ALITALIA-LINEE AEREE ITALIANE, v. LISI

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Argument of George N. Tompkins, Jr.

Chief Justice Earl Warren: Number 70, Alitalia-Linee Aeree Italiane and versus John Lisi, etcetera, et al.

Mr.Tompkins.

Mr. George N. Tompkins, Jr.: Mr.Chief Justice and may it please the Court.

This case involves the interpretation of a treaty of the United States, commonly known as the Warsaw Convention.

Very briefly, the Warsaw Convention is a multi-nation agreement which has two basic objectives.

The first of these is to minimize conflicts of law which arise in the international transportation by air, of passengers, baggage and cargo.

The second objective and probably the more important, is to establish throughout the world the uniform rules relating to a liability of the carrier.

The fundamental question which this case present to the Court, is whether these treaty is to be interpreted and applied in the United States, on a basis of purely local concepts of law and policy and in disregard of the international obligations of the treaty.

The facts which give rise to this question are not in dispute and maybe briefly summarized.

Respondents brought damage actions in the District Court in connection with an accident which occurred in Ireland in 1960.

These actions were brought in behalf of 13 passengers who were killed, injured and some suffered property loses.

At the time of the accident and again this is not in dispute each of these passengers was traveling on a passenger ticket and baggage check which provided for international transpiration within the meaning of Article I of the treaty.

By this fact alone, all of the provisions of the treaty apply to the rights of the parties to the damage actions.

In answering the complaints, the petitioner alleged several affirmative defenses based upon those provisions of the treaty which subject to proof by the carrier limit or exclude to carrier's liability for the damages claim.

Upon motion of respondents, District Court granted partial summary judgment dismissing these affirmative defenses holding that the treaty provisions limiting liability do not apply unless the carrier has given the passenger notice of the application of these provisions to his transportation.

On appeal of Court of Appeals affirmed in a two to one decision.

The court below has held that this treaty in United States shall not apply insofar as limited carriers liability unless the carrier has notified the passenger before him that on a journey he is about to undertake the treaty applies and limits his liability.

We submit that this decision is in direct conflict with the intent of the parties to this treaty as expressed in a plain language of the treaty itself and confirmed by its drafting history.

Furthermore, --

Justice John M. Harlan: Where did the Court of Appeals find the source of that notice requirement, in the treaty or outside --

Mr. George N. Tompkins, Jr.: They purport it to find it from the treaty Your Honor.

Justice John M. Harlan: I beg your pardon.

Mr. George N. Tompkins, Jr.: They purport it to find it from the treaty but there is no notice requirement in the treaty by its plain language.

They resorted to cases which dealt primarily with the timeliness of the delivery of the ticket and read in to the treaty a provision which the parties had expressly rejected as to notice and which the parties themselves had determined going to be added by amending the treaty in 1955.

Justice John M. Harlan: Okay then.

Justice Abe Fortas: Well, would've be fair to say that the Court of Appeals relied on the fact that Article III requires not only that a ticket must be delivered to the passenger but also that the ticket must contain a statement that the transportation is subject to the rules relating to liability established by this convention?

Mr. George N. Tompkins, Jr.: That is what the Court of Appeals did.

Justice Abe Fortas: And then the Court of Appeals said that statement when the treaty speaks in terms of the statement it speaks that it means a statement that is permanent so that it's easily legible, is that -- am I correct in that?

Mr. George N. Tompkins, Jr.: You're correct in what the Court of Appeals has say, yes.

I would also point out that the decision of the court below is contrary to the long standing practice and understanding of the parties themselves including the United States.

Justice Abe Fortas: Am I -- do I correctly remember forgive me for passing this question, I don't know the answer.

Am I correct in remembering that the Solicitor General does not take the position that the Court of Appeals heard no one stated anymore strongly than that but that's not the way I read it.

Mr. George N. Tompkins, Jr.: And that's the way I read the memorandum of the Solicitor General at the petition level and I would point out that we are unable to reconcile a position to taken by the office of the Solicitor General with the official position of the United States at the Hague Conference in 1955.

The court below in the finding in Article III a requirement of notice is acting in direct conflict with the plain language of that Article.

Treaty says that in two situations and only two situations, the provisions excluding or limiting liability shall not apply.

The first of these is if the carrier is guilty of willful misconduct and we are not concerned with that in this case before this Court.

In a transportation of passengers, the second situation is if no passenger ticket has been delivered.

At the court below has read in to the treaty a third situation and has said that in the United States because of our legal system which requires notice of limits of liability where you seek to limit liability by contract at this treaty shall apply in United States to require notice.

Plain language of Article III expressly limits the imposition of this sanction to the case of none delivery of a ticket.

Article III also states that the irregularity of the ticket shall not to protect the application of the provisions of the convention.

When we contrast this with two other articles in the treaty which I related in our dealing with the baggage check in airway bill we find that the draft is imposed the same sanction where none delivery of the baggage check or none use of the airway bill as in the case of the passenger ticket but the scope of the sanctions is in more contrast.

Justice Abe Fortas: Well, what is a -- what's the point of that second sentence in sub-paragraph two of Article III upon which you seem to rely that is to say that if there is no delivery of the ticket then the carrier can't prevail itself of the limitation of liability provisions, what's the point of it?

Mr. George N. Tompkins, Jr.: Well, --

Justice Abe Fortas: Why is that put in there?

Mr. George N. Tompkins, Jr.: It relates to the purpose of the ticket if Your Honor please.

Justice Abe Fortas: Well, what is that?

