Petition for Writ of Certiorari — Noel v. Linea Aeropostal Venezolana (No. 600)

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INDEX

PAGE

RUOOUE GE SIRIOE TORII onc vc cc esac aces cccaes 2

he oo cns cx dus vdacetchescaicas 2

Question Presented ‘5G BSE Dh patie A ORIEN Oe ate 2

ERI See SET ETT U TERT eee 2

Statement of the Case AA eee heer aoe 3

Reasons for Granting the Writ ..................... 4

Conclusion RA Garena aloha eats Daan reesasn OS

APPENDIX

A—The Warsaw Convention ................... '. 14

PU PTE nena a sa eek KN WE eK we Seeeaveseacd in oe

Sa Na

CITATIONS :

CASES

American Universal Ins. Co. v. Sterling, 203 F. 2d

Se UE EE Cec cncancwsae enews <ocscws 7

Asakura v. City of Seattle, 265 U. S. 332 (1924) .... 7

Berner v. United Airlines, 149 NYS2d 335 (Sup. Ct.

NY County), aff'd, 157 NYS2d 884 (App. Div.

EE scene sxe aceeen bas ba0Xs 5, 9, 11,12

Choy v. Pan-American Airways Company, 1 Am.

ee ee Uy |) errr 1]

Chutter v. KLM Royal Dutch Airlines, 132 F. Supp.

2g, ee heh WAaaees §, 12

Grey v. American Airlines, Inc., 227 F. 2a 282 (2d

ss ed et AGREE ENE CAR DEO SNE 9, 12

Haasman v. Pacific Alaska Air Express, 100 F. Supp.

1 (D. Alaska 1951), aff'd sub nom. Des Maris v.

Beckman, 198 F. 2d 550 (9th Cir. 1952) ........ 10

\

\

INDEX

| eee PAGE

Indemnity Insurance Company of North America v.

Pan-American Airways, Inc., 58 F. Supp. 338

EE Bo cus cave eexiuucrasien 12

Komlos v. Compagnie Nationale Air France, 111 F.

Supp. 393 (SDNY 1952, reversed on other

grounds, 209 F, 2d 436 (2d Cir. 1953), cert.

denied, 348 US 820 (1954) .................08. 1]

Salamon v. Koninklijke Luchtvaart Maatschappij,

N.V., 107 NYS2d 768 (Sup. Ct. NY County 1951),

aff'd, 281 App. Div. 965, 120 NYS2d 917 (1st Dep’t |

Ra Cee eee Per ay re es ee 11

Supine v. Compagnie Nationale Air France, 100 F.

Sam, 906 CHIE TOBE) |... 2. e cnccccscses 12

Wilson v. Transocean Airlines, 121 F. Supp. 85

Cogs E Berreer rerrerie ee 7

Wyman v. rican Airways, Inc., 181 Misc.

963, 43 syed aa (Sup. Ct. NY County 1943),

affd without opinion, 267 App. Div. 947, 48

NYS2d 459 (1st Dep’t 1943), aff'd without opin-

ion, 293 NY.878, 59 NE2d 785 (1944), cert. denied,

I cs 65 cc cui cekncesapescsces 12

CONSTITUTION

es oo i wkd on Ue 6c kk bbe Kee kK ee 7

lead Contention 49 STAT. 3000 (1934) .... 2

Death on the High Seas Act, 41 STAT. 537, 46 USC

< S SCE PAE See ero 7,8

MISCELLANEOUS a

[1934] US Av. R240 ...... ae AER eee 9

IN THE :

SUPREME COURT OF THE UNITED STATES.

Term. No.

Rutu M. Nort and Wo. H. FRANT2, Executors

of the Estate of MARSHAL L. NogEL, De-

ceased,

Petitioners,

Vv.

LINEA AEROPOSTAL VENEZOLANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT.

To the Honorable Chief Justice and Associate Justives of

the Supreme Court of the United States:

The petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for. the Second Circuit in the above captioned case.

é

te

CITATIONS TO OPINIONS BELOW.

The opinion of the District Court,@eported in 144 F. Supp.

359, is printed in Appendix B hereto, infra. The opinion of

the Court of Appeals, reported in 247 F. 2d 677, is printed

in Appendix B hereto, infra.

JURISDICTION.

The judgment of the Court of Appeals for the Second Cir-

cuit was made and entered on August 9, 1957. The jurisdic-

tion of this Court is invoked under 28 U. S. C. §1254(1). z

QUESTION PRESENTED.

Whether the Warsaw Convention, a treaty of the United

States, creates an independent cause of action against the air

carrier for death incurred on board an international flight.

