# Reply Brief — Aerolineas Argentinas S. A. v. Maro Leather Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1108

## Text

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No. 94-1507 |_| Supreme Cout, U.S

t

IN THE WAY. 2
\

Supreme Court of the Wnyite
\

OCTOBER TERM, 1994 '

AEROLINEAS ARGENTINAS S.A.,
Petitioner,
Vs.
MARO LEATHER CO.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
APPELLATE TERM, FIRST DEPARTMENT, OF THE
SUPREME COURT OF THE STATE OF NEW YORK

REPLY BRIEF

FRANCIS A. MONTBACH

Counsel of Record

PAUL AMBOS

BIGHAM ENGLAR JONES & HOUSTON
Counsel for Petitioner

14 Wall Street

New York, New York 10005

(212) 732-4646

TABLE OF CONTENTS

SEE GEE IETREEEED | otericcentascnussentendecseccsnasanves
TAs TH PAF ROP SUD vevnccccavaccesccvsenecvevasssccsens

CONSTITUTIONAL PROVISIONS INVOLVED BUT
NOT PREVIOUSLY QUOTED IN FULL _.................

THE WRIT SHOULD BE GRANTED ......................
I. This Court’s Gotthilf Decision Is No Bar to
eo re

II. Denby’s Misreading of Fothergill’s Interpreta-
tion of the Warsaw Convention Needs Correc-

I Te SE Kkthowrcnsicarcensceticcinccsinn

ill. Affirmance by an Equally Divided Court and
Denial of Certiorari Can Constitute No Prece-

dent on the Issue of Prejudgment Interest ......

GP REINIIIE . dtnd0k sn dicdvnandantbencescatninkisvimictssensiass

SUPPLEMENTAL APPENDICES

Appendix M: Letter from Donald M. Sheraw, Clerk
of the Court of Appeals of the State
of New York, to Counsel for
Petitioner, Dated January 3, 1995

Appendix N: Letter from Counsel for Petitioner to
Donald M. Sheraw, Dated January
he SE: sihicabrndidentemsins detainees

Appendix O: Letter from Counsel for Respondent
to Donald M. Sheraw, Dated January
Ps SEE nsacabehabdiediadsecaunupiuciiens

Appendix P: Letter from Counsel for Petitioner to
Donald M. Sheraw, Dated January
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10

1]

A-40

A-42

A-49

il

Appendix Q: Letter from Counsel for Respondent
to Donald M. Sheraw, Dated January
Se WUE scsccntsimtdatpedtanasaadiiiiin.
Appendix R: Letter from Counsel for Petitioner to
Donald M. Sheraw, Dated January
ED, THREE . snasictatcnuaeieencbetateines

TABLE OF AUTHORITIES
Cases:

Boehringer Mannheim Diagnostics, Inc. v. Pan Ameri-
can World Airways, Inc., 469 U.S. 1186, 105 S.
Cr. SBE, SS h.. TG. Be Fee CUD ccccnrcesncedevcnsaes
Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed.
GD CURD hasicssientactenssescetcnnadiniinneaiinin
Chesapeake & Ohio Railway Co. v. Mihas, 280 U.S.
102, 50 S. Ct. 42, 74 L. Ed. 207 (1929) .............
Denby v. Seaboard World Airlines, Inc., 737 F.2d 172
GRE GAR. TERN vkctoricucnsatedeencescnsiniaicaminanios
Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 19 L. Ed.
GED SOREED saieticcessmescisseimennonmaiel
Eastern Airlines, Inc. v. Mahfoud, 474 U.S. 213, 106 S.
Ce. SUB, GB L.. GG. BE SES CURED cccccscsiccecsiecscee.
Fothergill v. Monarch Airlines Ltd., [1981] A.C. 251
[iidin TEOED sctiscssnsseunndemeammmeueiae
Gotthilf v. Sills, 375 U.S. 79, 84 S. Ct. 187, 11 L. Ed.
SE REP UESEED 3 starsuscsinadieeeaae
Hunter v. County Clerk of Suffolk County, 19 N.Y.2d
941, 281 N.Y.S.2d 346, 228 N.E.2d 402 (1967) ...
In re Luckenbach, 303 N.Y. 491, 104 N.E.2d 870
ERDEED séncevsssnincocriereneneamaaaaaaenee
Minneapolis, St. Paul & Sault Ste. Marie Railway Co. v.
Rock, 279 U.S. 410, 49 S. Ct. 363, 73 L. Ed. 766
CHIE kccsndcsccsenbaxsuceneenisulesbouneananaios

PAGE

A-54

A-58

PAGE

ill

Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed.
MME EAD) ceccnneconacesssessveecvssencesecssecesseseees
Rosenberg v. Rosenberg, 24 A.D.2d 26, 263 N.Y.S.2d
586 (1st Dep’t 1965) .........:ccceeeeeeeeeeeeeeeeeeeeenens
Schwimmer v. Air France, 87 Misc. 2d 147, 384
OE VS. 2d G56 CCW. Ch. IDTG) .......ccccccecccesneosenss
United States v. Carver, 260 U.S. 482, 43 S. Ct. 181,
Ee BEE CIDE) ca occsccccssnertvexsccsorcscuvenseses

Legislative Materials:

OEY COMET. O90. GBD nc ccevcsescrsccccoscesccsecssosersesoes

The Convention for the Unification of Certain Rules
Relating to International Transportation by Air,
Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137
L.N.T.S. 11 (the ‘‘Warsaw Convention’’) ............

28 U.S.C. § 1257 (1988) .......ccececeeesseeeececeeeereeverens

New York Civil Practice Law & Rules (‘‘CPLR’’) 5602 .
New York CPLR 5513(b), 5514(€), (C) ......-- ee ceeeeeeee ees

Treatises:

HENRY COHEN & ARTHUR KARGER, THE POWERS OF
THE NEW YORK COURT OF APPEALS (rev. ed.
NE a cidcuseusvestunvecaancvesianeesssnansredeennentonstansaa.

PAGE

l
IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1994

AEROLINEAS ARGENTINAS S.A..,
Petitioner,

—vV., _

MARO LEATHER CoO.,
Respondent.

REPLY BRIEF IN SUPPORT OF
PETITION FOR A WRIT OF CERTIORARI TO THE
APPELLATE TERM, FIRST DEPARTMENT, OF THE
SUPREME COURT OF THE STATE OF NEW YORK

Respondent, in opposing the petition for a writ of
certiorari, argues that petitioner should have made a fourth
request to the New York courts for review of the Appellate
Term decision here complained of; however, prior decisions
of this Court have held such a requirement to be un-
reasonable and thus not a jurisdictional requisite under 28
U.S.C. § 1257 (1988). The balance of respondent’s argu-
ments either misstate or ignore the relevant precedents. The
writ of certiorari should be granted.