What is the relevant purpose of the ticket?

Mr. George N. Tompkins, Jr.: In order to enable a passenger to establish himself as a passenger.

This is the proof of the fact that he is a passenger so that he can obtain the benefits of the treaty.

Justice Abe Fortas: Well there's nothing in here that says that if the passenger loses his ticket he -- this here can't claim -- file a claim under this for wrong for that.

As a matter of fact most airplane accidents survival is the exception rather than the rule and as I understand it no person with experience I would say as I understand it, the airs would have a little difficulty in recovering the ticket from the body of the victim of an airline -- of an airplane crash.

Mr. George N. Tompkins, Jr.: Well, --

Justice Abe Fortas: Can't be that, can it really?

Mr. George N. Tompkins, Jr.: We can't if you take a situation if Your Honor please where as was present in the Merton's and Warren cases, where the courts found that the sanction Article III should applied because passenger had accepted before delivery.

The rules of the treaty relating to the liability of the carrier commence before you are on the aircraft.

If you are walking out --

Justice Abe Fortas: Well I know, what I was asking a connection with this Article III which I gather relates to liability of personal injury, what's the point of that, provision second sentence in subparagraph two, unless it relates to notice to the passengers?

Mr. George N. Tompkins, Jr.: Well, the ticket itself under the treaty if you were to assume strict adherence with the particulars in Article III paragraph one would not convey notice of any limited live liability.

Justice Abe Fortas: Well it conveys notice if there is.

Mr. George N. Tompkins, Jr.: Merely requires a statement.

Justice Abe Fortas: Conveys notice if there is a limitation of liability.

Mr. George N. Tompkins, Jr.: No, it does not.

It says that they notice merely states that a statement that the transportation is subject to rules relating to liability, there are many rules in a treaty not relating to limitations of liability.

Now, in Article IV is I was mentioning the sanction is imposed not only for none delivery of the baggage check.

But it goes further and states that the same sanction shall apply, not only in the case of none delivery but where three of eight items of information are remitted from the baggage check.

Article VIII lists 17 items of information for inclusion in the airway bill.

But the sanction on Article IX applies for the omission of ten of these, in addition to none use of the airway bill.

But when we go back to Article III we find the listing of five items of information, it -- for inclusion of passenger ticket, but no language in Article III extending the scope of the sanction to cover any case where the passenger ticket omits any of the particulars in the first paragraph of Article III.

And yet the Court has said in disregard of this language, the plain language of the treaty that the sanction on Article III will apply in the United States, where the ticket delivered and as admitted in this case that the delivery is not a problem.

Where the ticket delivered does not contain an effect, one of the particulars listed in a paragraph one of Article III or a notice of the limitation of liability.

Justice William J. Brennan: But did the court concede that -- the below concede that the sanction wouldn't be applied if the ticket omitted some of the items specified for inclusion of the ticket?

Mr. George N. Tompkins, Jr.: No, they did not concede after did distinguish there earlier decision, where they had affirmed a decision of the District Court in a case where the agreed stopping places had been left out for ticket.

Justice William J. Brennan: I suppose -- I suppose you can interpret it baggage check in way bill sections as meaning that there are some items of omission for which sanction is not applied.

Otherwise the sanction is regularly applied and hence if you don't put a limitation in, why the sanction applies in case of any omission.

Mr. George N. Tompkins, Jr.: No, the -- I'm not sure as you are but the -- the drafters where very clear that the sanction would apply for the none use of the documents because part of the objective of the treaty was to have the carriers use the documents.

The sanction would apply for none use, and when the came to the baggage check in airway bill they went further and determined that certain information must be included in a document otherwise the sanction will apply.

That information which they have determined must be in the documents they spelled out in a sanction clause.

I'd like to come on the drafting history.

When the parties convened in 1929 a draft convention was presented which had been in preparation for approximately four years.

The preliminary draft of this convention contained the same sections for the passenger ticket, baggage check and airway bill.

These sanctions were to apply in the preliminary draft, not only, were no document was used but also with the document did not contain the information contain in the draft Articles.

But after considerable debate, the express wording of Article III in preliminary draft which would've extended the sanction to cases where the passenger ticket omits any of the information listed therein was taken out.

The exact words were deleted, rejected by the parties.

Justice Byron R. White: Tell me Mr.Tompkins if the provisions on the baggage check and waybill were out in the treaty, what would your argument be based on 3 (2)?

Mr. George N. Tompkins, Jr.: I would premise my argument on the plain language of Article 3 (2) as confirmed by its drafting history and the after to the price to amend the three to extend it to cover the situation which the court below says it covers anyway.

Justice Byron R. White: But is it there strong argument to say that it, -- that the -- you have to use -- you have to deliver a ticket and the question is, what is a ticket?

In other provision of an act it defines what a ticket is.

And unless you deliver a piece of paper meeting those definitions you have and deliver the ticket.

Mr. George N. Tompkins, Jr.: But there is no definition in the treaty if you are to please of what ticket should be, there is a specification of what --

Justice Byron R. White: As to what it should contain?

Mr. George N. Tompkins, Jr.: What it should contain, but no sanction is imposed by the treaty for the fair to ticket to contain any of the information --

Justice William J. Brennan: You mean, all five could be --

Justice Byron R. White: There is a sanctuary for not delivering a ticket.

Mr. George N. Tompkins, Jr.: That's correct.

Justice Byron R. White: And now what is the ticket?

Ticket is a piece of paper with the following things on it.