TREATY INVOLVED.

The treaty involved in this case is the Warsaw Conven-

tion, 49 STAT. 3000, Article 17 of which provides:

“The carrier shall be liable for damages sustained in

the event of the death or wounding of a passenger or

3

any other bodily injury suffered by a passenger, if the

accident which caused the damage so sustained took

place on board the aircraft or in the course of any of

the operations of embarking or disembarking.”

The Warsaw Convention in its entirety is printed in Appen-

dix A hereto, infra, at p: 14.

~~

‘

a %

STATEMENT OF THE CASE,

Petitioners’ decedent died while a passenger on respond-

ent’s aircraft on a flight from New York City to Venezuela.

Petitioners.brought suit for $3,000,000 on the law side of the

District Court for the Southern District of New York, alleg-

ing in their complaint that decedent died while the airplane

was in the airspace above the Atlantic Ocean at a point

approximately 30 miles from Asbury Park, New Jersey, as

a result of respondent’s gross negligence, willful misconduct

and recklessness.

Three counts are set forth in Petitioners’ comiplaint: (1)

a diversity action, (2) an action under the Death on the

High Seas Act, and (3) an action under the Warsaw Con-

vention. The jurisdiction of the District Court was invoked

because of diversity of citizenship in count one, because the

action was based on a statute of the United States in count

two, and because the action was based on a treaty of the

United States in count three. The District Court dismissed

all three counts of the complaint on the grounds that suit

under the Death on the High Seas Act may be brought only

in admiralty if at all in this case, and that no independent

cause of action is created by the Warsaw Convention. The

Court of Appeals for the Second Circuit affirmed the District

Court. This petition for certiorari follows.

7]

REASONS FOR GRANTING THE WRIT.

I. The Court below has disregarded the terms of the War-

saw Convention. a Treaty of the United States, which

creates an independent cause of action for international

flights.

An entire scheme of liability with all the attributes of an

independent cause of action is set up by Chapter III of the

Warsaw Convention, entitled “Liability of the Carrier,” Ar-

ticle 17 of which provides for the basic cause of action,

stating—

“The carrier shall be liable for damages sustained in

the event of the death or wounding of a passenger or

any other bodily injury suffere’ by a passenger, if the ©

accident which caused the damage so sustained took

place on board the aircraft or in the course of any of

the operations of embarking or disembarking.” (Em-

phasis added.)

Succeeding Articles of Chapter III establish limitations and

procedures for enforcement of the basic liability, providing

for: (1) The carrier’s bearing the burden of proof of show-

ing its own freedom from negligence;' (2) The affirmative

defense of contributory negligence;? (3) A limitation of the

carrier’s liability to approximately $8,300 unless the pas-

senger can prove willful misconduct by the carrier;* (4) ©

application of the lex fori to determine which persons have

the right to maintain the action for damages and what the

respective rights of these persons are;‘ (5) A survival action

1 WARSAW CONVENTION, Article 20 (1).

2Id., Article 21.

8Id., Articles 22 (1) and 25.

‘Id. Article 24 (2).

5

against the estate of the person liable in case of his death;*

(6) Rules of venue;* (7). Application of. the rules of pro-

cedure of the forum;’ and (8) a two year period of limita-

tions. a

Each of these rules which define and explain the basic

liability has in turn been given effect by the courts, e. g.,

(1) The $8,300 limitation on the carrier’s liability in Grey v.

American Airlines, Inc., 227 F. 2d 282 (2d Cir. 1955); (2)

The venue rules in Berner v. United Airlines, 149 N. Y. S. 2d

335 (Sup. Ct. N. Y. County), affirmed 157 N. Y. S. 2d 884

(App. Div. 1st Dep’t 1956) ;-(3) The affirmative defense of

__/contributory negligence in Chutter vi: KLM Royal Dutch

( Airlines, 132 F. Supp. 611 (S. D. N. Y. 1955); and (4) The

two year period of limitations in the Chutter case, supra.

Logic demands that if the procedural aspects of Chapter ITI

be sustained, effect also be given to the substantive rights

created there. >

Assuming, pro arguendo, that the language of Article 17

is ambiguous in relation to the creation of an independent |

cause of action, Article 27 is unequivocal in its creation of a

survival action in case of the death of the person originally

liable.

“In the case of the death of the person liable, an ac-

tion for damages lies in accordance with the terms of

this convention against those legally representing his

estate.” (Emphasis added.) . |

It seems inconceivable that the drafters of the convention

would provide for a cause of action against the estate of the

tort feasor and not against the tort feasor himself.

5Id., Article 27.

“Id.. Article 28 (1).

‘Id., Article 28 (2).

