John Lisi, Etc. v. Alitalia-Linee Aeree Italiane, S.P.A.

Plywood clearly sought required for The fundamentals U. S. Ply action, such an as stated in Restatement learn all could about General it Plywood’s Law, Torts, process. are: wood’s But General § eager revelations revelations were the Liability or Disclosure 757. “§ for prospective prospective of a licensor Use Another’s Trade Secret —Gen- Plywood licensee. asked for no General Principle. eral agreement confidentiality from U. S. or uses another’s “One who discloses Plywood Having none. received —and privilege do trade secret without rely solely upon patent chosen to its so, is the other if liable to rights having protection, failed “(a) secret he discovered the grant keep process prior its secret means, improper patent, Plywood General “(b) consti- his disclosure or use position now an action sustain reposed tutes a breach of confidence for breach of Cincin trust. Huszar v. disclosing him other Works, nati Chemical 172 F.2d him, secret (C.A. 1949). “(c) the secret from a he learned only At this can de best person facts third with notice as a close and scribed difficult case. third it was a secret and that Judge did District not abuse his discre by improper person discovered requiring pay party each its person’s dis- means or that the third own costs. closure of it was otherwise a breach duty other, of his to the Affirmed.

“(d) no- he learned the secret with

tice of facts that it was a secret

and that its disclosure was made to

him mistake.”

(cid:127) already What we have said on the issue infringement argues strongly for af- firmance on This this issue likewise. LISI, etc., al., Appellees, John et Judge’s supports record the District view Plywood employ that U. S. did not Plywood

process ITALIANE, disclosed. General ALITALIA-LINEE AEREE p. A., Appellant. S. Additionally, we note that this record 91-95, Nos. Dockets 30543-30547. support finding does not of breach of a confidential disclosure. record This Appeals United States Court of maintaining discloses no effort secre- Second Circuit. cy Plywood’s process in General Argued Oct. plant. employees even Its were not against Decided Dec. also warned disclosure. apparent us, as it the District was to actively Judge, Plywood that General

sought licensing agreements many industry, including plywood

firms Plywood. process In

U. it neces- S. sarily variety made a of disclosures. doing appears us, so it did to the any Judge,

District it neither maintaining secrecy proc- of its

effort at securing agreement nor at an con-

ess fidentiality. Mfg. Hamilton Co. v. Mfg. Co., (W.D.Mich.

Tubbs 216 F. 401

1908). George Tompkins, Jr., N. York New

City Magner, (Austin For- P. Condon & syth, City, brief), York New on the appellant. City Wolcott, summary partial judgment York E. New moved for Theodore Gans, City, (Alfred defenses, York on the as New dismiss these affirmative W. serting they brief), appellees. not available be were appellant properly cause had failed Judge, LUMBARD, Chief Before notify applicability KAUFMAN, Circuit MOORE Judge MacMahon Convention.

Judges. agreed granted appellees and their stayed pending motion. He also the trial KAUFMAN, Circuit R. IRVING by controlling ques decision us “on the Judge: challenged of whether the affirma appeal presented question on this tive defenses are available defendant arising liability, Alitalia's is whether light in the shown [Alitalia] facts planes, of its from crash of one the F.Supp. 237, (S.D.N.Y. here.” 243 253 by provisions of so-called the limited the 1966). granted appellant’s This Court Warsaw Convention.1 application appeal pursuant for leave to 2 1292(b). 28 U.S.C. § February 26, route en while On York, air- Alitalia’s from New Rome to I. taking shortly off after crashed were Shannon, Five suits Ireland. the in conceded brought District consolidated the question the “inter meets definition of wrongful death, personal in- Court for transportation” Ar national contained allegedly damage, juries property Therefore, the ticle of Convention.3 by of suffered thirteen the provisions quite of the Convention of craft the time aboard the govern properly present action. See of appellees are citizens disaster. Airlines, F.2d Eck United Arab appellant York, Italian an New while (2d 1966). Cir. corporation. on Jurisdiction is based argument can stated Alitalia’s main diversity citizenship, of 28 U.S.C. § (a) quite simply. Articles Under 3018-3019, Convention, 49 Stat. answering complaints, Alitalia for the death or the carrier is liable Ar- pleaded defenses those as affirmative by passengers bodily injuries suffered serve ticles of the Convention which aircraft, and for de- liability its its while on board or an airline’s limit exclude baggage. trial, appellees passengers. loss cheeked Prior struction or of appeal upon, discretion, permit title an The official 1. 49 Stat. 3000-3026. its order, applica- Cer- if for of to be from such “Convention the Unification taken Relating days to it ten after International tion is made within tain Rules by Air,” Provided, Transportation entry re- how- hereinafter of the order: stay pro- ever, application not shall to as That ferred “Convention.” ceedings concluded at War- in the district court unless The Convention 12, 1929, Appeals saw, judge Poland, of or or Court October district by judge proclaimed Oc- shall so order.” President Roosevelt thereof ninety 29, 1934. countries tober Over apply “(1) all This convention shall signatories to the Conven- have become persons, transportation of international tion. goods baggage, performed aircraft * * * judge, making “(b) a district for hire. When “(2) purposes convention not otherwise For the of this in a action an order civil transporta- section, expression appealable ‘international shall be under this transportation any opinion tion’ shall mean order involves such which, according controlling question to which to the contract law as departure parties, place ground for difference there is substantial appeal place destination, not opinion whether or an and that immediate transportation may materially a break advance there be order from the transshipment, litigation, within the are situated termination of the ultimate Contracting High writing Par- or- of two in such territories state in shall he so * * Appeals may *.” 49 ties Stat. 3014. there- The Court der.