Mr. George N. Tompkins, Jr.: Well, the treaty does not say that.

Justice Byron R. White: Well, if the treaty says -- the treaty says the ticket shall contain certain things and yet certainly it can be argued that a ticket that doesn't contain all of those things is not a ticket.

Mr. George N. Tompkins, Jr.: It was not the intention of the parties to require that the passenger ticket contain these when the --

Justice Byron R. White: Well, I know that's a different argument but just on the face of these sections that argument is perfectly sensible argument isn't it?

Mr. George N. Tompkins, Jr.: Except that what you have to do --

Justice Byron R. White: Except the reference to these other sections?

Mr. George N. Tompkins, Jr.: No, without going to other sections.

What you have to do is take the language of paragraph two which says that it shall apply where you have -- a passengers accepted without a passenger have been delivered.

And conclude from that, that the parties intended that that apply where nothing is in the ticket.

Justice Byron R. White: Well if, but evidence seem what their intention is -- is their definition of what the ticket should contain and the thing -- and a piece of paper without those things isn't a ticket at all.

Mr. George N. Tompkins, Jr.: Well, you have to then, if you accept that, if you are please you have to disregard the first sentence of paragraph two.

And I'm again confining myself, as you suggested to the language of the treaty in this Article, which says that the irregularity of the ticket shall not affect the existence or the validity of the contract through transportation which shall nonetheless be subject to the rules of the convention.

By that if you say that delivery in the second sentence means delivery of a ticket.

Justice Byron R. White: Yes but the irregularity -- but then it goes and says failure to deliver a ticket.

Mr. George N. Tompkins, Jr.: That's correct and if you say that failure to deliver a ticket means failure to deliver a ticket containing the items listed above, the word irregularity becomes meaningless.

Chief Justice Earl Warren: Would you say it fulfilled the requirements of the statute if it was just a card like this saying that the petitioner is entitled to one flight from this country to Rome on such and such a day, and such and such a time naming the flight then containing nothing else, would that be a ticket?

Mr. George N. Tompkins, Jr.: Speaking theoretically, if the --

Chief Justice Earl Warren: I said to satisfy the requirements of the treaty.

Mr. George N. Tompkins, Jr.: I believe it would, whatever the carriers will accept as valid for transportation --

Chief Justice Earl Warren: Whatever what?

Mr. George N. Tompkins, Jr.: Whatever the carriers will accept as valid for transportation would constitute a ticket within the meaning of the treaty.

We have to --

Chief Justice Earl Warren: If that is true why would they put any requirements for the ticket?

Mr. George N. Tompkins, Jr.: They are -- I do not believe requirements, they are in a sense of suggestions.

Chief Justice Earl Warren: I beg your pardon?

Mr. George N. Tompkins, Jr.: They are suggestions as to what the ticket should contain.

In the draft convention which is represented to the parties there was an article in the draft treaty which said the carriers must use the form of documents appended to this treaty.

During the course of the deliberations that article was deleted, the draft, forms of documents were stricken from the treaty before it was adopted and the parties agree.

And this is in the minutes which we have referred the Court to in our brief that no compulsory form of documents is required under the treaty.

Justice Potter Stewart: Well, that's unusual language though then if that's the case isn't it?

Must deliberate passenger ticket which shall contain the following ticket?

Mr. George N. Tompkins, Jr.: To word shall in this context if Your Honor please does not mean must.

Unfortunately in a diplomatic French we do not always have the precise English word to reflect the intent of the parties.

Justice Potter Stewart: Well what about the must deliberate passenger ticket?

Mr. George N. Tompkins, Jr.: Well that is a mandatory requirement.

Chief Justice Earl Warren: Now could you tell me that if the passenger ticket is not delivered then I take it that the limitation does not apply?

Mr. George N. Tompkins, Jr.: That's correct.

Justice Byron R. White: Well then, how do you construe the first sentence -- the first part of 32 where it says that the absence of the passenger ticket shall not affect the distance or validity of the contract which nonetheless be subject to the rules of this convention?

Mr. George N. Tompkins, Jr.: Well, there are many other rules if Your Honor please in a convention which do not relate to the limitation.

Justice Byron R. White: Exactly.

Mr. George N. Tompkins, Jr.: For example --

Justice Byron R. White: And that's my answer on the irregularity too.

Mr. George N. Tompkins, Jr.: Well, that would be true in the irregularity also.

Justice Byron R. White: So the irregularity is the same.

This saving for irregularity, you now -- you now agreed isn't related to the limitation of liability but other reason?

Mr. George N. Tompkins, Jr.: No, it covers -- it covers, at also the --

Justice Byron R. White: Well, you just said that absence did the same.

Mr. George N. Tompkins, Jr.: The absence would not -- the absence of the ticket -- it says the absence, and then leave out the irregular or lose, the absence of the ticket which will imply none delivery.

The rules shall still apply and this was decided in the Mertens case where there was no delivery, the Court still had to determine whether it had jurisdiction to hear the case under the treaty.

Chief Justice Earl Warren: May I ask you?

Chief Justice Earl Warren: If the treaty contemplated that if a passenger got the very limited ticket that I've mentioned to you that a limitation would apply, why should it make the extreme difference to say that the limitation would not apply if he just as simple statement that I refer to?

What would be the reason for that?

Why would they make that distinction?

Mr. George N. Tompkins, Jr.: Again, I -- you have to go back to 1929 and examine the conditions that existed then to answer that question fully.

Chief Justice Earl Warren: I beg your pardon?