SId.. Article 29.

II. The decision of the Court below will have the far reach-

ing effect of making the vast number of international

air travellers potential victims of a situation in which

they will be left without a remedy for injury or death.

regardless of how flagrant the misconduct of the air

carrier may be. |

If the holding that the Warsaw Convention does not cre-

ate an independent cause of action is sustained, a great void

will be left in the law wherein the families of the tens of

thousands of American passengers on international flights

may be left without a remedy for death sustained as a result

of negligence by the air carrier no matter how flagrant that:

negligence may be. In the first place, the carrier would be

absolved from liability whenever the death occurs where

there is no lex loci delicti providing for a wrongful death

action, as for example where death of a passenger occurs

when a plane crashes into a territory which has no statute

creating a wrongful death action, even though that terri-

tory may adhere to the Warsaw Convention. Secondly, the

carrier would be absolved from liability whenever the death

occurs in an obscure place, near the border of two countries

and the wreckage is not found, as for example in a jungle

or mountainous region. In such a case, even assuming both

countries have statutes creating wrongful death actions, the

carrier could block an action for wrongful death under the

statute of either country by forcing the plaintiff to prove _

that the death did not occur in the other country.

Two possible remedies—one under the Death on the High

Seas Act,® the other under the Warsaw Convention—were

available to petitioners in the instant case for decedent’s

death, which they allege to have happened in the air space

above the Atlantic Ocean at a point approximately 30 miles

from Asbury Park,:New Jersey. It is axiomatic that no

&

941 STAT. 537, 46 U. S. C. $761 et seq. (1920).

. 7 2

action for wrongful death lies at common law" and it has

been held that state death statutes have no application to

deaths incurred beyond the territorial waters of the state."

The opinion of the court below in effect bars petitioners

from both of these actions, leaving them remediless: even

with respect to the $8,300 to which the Convention says

they are entitled merely upon proof that decedent died on

board an international flight. And under the allégations of

petitioners’ complaint, which for purposes of this petition

must be assumed to be true,’” petitioners were damaged in

the sum of $3,000,000 as a result of respondent’s gross neg-

ligence, willful misconduct-and recklessness. The holding

of the court below is in direct contradiction of Article 17 of

the Warsaw Convention, part. of the supreme law of the

land,* which proclaims that—“The carrier shall be. liable

for damages” if the decedent died while on board an inter-

national flight.

Said the court below—‘Thus, regardless of whether the

Federal Death on the High Seas Act provides a remedy,

Article 17 does not.’"* With respect to the right of action

under the Death on the High Seas Act the court below

stated that the extension of that statute to death incurred

"in the air space above the ocean “raiseg grave constitutional

questions as to the permissible scope of admiralty juris-

diction,” at the same time holding that such cause of action

'’ See, Wilson v. Transocean Airlines, 121 F. Supp. 85, 87 (N. D. Cal.

1954. :

"| Wilson v. Transocean Airlines, 121 F. Supp. (5, 87-91 (N. D. Cal.

1954). j

: '? American Universal Ins. Co. v. Sterling, 203 F. 2d 159, 163 (3d

Cir. 1953).

13 CONSTITUTION, Adiicle VI, Clause 2; see also, Asakura v. City

of Seattle, 265 U. S. 332, 341 (1924).

: ~

'* Opinion of Court of Appeals in instant case, Appendix B, 247 F. 2d

680.

‘5 Opinion of Court of Appeals in instant case, Appendix B, 247 F. 2d

680, n. 4.

8

would not be cognizable on the law side of the court, under

the wording of the Act.'®

Therefore, the court below has in effect included the vast

area above the oceans of the world in the category of loci

delicti with no law creating a cause of action for wrongful

death, precluding recovery for wrongful death in the air

space above the ocean, and giving the air carrier the addi-

tional out of putting plaintiffs to the task of proving that

decedents died on the ocean rather than in the air space

above it, a virtually impossible task, where, as is most often

the case, the plane disappears without a trace.

III. The purpose of the Warsaw Conven!ion—uniform

regulation of the liability of international air carriers

—would be defeated unless the Convention is held to

create an independent cause of action.

a advantage of regulating in a uniform manner the

conditions of international transnortation by air in respect

... Of the liability of the carrier,”’’ stated in the Warsaw

Convention to be its primary purpose, would be defeated

almost entirely if the holding of the court below that the

convention does not create a cause of action is sustained.