5H says, by may But, liability, not limited restrict its as circum- provides: scribed the Convention Articles. Stat. (1) transportation passen- In the responds, however, Alitalia gers for each arguing there a crucial difference shall be limited to the sum in the between and 4. Articles 3 [approximately francs $8300]. 125.000 4(4), says, While Article denies the * * * Nevertheless, by special * con- carrier limited “if [it] tract, the carrier and the accepts baggage baggage without a check higher may agree to a limit of lia- having delivered, baggage been if bility.4 particulars” check does contain the specified (emphasis added), only (2) transportation In the of checked ground deny stated in Article goods, and of ing limited in the carrier shall be limited to a sum juries passengers, or death of car is the [approximately per of 250 francs $17] Thus, rier’s failure to deliver a ticket. kilogram, consignor the unless has apply principle we are asked to the ex- made, package at the time when the pressio unites est exclusio alterius and to carrier, was handed over to the a give hold that failure to notice on the flight special declaration of the value de- passenger ticket that the is sub livery paid supplementary and has a * ject rules, to the Convention’s will not de requires. sum if the case so prive the carrier of the substantial de (3) regards objects As of which the limitation of juries in passenger charge takes himself lia- the required, or death. All that is bility of the carrier shall be limited to urges Alitalia, right vest, for this [approximately per francs $332] 5.000 that a gers. passen ticket be delivered to the passenger. clear, however, It that under II. Convention, other Articles of the these apparent applicable limitations are not that Alitalia relies on a reading if pas the carrier literal fails deliver to Convention for its senger baggage.5 reject a or a assertions. interpreta ticket check for We urges Articles, moreover, provide These upon tion it that us. While it is true language ticket and check that shall contain certain of- the Convention is specified information, including decision, relevant come, “a state to our it must not be transportation subject ment that the it, Justice Frankfurter stated a relating prison.” the rules Behimer, “verbal established Sullivan v. Thus, ap 335, 358, this convention.” it would 363 U.S. 80 S.Ct. 4 L.Ed. pear, that 2d (1960) unless (Frankfurter, J., the carrier furnishes to dis passenger senting). baggage ascertaining ticket or check The task of containing appropriate meaning statement, difficult, of words is and one Hague (see accepts passenger Prior to the Protocal 5. “[I]f of 1955 the carrier 7, infra), passenger having note the carrier was not liable without a ticket been proves even for this “if limited amount he delivered he shall not be entitled to avail agents provisions that he and his have taken himself all of those of this con- necessary damage measures to avoid the vention which exclude or limit his liabil- impossible ity.” 3(2), or that it was for him or them Article 49 Stat. 3015. measures,” accepts to take such baggage Article “[I]f the carrier with- 3019; proves having Stat. or if carrier “the out a check been delivered * * * damage the by negligence was caused or contributed to the carrier shall not be en- injured person provisions [and] titled to avail himself of those * * * the court in accordance with the of the convention which exclude or lim- provisions law, liability.” of its own 4(4), exonerate the it his Article 49 Stat. wholly partly liabil- ity.” Article 49 Stat. 3019. 3(1) (e), 3015; 6. Article 49 Stat. Article 4(3) (h), 49 Stat. 3016. provision, misinterpreting way reason to certain them tie make reading. require that state that As Learned Hand ticket literal (Ar- it, temperamental put of the carrier limited are such “words beings way (e)), require that lose their and to surest ticle pas- ticket take at their face.” such a be delivered essence to to them senger Judge re- to Mas- unless the Convention also Hand Address Thus, quired ticket delivered sachusetts Bar Association. language as to consid- such circumstances 3 cannot be afford isolation; passenger opportunity rather, a reasonable it must be ered light self-protective to. take these measures.” other Articles and viewed in added). (emphasis purposes Id. at 856-857 the overall Convention. Airlines, supra. Eck United See v. Arab held, accordingly, that the We inadequate, was and the Convention’s occasion which This is not first fixed limits were not avail- interpret upon we called have been able. delimit of the Convention’s ing provisions. example, For in Mertens Later, was reached a similar result Flying Tiger Line, v. 341 F.2d Flying Ninth Circuit in Warren (2d denied, Cir.), cert. 382 U.S. Tiger Line, Inc., 352 F.2d 494 (1965), 38, 15 L.Ed.2d 64 we were S.Ct. given There the a “board- presenting a asked whether to decide ing “pass” ticket” or at the foot of the he boarded after leading ramp aircraft. Court plane, “de the a carrier’s constituted “delivery” decided that the must made be livery” meaning of the Article within sufficiently pas- in advance so that the 8(2). stated: We senger opportunity will have to take the measures, self-protective pur- such as require 3(2) that read to We Article chasing he insurance if so additional passenger the the ticket delivered to be boarding “delivery” a chooses. The of a a as to him such manner afford ramp plane foot ticket at the as the opportunity reasonable to take meas- depart, was about to did not suffice against protect ures the to himself