affd. 269 App. Div. 287, affd.295 N.Y. 852, certiorari denied 329 U.S. 741, and also 274 App. Div. 996). (The Garcia suit is by the executors of a passenger killed in this same February 22, 1943 disaster.) On the present appeal, unlike the Wyman and Garcia decisions (supra), the real dispute is as to whether the facts brought out in the motion papers conclusively rebut, as the courts below held that they did rebut, the contention of plaintiff that no passenger ticket was "delivered" to her by defendant, such delivery being required by the Convention (art. 3) as a condition for limitation of the carrier's liability.

Appellant's first cause of action alleges the plane crash and her resulting injuries, sets out the law of Portugal as to liability of air carriers for injuries to passengers, and demands damages of $1,000,000. The answer, besides denials, affirmatively alleges that the flight was "international transportation" subject to the rules of the Warsaw Convention, and that accordingly, defendant is (in the absence of willful misconduct — see Convention, ch. III, art. 25 — which is not alleged in the first cause of action) liable for no more than 125,000 francs, or $8,291.87 at the rate of exchange specified in the Convention (art. 22). Defendant, urging that $8,291.87 was this plaintiff's maximum possible recovery, moved on affidavits for summary judgment dismissing the first count. Plaintiff countered with affidavits, to which we will refer later. The Special Term Justice first denied the motion, ruling that rules 113 and 114 of the Rules of Civil Practice were not available to defendant since defendant claimed only that excessive damages were being demanded in the complaint. Defendant, however, moved for reargument of its motion, conceding that it was liable for plaintiff's damages up to $8,291.87, and informing the court that neither party was urging any technical grounds as to the propriety of the summary judgment procedure but that both desired a determination, on the merits of the question as to whether the limitations of the Convention operated against plaintiff's claim. Special Term thereupon held that the Convention required a holding that defendant's liability herein may not exceed $8,291.87. As to the main question argued — delivery of a ticket — Special Term found from the affidavits that the person (a Mr. Abraham, hereafter mentioned) who had physically taken delivery of the ticket issued by defendant in appellant's name had either express or implied authority to take delivery of that ticket on behalf of plaintiff. Special Term thereupon granted summary judgment of dismissal as to the first cause of action, giving appellant leave (which leave has not been availed of) to amend that cause of action by reducing the amount of her demand to $8,291.87. On the affirmance by the Appellate Division, no opinion was written, but one Justice dissented and voted to reverse and deny the motion "on the ground that there are triable issues of fact", presumably as to the delivery of plaintiff's ticket. As to procedure below, we hold that it was proper under the circumstances, and because of the position taken by counsel at Special Term, to deal with this question by way of summary judgment — that is, it was permissible for Special Term to decide whether or not there was a triable issue of fact, and, accordingly, to grant or deny summary judgment.

Now as to whether appellant's ticket was "delivered" within the meaning of paragraphs (1) and (2) of the third article of the Convention, which paragraphs read as follows:

"(1) For the transportation of passengers the carrier must deliver a passenger ticket which shall contain the following particulars:

"(a) The place and date of issue;

"(b) The place of departure and of destination;

"(c) The agreed stopping places * * *;

"(d) The name and address of the carrier or carriers;

"(e) A statement that the transportation is subject to the rules relating to liability established by this convention.

"(2) The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability."