Mr. George N. Tompkins, Jr.: You have to go back to 1929 and examine the conditions existing at that time to answer that question fully.

1929 the passengers had no rights.

The rights between passengers and carriers were determined upon the basis of contracts of transportation going up by the carrier.

And in most countries, including England, France, Germany, these contracts were in forced and contract clauses disclaiming all liability for envy or dept or loss were enforced in those courts.

The governments got together in 1929 to change that system and do away with contractual systems of liability completely by adopting this treaty and imposing uniform rules of liability on the carrier regardless on contractual consent.

This was the very objective of the treaty.

In order for the passenger to be able to bring himself under the treaty he must prove his status as a passenger.

This is done by producing the passenger ticket.

In order to ensure that the rules would apply and that they would be uniformly applied, a severe sanction was imposed on the carrier for not delivering the passenger, a passenger ticket.

Chief Justice Earl Warren: Well before 1929, was the practice not to give people their traveler's tickets of any kind?

Mr. George N. Tompkins, Jr.: The practice was that the carrier would deliver a document containing a contract of carriage and whether a boarding pass was given with that all along with that I don't, but the legal rights of the parties were determined upon the basis of the terms of the contract of carriage and it was to do a way with this contractual system that the treat was adopted.

Chief Justice Earl Warren: Well if they intended to accomplish the result that you argued for, I'm just wondering, what information would the passenger get from this simple ticket that I described to you that should put him under the limitation, where if he didn't have that information the company would be liable for any damages if deferred.

Mr. George N. Tompkins, Jr.: On that simple ticket the passenger would be told as I recall your description where he was going, from he was going and when and nothing else.

Chief Justice Earl Warren: And nothing else?

Mr. George N. Tompkins, Jr.: Nothing else.

Chief Justice Earl Warren: Do you think that that will discuss them that to better to have that language should have made the difference between the full liability and limited liability?

Mr. George N. Tompkins, Jr.: I don't believe that that was the purpose of the statement listed in Article III to convey notice of a limited liability.

If I may again revert to the -- my description of the condition in 1929, the inclusion of this statement in the traffic documents is to alert the courts to the fact when the rights are before the court, the rules of liability which will be used to determine to respect the rights of parties will derive from this treaty and no other.

There are articles in this treaty declaring null and void.

Any contract clause or any ticket provision which is inconsistent with the treaty, the purpose of the statement is similar to a private contract where you might say the rights of the party shall be determined in accordance with the law of New York.

This is the only purpose of that statement and if I may pass approximately 30 years beyond 1929, in 1955 the parties to Warsaw Convention met at the Hague to consider several proposals, amending the Warsaw Convention.

The most important of these related to the traffic documents.

The United States made a four part proposal with regard to Article III.

First of part was, that Article III be amended to require notice and for the first time in history of the treaty, the concept of notice was brought into it.

In fact, the Article when it was finally adopted and drafted used the French word “avi” for the first time.

The original French language of the 1929 treaty nowhere contains the word “avi”.

Second part of United States proposal was, that the sanction on Article III be extended from its 1929 language, to cover the situation where the passenger ticket did not contain this notice.

The third and fourth parts of the proposal related to the sides of type, notice should be a minimum type size, so notice should be in contrast in color.

In the United States proposal was adopted in two respects.

The treaty was amended.

Notice was required in Article III in the passenger ticket.

The sanction was extended to apply in the absence of this notice.

The proposals with regard to the type size and the color were rejected.

Now the Hague protocol, although signed by the United States has never been ratified.

It is not in effect in this country.

They did not come into effect for most to the world until August 1, 1963 more than three years after this accident.

And yet the court --

Chief Justice Earl Warren: Wasn't there some other reason prior to United States didn't ratify that?

Mr. George N. Tompkins, Jr.: The main reason the United States did not ratify it was the limitation of liability.

Chief Justice Earl Warren: There were –- well there were other provisions that were put in to that protocol, were there not?

That the United States objected to and therefore would not sign the --

Mr. George N. Tompkins, Jr.: The only one I'm aware of that they officially objected to us the increase of the limitation to approximately $16,600.00.

They consider this to be too low.

And for that reason it was ratified.

But the fact is that the United States in 1955 considered it necessary to propose and achieve an amendment of the treaty to require notice of the limits of liability, to extend the sanction in Article III, to cover situation where notice was not given.

And yet the court below has read the 1955 requirement of notice and to the 1929 un-amended treaty and as applied against this petitioner the 1955 sanction.

Now we should submit that this is a violation of the international obligations of the United States and we know of no better way to describe the decision and the words of Judge Moore and his dissenting opinion when he stated the majority of the court below, do not approve of the terms of the treaty and by judicial fiat, they have rewritten it.

Thank you.

Justice Abe Fortas: May I ask you whether a part form the one or two English cases that you cite your brief, there are no other decisions of the courts of any country party to the treaty that bear upon this subject.

Mr. George N. Tompkins, Jr.: On the precise issue before this Court?

Justice Abe Fortas: Yes.

Mr. George N. Tompkins, Jr.: That's correct.

Chief Justice Earl Warren: Mr.Wolcott.

Argument of Theodore E. Wolcott

Mr. Theodore E. Wolcott: Mr.Chief Justice, honorable members of the Court.

I think that before forgetting in a detail here, might better to set the treaty in this proper context which is that they did not change the basic law which was fought on the part of the airline.

Nor did it change that basic law under civil law presumed liability on the part of the airline where the airline already had the burden of proof.

