44 Misc. 2d 348 | N.Y. Sup. Ct. | 1964
This is a negligence suit which arises out of the tragedy of February 3, 1959 when an American Airlines airplane crashed into the East River while attempting to land at La Guardia Airport. The decedent was a passenger on said plane.
Plaintiffs’ effort to strike the third defense which asserts defendant’s limitation of liability for injuries sustained contained in the Warsaw Convention is based on the theory that defendant breached the contract for international transportation.
Now plaintiffs do not question that the contract provided for international transportation and that if the flight from Vancouver to Seattle had proceeded as scheduled the decedent would be subject to the Warsaw Convention under the contract. They contend, however, that the contract was breached when the flight from Vancouver to Seattle was cancelled and that it was subsequently rescinded when payment for the unused part of the plane ticket was refunded and a new contract for purely domestic travel from Seattle to New York in effect substituted. Though they do cite legal precedent to establish their right to rescind on breach of contract, they cite no Canadian or New York law to substantiate their claim that a breach of contract did result on the basis of the agreed facts and the events which occurred at Vancouver and Seattle. In my view of these events, no breach did in fact occur and, on the contrary, the parties actually complied with its terms.
The rules and regulations of Northwest Airlines, from whom decedent purchased the ticket, were made specifically applicable to and part of the contract by virtue of the printed conditions on the back of the ticket so purchased. They in effect provide that a cancellation, postponement or delay (however the actions of the airlines at Vancouver may be regarded) do not constitute a breach of the contract by the carrier. The carrier under said rules and regulations was given the absolute right without notice to make such cancellation, postponement or delay because of undisputed meteorological conditions. Plaintiffs’ argument that even though the airline had the right to do so under the contract, there was nonetheless a breach thereof and a subsequent right to rescind is therefore incomprehensible, as is their further argument that the involuntary refund (the refund slip is designated as such) constituted agreement on the part of the carrier to rescind though rule 11 of the aforesaid rules specifically provides for such refund due to cancellation, postponement, etc.
The actions of the parties would thus appear to be consonant
By its second defense, sought to be stricken, the defendant claims that article 29 of the Convention, which bars suits not timely commenced, is actually a condition precedent to the right of suit rather than a time limitation for such suit. It cites several cases which involve statutory actions to recover compensation wherein the courts hold that these time periods do constitute a condition precedent rather than a limitation. They so hold because the right of action created by the statute and incorporated therein set the time limitation as a condition precedent to the maintenance of the suit and is thus quite independent of practice remedies. (Hill v. Board of Supervisors of Rensselaer County, 119 N. Y. 344; Johnson v. Phoenix Bridge Co., 197 N. Y. 316.) Also cited is Balzano v. Port of N. Y. Auth. (232 N. Y. S. 2d 776) which similarly upheld the time limitation as a condition precedent. Here, again, the same statute which contained the limitation also created the remedy so that the limitation was in effect a restriction on the remedy created by the statute.
In the present instance, however, the Warsaw Convention does not create the remedy as the remedy is actually contained either in the common law or, as in the case at bar, the Decedent Estate Law of New York, which does not provide any time limitation. The two-year limitation of time set out in article 29 of the Convention cannot therefore be construed as a condition precedent, and since the saving clause of CPLB 205 is applicable to this suit which was timely commenced following termination
The motion to strike the first defense is consented to. The motion to strike is granted as to the second defense and denied as to the third defense.