Plaintiff-appellant is a theatrical performer. Her affidavit on this motion shows that sometime before February 19, 1943, she had made an arrangement with U.S.O. Camp Shows, Inc., the substance of which was that she volunteered "to entertain soldiers in the war areas" abroad. Her information was that U.S.O. Camp Shows, Inc., had some arrangement with the United States Government, whereby the former supplied entertainment and entertainers for our troops in those areas. Appellant, according to her affidavit, did not know, until after she had boarded the plane which later crashed, what her destination was or by what conveyance she was to travel. Her previous contacts in the matter were with Mr. Saul Abraham, an officer or employee of U.S.O. Camp Shows, Inc., who instructed her, on February 19, 1943, to get her baggage ready and, later, on the day the plane took off, went with her to La Guardia Airport where she boarded defendant's Yankee Clipper. She avers in that opposing affidavit that she did not pay for her passage on the plane, never received any passage ticket at any time, knew nothing of any limitations as to liability and never authorized Mr. Abraham or anyone else to accept a passage ticket for her, or to bind her to any limitation of the carrier's liability. However, in the same affidavit she states that "Mr. Abraham was in charge of all arrangements up to the point of embarkation", and she files, with her own affidavit, an affidavit by Abraham. Abraham's affidavit says this, in substance: he was employed by U.S.O. Camp Shows, Inc., and. "was in charge of arranging transportation for theatrical performers who were planning to go overseas to entertain men serving in the Armed Forces"; he received (from some person not named) a list of those who were to go overseas, and had each of those persons fill out a "`personnel security questionnaire'" which Abraham sent to a United States War Department official; he (Abraham) had the performers (including appellant) fingerprinted, and went with them to apply for and receive passports and visas; the arrangements for the purchase of tickets for performers' passage were made not by Abraham or U.S.O. Camp Shows, Inc., but by the United States Army which notified Abraham to pick up the tickets at defendant's office in Manhattan, which Abraham did, being instructed by someone (presumably an Army officer) not to disclose the date or time of departure but to assemble the performers and have them ready for immediate departure; when notice came to Abraham (presumably from the Army) that departure time was at hand, Abraham escorted all the performers, including appellant, to the Marine Terminal at La Guardia Airport, he still having in his possession the tickets, not yet shown to any of the performers; at the airport, Abraham "lined up all the performers" in front of desks and "placed in front of each his or her passport and ticket"; defendant's clerks tore off from each ticket the New York-to-Lisbon stub, and passed the rest of the tickets and the passports along the desks at which were seated custom inspectors, the performers likewise moving along in front of these desks as their tickets and passports were passed down the line; at the end of the line of desks the tickets and passports were handed back to Abraham, who held them until the plane's impending departure was signalled, when he put in the hands of each performer her passport and a slip of paper (not the ticket itself) admitting her to the plane; Abraham gave the tickets to another U.S.O. Camp Shows, Inc., employee or representative, who boarded the plane but was killed in the crash, the tickets being lost. However, attached to one of defendant's affidavits there is a copy of appellant's ticket, issued in her name and made out for travel from New York to the United Kingdom via Lisbon and back to New York, with intermediate stops, containing a notation, as required by the Warsaw Convention (see as quoted supra, p. 93), that "Transportation hereunder is subject to the rules relating to liability established by the Convention of Warsaw". This copy of a ticket is in exactly the same form as the one on which passenger Diaz traveled in Garcia v. Pan American Airways (supra) and the holding there was (see, also, motion in that case decided herewith, p. 798) as it must be here, that the flight of defendant's Yankee Clipper during which appellant was injured, was "international transportation" to which the Warsaw Convention was applicable, and that the ticket issued in appellant's name complied in form and content with article 3 of the Convention.

Appellant insists, however, that no ticket was ever delivered to her or anyone authorized by her, or, at least, that those were triable questions of fact. The Convention itself does not say, nor does appellant argue, that the language of article 3 makes physical delivery of the ticket into the passenger's own hand a requisite for the limitation of liability. But, says appellant, there must be delivery to someone authorized by the passenger to take, for the passenger, delivery of a ticket expressing the limitation — and Abraham, says appellant, was never commissioned by her to receive a ticket for her and never licensed to accept, for her but without her knowledge, a ticket which by its terms, and because of its points of departure and return, put into operation against her although unknown to her, the drastic restrictions of the Warsaw Convention. There is, of course, no affirmative showing here of any specific instruction from appellant to Abraham accrediting him to act for her in respect to this particular kind of ticket or any ticket. Perhaps such authorization could be spelled out of the statements in her (and Abraham's) affidavit that he "was in charge of all arrangements up to the point of embarkation" or out of the undisputed fact that appellant knew that Abraham had procured a passport for her, ordered her luggage sent to an airline office, and had escorted her to a marine airport, which certainly was notice to her that, pursuant to negotiations by him, she was about to take passage in an overseas plane for some destination outside the United States. Whether or not all this added up, as matter of law, to a sufficient showing of authority in Abraham, it can hardly be disputed that, when a ticket bearing appellant's name and all particulars as to the intended route as well as a reference to the Warsaw Convention limitation, was laid in front of appellant on the table in the airport, she, by thereafter boarding the plane as a traveler on that ticket, impliedly, if not expressly, ratified and adopted what had been done by the Army, and later by Abraham, in taking out that ticket in her name.

Thus the special, and undisputed, facts in these affidavits make impossible, as matter of law, any finding other than that the ticket was "delivered", and so it was right to hold that the top limit of recovery was $8,291.87.