CONSTITUTIONAL PROVISIONS INVOLVED BUT
NOT PREVIOUSLY QUOTED IN FULL

Article 6, section 3 of the Constitution of the State of
New York (McKinney 1987) provides:

2

§ 3. [Jurisdiction of court of appeals]

a. The jurisdiction of the court of appeals
shall be limited to the review of questions of law
except where the judgment is of death, or where
the appellate division, on reversing or modifying a
final or interlocutory judgment in an action or a
final or interlocutory order in a special proceeding,
finds new facts and a final judgment or a final or-
der pursuant thereto is entered; but the right to ap-
peal shall not depend upon the amount involved.

b. Appeals to the court of appeals may be
taken in the classes of cases hereafter enumerated
in this section;

In criminal cases, directly from a court of ori-
ginal jurisdiction where the judgment is of death,
and in other criminal cases from an appellate divi-
sion or otherwise as the legislature may from time
to time provide.

In civil cases and proceedings as follows:

(1) As of right, from a judgment or order en-
tered upon the decisions of an appellate division of
the supreme court which finally determines an ac-
tion or special proceeding wherein is directly in-
volved the construction of the constitution of the
state or of the United States, or where one or more
of the justices of the appellate division dissents
from the decision of the court, or where the judg-
ment or order is one of reversal or modification.

(2) As of right, from a judgment or order of a
court of record of original jurisdiction which final-
ly determines an action or special proceeding
where the only question involved on the appeal is
the validity of a statutory provision of the state or
of the United States under the constitution of the
state or of the United States; and on any such ap-
peal only the constitutional question shall be con-
sidered and determined by the court.

3

(3) As of right, from an order of the appellate
division granting a new trial in an action or a new
hearing in a special proceeding where the appellant
stipulates that, upon affirmance, judgment absolute
or final order shall be rendered against him.

(4) From a determination of the appellate di-
vision of the supreme court in any department, oth-
er than a judgment or order which finally
determines an action or special proceeding, where
the appellate division allows the same and certifies
that one or more questions of law have arisen
which, in its opinion, ought to be reviewed by the
court of appeals, but in such case the appeal shall
bring up for review only the question or questions
so certified: and the court of appeals shall certify to
the appellate division its determination upon such
question or questions.

(5) From an order of the appellate division of
the supreme court in any department, in a proceed-
ing instituted by or against one or more public of-
ficers or a board, commission or other body of
public officers or a court or tribunal, other than an
order which finally determines such proceeding,
where the court of appeals shall allow the same up-
on the ground that, in its opinion, a question of law
is involved which ought to be reviewed by it, and
without regard to the availability of appeal by
stipulation for final order absolute.

(6) From a judgment or order entered upon
the decision of an appellate division of the supreme
court which finally determines an action or special
proceeding but which is not appealable under
paragraph (1) of this subdivision where the appel-
late division or the court of appeals shall certify
that in its opinion a question of law is involved
which ought to be reviewed by the court of ap-
peals. Such an appeal may be allowed upon ap-

4

plication (a) to the appellate division, and in case
of refusal, to the court of appeals, or (b) directly to
the court of appeals. Such an appeal shall be al-
lowed when required in the interest of substantial
justice.

(7) No appeal shall be taken to the court of
appeals from a judgment or order entered upon the
decision of an appellate division of the supreme
court in any civil case or proceeding where the ap-
peal to the appellate division was from a judgment
or other entered in an appeal from another court,
including an appellate or special term of the su-
preme court, unless the construction of the consti-
tution of the state or of the Untied States is directly
involved therein, or unless the appellate division of
the supreme court shall certify that in its opinion a
question of law is involved which ought to be
reviewed by the court of appeals.

(8) The legislature may abolish an appeal to
the court of appeals as of right in any or all of the
cases or classes of cases specified in paragraph (1)
of this subdivision wherein no question involving
the construction of the constitution of the state or
of the United States is directly involved, provided,
however, that appeals in any such case or class of
cases shall thereupon be governed by paragraph (6)
of this subdivision.

(9) The court of appeals shall adopt and from
time to time may amend a rule to permit the court
to answer questions of New York law certified to it
by the Supreme Court of the United States, a court
of appeals of the United States or an appellate
court of last resort of another state, which may be
determinative of the cause then pending in the
certifying court and which in the opinion of the
certifying court are not controlled by precedent in
the decisions of the courts of New York.

5
THE WRIT SHOULD BE GRANTED

I. This Court’s Gotthilf Decision Is No Bar to Certio-
rari Jurisdiction

Respondent argues that the instant petition should be
dismissed upon the sole authority of Gorthilf v. Sills, 375
U.S. 79, 84 S. Ct. 187, 11 L. Ed. 2d 159 (1963). In that
case, over the dissent of Chief Justice Warren and Justices
Douglas and Black, this Court adopted a New York Court
of Appeals finding of nonfinality in dismissing an appeal to
it from an order granting body execution against petitioner
Gotthilf, holding that failure to apply for Appellate Division
permission to appeal the constitutional question to the Court
of Appeals prevented a possible decision of ‘‘the highest
court of a State in which a decision could be had’’ under the
then version of 28 U.S.C. § 1257 (1988).

Gotthilf is clearly distinguishable from the instant case.
Here there is present a constitutional question—the enforce-
ment of state prejudgment interest rules over a treaty limita-
tion under the Supremacy Clause—and this Court is not
bound by the Court of Appeals’ finding that a construction
of the federal Constitution was not ‘‘directly involved’’
(N.Y. CONST. art. 6, § 3(b)(1)). Moreover, the dissent in
Gotthilf pointed out that in that case there was

no suggestion that after the Court of Appeals dis-
missed the appeal, petitioner should have repaired
once more to the Appellate Division for a certifi-
cate or in the words of Section 592, 5 (c) of the
New York Civil Practice Act ‘‘for permission to

appeal.’’

375 U.S. at 83 n., 84S. Ct. at 189, 11 L. Ed. 2d at 161.
But that is the very suggestion now made by respondent in
the present case.

While it is true that CPLR § 5602(b)(2)(i) theoretically
provides for the Appellate Division’s granting of permission

6
to appeal to the Court of Appeals, in the circumstances of
this case, and under the established interpretation by this
Court of the requirements of 28 U.S.C. § 1257, such a fu-
tile motion is not required.

A brief review of the appellate history of the instant
case is called for. The decision now sought to be reviewed
was issued by the New York Supreme Court, Appellate
Term, First Department, on July 19, 1994 (Appendix to
Petition, A-1). Petitioner’s timely August 8, 1994 motion
to Appellate Term for reargument or permission to appeal
to the Appellate Division was denied on October 13, 1994
(A-14). That was the first refusal of appellate review.
Then petitioner’s timely October 20, 1994 motion to the
Appellate Division for permission to appeal from the Appel-
late Term decision was denied on December 13, 1994 (A-
15). That was the second refusal.