And as far as American law is concerned didn't change that because basically common carrier has the burden of proof of freedom, freedom from ever since –-

Justice Potter Stewart: -- were there to the treaty about –-

Mr. Theodore E. Wolcott: Now sir?

Justice Potter Stewart: In 1929.

Mr. Theodore E. Wolcott: I think in 1929 there were about 20 to 25 signatories.

Justice Potter Stewart: I suppose except for Great Britain and the United States and maybe Australia and Canada, the majority of them were civil law countries I decide?

Mr. Theodore E. Wolcott: Yes sir.

Justice Potter Stewart: Yes.

Mr. Theodore E. Wolcott: Yes they were.

And against this background sir, we look at this and see what this treaty really gave.

And what it did was impose a limitation of liability in exchange for an elusory presumption of liability, the carrier updating $300.00.

And did give anything else but imposing this limitation which benefited only the carrier, because there's nothing in the treaty that benefits of passenger and I say that advisably.

They -- there was one quid pro quo as the court below found and that is you must deliver a ticket to the passenger that has certain basic information.

And actually this treaty also is not self-executing, it doesn't automatically impose itself.

It's faced on upon a contract between the passenger and the carrier, which contract must say certain things in order to determine whether the treaty applies where the two countries parties to the treaty.

You have to look at the contract, you have to -- in order to determine what the carrier is you have to look at the contract, in order to detemine where if there's an accident to bring the action.

A matter of fact that was another right they took away from the passenger.

Ordinarily, as well established, if you have an accident its transitory and you bring an action wherever you find them and they eliminated that right or they eliminated very much.

Now, the contractual nature of the treaty makes it conditional that is there must be a contract and it is a condition precedent which must be fulfilled by the carrier before he can invoke this unusual limitation of liability for fault.

And as the court below found, they didn't fulfill this condition.

They didn't deliver what was plainly stated in Article III they didn't deliver a ticket.

And as this Court note previously you cant just give a boarding pass with the number of the flight, flight 29 to a passenger and tell him that that its transportation between two countries of the parties to the convention or tell him where to bring the action anything happens or tell him anything or tell him that he has a right as under Article 22 (1) to negotiate for a higher limit.

Justice Byron R. White: What do you think the ticket is?

Mr. Theodore E. Wolcott: I think the ticket is sir, which is a contract.

A ticket is the name of the airline which is one party to the contract, is the name of the passenger which is the other part of the contract.

It gives the place of origin.

Chief Justice Earl Warren: Well you mean if the ticket is not a ticket unless it has these items on it?

Mr. Theodore E. Wolcott: Yes sir.

Now, I don't want to be put in a position sir, and I think you're quite very pertinent of saying that we must have all of these items all the time because if at times out of a particular situation, that a particular item that's omitted is a material to that situation.For example, if at least at intermediate stopping places and you know it --

Justice Byron R. White: You mean a ticket can be a ticket even if it leaves our some of these things?

Mr. Theodore E. Wolcott: Yes Sir.

If it leaves out something that's a material that turns out to be a material, only to turns up to be a material.

But –-

Justice Potter Stewart: That is a sort of concept of what, probable cause or approximate cause, I suppose?

Mr. Theodore E. Wolcott: Well not quite sir.

Justice Potter Stewart: No, not quite?

Mr. Theodore E. Wolcott: No, sir.

For this, when I say it turns out to be a material there are five items that are listed as in the requirements of the ticket.

Now, all of those may not be material --

Justice John M. Harlan: A material for what?

Mr. Theodore E. Wolcott: Well, to a particularly situation to determine whether the carrier has given a proper ticket to the passenger.

For example, the ticket is issued from country A to country B, or county A to county B and then back to country A.

Now country B is not a party to Warsaw Convention but country A is.

So there the stopping place -- intermediate stopping place would be material because the convention says that if there is a stop in the third country which is not a party of the convention then the convention applies, otherwise if does not.

So otherwise it's domestic transportation because there's no intermediate stop at the third country.

So therefore in that case, stopping place would be material but however if you have, let's say a trip in New York to Mexico City and there intermediate stops in the flight let's say Washington-Nashville and so on.

They live out the intermediate stopping place Washington-Nashville, but if the passenger is going New York to Mexico City, well, the fact that they left out those stopping place a material because you got New York-Mexico City that determines the Warsaw nature of the transportation.

That's what I mean by whether it's material or not.

Now, of course in the case of limitation of liability that is subject to the Warsaw Convention that's always material because he has to know what is contract is that is subject to the Warsaw Convention.

Chief Justice Earl Warren: We'll recess now Mr.Wolcott.

Mr. Theodore E. Wolcott: Thank you.

Chief Justice Earl Warren: Mr.Wolcott you may continue your argument.

Mr. Theodore E. Wolcott: Thank you sir.

I should like to make one correction primarily if I may.

In answer to the question as to the type of countries involved in the original delegation.

I think, I said yes to the United States.

United States was not a signer the original convention in 1929 sir.

It merely had an unofficial observer present.

It did not have a delegate and it did not adhere to the convention until 1934.

The common law countries involved, they're a part from the civil code companies were just British Empire countries.

Now, it is -- I believe well worth pointing out to the Court that the defendant Alitalia really recognized the necessity of delivery of a ticket which is a contract ticket to the passenger.

When in its completing affirm that defenses to this action it said that Alitalia alleged that the transportation was being performed pursuant to contract made with each of the plaintiffs.

There was one affirmative defense and that the transportation was government by a contract of transportation, another affirming defense.