If there were an explosion on an airplane over the water

killing some of the passengers, and the remainder of the

passengers were killed when the plane, as a result of the

16 The pertinent part of the Death on the High Seas Act reads:

“That whenever the death of a person shall be caused by wrong-

ful act, neglect, or default occurring on the high seas beyond a

marine league from the shore of any State, or the District of

Columbia, or the Territories or dependencies of the United States,

the personal representative of the decedent may maintain a suit

for damages in the district courts of the United States, in ad-

miralty. .. . (41 STAT. 537, 46 U. S. C. $761 (1920)). (Emphasis

added.) a

°

17WARSAW CONVENTION, preamble.

bf]

explosion, crashed into a territory having a cause of action

for wrongful death,.the fifst group of passengers would have

no cause of action and the second group would have a cause

of action for deaths causea by the same act on the part of

the carrier. It is not conceivable that where the conven-

tion says “The carrier shall be liable for damages,”’’* it was

intended that liability would depend on the chance that the

loeai law weuld provide a remedy. !

IV. The balance which the framers of the Warsaw Con-

vention sought to strike between the rights of-the car-

rier and the passengers would be seriously upset to

the detriment of the passengers by a holding that the

Convention creates no cause of action. :

The framers of the Warsaw Convention intended to have

the Convention strike a balance between the rights of the

carriers, on one hand, to encourage, what at that time was

an infant industry, and the rights of the passengers, on the

other hand, to make up for the rights which were given to

the carrier.’* Secretary of State Hull, in his letter to the

President, dated March 31, 1934, recommending the adher-

ence of the United States to the Warsaw Convention,

wrote—

“Tt will be observed that while under the terms of

the convention passengers and shippers acquire certain

definite rights in international air transportation, the

aerial carriers obtain the benefit of a limitation of lia-

bility.”*°

.

‘18 Yd, Article 17.

19 See Berner v. United Airlines, Inc., 149 N. Y. S. 2d 335, 342 (Sup.

Ct. N. Y. County 1956), aff'd 157 N. Y. S. 2d 884 (App. Div. Ist Dep't

- 1956).

2°(1934] U. S. Av. R. 240, 243. .

-10

' f

n | The carriers gained the following att: at the Con-

vention: Ufiless willful misconduct is proved by the plain-

.- tiff, the liability of the carrier is limited to approximately ~

$8,300 for the death or injury of each passenger. The im-

pact of this limitation on liability is recognized only when |

it is remembered that direct proof of willful misconduct is “

absent in most air accidents, because in the vast-majority

of cases all the eye witnesses are killed.

The pessenger, on the other hand, gained the following

advantages: : He is entitled. to recovery of up to approxi-

mately 300 for death or personal injury without -being

put to the task of proving negligence by the carrier. Hew:

"ever, that this is a real advantage is doubtful in light of the -

cases which have held that where an airplane disappears

without a trace, an action for negligence lies against the car-

rier based on the theory o* res ipsa loquitur.’ Jurisdiction

over the air carrier exists at the place where the carrier has _

a place of business, through which the ticket was-bought,.

regardless of whether the carrier is doing business #here or

not. However, if the passenger has no cause of action, these

so called advantages amount to nothing. But the carrier’s

limitation of liability will operate in its favor in every suit ~

cone the carrier. .

ea |

Vv. While this Court has never ruled on the question, there

‘is some judicial authority for the proposition that

‘Article 17 creates a cause of action.

e? a

Neither this court, nor for that matter any court, before

the decision in the instant case has squarely held that the

Warsaw Convention creates no independent cause of action.

On the other hand, there is authority holding that the War- _

saw' Convention creates a cause of action.

21 E. g.. Haasman v. Pacific Alaska Air Express, 100 F. ‘Supp. 1 (D.

Alaska 1951), aff'd sub nom., edie Maris v. Beckman, 198 F, 2d 550

(9th Cir. 1952),

oo | ee

ll

In Salamon v. Koninklijke Luchtvaart Maatschappij, N. V.,

107 N. Y. S. 2d 768 (Sup. Ct. N. Y. County 1951), affirmed

281 App. Div. 965, 120 N. Y. S. 2d 917 (1st Dep’t 1953) ,”

the Supreme Court of New York held that Article 17 of

the Warsaw Convention created a cause of action for injury

or d&ath on board international airftights covered by the

convention. The holding is based on the wording of the

treaty and on two earlier New York cases in which it was

held that the Treaty was self executing, requiring no im-

plefnentation, and that the Treaty overrides and supplants

local law.

In Komlos v. Compagnie Nationale Air France, 111 F.