carrier, accordingly, therefor. was liability. self-pro- limitation Such of availing barred from it- measures, of, for tective could consist liability self of the Convention’s limita- deciding example, the not to take provisions. entering flight, special contract in a reasoning carrier, taking We believe that the out addi- the ap flight. Mertens and Warren decisions tional insurance for the posite to the us. The provides case now before specifically that may arbitrary lia limitations on passenger Convention’s “the carrier and the bility severely agree higher liability” re have been and of limit —which advantageous peatedly 7—are (Article criticized lit- 22(1)) and there would be 880, (1949), Sand, generally 319 85 N.E.2d A.L.R.2d Lim- 7. See “Air Carriers’ 13 denied, Passengers’ Liability Pan sub nom. Froman v. cert. Air itations of Inc., 947, Airways, Compensation American 349 U.S. the War- Accident Under 874, (1955). Convention,” 1273 L.Ed.2d L. 75 S.Ct. 28 J. Air & Com. saw Kreindler, (1961-62). Denunciation of the “The See Convention,” Air J. L. & Warsaw Com. limits the Convention’s Criticism crystallize began 291, the on early to 1955, Hague impact was In the Conference the a 1950’s as result called, arising public from it came so-called crash from a on the Hague Protocol, have which would Jane in which the entertainer personal injured. Despite seriously limits for doubled the on Froman was Although injuries $16,600. signed injuries, to her the size extent States, bills, it was ratified the United curtailment her medical against blossoming career, the Senate. her award her United November On $8300. limited to Ross Pan was American Denunciation to Airways, sent a Notice of States 299 N.Y. Pan v. American quo short, pro tically quid for clear But the reduced. to the carrier. advantage from the ratio decidendi of the Mertens this one-sided baggage cases, inquiry passenger and Warren that the that ticket and give the must Ar- him notice that on made if Convention’s which check given meaning, take, trip amount ticles to be he about are air family recovery in the the ticket delivered him or his was “[w]hether very passenger crash, substan- in such manner as af- is limited event given tially. opportunity him Thus ford a reasonable flight self-protective opportunity purchase additional measures take steps Flying Tiger Line, for other insurance or to take such Mertens v. self-protection supra, F.2d sees fit. at 857.8 he III. passengers is es This notice to country determine, pecially important proceed there in this where We overwhelming people fore, particular number who whether flights, baggage present air do so domestic in the travel on checks involved gave adequate appellees notice.9 for restrictions Convention’s case inapplicable. are is too the front of On expect check, exceedingly print, to be much to these small sufficiently sophisticated following message: that “Each realize traveling although they ticket, par- carefully same are should examine this page ticularly number an international 4.” of miles on the Conditions they frequently And, point, traveled we note one have at this Tiger domestically, they may Flying amount re our reasons Mertens Line, Inc., supra, precluding dras- ear- cover event of an accident is stating “agreed stop- the Polish Government of the Convention that all country opposed ping places” lim- the Convention’s low Plaintiffs shall be listed. omission, injuries, and its on de- because of this claimed that claiming precluded would withdraw from the Convention at lim- fendant was months, pursuant to Article end of six under the Convention. ited 39, State carrier’s 49 Stat. 3022. Id. at 303. The to strike the Plaintiffs’ motion Department known, however, that de- was defenses based on Convention court, F.Supp. if denunciation withdrawn 756 would be district 95 nied finding (S.D.N.Y.1950), affirmed, the world’s international air carriers and we agreed to the limitation first a “technical raise motion based on that the was §75,000 ultimately §100,000. wholly alleged and An omis- unsubstantial and agreement among interim was reached sion”. 227 F.2d at 284. carriers, including Alitalia, Spring Grey perfectly con- Our decision 1966, liability providing holdings for limits of in Mertens and sistent with the §58,000 plus litigation, plaintiffs Warren, supra. Grey, of §75,000 costs In litigation, York were inclusive costs of in New and boarded the liability. City. On that under conditions of absolute Mexico fact headed for May 14, 1966, the with- the intermediate United States the ticket failed to list stops Washington, Dallas, previous D. and drew its “Notice Denuncia- C. deprived way tion.” “The of “a reason- self-protective See Warsaw Convention— in no them Developments opportunity and Recent the Withdrawal to take able measures,” Denunciation,” stops did not of the States 32 since those United Com., 2, p. change J. Air L. & No. 243 character of the “international” flight plaintiffs con- far were so Grey 8. Alitalia’s reliance on v. American Therefore, “de- Article 1. cerned. See 1955), Airlines, (2d F.2d 282 227 Cir. place, livery” taken and of the ticket had denied, cert. 350 U.S. 76 S.Ct. entitled to avail it- the defendant was (1956), misplaced. In L.Ed. 855 100 lia- self of the Convention’s limits plane, that case defendant’s while enroute bility. City, from New York to Mexico crashed Although flight parties agreed Dallas. was 9. The that this is a near have stops Washington, question resolve. at of law for the court scheduled make may Dallas, replica found in D. information A of the ticket be C. this was F.Supp. given plain