
    John LISI, etc., et al., Plaintiffs, v. ALITALIA-LINEE AEREE ITALIANE, S.p.A., Defendant.
    Nos. 60 Civ. 4365, 61 Civ. 3426, 63 Civ. 1734-1736.
    United States District Court S. D. New York.
    April 1, 1966.
    
      Theodore E. Wolcott, New York City, for plaintiffs.
    Condon & Forsyth, New York City (George N. Tompkins, Jr., New York City, of counsel), for defendant.
   MacMAHON, District Judge.

These are consolidated actions for death, personal injuries or property damage suffered by passengers in a crash of defendant’s airplane on February 26, 1960, in Shannon, Ireland, while en route from Rome to New York. Plaintiffs are residents and citizens of New York, and defendant is an Italian corporation. Jurisdiction is based on diversity.

Plaintiffs move for partial' summary judgment dismissing all affirmative defenses which are based on the exclusion or limitation of liability provisions (Articles 20 and 22) of the Warsaw Convention, 49 Stat. 3000 (.1934). All of the evidentiary facts material to the motion appear on the face of the tickets issued to the passengers on the flight involved, and there is no dispute about them. Plaintiffs claim that these exculpatory defenses are not available to an airline unless the airline delivers a passenger ticket and, where applicable, a baggage check, which notify the passenger that the exclusion or limitation of liability provisions of the Warsaw Convention are applicable to the flight, and that the tickets and checks delivered here did not notify the passengers of such provisions. Defendant claims that if a ticket and check are delivered to a passenger before departure, such defenses are automatically applicable to ffights between nations adhering to the Convention even though the ticket and check do not notify the passenger of such provisions, and that, in any event, the tickets and checks delivered here so notified the passengers.

The Warsaw Convention specifies that the provisions of the Convention which exclude or limit an airline’s liability are unavailable unless the airline delivers a passenger ticket and baggage check. The Convention also requires that the ticket and check contain “[a] statement that the transportation is subject to the rules relating to liability established by this convention.” Read together, the intent of these requirements is to afford the passenger a reasonable opportunity to take measures to protect himself against the airline’s exclusion or limitation of its liability. Indeed, the Convention specifically provides that “the carrier and the passenger may agree on a higher limit of liability.” Manifestly, if the ticket and check delivered by the airline- fail to notify the passenger that the exclusion or limitation provisions of the Convention are applicable, the passenger is not afforded a reasonable opportunity to protect himself by deciding not to take the flight, entering into a special contract with the carrier, or taking out additional insurance.

We bold, therefore, that compliance with the Convention requires not mere physical delivery of a ticket and check before departure but delivery of a ticket and check which notify the passenger that the provisions of the Convention which exclude or limit liability are applicable. Cf. Mertens v. Frying Tiger Line, Inc., 341 F.2d 851 (2d Cir.),. cert. denied, 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64 (1965); Warren v. Flying Tiger Line, Inc., 352 F.2d 494 (9th Cir. 1965.); Block v. Compagnie Nationale Air France, 229 F.Supp. 801, 808 (N.D. Ga.1964); Sand, Air Carriers’ Limitation of Liability and Air Passengers’ Accident Compensation under the Warsaw Convention, 28 J. Air L. & Com. 260, 262-263 (1962). Thus-, if the tickets and checks issued here did not so notify the passenger, the challenged affirmative defenses are unavailable and must be dismissed.

We are of the opinion that a jury could not reasonably find that the passenger tickets and baggage checks delivered here notified the passengers that the exclusion or limitation provisions of the Convention were applicable and, accordingly, hold as a matter of law that defendant cannot exclude or limit its liability under the Convention in the case at bar. We think one look at the tickets and checks, which were combined in the form of small printed booklets, compels this conclusion. We set forth below replicas of the only applicable pages of typical tickets delivered here:

Outside Front Cover

CONDITIONS OF CONTRACT Page 4 of the Booklet

The footnotes printed in microscopic type at the bottom of the outside front cover and coupons, as welf as condition 2(a) camouflaged in Lilliputian print in a thicket of “Conditions of Contract” crowded on page 4, are both unnoticeable and unreadable.. Indeed, the exculpatory statements on which defendant relies are virtually invisible. They are ineffectively positioned, diminutively sized, and unemphasized by bold face type, contrasting color, or anything else. The simple truth is that they are so artfully camouflaged that their presence is concealed.

“Lilliputian typography,” Eck v. United Arab Airlines, Inc., 20 App.Div.2d 454, 457, n. 2, 247 N.Y.S.2d 820, 824, rev’d on other grounds, 15 N.Y.2d 53, 255 N.Y.S.2d 249, 203 N.E.2d 640 (1964), which must be read through “a magnifying glass,” Warren v. Flying Tiger Line, Inc., 234 F.Supp. 223, 230 (S.D.Cal. 1964) , aff’d, 352 F.2d 494 (9th Cir. 1965) , is at war with the intent of the Convention. This was recognized' by our Court of Appeals in Mertens where one of the reasons for precluding the carrier from limiting its liability under the Convention was that the required statement “was printed in such a manner as to virtually be unnotieeable and unreadable * * *.” Mertens v. Flying Tiger Line, Inc., supra, 341 F.2d at 857.