Supp. 393 (S. D. N. Y. 1952), reversed on other grounds 209

F. 2d 436 (2d Cir. 1953); ecert. denied 348 U. S. 820

(1954), the District Court for the rn District of New

York stated by way of dictum that: (1) If the locus delicti

_ -has no wrongful death action, the forum of a state adhering

,, to the treaty could allow a suit under Article 17 of the

Treaty, ‘and “under those circumstances it might be said

that Article 17 created the right of action for wrongful

death,” And (2) if the locus delicti adheres to the Con-

vention but otherwise has no action for wrongful death, a

@forum of the locus delicti could allow suit under Article 17 _

of the Convention.** Under the facts presented to it in the

Komlos case the District Court held that since the lex loci

delicti provided a cause of action for wrongful death, it was

not necessary to resort to Article 17.

In Choy v. Pan-American Airways Company, 1° ren Mar.

Cas. 483 (S. D. N. Y. 1941), the District Court for the South-

ern District of New York held that an action could not be

brought under Article 17 of the Convention since there was

no enabling act implementing the Convention, at the same

22 Cited with approval in Berner v. United Airlines, Inc., 149 x Ys

_ 2d 335, 342-3 (Sup. Ct. N. Y. County 1956}, aff'd 157 N. Y. S. 2d: 884

(App. Div. Ist Dep’t 1956).

23 Komlos case at*page 402.

&

12

d

time indicating that it felt Article 17 except for the absence

of implementation created a cause of action.** Cases since

the Choy case have consistently held various parts of the

Warsaw Convention to be self executing.”

The court below in the instant case, without relying on

" lack of implementation for a reason, held that Article 17 of

the Convention does not create a cause of action because

the language of that Article does not rt to create a

cause of action. In this decision the court below stands

’ completely alone.** Q *

24The court in the Choy case although denying plaintiff the right

to bring his action under Artitle 17 of the Warsaw Convention, allowed

suit on the civil side of the District Court under the Death on the

High Seas Act, on the ground that the lagguage of that Act—“may

maintain a suit for damages in the district cdurts of the United States,

in admiralty” (41 STAT.-537, 46 U. S. C. $761 (1920))—did not restrict

suit to the admiralty forum. —

25 Indemnity Insurance Company of North America v. Pan American

Airways. Inc., 58 F. Supp. 338 (S. D. N. Y. 1944); see Grey. Berner,

and Chutter cases cited supra.

26 But c. £., Supine v. Compagnie Nationale Air France, 100 F. Supp.

214 (E. D. N. Y. 1951), wherein the — conceded that the Warsaw

Convention did not create a cause of actién. In this case the air crash

was in Portuguese territory and plaintiff was relying on Portuguese

law so the issue was not presented to the court. And Wyman v. Pan

American Airways, Inc., 181 Misc. 963, 43 N. Y. S. 2d 420 (Sup. Ct.

N. Y. County 1943), aff'd without opinion 267 App. Div. 947, 48 N. Y. S.

2d 459 (Ist Dep’t), aff'd without opinion 293 N. Y. 878, 59 N. E. 2d

785 (1944), cert. denied 324 U. S. 882 (1945), wherein the court said in

relation to the question of whether plaintiff was entitled to interest

on his judgment—“No new substantive rights were created by the

Warsaw Convention. . . . (at 423). Plaintiff argued that the Con-

vention did not apply in order to escape the $8300 limitatior:.

aes ® e e SF rrr

ak 13

CONCLUSION.

. For the foregoing reasons, this petition for a writ-of cer-

tiorari should be granted. _ .

...Respectfully submitted,

HARRY NORMAN BALL,

tie eS! JOSEPH ,G. FELDMAN,

"1010 Packard Building

Philadelphia 2, Pa.,

LIPPER, SHINN & KEELEY,

527 Fifth Avenue,

New York 17, N. Y.,

Attorneys for Petitioners.

STEPHEN M. FELDMAN, -

Of Counsel.

‘

14

APPENDIX A.

WARSAW CONVENTION

x

Convention and additional protocol between the United

States of America and other powers relating to Interna-

tional Air Traysportation. Concluded at Warsaw, October

12,1929; adherence advised by the Senate, with reserva-

tion, June 15, 1934; adherente declared by the Presi&ent

with reservation, June 27, 1934; declaration of adherence

of the United States deposited at Warsaw, July 31, 1934;

proclaimed, October 29, 1934. : pete PPPOE

(49 Stat. 3000 et seq.)

a \

geoph fr

exfe

By THE PRESIDENT OF THE UNrrep STATES OF AMERICA.

A PROCLAMATION.