opinion, contained on the district court’s 253 the ticket to the tiffs, despite provision in Article 240-242. camouflaged pres artfully their liability limiting under the so its from rier F.Supp. at 243. required ence is concealed.” state- Tiger Line, Flying Accord, printed such Warren v. “was ticket ment on the Inc., supra, But see F.2d at 497. virtually unnoticeable be as to a manner * * Airways Corp. Id., British Overseas at 857. and unreadable Seth denied, , Cir.), (1st cert. 329 F.2d 302 Judge appropriately MacMahon 6 L.Ed.2d 85 S.Ct. U.S. passen “notice” to characterized the 1(1964). gers pithy as “camou conclusion in his jury agree not reason- that a could flaged Lilliputian print in a thicket We bag- ably In- found that the *. have of Contract’ ‘Conditions gage gave passengers re- exculpatory checks on which statements deed prop- quired Court notice. District virtually invisible. defendant relies are summary erly granted judgment partial ineffectively They positioned, dimin- are striking defenses out affirmative utively sized, unemphasized bold these appellant. anything contrasting color, type, face they are simple is that else. The truth Affirmed. Moreover, were if a even mately $8,290 and limits printing on the ticket able to read the damage baggage. loss or highly ques- check, usually protection can Additional un- be able to whether he would tionable by purchasing insurance obtained meaning con- pas- of the derstand private company. Such insurance example, the For tained thereon. any the car- limitation of not affected senger tariffs is referred to the carrier’s Con- under Warsaw rier’s to determine whether in order is considered “international please For further information vention. carriage”; your com- consult or insurance airline expressed and the carrier’s representative. pany (consist- gold in terms of “French ing francs however, Provided, car- That when the gold milligrams with a fine- higher agree 65% limit of rier elects thousandths).” of nine hundred 1963, ness provided passengers than Board Aeronautics the Civil Conven- of the Warsaw difficulty cognizance that the took average passenger tion, modified such statement shall be inter- would have higher The state- to reflect the limit. langage preting and issued what printed prescribed herein shall be ment in provides: 221.175, point § now C.F.R. large type at least as as ten (a) re- In addition to the aforesaid contrasting type modern and in ink quirements subpart, air of this each ticket; (2) (1) stock on each which, foreign air carrier paper placed piece in the either extent, any limitation itself of the envelope avails with the ticket or at- ticket provided ticket; (3) on the tached to the shall, Convention, envelope. at the the Warsaw ticket, (b) foreign furnish time Each air carrier and air transporta- passenger which, any extent, to whose each to avails governed by tion is the Convention itself of limitation to place place departure provided by passengers vention, continuously of whose of or the Warsaw Con- States, displayed in destination is the United also cause to be shall writing: following public conspicuous statement in in a desk, station, Passengers position place Advice to International at each Liability charge Limitation of in the of a States which is United Passengers embarking upon journey exclusively by person employed a involving by jointly person, a an destination or ultimate or by any agent employed with another by country stop in a other than the coun- air car- such departure foreign try sell tick- are advised rier air carrier to of treaty passengers transportation provisions known whose of a as ets to may by may applicable governed be the Warsaw Con- be Warsaw to including departure journey place of and whose their entire vention may entirely portion be in the countries of or destination States, United within the printed sign departure which shall have The Con- and destination. prescribed governs lim- thereon the statement paragraph in most cases vention (a) passengers of this section. Such carriers its the printed approxi- injury be in bold face statement shall death high. type inch one fourth of an at least agreed turn, Judge (dissenting): to the understood and MOORE, both Circuit limitation. indulge opinion majority in their The original Conven- limitations The treaty-making. judicial The may by outmoded now. Sub- well be treaty (referred the Warsaw to as of the upward have been stantial revisions Convention) provisions are clear. Its made, they they have as been but comprehend. Its man- not difficult treaty by be, by should simply Ascertainment stated. dates are predilection their courts. Judicial should, therefore, present compliance as to limitation own views problem. no real prevail the limitations should not over Passenger tickets were delivered legislative executive fixed plaintiffs and their decedents on various though branches Government even January 20,1960 dates between and Feb- adding ostensibly is obtained result ruary 20, 1960. on which The treaty requirement actual under- they pursuant travelled their standing Furthermore, for the notice. depart February 25, did not until jury say rea- courts to that a could not particulars ticket contained gave sonably found have ticket specified in Article of the Conven- is, required passenger notice tion, provi- albeit reference to the summary judg- upon partial a motion for respect sions the Convention with to ment, usurp the function time-honored injury exceedingly death or was in small jury. type. reasons, I For these reverse. would majority approve do not treaty and, therefore, by terms of the