Petitioner then timely filed a December 19, 1994 No-
tice of Appeal as of right to the Court of Appeals on the
constitutional ground established in N.Y. CONST. art. 6, §
3(b)(1) (A-16). The Cour. of Appeals has the power to
review appeals sua sponte for jurisdiction and in connection
with such review on January 3, 1995 the clerk of the court
invited comment from the parties (Appendix M, A-40). Pe-
titioner filed a letter-suomission on January 10 (Appendix
N, A-42), to which respondent answered (Appendix O, A-
49) and petitioner replied (Appendix P, A-52). Respondent
also made a submission (Appendix Q, A-54) to which
petitioner responded (Appendix R, A-58). In this last let-
ter-submission, petitioner alternatively requested (A-60) that
if the Court of Appeals were to find itself to lack jurisdic-
tion on the appeal as of right, it should grant leave to appeal
under the ‘“‘interest of substantial justice’’ standard of N.Y.
CONST. art. 6, § 3(b)(6)(b). This the Court in its eventual
order (A-18) failed to do. This, then, was the third refusal.

Respondent claims that petitioner should thereafter have
sought leave from the Appellate Division to appeal to the
Court of Appeals from its own order denying leave to ap-

7

peal from the same Appellate Term decision.! But the
standard for any such discretionary leave to appeal is the
same as that involved on the three prior refusals of appellate
review. Compare N.Y. CONST. art. 6, § 3(b)(6) (*‘Such an
appeal shall be allowed when required in the interest of sub-
stantial justice.’’) with Rosenberg v. Rosenberg, 24 A.D.2d
26, 27, 263 N.Y.S.2d 586, 588 (1st Dep’t 1965) (‘‘[T]he
paramount consideration [is] whether the interests of justice
call for our review of the particular case.’’).

Under such circumstances, 28 U.S.C. § 1257 does not
require that a further application be made in order for this
Court to retain certiorari jurisdiction. In Minneapolis, St.
Paul & Sault Ste. Marie Railway Co. v. Rock, 279 U.S.
410, 49 S. Ct. 363, 73 L. Ed. 766 (1929), a similar situa-
tion arose under Illinois appellate procedure, where the II-
linois Supreme Court denied certiorari review to Rock, a
railway employee The railway later challenged certiorari
jurisdiction because Rock had not thereafter applied to the
Illinois intermediate appellate court for a certificate of im-
portance. Under Illinois procedure a state supreme court
denial of certiorari was for jurisdictional purposes an af-
firmance of the result below.“ This Court held:

I There is some question whether such an order can in any circum-
stance be reviewed by the Court of Appeals. See Hunter v. County
Clerk of Suffolk County, 19 N.Y.2d 941, 281 N.Y.S.2d 346, 228
N.E.2d 402 (1967) (‘‘{O]rder denying leave to appeal to the Appellate
Division involves a pure question of discretion of the type not review-
able by the Court of Appeals .. . ."’); HENRY COHEN & ARTHUR
KARGER, THE POWERS OF THE NEW YORK COURT OF APPEALS § 147,
at 585 (rev. ed. 1952). Extensive research has found no instance of the
Court of Appeals’ ever reviewing by any route a case in which an Ap-
pellate Division had previously denied leave to appeal to itself from an
Appellate Term decision.

2The New York Court of Appeals has similarly so held as to the
effect of an Appellate Division dismissal of an appeal. Jn re Lucken-
bach, 303 N.Y. 491, 104 N.E.2d 870 (1952).

ee ee TE eee

8

It would be unreasonable to require a defeated
party to apply to the judges of the lower court for a
certificate of importance and appeal after the
Supreme Court had so approved the judgment.

The judgment is reviewable here. ‘‘Whenever
the highest court of a State by any form of decision
affirms or denies the validity of a judgment of an
inferior court, over which it by law can exercise
appellate authority, the jurisdiction of this court to
review such decision, if it involves a Federal ques-
tion, will, upon a proper proceeding, attach.’’

279 U.S. at 412, 49 S. Ct. at 363, 73 L. Ed. at 766 (cita-
tions omitted). To the same effect see Chesapeake & Ohio
Railway Co. v. Mihas, 280 U.S. 102, 50 S. Ct. 42, 74 L.
Ed. 207 (1929).

So here, it would be unreasonable to require a certain
fourth denial of state appellate review? prior to attachment
of this Court’s jurisdiction to issue a writ of certiorari under
section 1257.

II. Denby’s Misreading of Fothergill’s Interpretation of
the Warsaw Convention Needs Correction by This
Court

The Law Lords in Fothergill v. Monarch Airlines Lid. ,
[1981] A.C. 251 (H.L. 1980), although they differed on
such points as the appropriate weight to be given to various
guides to interpretation of a treaty, were all agreed as to the
issue before them and its resolution: Whether the term
‘‘avarie’’ in art. 26(2)—translated in both the British and
American versions as ‘‘damage’’ —should be limited to

34s a matter of law, such a motion cannot now timely be brought,
and such untimeliness cannot be waived under state procedural law.
CPLR §§ 5513(b), 5514(a), (c).

9

physical damage alone or should include partial nondelivery
of the baggage or goods consigned to the airline. All
agreed that the broader meaning was the correct one.

Respondent is groundless and wrong in asserting, there-
fore (Brief in Opposition at 11) that

it has always been understood that had Mr. Fother-
gill taken three suitcases with him on that fateful
day, and only two of them were delivered, the total
non-delivery of the one suitcase would not be
‘‘damage’’ and thus would not require a seven day
notice of claim.

The supposed rule of decision that ‘‘Damage is damage and
loss is loss’’+ does violence to the established legal meaning
of the controlling treaty language. So does the making of a
distinction in application of the Convention’s provisions
based on whether or not one or more whole packages is lost
by the airline. Neither the Convention nor the tariff speaks
in terms of individual cartons or pieces of luggage, but only
in general collective terms such as ‘‘des marchandises’’
(‘‘the goods’’) or ‘‘the consignment’. The only article of
the Convention that gives rise to any consequences arising
from goods being shipped in more than one package is art.
7, which gives the carrier the right to require the consignor
to execute multiple waybills for multiple packages —but
such was not done here. No language in the Convention,
therefore, can serve as a ground for distinguishing between
a loss by an air carrier of a full carton of goods and a loss
of half a carton of goods. Yet just such a distinction was
made by the Denby court. That distinction was just as im-
permissibly followed by the decision here below.

4c-hwimmer v. Air France, 87 Misc. 2d 147, 149, 384 N.Y.S.2d
658, 659 (Civ. Ct. 1976) (cited with approval by Denby v. Seaboard
World Airlines, Inc., 737 F.2d 172, 186 (2d Cir. 1984)) (and un-
successfully quoted by losing counsel in Fothergill, [1981] A.C. at 264
(argument of counsel)).

10

Prior to this judicial legislation by the Second Circuit,
there was no such ‘‘understanding’’ as respondent alleges.
Instead, there has since been only misunderstanding —
misunderstanding which gives the United States an inter-
pretation of a multilateral treaty different from that of the
other parties to it. Such misunderstanding can only be cor-
rected by this Court.

Ill. Affirmance by an Equally Divided Court and Denial
of Certiorari Can Constitute No Precedent on the
Issue of Prejudgment Interest

Respondent argues (Brief at 14-15) that the three-way
conflict between Circuit Courts of Appeal and New York
state courts would in effect be resolved by virtue of this
Court’s denials of certiorari in the present case and in
Boehringer Mannheim Diagnostics, Inc. v. Pan American
World Airways, Inc., 469 U.S. 1186, 105 S. Ct. 951, 83 L.
Ed. 2d 959 (1985), or by its affirmance by an equally divid-
ed court in Eastern Air Lines, Inc. v. Mahfoud, 474 U.S.
213, 106 S. Ct. 586, 88 L. Ed. 2d 522 (1985).