WHEREAS a convention for the unification of certain rules

relating to international transportation by air and an ad-

ditional protocol thereto relating to Article 2 of the con-

vention, were signed at Warsaw by the respective pleni-

potentiaries of certain” countries, the originals of which

convention and additional protocol, done at Warsaw, in the

eed ete ee ee

French language, October 12, 1929, and left open for signa-

ture until January 31, 1930, are word for word as follows:

{French Text Omitted |

Translation

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES

RELATING TO INTERNATIONAL TRANSPORTATION BY AIR

THE PRESIDENT OF THE GERMAN Rercu * * *

* * * * *

15

Having recognized the advantage of regulating in a uni-

form manner the conditions of international transportation

by air in respect of the documents used for such transpor-

tation and of the liability of the carrier,

Have nominated to this end their respective Plenipoten-

_ tiaries, who, being thereto duly authorized, have concluded

and signed the following convention:

33

f

: f

CHapPTER I. Scope—DEFINITIONS

Article 1

(1) ‘This convention shall apply to all international trans-

portation of persons, baggage, or goods performed by air-

craft for hire. It shall apply equally to gratuitous trans-

portation by aircraft performed by an air transportation

enterprise. ,

(2) For the purposes of this convention the expression

“international transportation” shall mean any transporta-

tion in which, according to the contract made by the par-

ties, the place ‘of departure and the place of destination,

whether or not there be a break in the transportation or a

transshipment, are situated either within the territories of

two High Contracting Parties, or within the territory of a

single High Contracting Party, if there is an agreed stop-

ping place within a territory subject to the sovereignty,

suzerainty, mandate or authority of another power, even

though that power is not a party to this convention. Trans-

portation without such an agreed stopping: place between

territories subject to the sovereignty, suzerainty, mandate, ~

or authority of the same High Contracting Party shall not

be deemed to be international for the purposes of this con-

vention.

(3) Transportation to be performed by several succes-

sive air carriers shall be deemed, for the purposes of this

16

convention, to be one undivided transportation, if. it has

been regarded ‘by the parties as a single operation, whether

it has been agreed upon under the form of a single contract

or of a series of contracts, and it shall not lose its interna-

tional character merely because one contract or a series of

contracts is to be performed entireiy within a territory sub-

ject to the sovereignty, suzerainty, mandate, or authority ef

the same High Contracting Party.

Article 2

(1) This convention shall apply to transportation per-

formed by the state or by legal entities constituted under

public law provided it falls within the conditions laid down

in article 1.

(2) This convention shall not apply to transportation per-

formed under the terme of any international postal con-

vention.

CHAPTER II. TRANSPORTATION DocUMENTS

SECTION I—PASSENGER TICKET

| Article 3

(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, provided that the carrier

may reserve the right to alter the stopping places in case

of necessity, and that if he exercises that right, the altera-

tion shall not have the effect of depriving the transportation

of its international character;

17

(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 sub-

ject to the rules of this convention. Nevertheless, if the

carrier accepts a passenger without a passengsr ticket hav-

ing been delivered he shall not be entitled to avail himself

of those provisions of this convention which exclude or*limit

his liability.

CHAPTER III. LIABILITY OF THE CARRIER

Article 17

The carrier shall be liable for damages sustained in the

event of the death or wounding of a passenger or any other

bodily injury suffered by a passenger, if the accident which

caused the damage so sustained took place on board the air-

craft or in the course of any of the operations of embarking

or disembarking.

Article 18

(1) The carrier shall be liable for damage sustained in

the event of the destruction or loss of, or of damage to, .

any checked baggage or any goods, if the occurrence which

caused the damage so sustained took place during the trans-

portation by air.

(2) The transportation by air within the meaning of the

preceding paragraph shall comprise the period during: which

| | | E “a

18

the baggage or goods are in charge of the carrier, whether

in an airport or on board an aircraft, or, in the case of a

_ landing outside an airport, in any place whatsoever.

(3) The period of the transportation by air shall not ex-

tend to any transportation by land, by sea, or by river per-

formed outside an airport. If, however, such transportation

takes place in the performance of a contract for transporta-

tion by air, for the purpose of loading, delivery or transship-

ment, any damage is presumed, subject to proof to the con-

trary, to have been the result of an event which took place

during the transportation by air.

Article 19

The carrier shall be liable for damage occasioned by delay

in the transportation by air of passengers, baggage, or goods.

' Article 20

/ (1) The carrier shal) not be liable if he proves that he

and his agents have taken all necessary measures to avoid

the damage or that it was impossible for him or them to

take such measures. .

(2) In the transportation of goods and baggage the car-

rier shall not be liable if he proves that the damage was

occasioned by an error in piloting, in the handling of the

aircraft, or in navigation and that, in all other respects, he

and his agents have taken all necessary measures to avoid

the damage.