And another affirmative defense that it dully complied with the conditions of the Warsaw Convention.

And another affirmative defense that it has not entered into a special contract for raising the limit of liability.

And all of these are placid admissions and it's like labor in common sense when the -- as the courts somewhat observed before.

The Article III says the ticket must be delivered and immediately before that describes what must go into the ticket.

They're not talking about a blank piece of paper and that exactly what Alitalia says that all they had to do is deliver a blank piece of paper which gives the flight number, even not even that.

Now –-

Justice Potter Stewart: There's nothing unusual or impermissible about having alternative defenses in the federal courts.

Mr. Theodore E. Wolcott: No sir, nothing at all sir except that the fact that it felt it necessary to allege those defenses I think it's significant.

A matter of fact, you might go in one step further and say here they did make up a ticket which they have been using for years and getting away with.

And this ticket with this mass of microscopic print, although finally they were called on it and the ticket was ruled by a number courts.

It has all been ruled by a number of courts in this country as inadequate and not complying with the convention.

Now, much is being made of the difference between Article III and Article IV and VIII to drafting difference.

And I respectfully submit --

Justice Potter Stewart: Did the so called microscopic print on 57 (a) of the printed record is that the one you're talking about?

Mr. Theodore E. Wolcott: It's 78 (a) sir of the record.

Justice Potter Stewart: 78 (a).

Mr. Theodore E. Wolcott: Yes sir.

Justice Potter Stewart: What's this on 57 (a)?

Mr. Theodore E. Wolcott: 57 (a) is another reproduction of the same thing that was made by the defendant to support of its affidavit and 78 (a) was a reproduction made in the official opinion of Judge McMahon that who originally ruled upon commotion.

Justice Potter Stewart: They're the same?

They're reproductions --

Mr. Theodore E. Wolcott: Yes Sir.

Justice Potter Stewart: -- of the same thing?

Mr. Theodore E. Wolcott: Yes sir.

Justice William J. Brennan: In fact, are all of the conditions 3 (a) (1) action would be separate to the same reading?

Mr. Theodore E. Wolcott: Well, there's an attempt to include them that gets me to another point.

When I say attempt --

Justice William J. Brennan: Well before you can tell me, are in fact each of the Articles (a) and (b) included in same reading?

Mr. Theodore E. Wolcott: Yes sir, yes sir.

But may I qualify that answer, and I meant in this sense sir that there's another point in my brief which is that even if you could read these conditions, that they are unintelligible and that it is it says that the Warsaw Convention may apply.

If it involves unnamed countries and may -- in other words it may apply as it applies and which is an unequivocal, qualified conditional statement and it doesn't tell the passenger that is actually traveling subject to the Warsaw Convention.

In other words, there is no clear statement of that anyway even if you could read it.

And by that sir that is why I hesitated to reply to your question.

Justice Hugo L. Black: Are you claiming that this cannot be read?

Mr. Theodore E. Wolcott: That's correct sir.

That's right it can not --

Justice Hugo L. Black: On page 78 (a)?

Mr. Theodore E. Wolcott: 78 (a), yes sir.

And it was a found unreadable by the district judge, it was found unreadable by the Court of Appeals and --

Justice Hugo L. Black: How did they find that?

Mr. Theodore E. Wolcott: Well they looked at it.

Justice Hugo L. Black: Well I'm looking at it and I agree.

Mr. Theodore E. Wolcott: Well, I guess Your Honor they go by what the average, the average person sees when he looks at it and I guess some of us are blessed with keener eyesight than others.

They found that it was so microscopic and such a mass of what would appear a print that it could not be read.

Justice Hugo L. Black: This is in -- excuse me.

Justice William J. Brennan: Is this what 80 (a), is that the outburst side of the – that something that --

Mr. Theodore E. Wolcott: 80 (a) is one of the ticket coupons sir, and it's at 78 (a) would be on the back.

Yes.

Justice William J. Brennan: -- now that I notice to be possibly --

Mr. Theodore E. Wolcott: Yes, there's a reference there at sir, On 80 (a), right at the bottom of the coupon.

Justice William J. Brennan: And they moved that?

Mr. Theodore E. Wolcott: Yes sir.

Yes sir.

Justice Potter Stewart: I noticed it is in the English language on 78 (a) was there anything in the Italian language?

Mr. Theodore E. Wolcott: Yes sir.

Justice Hugo L. Black: Was it both or was it did it depend on the nationality of the passenger?

Mr. Theodore E. Wolcott: Well no, there was just a reference, a reference on the face of coupon the Italian language.But the conditions were in English.

The -- this being an Italian carrier, there may have been another page of conditions that was in Italian.

But my point was that the, with respect to the Como passenger, this is the plaintiff, the ticket have been issued in Tunisia, where the official language is Arabic that should've been in Arabic.

For example, if you have a --

Justice William J. Brennan: You say that it should've been in Arabic?

Mr. Theodore E. Wolcott: Yes sir.

And because you don't have actual notice, you have imputed notice.

And therefore if have imputed notice it should be in the notice of the language of the country where the contract is made.

Justice William J. Brennan: Well I couldn't read Arabic either.

Either that or --

Mr. Theodore E. Wolcott: Well then, then that would be -- that would be unfortunate, if you bought the ticket for example because --

Justice William J. Brennan: Well I couldn't read Italian or Arabic, what difference would it make to me if I can't?

Mr. Theodore E. Wolcott: Well, it wouldn't make a difference to you.

Justice William J. Brennan: If it's imputed.