Aside from the fact that such dispositions do not re-
solve the conflict between the holding below and the Fifth
Circuit’s decisions relied on by respondent, it is well settled
that such dispositions have absolutely no precedential effect.
E.g., Brown v. Allen, 344 U.S. 443, 491, 73 S. Ct. 397,
439, 97 L. Ed. 469, 507 (1953) (‘‘Thirty years ago the
Court rather sharply reminded the Bar not to draw strength
for lower court opinions from the fact that they were left
unreviewed here.’’); United States v. Carver, 260 U.S.
482, 490, 43 S. Ct. 181, 182, 67 L. Ed. 361, 364 (1923)
(‘‘The denial of a writ of certiorari imports no expression of
opinion upon the merits of the case, as the bar has been told
many times.’’); Neil v. Biggers, 409 U.S. 188, 192, 93 S.
Ct. 375, 378-79, 34 L. Ed. 2d 401, 407 (1972) (‘‘Nor is an
affirmance by an equally divided Court entitled to preceden-
tial weight.’’); Durant v. Essex Co., 74 U.S. (7 Wall.) 107,
112, 19 L. Ed. 419, 423 (1868) (affirmance by equally

1]

divided court without opinion ‘‘prevents the decision from
becoming an authority for other cases of like character’’).

Therefore, the conflict among the authorities noted be-
low can only be resolved by this Court, and not by any ex-
amination of the precedential status quo.

CONCLUSION

For all the foregoing reasons, the petition for a writ of
certiorari should be granted.

Respectfully submitted,

FRANCIS A. MONTBACH
Counsel of Record

PAUL AMBOS

BIGHAM ENGLAR JONES & HOUSTON
Counsel for Petitioner

14 Wall Street

New York, New York 10005

(212) 732-4646

May 3, 1995

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A-40
APPENDIX M

STATE OF NEW YORK

COURT OF APPEALS
Donald M. Sheraw Clerk’s Office
Clerk of the Court Albany, New York 12207

January 3, 1995
Bigham Englar Jones & Houston
14 Wall Street, 22nd Floor
New York, New York 10005

Re: Maro Leather Co. v. Aerolineas Argentinas v TWA

Dear Counsel:
The Court has received your 500.2 jurisdictional statement

and may examine its subject matter jurisdiction sua sponte with
respect to whether a substantial constitutional question is directly
involved to support an appeal as of right and whether the order
appealed from finally determines the action within the meaning of
the Constitution.

This communication is without prejudice to any motion any
party may wish to make. If you conclude that the order is not
appealable as of right, please arrange for the execution of a
stipulation consenting to a dismissal of the appeal and transmit
that paper to my office. If a stipulation is to be forthcoming,
please inform me immediately.

On the other hand, if you wish to persevere in the appeal,
you are invited to present to the Court in writing within ten days
of this letter’s date your comments justifying the retention of
subject matter jurisdiction, including references to the record
demonstrating that a constitutional question was raised in the
court or other forum of original instance. Also please enclose a
copy of each brief filed in the Appellate Division, as well as a
copy of the Record on Appeal or Appendix filed in that court.
Your adversary is likewise afforded the opportunity to comment
in writing on the subject matter jurisdiction.

A-4]

If this sua sponte inquiry is terminated by the Court, the
Clerk will notify counsel in writing and set a new schedule for
normal perfecting of the appeal.

Very truly yours,

Donald M. Sheraw
Donald M. Sheraw

DMS:mec
cc: Donovan Parry Walsh & Repetto

A-42
APPENDIX N

BIGHAM ENGLAR JONES & HOUSTON
14 Wall Street
New York, New York 10005-2140

January 10, 1995
Re: Maro Leather Co. v. Aerolineas Argentinas v. Trans World
Airlines, Inc.
N.Y.C. Civil Ct., N.Y. County Index No. 48027/1985
Appellate Term, Ist Dep’t Calendar No. 93-257
Appellate Division, Ist Dep’t Calendar No. M-5609
Our File No. 165306-14

Hon. Donald M. Sheraw, Clerk of the Court
Court of Appeals of the State of New York
20 Eagle Street

Albany, New York 12207

Dear Sir:

I respond to your January 3, 1995 letter inviting comments
upon the Court’s sua sponte review with respect to its subject-
matter jurisdiction of the above-referenced appeal. As requested,
I enclose copies of the appellate briefs of both sides below, to-
gether with a copy of the Appendix below. In addition, I am
copying counsel for respondent as well as the Solicitor General,
and as requested in my letter of December 23, 1994, I respectful-
ly request an opportunity to respond to any comments they might
offer to the Court on this subject-matter.

The jurisdiction of the Court of Appeals is invoked under
CPLR 5601(b), which provides:

(b) Constitutional Grounds. An appeal may be taken
to the court of appeals as of right:

1. from an order of the appellate division which final-
ly determines an action where there is directly involved the
construction of the constitution of the state or of the United
States; and

A-43

2. from a judgment of a court of record of original
instance which finally determines an action where the only
question involved on the appeal is the validity of a statutory
provision of the state or of the United States under the con-
stitution of the state or of the United States.

Prior to the decision of Appellate Term below, issues other than
that of constitutional construction were advanced by appellant;
since that decision, the only issue as to which appellate review
was sought has been the constitutional one. While subdivision 2
of CPLR 5601(b) may thus be applicable here, appellant invokes
subdivision 1 as more clearly applicable. In addition, if this ap-
peal is allowed to proceed to consideration of the merits, appel-
lant intends to obtain review under CPLR 5501(a)(1) of the prior
non-final order of the Appellate Division entered herein on
December 20, 1988.

Some background on the nature of the case is necessary.
Plaintiff's claim is for partial loss of a shipment of air cargo car-
ried by defendant in international common carriage by air from
Buenos Aires to New York (Complaint, Appendix, at A-17).
Since both Argentina and the United States are parties to the mul-
tilateral Convention for the Unification of Certain Rules Relating
to International Transportation by Air, Oct. 12, 1929, 49 Stat.
3000, T.S. No. 876, 137 L.N.T.S. 11 (commonly known as the
‘*‘Warsaw Convention’’), the shipment and the claim are
governed by the Convention. Defendant pleaded defenses based,
inter alia, on Articles 22 and 26 of the Warsaw Convention (An-
swer, A-19, A-22). Liability was contested from the outset, and
at one point in the litigation the action was dismissed for failure
to file a timely notice of claim with the defendant, but that dis-
missal was later reversed by the Appellate Division, and the mat-
ter proceeded to trial, resulting in a finding in favor of plaintiff,
upon which the judgment now appealed was founded.

