79 A.D.2d 591 | N.Y. App. Div. | 1980
Order, Supreme Court, New York County, entered November 30, 1979, denying defendant Iberia’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs and disbursements, and the motion granted. The action against Iberia, the air carrier, was time barred as a matter of law by the two-year limitation contained in article 29 of the Warsaw Convention. (US Code, tit 49, §1502.) Plaintiff’s action against Iberia is also barred by his failure to file a written notice of claim within 120 days from the date of issuance of the waybill, pursuant to Iberia’s applicable tariff filed with the Civil Aeronautics Board. That plaintiff never received the cargo documents that would have afforded him actual notice of the convention’s applicability and the tariff is of no moment. The Warsaw Convention, an international treaty ratified by the United States Senate, has the effect of a Federal statute and is the law of the land. (See Reid v Covert, 354 US 1; see, also, US Const, art VI.) The two-year limitation is applicable despite lack of actual notice. (Molitch v Irish Int. Airlines, 436 F2d 42.) The filing of an air carrier’s tariff with the Civil Aeronautics Board notifies all persons of and binds them to the provisions contained therein. (See Robert v Pan Amer. World Airways, 71 Misc 2d 991, affd 42 AD2d 929.) The complaint against Iberia is dismissed. Concur—Sullivan, J. P., Ross, Markewich, Lupiano and Carro, JJ.