Mr. Theodore E. Wolcott: Wouldn't make any difference to you except that the operation law it would work against you.

For example, suppose you're an American passenger, American, you bought a ticket in Tokyo to the United States and naturally the ticket – you buy it on Japanese Airlines, the ticket would be printed on Japanese.

Justice William J. Brennan: But this on it appears, the notice at the bottom of 80 (a) is both Italian and English.

Mr. Theodore E. Wolcott: That's correct sir, that's right.

Justice William J. Brennan: I can read the English.

Mr. Theodore E. Wolcott: Yes sir, that's right.

But if the issue -- if you're issued in Tunisia where the official language is Arabic, I say it has to be issued in Arabic.

Justice William J. Brennan: Well then it would still be Arabic and English wouldn't it?

Mr. Theodore E. Wolcott: Yes sir.

Justice William J. Brennan: And I can still read the English.

Mr. Theodore E. Wolcott: Yes.

But that would depend if you could show actual knowledge on the part of the passenger could read English.

For example, supposed you bought a ticket in Japan and the ticket was printed in Japanese.

Justice William J. Brennan: Well would it be only Japanese or is it always in both languages English and --

Mr. Theodore E. Wolcott: Well, it would it could be any language the carrier chose, they may -- would they --

Justice William J. Brennan: They might be Italian and Japanese.

Mr. Theodore E. Wolcott: It could be Italian and Japanese, that's right and sir.

Justice William J. Brennan: And I would be badly off.

Mr. Theodore E. Wolcott: Pardon me sir?

Justice William J. Brennan: Then I would be badly off.

Mr. Theodore E. Wolcott: Yes, but it would still be binding on you to be printed Japanese you bought in Japan would be binding on you --

Justice William J. Brennan: So imputed -- you certainly conceded that imputed notice not actual notice as sufficient to limit liabilities.

Mr. Theodore E. Wolcott: Oh yes, I don't -- as a matter of fact if there's any inference on the part of the appellant that the claim of actual notice, of course not.

Justice William J. Brennan: In other words this could have been an inch high letters in Arabic that I can't read and it would've been alright but because it's in this very small point Arabic then I'm damaged isn't it?

Mr. Theodore E. Wolcott: Well, that only applies to the – this is the funny passenger sir.

Because this -- that's only claim as to that and this.

They were one of this groups that originated in Tunisia, that's just a special situation.But as far as the others are concerned there's no such issue raised sir.

You know, if it was in English and Italian and if the language -- if the language is no problem there.

They're only talking about the imputed knowledge.

Justice William J. Brennan: When they, at the Hague what kind of notice was required?

Mr. Theodore E. Wolcott: At the Hague Conference?

That was in 1955 sir.

Well, in the Hague Conference there was a discussion of amending Article III to add a specific provision that is subject to the Warsaw Convention as the mandatory item.

And that did not change anything, as I pointed out in my brief because it was already there.

It merely helped to clarify it because of a fact that –-

Justice Byron R. White: It helped to make us –- provide a sanction for omitting it?

Mr. Theodore E. Wolcott: Well, all the sanction was already there sir but it merely was an amended – an approval in the language.

And actually the real purpose it was, when they say it shall be prima facie evidence of the contract the ticket shall be prima facie evidence of contract, the real purpose it was, was to prevent the passenger for what any time raising any issue in the future as to the adequacy of the ticket.

And that was the purpose of the Hague protocol as to Article III.

As a matter of fact another of the Hague protocol which I might say generally was to plug loopholes real or fancy in the Warsaw Convention.

And they changed Article 25 or willful misconduct to make it stronger, so that it would be impossible to prove willful misconduct short of murder or attempted murder.

And they also eliminated this possibility of an action against the pilot separately.

So, they were already plugging loopholes.

They weren't really changing anything basically.

And the United States and as a sub to that, they added $88,000.00.

And the United States of course did not adhere to work for the various reasons that I have guessed given.

Justice Hugo L. Black: Where did these people get on the plane?

Mr. Theodore E. Wolcott: They got on -- all except the Discofanny family.

There were five families on here sir, they got on a plane at Rome.

And that -- and I'd like to make clear there is no question as to all of these families as to the language used.

They -- the ticket was in Italian or English.

Justice Hugo L. Black: The language what?

Mr. Theodore E. Wolcott: The language -- the language of the ticket was in both Italian and English so there's no question to that.

Justice William J. Brennan: Well what is the question, whether -- if the provision is there that the Section 3 requires.

What is the question because it's not easily read or --

Mr. Theodore E. Wolcott: Well the –-

Justice William J. Brennan: -- that you can't read at all, is that it?

Mr. Theodore E. Wolcott: Yes sir.

Justice William J. Brennan: That's the holding?

Mr. Theodore E. Wolcott: It's illegible.

Justice William J. Brennan: And that's tantamount to not having a provision at all, is that it?

Mr. Theodore E. Wolcott: That's correct sir.

That's right and it's the -- and also as to the language of the provision.

I'm talking about language and I'm talking about words that it is not clearly stated that the transportation is subject to the Warsaw Convention --

Justice William J. Brennan: Oh, you mean even if it can be read?

Mr. Theodore E. Wolcott: That's correct sir.

Justice William J. Brennan: Even it can be it, it isn't -- it doesn't satisfy the requirement of those three, is that it?

Mr. Theodore E. Wolcott: Yes sir, that's right sir.

Justice Hugo L. Black: If not governed by this limitation what law does govern it?

Mr. Theodore E. Wolcott: Well the -- this crash have taken place in Ireland sir, the law of Ireland would govern it.