Article 22 of the Warsaw Convention provides in pertinent
part:

(2) In the transportation of checked baggage and of
goods, the liability of the carrier shall be limited to a sum of
250 francs per kilogram, unless the consignor has made, at

A-44

the time when the package was handed over to the carrier, a
special declaration of the value at delivery and has paid a
supplementary sum if the case so requires. In that case, the
carrier will be liable to pay a sum not exceeding the
declared sum, unless he proves that that sum is greater than
the actual value to the consignor at delivery.

(4) The sums mentioned above shall be deemed to re-
fer to the French franc consisting of 65'4 milligrams of gold
at the standard of fineness of nine hundred thousandths.
These sums may be converted into any national currency in
round figures.

49 Stat. at 3019 (U.S. unofficial translation of French official
version). Here the gross weight of the undelivered goods was
1,200 kilograms (Notice to Admit, A-738), and the dollar con-
version for the Convention’s weight limitation is $20.00 per kilo-
gram (Trans World Airlines, Inc. v. Franklin Mint Corp., 466
U.S. 243, 104 S. Ct. 1776, 80 L. Ed. 2d 273 (1984)). Defend-
ant’s ‘‘liability’’, then, must be ‘‘limited to’’ $24,000.00, under
the explicit terms of the Warsaw Convention.

The value of the missing goods was determined at trial to be
$23,024.90 (A-1224). To this the trial judge added ‘‘interest at
the statutory rate from February 2, 1984’’ (id.). Section 5001 of
the New York State Civil Practice Law and Rules provides, in
pertinent part:

$ 5001. Interest to verdict, report or decision.

(a) Actions in which recoverable. Interest shall be
recovered upon a sum awarded because of a breach of per-
formance of a contract, or because of an act or omission de-
priving or otherwise interfering with title to, or possession
or enjoyment of, property, except that in an action of an
equitable nature, interest and the rate and date from which it
shall be computed shall be in the court’s discretion.

(c) Specifying date; computing interest. The date
from which interest is to be computed shall be specified in
the verdict, report or decision. ... The amount of interest

A-45

shall be computed by the clerk of the court, to the date the

verdict was rendered or the report or decision was made,

and included in the total sum awarded.
Similarly, CPLR 5002 provides:

Interest shall be recovered upon the total sum awarded,
including interest to verdict, report or decision, in any ac-
tion, from the date the verdict was rendered or the report or
decision was made to the date of entry of final judgment.
The amount of interest shall be computed by the clerk of the
court and included in the judgment.

Finally, CPLR 5004 provides, during all times relevant to the
present action:

Interest shall be at the rate of nine per centum per an-
num, except where otherwise provided by statute.

Applying the foregoing state statutes, judgment was entered for
the $23,024.90 principal amount of damages found, plus prejudg-
ment interest totaling $17,790.00, plus costs not here contested
of $367.50, for a total of $41,182.40 (A-9). This amount is well
in excess of the $24,000.00 to which the explicit terms of the
Warsaw Convention, as noted above, stipulate that defendant’s
liability should be limited.

This conflict brings directly to bear the constitutional provi-
sion here invoked by defendant. The Supremacy Clause, article
VI, clause 2 of the Constitution of the United States of America,
provides in pertinent part:

. all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of
the Land; and the Judges in every State shall be bound
thereby, any Thing in the . . . Laws of any State to the
Contrary notwithstanding.

The meaning of this clause is that ‘‘if a state measure conflicts
with a federal requirement, the state provision must give way.’’
Swift & Co. v. Wickham, 382 U.S. 111, 120, 86 S. Ct. 258, 263,
15 L. Ed. 2d 194, 201 (1965). The Warsaw Convention has re-
peatedly been held to be a treaty within the scope of the Suprem-
acy Clause. E.g. Berner v. United States, 2 Misc. 2d 260, 149
N.Y.S.2d 335 (Sup. Ct. N.Y. County), aff'd, 3 A.D.2d 9, 157

A-46

N.Y.S.2d 884 (Ist Dep’t 1956), aff'd, 3 N.Y.2d 1003, 170
N.Y.S.2d 340, 147 N.E.2d 732 (1957): Wyman v. Pan American
Airways, 181 Misc. 963, 43 N.Y.S.2d 420 (Sup. Ct. N.Y. Coun-
ty 1943), aff'd, 267 A.D. 947, 48 N.Y.S.2d 459 (1st Dep’t),
aff'd, 293 N.Y. 878, 59 N.E.2d 785 (1944), cert. denied, 324
U.S. 882, 65 S. Ct. 1029, 89 L. Ed. 1432 (1945). Nevertheless,
the courts below here have instead enforced the state law and not
enforced the federal treaty, in direct contravention of the consti-
tutional requirement.

Precedents of the Court of Appeals hold that in such a situa-
tion a constitutional question is ‘‘directly involved”’:

[A]ppeal as of right has been sustained from a decision of

the Appellate Division which overrules a claim that a state

Statute is in conflict with a Federal statute or regulation in

violation of the Federal Constitution, though it is first neces-

Sary to decide an issue of statutory construction—i.e.,

whether there is such a conflict—in order to resolve the con-

Stitutional issue. In such situations the issue of Statutory

construction necessarily involves the constitutional issue:

and the constitutional issue cannot be obviated, and is in fact
resolved, by decision of the issue of conflict.
Henry Cohen & Arthur Karger, The Powers of the New York
Court of Appeals § 59, at 268-69 (1952) (footnote omitted) (here-
inafter cited as ‘‘Cohen & Karger’’) (citing Harlem Check Cash-
ing Corp. v. Bell, 296 N.Y. 15, 68 N.E.2d 854 (1946)).

While it is true that the decision of Appellate Term below
does not in terms address the Supremacy Clause, it Clearly ad-
dresses (albeit incorrectly, appellant contends) its substance:

In awarding prejudgment interest in excess of the War-
saw Convention’s total damages limitation, the trial court
relied upon the reasoning of Eli Lilly Argentina, S.A. v.
Aerolineas Argentinas, 133 Misc.2d 858, emphasizing the
compensatory nature of prejudgment interest under New
York law (see, CPLR 5001) and the goal of speedy resolu-
tion of cargo loss claims. We affirm.

Decision at ii. (The Eli Lilly case held that the doctrine of the
“‘law of the forum’’ would override the terms of the treaty, 133

A-47

Misc. 2d at 861, 508 N.Y.S.2d at 867—a holding clearly incon-
sistent with the Supremacy Clause. But appellant does not intend
to argue the merits of this appeal upon this submission. )

To the extent that the courts below relied upon various Fifth
Circuit Court of Appeals cases which allowed prejudgment inter-
est, I must point out for purposes of the present review that this
minority holding is specifically limited to cases in federal courts
(the interest holding being an issue of federal procedural common
law), and that the Fifth Circuit expressly refused in Domangue v.
Eastern Air Lines, Inc., 722 F.2d 256, 262 (Sth Cir. 1984), to
allow the Louisiana prejudgment interest statute as such to have
precedence over the Warsaw Convention. The decisions of the
Second and Seventh Circuits noted below are obviously in ac-
cord. Eli Lilly, however, was contrary and thus presents directly
the Supremacy Clause issue.