Article 21 A

If the carrier proves that the damage was caused by or

contributed te by the negligence of the injured person the

court may, in accordance with the provisions of its own

law, exonerate the carrier wholly or partly from his lia-

bility.

19

Article 22

(1) In the transportation of passengers the liability of

the carrier for each passenger shall be limited to the sum

of 125,000 francs. Where, in accordance with the law of

the court to which the case is submitted, damages may be

awarded in the form of periodical payments, the equivalent

capital value of the said payments shall not exceed 125,000

francs. Nevertheless, by special contract, the carrier and

the passenger may agree to a higher limit of liability.

(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 the time when the package was handed over to the car-

rier, a special declaration of the valve 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.

(3) As regards objects of which the passenger takes

charge himself the liability of the carrier shall be limited to

5,000 francs per passenger.

(4) The sums mentioned above shall be deemed to refer

to the French franc consisting of 65% milligrams of gold

at the standard of fineness of nine hundred thousandths.

These sums may be converted into any national currency

in round figures.

Article 23

Any provision tending to relieve the carrier of liability or

to fix a lower limit than that which is laid down in this

convention shall be null and void, but the nullity of any

such provision shall not involve the nullity of the whole

contract, which shall remain subject to the provisions of

this convention,

20 oF

Article 24

(1) In the cases covered by articles 18 and 19 any action

for damages, however founded, can only be brought subject

to the conditions and limits set out in this convention.

(2) In the cases covered by article 17 the provisions of

the preceding paragraph shall also apply, without preju-

dice to the questions as to who are the persons who have

the right to bring suit and what are their respective rights.

Article 25

(1) The carrier shall not be entitled to avail himself of

the provisions of this convention which exclude or limit his

liability, if the damage is caused by his willful misconduct

or by such default on his part as, in accordance with the

iaw of the court to which the case is submitted, is consid-

ered to be equivalent to willful misconduct.

(2) Similarly the carrier shall not be entitled to avail

himself of the said provisions, if the damage is caused under

_ the same circumstances by any agent of the carrier acting

within the scope of his employment.

Article 26

(1) Receipt by the person entitled to the delivery of bag-

gage or goods without complaint shall be prima facie evi-

dence that the same have been delivered in good condition

and in accordance with the document of transportation.

(2) In case of damage, the person entitled to delivery

must complain to the carrier forthwith after the discovery

of the damage, and at the latest, within 3 days from the

date of receipt in the case of baggage and 7 days from the

date of receipt in the case of goods. In case of delay the

complaint must be made at the latest within 14 days from

the date on which the —* or goods have been placed

at his disposal.

21

(3) Every complaint must be made in writing upon the

document of transportation or by separate notice in writing

dispatched within the times aforesaid. _

(4) Failing complaint within the times aforesaid, no ac-

tion shall lie against the carrier, save in the case of fraud

on his part.

Article 27

In the case of the death of the person liabie, an action for

damages lies in accordance with the terms of this conven-

tion against those legally representing his estate.

Article 28

(1) An action for damages must be brought, at the option

of the plaintiff, in the territory of one of the High Contract-

ing Parties, either before the court of the domicile of the

carrier or of his principal place of business, or where he

has a place of business through which the contract has been

made, or before the court at the place of destination.

(2) Questions of procedure shall be governed by the law

of the court to which the case is submitted.

>

Article 29

(1) The right to damages shail be extinguished if an ac-

tion is not brought within 2 years, reckoned from the date

of arrival at the destination, or from the date on which the

aircraft ought to have arrived, or from the date on which

the transportation stopped.

(2) The method of calculating the period of limitation

shall be determined by the law of the court to which the

case is submitted.

5°

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Article 30

(1) In the case of transportation to be performed by vari-

ous successive carriers and falling within the definition set

out in the third paragraph of article 1, each carrier who

accepts passengers, baggage or goods shall be subject to the

rules set out in this convention, and shall be deemed to be

one of the contracting parties to the contract of transporta-

tion insofar as the contract deals with that part of the

transportation which is performed under his supervision.

(2) In the case of transportation of this nature, the pas-

senger or his representative can take action only against

the carrier who performed the transportation during which

the accident or the delay occurred, save in the case where;

by express agreement, the first carrier has assumed liability

for the whole journey.

: ;,

(3) As regards baggage or goods, the passenger or con-

signor shall have a right of action against the first carrier,

and the passenger or consignee who is entitled to delivery

shall have a right of action against the last carrier, and .

further, each may take action against the carrier who per-

-formed the transportation during which the destruction,

loss, damages, or delay took place.’ These carriers shall be

jointly and severaily liable to the passenger or to the con-

signor or consignee.