We hold, therefore, that defendant failed to comply with Articles 3(1) (e) and 4(3).(h) of the Warsaw Convention and that the challenged affirmative defenses are unavailable to defendant in these actions.

Our decision involves a controlling question of law which we think should be immediately appealed under 28 U.S.C. § 1292(b). Cf. Warren v. Flying Tiger Line, Inc., supra, 352 F.2d at 495. We have done our best to reconcile Mertens and Grey (see footnote 6), but until the Court of Appeals has had the last word, there will remain substantial ground for difference of opinion on whether failure to notify in accordance with Article 3(1) (e) has the effect we say, and whether the defendant failed to notify here as a matter of law. To clear the air on the law applicable to the facts- shown here, an appeal is advisable. Moreover, an immedfate appeal may materially advance the ultimate termination of this litigation.

Accordingly, plaintiffs’ motions for partial summary judgment dismissing defendant’s affirmative defenses are granted, and trial of the actions stayed pending decision of the Court of Appeals on the controlling question of whether the challenged affirmative defenses are available to defendant in the light of the facts shown here.

So ordered. 
      
      . The official title is “Convention for the Unification of Certain Rules Relating to International Transportation by Air.” With but a single reservation immaterial here, adherence was advised June 15, 1934; declared June 27, 1934; and proclaimed October 29, 1934- See 49 Stat. 3000 et seq. (1934).
      Article 20(1) provides:
      “The carrier shall 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.”
      Article-22 provides:
      “(1) In the transportation of passengers the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs [$8,300] * * *.
      (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 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 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.”
      On November 15, 1965, the United' States formally denounced the Warsaw Convention, effective May 15, 1966, unless, the airlines serving the United States agree to raise the limitation on liability to $75,-000, and ultimately to $100,000. See Kreindler, The Denunciation of the Warsaw Convention, 31- J.Air L. & Com. 291 (1965). Such denunciation does not affect these actions.
     
      
      . The parties have submitted affidavits complying with Rule 9(g) of the General Rules of the United States District Courts for the Southern and Eastern Districts of New York.
     
      
      . Article 3(2) provides in pertinent part:
      “[I]f the carrier accepts a passenger ■without a passenger ticket having been delivered, the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability.”
      Article 4(4) provides in pertinent part:
      “[I]f the carrier accepts • baggage without a baggage check having been delivered, or if the baggage check does not contain the particulars set out at * * * [4(3)] (h) above, the carrier shall not be entitled to avail himself of those provisions of the - convention which exclude or limit his liability.”
     
      
      . Articles 3(1) (e) and 4(3) (h).
     
      
      . Article 22(1).
     
      
      . Article 4(4), pertaining to baggage checks (see footnote 3), specifically bars a carrier from excluding or limiting its liability under the Convention if it (a) fails to deliver a baggage check, or (b) delivers a baggage check which does not contain the required statement. However, Artrcle 3(2), pertaining to passenger tickets, specifies only one ground for barring a carrier from excluding or limiting liability, namely, failure to deliver a passenger ticket. Defendant argues from this that in eases involving personal injury and death, the absence of the required statement from the passenger ticket is meaningless, and that so long as a passenger ticket is delivered before the passenger boards the plane, the carrier can exclude or limit liability. To support this contention, it cites Grey v. American Airlines, Inc., 95 F.Supp. 756 (S.D.N.Y. 1950), aff'd, 227 F.2d 282 (1955), cert. denied, 350 U.S. 989, 76 S.Ct. 476; 100 L.Ed. 855 (1956). There it was held that a carrier could- limit its liability for wrongful death even though it had failed to comply with Article 3(1) (c) by stating in the passenger ticket all the agreed places where the plane was to stop. However, we think the difference in importance between the statements required by Articles 3(1) (e) and 3(1) (c) destroys any argument that their absence from the ticket should be treated alike.
     
      
      . Plaintiffs also argue that the statements in the tickets and checks are wholly inadequate because framed in conditional terms. However, we think this argument merit-less. If the statements were noticeable and readable, the passenger would have been sufficiently alerted to defendant’s intention to use the Convention, wherever applicable, as a shield to ward off liability. This being so, the passenger could have called into play a variety of protective measures- Accord, Seth v. British Overseas Airlines Corp., 329 F.2d 302 (1st Cir.), cert. denied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d 61 (1964) ; Samuel Montague & Co. v. Swiss Air Transport Co., English Court of Appeals, Jan-21, 1966.
      A third argument made by plaintiff Como representing members of the Disclafani family, whose journey originated in Tunisia, is that since the official language of Tunisia is Arabic, and the tickets were printed in English and Italian, the BIsclafanis were not given notice. We do not reach this argument here. For the purposes of this motion, plaintiff Como has withdrawn a fourth argument that Tunisia, was not a party to the Convention at the time the Disclafanis commenced their journey. '
     