The application of the Warsaw Convention as a limitation on
damages was, as noted above, raised by defendant in its plead-
ings. Its supremacy over the conflicting provisions of CPLR
5001 and 5002 were noted by Mr. Edward Sadowsky, counsel
for defendant, in argument of this very issue in the trial court:

I ask The Court to pay [sic; probably should be ‘‘take’’]

judicial notice of The Warsaw Convention... . The Uni-

ted States is a signatory to this Warsaw Convention and this
is the supreme law of the land as a treaty of The United

States as ratified by the congress and signed by the presi-

dent. Whether we like it or not, state courts must abide by

this precedent... .

(Transcript of Trial, A-1221.!) This issue was similarly restated

in the Brief of Defendant-Appellant Aerolineas Argentinas at Ap-
pellate Term, at 31:

The Warsaw Convention is a multilateral treaty de-

signed to establish uniform rules governing the content of

1 This passage was in response to the trial judge’s query, "By
what authority may I say that The Convention doesn’t apply?” (A-
1219), thus showing clear recognition of a conflict between the treaty
and the CPLR.

A-48

documentation and the procedures and limits of liability for

international air carriers and their customers for passenger

traffic and air cargo. Rosman v. Trans World Airlines, Inc.,

34 N.Y.2d 385, 390-91, 358 N.Y.S.2d 97, 101, 314

N.E.2d 848, 851 (1974). As a treaty, it is the supreme law

of the land, of which New York courts must take notice.

Id. at 392, 358 N.Y.S.2d at 103, 314 N.E.2d at 852... .
The passage in the Rosman case last cited to is as follows:

While the [Warsaw Convention] is written in French, it is

nevertheless a domestic, not a foreign law. It is the supreme

law of the land (U.S. Const., art. VI, cl. 2) of which New

York courts are required to take judicial notice (CPLR

4511, subd. [a] Consol. Laws, c. 8).

All subsequent argument on motion practice has similarly in-
volved direct address of the Supremacy Clause issue. The state-
ment of counsel for respondent (letter of John K. McElligott,
Esq., dated December 20, 1994) that ‘‘this issue has never been
presented to the Court before’ is simply inaccurate. Moreover,
even if the issue had not been explicitly raised before the court of
first instance, it would still be preserved for review. Cohen &
Karger, supra, § 55, at 252.

Finally, it is clear that the order appealed from, refusing
review of a final money judgment for which no further proceed-
ings below were contemplated, satisfies the finality requirement
of CPLR 5601(b).

Repeating my earlier request in this letter-submission, appel-
lant respectfully requests a reasonable opportunity to respond to
any submissions which may be made by respondent or by the So-
licitor General as to the jurisdictional issues here involved.

Respectfully submitted,

Bigham Englar Jones & Houston

by_Paul Ambos
Paul Ambos

PA:hs
cc: John K. McElligott, Esq.
Hon. Victoria Graffeo, Solicitor General

A-49
APPENDIX O

Donovan Parry Walsh & Repetto
Wall Street Plaza
88 Pine Street
New York, New York 10005-1801

January 16, 1995
VIA EXPRESS MAIL
Honorable Donald M. Sheraw
Clerk of the Court
Court of Appeals of the State of New York
20 Eagle Street
Albany, New York 12207

Re: Maro Leather Co. v. Aerolineas Argentinas
v. Trans World Airlines, Inc.
Civil Court Index No.: 48027/85
Appellate Term, Ist Dept. Cal. No.: 93-257
Appellate Division, 1st Dept. Cal. No.: M-5609
Our File No.: 12-85-709

Dear Mr. Sheraw:

This office is in receipt of the January 10, 1995 letter from
counsel for defendant-appellant with regard to the Court’s sua
sponte review of subject matter jurisdiction. I request the
Court’s leave to respond briefly to two points made in this letter.

At page 5 of the letter counsel states, ‘‘Precedents of the
Court of Appeals hold that in such a situation a constitutional
question is ‘directly involved’ ’’. Counsel offers this authority
for the proposition that where there is a conflict in interpretations
of a statute the Court of Appeals has ruled that a constitutional
question is directly involved. Yet, the Court of Appeals prece-
dents cited by counsel turn out to be only one, and one which
does not support appellant’s position. In Matter of Harlem
Check Cashing Corp. v. Bell, 296 N.Y. 15 (1946), at page 16,
wherein is recited the appellant’s points on appeal, the appellant
argued, ‘‘Article 1, section 12, of the Constitution of the State of

A-50

New York and section 813-a of the New York Code of Criminal
Procedure purporting to legalize such interception and disclosure
are violative of the Interstate Commerce Clause of the Federal
Constitution.’’ It is thus apparent that there was a direct con-
stitutional challenge to the statute in the check cashing case and
not simply a question of interpretation. In this case there never
has been a constitutional challenge to CPLR 5001 or CPLR
5002.

Additionally, at pages 5 through 6 of the letter, counsel
states, ‘‘The Eli Lilly case held that the doctrine of the ‘law of
the forum’ would override the terms of the treaty . . . a holding
clearly inconsistent with the Supremacy Clause.’’ Yet, a review
of the Eli Lilly case reveals the exact contrary. In Eli Lilly the
Court stated, ‘*Article 28 of the Warsaw Convention may be in-
terpreted to allow the law of the forum on pre-judgment inter-
est’’, 133 Misc.2d 858, 508 N.Y.Sup. 867. (Emphasis supplied)
It is thus evident that in the Eli Lilly case the Court did not find
that the law of the forum supersedes the Warsaw Convention, but
found that if the treaty is silent with regard to a particular issue
that the law of the forum, i.e., pre-judgment interest, may be in-
voked. Clearly, this was a matter of interpretation. Likewise, in
this case, respondent’s position is not that CPLR 5001 super-
sedes the Warsaw Convention, but that the Warsaw Convention
is silent as to pre-judgment interest and thus pre-judgment inter-
est is allowable. This is not a question directly involved in the
construction of the Constitution of the United States, but only a
matter of interpretation of the language of a treaty.

Thus, since no direct constitutional challenge has been
raised previously, and since the issue of treaty interpretation is
not a constitutional issue, plaintiff-respondent does not believe
that subject matter jurisdiction lies and respectfully requests that
the matter be dismissed.

A-51

Thank you for your attention.

Very truly yours,

Donovan Parry Walsh &
Repetto

By:_John K. McElligott
John K. McElligott

JKM/vf

CC:

Bigham Englar Jones & Houston
14 Wall Street

New York, New York 10005
Attention: Paul Ambos, Esq.

Honorable Victoria Graffeo
Solicitor General

State of New York
Department of Law

The Capitol

Albany, New York 12224

A-52
APPENDIX P

Bigham Englar Jones & Houston
14 Wall Street
New York, New York 10005-2140

January 18, 1995
Re: Maro Leather Co. v. Aerolineas Argentinas v. Trans World
Airlines, Inc.
N.Y.C. Civil Ct., N.Y. County Index No. 48027/1985
Appellate Term, Ist Dep’t Calendar No. 93-257
Appellate Division, 1st Dep’t Calendar No. M-5609
Our File No. 165306-14

Hon. Donald M. Sheraw

Clerk of the Court

Court of Appeals of the State of New York
20 Eagle Street

Albany, New York 12207

Dear Sir:

Further to my letter of January 10, 1995, appellant re-
spectfully responds to the letter to you from John K. McElligott,
counsel for respondent, dated January 16, 1995, in turn respond-
ing to my letter of January 10, 1995.