And the same result is reached by examining into the general purport and purpose of the Convention and its article 3. We have held elsewhere that this identical New York-to-Lisbon-and-return journey was "international transportation" the law of which was the Warsaw Convention (Garcia v. Pan American Airways,supra), and that the international code of law expressed in the Convention overrides and supplants any contrary local law as to the legality of limiting a carrier's liability (Wyman v. PanAmerican Airways, supra). Plaintiff, of course, was presumed to know the law and was bound thereby. Furthermore, while the Convention speaks of transportation under a "contract" and requires delivery of a ticket warning of the limitation, it is plain that the limitation is one created by the Convention itself, and is not the product of consensual arrangements between the parties. Paragraph (2) of article 1, in its reference to "the contract made by the parties" means, obviously and on its face, not that the Convention applies only when the parties contract for its application, but that it applies (unless by special arrangement otherwise) whenever, "according to the contract made by the parties", the place of departure and the place of ultimate destination are within the territories of two of the "High Contracting Parties" or both within the territory of a "single High Contracting Party" with certain agreed stopping places elsewhere. Put another way, that means that the Convention becomes the law of the carriage when the "contract" of the parties provides for passage between certain described termini. When such is the contract, then the Convention has automatic full impact, by its own terms and not because the parties have so agreed. The requirement of article 3 of the Convention, quoted in the third paragraph of this opinion, that there must be delivery of a ticket is thus a condition set up by the Convention itself, as a determinant of the applicability, or no, of the Convention's limited liability rules; but that is by no means the same thing as saying that the limitation is a contractual one, depending for its existence and validity on express assent thereto by the passenger. Since the Convention itself, as a statute, grants and mandates the limitation unless "the carrier accepts a passenger without a passenger ticket having been delivered", there is no need for a carrier who claims the limitation to show more than the delivery of an appropriate ticket, and travel of the passenger thereunder. Parenthetically, we note that under New York cases and cases elsewhere, even where the limitation is purely contractual, acceptance of a transoceanic ticket stating the limitation "`gives rise to an implication of assent'", whether the ticket be read by the passenger or not (Reichman v. Compagnie GeneraleTransatlantique, 290 N.Y. 344, and cases cited at p. 351). We close this part of the opinion by this comment: this treaty, like any other statute, must be construed reasonably and so as to accomplish its obvious purposes (see Matter of Zalewski,292 N.Y. 332, 336). In his letter to the President sending the Convention to him preparatory to transmission to the Senate, former Secretary of State Hull pointed out that article 17 of chapter III benefited passengers by creating a presumption of liability on the mere happening of an accident and further described the beneficial purposes of the treaty as follows:

"It is believed that the principle of limitation of liability will not only be beneficial to passengers and shippers as affording a more definite basis of recovery and as tending to lessen litigation, but that it will prove to be an aid in the development of international air transportation, as such limitation will afford the carrier a more definite and equitable basis on which to obtain insurance rates, with the probable result that there would eventually be a reduction of operating expenses for the carrier and advantages to travelers and shippers in the way of reduced transportation charges." (Senate Doc., executive G, 73d Cong., 2d Sess., p. 3.)

Those aims would be poorly served by any holding that the limitation of liability is available only when a carrier can produce affirmative proof not only that the passenger ticket complied with the Convention, but that the individual who bought that ticket at the carrier's ticket counter, was the passenger himself or someone specifically authorized by the passenger to consent, on the latter's behalf, to limited liability.

Coming back to the undisputed facts of the case we have before us, let us remember that, as to defendant, this was a routine sale, in ordinary course of its common carrier business, of a ticket which nominated appellant as the intending passenger. If there was here any failure adequately to inform appellant of her subjection to the Warsaw Convention, that failure was not defendant's — and yet, if we were to hold that there was, somehow, lack of appropriate "delivery" here, defendant would be the loser. Putting it another way: it was no concern of the carrier as to what the arrangements were between the passenger and the person who took delivery of the ticket.

Turning to another question: one of the other points in appellant's brief argues that "The transportation of the plaintiff was performed by the United States Government and, therefore, the Warsaw Convention does not apply." The adherence by the United States to the Convention was expressly made subject to a reservation which any high contracting party had the right to declare at the time of ratification. That reservation, as expressed in the additional protocol (see 49 U.S. Stat., part 2, p. 3025) was "that the first paragraph of article 2 of this convention shall not apply to international transportation by air performed directly by the state". In proclaiming the treaty, the President described (see 49 U.S. Stat., part 2, p. 3013) the reservation a little differently, as follows: "that the first paragraph of Article 2 of the convention shall not apply to international transportation that may be performed by the United States". (The President omitted the word "directly".) Taking either wording of the reservation, it is plain that appellant's transportation was not "performed by the United States". The United States Army, apparently, bought appellant's ticket but her transportation was, as she herself alleged in paragraph Fourth of her complaint here, on an aircraft "owned, operated and controlled by the defendant."

We should point out that there is no question here of the effect, on appellant's ultimate rights, of so much of article 25 of the Convention as says that the carrier shall not be entitled to limitation of his liability to the passenger "if the damage is caused by his wilful misconduct". Willful misconduct is not alleged in the first cause of action (which has been dismissed) of this complaint, although it is charged in the third count, which stands undismissed.

The order should be affirmed, with costs, the first certified question answered in the affirmative, the second and fourth certified questions answered in the negative, and the third certified question not answered.