CHAPTER IV. PROVISIONS RELATING TO COMBINED

TRANSPORTATION

Article 31

(1) In the case of combined transportation performed

partly by air and partly by any other mode of transporta-

tion, the provisions of this convention shall apply only to

the transportation by air, provided that the transportation

by air falls within the terms of article 1.

23

(2) Nothing in this convention shall prevent the parties

in the case of combined transportation from inserting in the’

document of air transportation conditions relating to other

modes of transportation, provided that the provisions of this

“convention are observed as regards the transportation by

CHAPTER V. GENERAL AND FINAL PROVISIONS

Article 32

Any clause contained in the contract and all special agree-

ments entered into before the damage occurred by which

the parties purport to infringe the rules laid down by this

convention, whether by deciding the law to be applied, or

by altering the rules as to jurisdiction, shall be null and voide

Nevertheless for the transportation of goods arbitration

clauses shall be allowed, subject to this convention, if the

arbitration is to take place within one of the jurisdictions

referred to in the first paragraph of article 28.

Article 33

Nothing contained in this convention shall prevent the

carrier éither from refusing to enter into any contract of

transportation or from making regulations which -do not

conflict: with ‘the provisions of this convention.

°

Article 34 (

This convention shall not apply to international transpor-

tation by air performed by way of experimental trial b® air

navigation enterprises with the view to the establishment

of regular lines of air navigation, nor shall it apply to trans-

portation performed in extraordinary circumstances outside

the normal scope of an air carrier’s business. - ——

~

2

. ac

Article 35

The expression “days” when used in this /convention

means current days, not working days. ,

. (

Article 36 \

This convention is drawn up in French in a singhe, copy

which shall remain deposited in the archives of the Min-

istry for Foreign Affairs of Poland and of which one duly ~

certified copy shall be sent by the Polish Government to

the Governgaent of each of the High Contracting Parties.

Article 37

(1) This convention shall be ratified. The instruments of

ratification shall be deposited in the archives of the Ministry

for Foreign Affairs of Poland, which shall give notice of

the depositto the Government of each of the High Con-

tracting Parties.

(2) As soon as this convention shall have been ratified

by five of the High Contracting Parties it shall come into

force as between them on the ninetieth day after the deposit

of the fifth ratification. Thereafter it shall come into forcé

between the High Contracting Parties which shall have rat-

ified and the High Contracting Party which deposits its

instrument of ratification on the ninetieth day after the

deposit. :

(3) It shall be the duty of the Government of the Repub-

lic of Poland "to notify the Government of each of the High

Contracting Parties of the date on which this convention

comes err ae See ee ene ee a

ratification.

Article 38

(1) This convention shall, after it has come int» force,

remain open for adherence by any pm

25

sy

(2) The adherence shall be effected by a notification ad-

dressed to the Government of the Republic of Poland, which

shall inform the Government of each of the High Contract-

ing Parties thereof.

(3) The adherence shall take effect as from the ninetieth

day after the notification made to the Government of the

- Republic of Poland.

Article/39

(1) Any one of the High Contracting Parties may de-

nounce this convention by a notification addressed to the

Government of the Republic of Poland, which shall at

once inform the Government of each of the High Contract-

ing Parties.

(2) Denunciation shall take effect six months after the

notification of denunciation, and shall operate only as re-

gards the party which shall have proceeded tu denunciation.

‘ Article 40

(1) Any High Contracting Party may, at th e tint@llbe

Signature or of deposit of ratification or of adheren

clare that the acceptance wihch it gives to this con

does not apply to all or any of its colonies, pro

territories under mandate, or any other territory

its sovereignty or its authority, or any other gine under

its suzerainty.

(2) Accordingly any High Contracting are tnay subse-

quently adhere separately in the name of all or any of its

colonies, protectorates, territories under mandate, or any

other territory subject toits sovereignty or to its authority

or any other territory under its suzerainty which have been

thus excluded by its original declaration.

26

(3) Any High Contracting Party may denounce this con-

vention, in accordance with its provisions, separately or for

all or, any of its colonies, protectorates, territories under

mandate, or any other territory subject to its sovereignty |

or to its authority, or any’ other territory unde? its suze-

rainty.

Article 41 *

Any High Contracting Party shall be entitled not earlier

than two years after the coming into force of this conven-

tion to callsfor the assembling of a new international con- '

ference in order to consider any improvernents which may

- be made in this convention. To this end it, will communi-

- cate with the Government of the French Republic which

will take the necessary measvies to make preparations for

such conference. ‘

This convention, done at Warsaw on October 12, 1929>

shall remain open for signature until January 31, 1930. »

a * * *