Respondent is still trying to couch this case as a question of
interpretation of treaty language, ignoring the authoritative text
on Court of Appeals jurisdiction which points out that while a
conflict between state and federal law may well be resolved
through interpreting statutory language, this does not mean that
the existence of the conflict—the foundation for constitutional-
question jurisdiction—is nullified.

Moreover, (although this touches the merits of the appeal) it
is no response to claim that the Warsaw Convention is ‘‘silent as
to pre-judgment interest’; the Convention speaks in terms of ‘‘li-
ability’’, as to which prejudgment interest is an element. While
such ‘‘interpretation’’ can perhaps be used to justify inclusion of
state-law-derived prejudgment interest as an element of damages

A-53

in a Warsaw claim up to the limitation amount, it cannot support
interest above that amount without running afoul of the Suprema-
cy Clause. Cf. The Limited Stores, Inc. v. Pan American World
Airways, Inc., 65 Ohio St. 3d 66, 600 N.E.2d 1027 (1992) (al-
lowing prejudgment interest up to Warsaw limitation amount but
not beyond) (applying New York CPLR 5001).

As pointed out in my January 13 letter, this Court has long
recognized that it is impermissible to sidestep the plain meaning
of a law or treaty ‘‘under the guise or pretext of interpretation’.
It must be equally impermissible to sidestep the Supremacy
Clause by the same pretext.

Respectfully submitted,

Bigham Englar Jones & Houston

by_Paul Ambos
Paul Ambos

PA:hs
cc: John K. McElligott, Esq.
Hon. Victoria Graffeo, Solicitor General

SET CC

A-54
APPENDIX Q

Donovan Parry Walsh & Repetto
Wall Street Plaza
88 Pine Street
New York, New York 10005-1801

January 12, 1995
VIA OVERNIGHT MAIL

Honorable Donald M. Sheraw

Clerk of the Court

Court of Appeals of the State of New York
20 Eagle Street

Albany, New York 12207

Re: Maro Leather Co. v. Aerolineas Argentinas

v. Trans World Airlines, Inc.

Civil Court Index No.: 48027/85

Appellate Term, Ist Dept. Cal. No.: 93-257

Appellate Division, Ist Dept. Cal. No.: M-5609

Our File No.: 12-85-709
Dear Sirs:

This office is in receipt of the Court’s letter dated January 3,
1995, requesting commentary from the parties with regard to the
question of subject matter jurisdiction of the instant appeal pur-
suant to CPLR 5601(b)1.

This office represents the Plaintiff-Respondent, Maro Leath-
er Co., in the captioned appeal. By prior correspondence to the
Clerk's office dated December 20, 1994, we requested the oppor-
tunity to respond to such jurisdictional statement when the Court
conducts its sua sponte review. A copy of our December 20,
1994 letter is attached hereto. As stated in that letter, respondent
does not believe that subject matter jurisdiction lies, and thus be-
lieve the appeal should be dismissed.

We note that in Appellant’s statement pursuant to Rule
500.2 there is still some ambiguity as to what Appellant claims is
the issue before the Court which directly involves ‘‘the construc-

A-55

tion of the Constitution of the state or of the United States’’, and
thus gives the Court jurisdiction under C.P.L.R. § 5601(b)1.
Thus, we are at some disadvantage in addressing the issues, but
nevertheless shall respond to the Court’s inquiry based on the
contents of the Rule 500.2 statement.

In paragraph 9 of the Statement Defendant-Appellant ‘‘as-
serts that sections 5001(a) and 5002 of the Civil Practice Laws
and Rules, as here applied, are unconstitutional’’. I have
reviewed the Record on Appeal, as well as the brief submitted by
Appellant to Appellate Term, and the motion papers submitted to
both requests for leave to appeal. I have found nothing in the
record before Civil Court, Appellate Term or the Appellate Divi-
sion where Appellant argued in any way that C.P.L.R. 5501(a)
or 5502 were unconstitutional either in toto or as applied in this
case. If this is appellant’s position, it is evident that this issue is
being raised for the first time in order to invoke the Court’s man-
datory jurisdiction under C.P.L.R. 5601(b)1. The Court of Ap-
peals has noted that when a constitutional issue is raised for the
first time on appeal (in this case, for the first time on appeal to
the Court of Appeals, after the matter has been before two appel-
late tribunals) the ‘‘issue is therefore not preserved for our re-
view and the appeal as right must be dismissed on the ground
that no substantial constitutional question is directly involved’’.
Matter of Shannon B., 70 N.Y.2d 458, 462, 522 N.Y. Supp. 2d
488, 490 (1987). Thus, due to the failure of defendant to chal-
lenge the constitutionality of the applicable statutes in any
previous forum, the issue is not preserved for this Court’s review
and subject matter jurisdiction does not lie. For the Court’s
review, we again enclose a copy of the Point headings in appel-
lant’s brief at Appellate Term, as well as the Appellate Term
decision. As the Court can observe, the constitutionality of the
statutes was neither challenged by appellant, nor addressed in
Appellate Term’s decision.

At paragraph 7 of the Rule 500.2 Statement, Appellant ap-
parently attempts to create a constitutional issue by arguing that
the absence of language in the Warsaw Convention regarding
pre-judgment interest involves the construction of Article 5,

A-56

Clause 2 of the Constitution of the United States. the Supremacy
Clause. Yet, the interpretation of provisions of the Warsaw Con-
vention do not create an issue which directly involves the con-
struction of the Constitution of the United States. Interpretation
of the Treaty, just like interpretation of any act or [sic]
Congress, is solely a matter of intention of the drafters of the
Treaty and not of the Constitution of the United States. While
the Supremacy Clause may make the Warsaw Convention the law
of the land with regard to those issues to which the Convention is
addressed, questions regarding the interpretation of the Warsaw
Convention do not involve the construction of the Constitution of
the United States. any more than a question regarding the inter-
pretation of such statutes as the Interstate Commerce Act or the
Jones Act, issues frequently addressed in State Courts, would in-
volve construction of the Supremacy Clause. For instance, in
Dalziel v. Oregon-Washington Railroad and Navigation Compa-
ny, 248 N.Y. 569 (1928), the Court of Appeals dismissed an ap-
peal from a judgment of the First Department (219 App. Div.
394 (1927)), which had interpreted provisions of the Carmack
Amendment to the Interstate Commerce Act. Implicit in the dis-
missals was the absence of subject matter jurisdiction.

The Court of Appeals has addressed the distinction between
an appeal concerning the interpretation of a statute and its con-
Stitutionality, and has found that in the former case there is no
constitutional issue:

There is no merit in the appellant’s assertion and argument

that this proceeding directly involved the construction of the

Constitution of the state. He avers that he is held in im-

prisonment by virtue of a sentence and judgment which the

court had not the power to render and, therefore, are void.