judicial they They fiat rewrite it. being advantage” think a “one-sided passenger

taken which must be judicial requirement offset

passenger have notice of the limitation liability. argument support To their SPLENDOR MINING The HIDDEN they refer, quite illogically my opinion, COMPANY, Appellant, to cases in which the courts have held that there was no real of a ticket OF INSURANCE COMPANY GENERAL contemplated by AMERICA, Appellee. treaty. upon Cases based facts tanta- No. 8223. pre-flight mount to no effective delivery,1 Appeals United States Court scarcely are relevant to this Tenth Circuit. case where had their Dec. days tickets from to depar- before ture. Were actual notice to be the re-

quirement, every would airline have to agents explain

have its every passen-

ger legal treaty and, effect probability,

all insist that each represented counsel who would

certify explained import that he had who, the Convention to client Flying Tiger Line, ramp leading Inc.,

1. Mertens v. F. at foot of (2 1965) (Military off); 2d 851 Cir. officer al Eck United Arab about to take v. ready (2 1966) Airlines, Inc., on board an aircraft about to take F.2d 804 Cir. delivered); only (Warsaw off when ticket Warren involved Flying Tiger Line, (9 jurisdiction venue), question 352 F.2d 494 1965) (Soldiers boarding Cir. handed

Case Details

Case Name: John Lisi, Etc. v. Alitalia-Linee Aeree Italiane, S.P.A.

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 16, 1966

Citation: 370 F.2d 508

Docket Number: 30543-30547_1

Court Abbreviation: 2d Cir.