approving provision even though the typeface could be improved by use of bold headings
How later courts described this case
- approving provision even though the typeface could be improved by use of bold headings
- footnotes in tickets and baggage claims printed in such a manner as to be unreadable held not sufficient to put the ticket holders on notice of the provisions therein
Written by the judges who cited it.
The opinion
*515 MOORE, Circuit Judge
(dissenting):
The majority in their opinion indulge in judicial treaty-making. The language of the treaty (referred to as the Warsaw Convention) is clear. Its provisions are not difficult to comprehend. Its mandates are simply stated. Ascertainment of compliance should, therefore, present no real problem.
Passenger tickets were delivered to plaintiffs and their decedents on various dates between January 20,1960 and February 20, 1960. The flight on which they travelled pursuant to their tickets did not depart until February 25, 1960. The ticket contained the particulars specified in Article 3(1) of the Convention, albeit the reference to the provisions of the Convention with respect to death or injury was in exceedingly small type.
The majority do not approve of the terms of the treaty and, therefore, by judicial fiat they rewrite it. They think a “one-sided advantage” is being taken of the passenger which must be offset by a judicial requirement that the passenger have notice of the limitation of liability. To support their argument they refer, quite illogically in my opinion, to cases in which the courts have held that there was no real delivery of a ticket to the passenger as contemplated by the treaty. Cases based upon facts tantamount to no effective pre-flight ticket delivery, 1 are scarcely relevant to this case where the passengers had their tickets from 3 to 36 days before departure. Were actual notice to be the requirement, every airline would have to have its agents explain to every passenger the legal effect of the treaty and, in all probability, insist that each passenger be represented by counsel who would certify that he had explained the import of the Convention to his client who, in turn, both understood and agreed to the limitation.
The original limitations in the Convention may well be outmoded by now. Substantial revisions upward have been made but they have been made, as they should be, by treaty and not by the courts. Judicial predilection for their own views as to limitation of liability should not prevail over the limitations fixed by the legislative and executive branches of Government even though this result is obtained by ostensibly adding to the treaty a requirement of actual understanding notice. Furthermore, for the courts to say that a jury could not reasonably have found that the ticket gave the passenger the required notice is, upon a motion for partial summary judgment, to usurp the time-honored function of the jury.
For these reasons, I would reverse.
. Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2 Cir. 1965) (Military officer already on board an aircraft about to take off when ticket delivered); Warren v. Flying Tiger Line, Inc., 352 F.2d 494 (9 Cir. 1965) (Soldiers handed boarding tickets at foot of ramp leading to plane about to take off); Eck v. United Arab Airlines, Inc., 360 F.2d 804 (2 Cir. 1966) (Warsaw Convention involved only on question of jurisdiction and venue),