Whether or not the Court had the power is determinable

only through the interpreting of statues. The meaning and

not the validity of the statutes is involved. In a certain
sense, perhaps, each enforcement of a statute by a Court in-
volves its constitutionality or the construction of the Consti-
tution of the state. That sense, however, was not within the
legislative mind or intention in enacting the present restric-

A-57

tion of our jurisdiction. An appeal, upon the ground the

Appellant here asserts, must present to us directly and

primarily an issue determinable only by our construction of

the Constitution of the state or of the United States. People

Ex Rel Curtis v. Kidney, 225 N.Y. 299, 304-305 (1919).

(Emphasis supplied) See, also, People ex Rel Ryan v.

Lynch, 262 N.Y. 1, 4 (1933).

Thus, where, as in this case, when all that is involved is the
interpretation of the provisions of the Warsaw Convention there
is no direct constitutional issue involved such as to permit juris-
diction under C.P.L.R. 5601(b)(1).

Consequently, we respectfully request that the appeal be dis-
missed, so that plaintiff may enforce a judgment currently
amounting to $40,814.90 (with additional interest to be compu-
ted), which it has sought to obtain for nine years.

Thank you for your attention.

Very truly yours,

Donovan Parry Walsh &
Repetto

By:_John K. McElligott
John K. McElligott

JKM/vf

cc: w/o Encs.

Bigham Englar Jones & Houston
14 Wall Street

New York, New York 10005
Attention: Paul Ambos, Esq.

A-58
APPENDIX R

Bigham Englar Jones & Houston
14 Wall Street
New York, New York 10005-2140

January 13, 1995
Re: Maro Leather Co. v. Aerolineas Argentinas v. Trans World
Airlines, Inc.
N.Y.C. Civil Ct., N.Y. County Index No. 48027/1985
Appellate Term, Ist Dep’t Calendar No. 93-257
Appellate Division, Ist Dep’t Calendar No. M-5609
Our File No. 165306-14

Hon. Donald M. Sheraw

Clerk of the Court

Court of Appeals of the State of New York
20 Eagle Street

Albany, New York 12207

Dear Sir:

Further to my letter of January 10, 1995, appellant respect-
fully responds to the letter to you from John K. McElligott,
counsel for respondent, dated January 12, 1995, in which he of-
fers comments on behalf of respondent in connection with the
Court’s sua sponte review with respect to jurisdiction of the
above-referenced appeal.

Opposing counsel again relies on copies of point headings in
briefs and ignores the fact that the argument by appellant in the
court of first instance invoked the very language of the Suprema-
cy Clause to insist that the clear language of the Warsaw Con-
vention be given priority over the prejudgment-interest provi-
sions of CPLR 5001 and 5002. That argument was denied by
decisions of both the Civil Court and the Appellate Term, each
specifically invoking Eli Lilly Argentina, S.A. v. Aerolineas Ar-
gentinas, 133 Misc. 2d 858, 861, 508 N.Y.S.2d 865, 867 (N.Y.
City Civ. Ct. 1986), a case which held that CPLR prejudgment-
interest provisions (as the ‘‘law of the forum’’) take priority over
the Warsaw Convention.

A-59

This direct violation of the Supremacy Clause thus, as
shown by the precedents cited in my January 10 letter, requires
the conclusion that the constitutional question is ‘‘directly in-
volved’’.

Hence counsel’s citation of Matter of Shannon B., 70
N.Y.2d 458, 522 N.Y.S.2d 488, 517 N.E.2d 203 (1987), is ir-
relevant. Likewise irrelevant is reliance on such cases as Dalziel
v. Oregon-Washington R.R. & Navigation Co., 248 N.Y. 569,
162 N.E. 528 (1928), in which no conflict between a federal
statutory or treaty provision and a state law was presented.

Respondent repeatedly tries to characterize this case as not
presenting a Supremacy-Clause conflict between a federal treaty
and a State statute (although Mr. McElligot’s letter of December
20, 1994 appears to concede that this conflict in fact exists), but
rather merely a dispute over ‘‘statutory construction’’ of the
Warsaw Convention. But this does not solve the problem. The
mere fact that statutory construction may be involved in resolv-
ing issues does not mean that there is no Supremacy-Clause con-
flict; on the contrary, in the circumstances of this case the fact of
jurisdiction is supported by the existence of this question. As
pointed out in my earlier letter,

appeal as of right has been sustained from a decision of the

Appellate Division which overrules a claim that a state

statute is in conflict with a Federal statute or regulation in

violation of the Federal Constitution, though it is first neces-
sary to decide an issue of statutory construction—i.e.,
whether there is such a conflict—in order to resolve the con-
stitutional issue. In such situations the issue of statutory
construction necessarily involves the constitutional issue;
and the constitutional issue cannot be obviated, and is in fact
resolved, by decision of the issue of conflict.

Henry Cohen & Arthur Karger, The Powers of the New York

Court of Appeals § 59, at 268-69 (1952) (footnote omitted).

The Warsaw Convention is clear: ‘‘the liability of the carri-
er shall be limited to [here, $24,000.00]’’. It does not state that
‘‘liability . . . shall be limited to [$24,000.00] unless some New
York statute provides otherwise’. When the words of a statute
or treaty

A-60

have a definite and precise meaning, such meaning cannot be

extended or restricted by conjecture, or under the guise or

pretext of interpretation. It is not allowable to interpret that

which has no need of interpretation.
Mushlitt v. Silverman, 50 N.Y. 360, 361 (1872), accord Dep’t of
Welfare v. Siebel, 6 N.Y.2d 536, 543, 190 N.Y.S.2d 683, 689,
161 N.E.2d 1 (1959); McCluskey v. Cromwell, 11 N.Y. 593,
601-02 (1854). To uphold the unsupportable decisions below
would itself be a denial of due process, which would also support
jurisdiction in the Court of Appeals under the rule of Vaiz v.
Sheepshead Bay Bungalow Corp., 249 N.Y. 122, 163 N.E. 124,
cert. denied, 278 U.S. 647, 49 S. Ct. 82, 73 L. Ed. 560 (1928).
Such convoluted reasoning should not, however, be necessary to
support jurisdiction here.

For the foregoing reasons, appellant respectfully submits
that this Court has jurisdiction to consider this appeal as of right
pursuant to CPLR 5601(b). Should this Court determine, howev-
er, that no appeal as of right lies, appellant respectfully requests
leave pursuant to CPLR 5520 to request that this Court, in light
of the significance of the issues involved, and in the interest of
substantial justice under art. 6. § 3 of the N.Y. Constitution,
allow leave to appeal by permission.

Repeating my earlier request, appellant respectfully requests
a reasonable opportunity to respond to any further submissions
which may be made by respondent or by the Solicitor General as
to the jurisdictional issues here involved.

Respectfully submitted,

Bigham Englar Jones & Houston

by_Paul Ambos
Paul Ambos

PA:hs
cc: John K. McElligott, Esq.
Hon. Victoria Graffeo, Solicitor General

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1407%3A4. Public record. Not legal advice.