Justice Hugo L. Black: The law of Ireland?

Mr. Theodore E. Wolcott: Yes sir.

Justice Hugo L. Black: Suppose they bought the ticket there?

Mr. Theodore E. Wolcott: Pardon me sir?

Justice Hugo L. Black: Because they bought the ticket there, before you said --

Mr. Theodore E. Wolcott: No sir because the crash took place there.

Yes sir.

Except that as Your Honors familiar where the change in the choice of law theory, for example, if you bought a roundtrip, New York to Rome and New York that it might be held under the modern choice of law theory that the -- even though the accident took place in Ireland that the law of New York applies.

Justice Hugo L. Black: Do you happen to know what the law of Ireland would give them?

Mr. Theodore E. Wolcott: Yes sir.

Yes, the Law of Ireland follows the Fatal Accidents Act of England and it's the same ordinary in negligence with the unlimited damages that is damages that you can prove.

And it's basically the same as the law of the United States.

Justice Hugo L. Black: No limitation?

Mr. Theodore E. Wolcott: No sir, No sir.

Justice Potter Stewart: Now there's been a development since the Hague, hasn't there with the United States entered some kind of a protocol?

Mr. Theodore E. Wolcott: Yes sir, there was a Montreal agreement.

The United States --

Justice Potter Stewart: 1966 or '62:

Mr. Theodore E. Wolcott: In '66, the United States is about to denounce the Warsaw Convention all together withdraw and had served notice under provisions of the Warsaw Convention that it was withdrawing.

And there was a lot behind-the-scenes negotiation going on and on the very last day when the air carriers agreed to fly Paris, raising the limit of liability to $75,000.00, the United States withdrew its denunciation.

And that incidentally those atones that's not an amendment of the treaty.

Justice William J. Brennan: Any changes made in the treaty at Montreal?

Mr. Theodore E. Wolcott: No Sir.

Justice William J. Brennan: None at all?

Mr. Theodore E. Wolcott: No.

Justice William J. Brennan: Where'd I hear something of a provision or negotiated provision which would've required notice of this kind in ten point type, where'd I hear that one?

Mr. Theodore E. Wolcott: Well that was on the Civil Aeronautics Board, a regulation sir.

And that came about in this fashion.

The Civil Aeronautics Board, from time to time is asked to -- because of the antitrust laws involved is asked to approve resolutions between various international carriers where the -- whereby the fixed rates and certain practices.

And this resolutions have to be approved under the Civil Aeronautics Act otherwise they run into the antitrust --

Justice William J. Brennan: But that's all independent of the treaty is it?

Mr. Theodore E. Wolcott: Yes sir.

And that's how it came up, but there was no expressed approval of the ticket.

As such in any time by the Civil Aeronautics Board, as a matter of fact that they indicated that they disapproved of it in the form it is now.

And that the Civil Aeronautics Board has filed a brief amicus in this Court.

And which would explain exactly what it did and as to the United States showing that the policy of the United States was that notice that this ticket was inadequate a notice should be required, it was filed by --

Justice William J. Brennan: Or because the print or inadequate because the form of the statement doesn't satisfy Section 3.

Mr. Theodore E. Wolcott: That was inadequate because of the -- its readability because of the plaintiff.

Justice Potter Stewart: What ground did the United States base its threatened denunciation of the Warsaw agreement back in the earlier 60's.

Mr. Theodore E. Wolcott: Well, I would say sir of a number of grounds that was a culmination of many years of discussion in this country, because at the time the Warsaw Convention was adhered by this country, there was no public discussion at all in the Senate and it was a time when nobody pay any attention to, what much interested in international air transportation and it just quietly happened.

And then since international transportation impinged more to the public consciousness, everyone's traveling then Warsaw suddenly became noticeable.

Justice Hugo L. Black: Were these passengers who were killed residents of Ireland?

Mr. Theodore E. Wolcott: No Sir.

Most of them were residence of New York.

Justice Hugo L. Black: New York?

Mr. Theodore E. Wolcott: Yes sir.

And as for the Discofanny family they were immigrating to New York so for all practical purpose, they're going to be residents and they still are residents of New York that is the survivor.

Justice Hugo L. Black: Do we have to assume in a way to go with you that they would've made that trip that they haven't to -- that they would depending somehow on the amount of damages they'd get?

Mr. Theodore E. Wolcott: Well –-

Justice Hugo L. Black: I was thinking if it's probably away from home, the way of the way he's going he starts there and most of them would probably just go on anyhow.

Mr. Theodore E. Wolcott: Well –-

Justice Hugo L. Black: Either this had been read in and put in writ or maybe --

Mr. Theodore E. Wolcott: Well, he could've gone by steamer for one.

Justice Hugo L. Black: He could've what?

Mr. Theodore E. Wolcott: He could've gone by steam ship number one which many consider whether just to be or not I won't say, a more reliable form of transportation involving less risks.

He could've gotten more insurance for another or he could've gotten insurance, and --

Justice Hugo L. Black: Well he could've gotten that whether the type was big or small or they --

Mr. Theodore E. Wolcott: Well, if he knew -- if he knew that his recovery would be limited he'd have to know that first sir, but he didn't know that.

And the only way he could know that was to have a warning given to him with the ticket.

Justice Hugo L. Black: Does your entire argument hinge on whether this is readable type?

Mr. Theodore E. Wolcott: No sir.

My argument hinges upon two things.

That the -- it is not readable and even if readable it does not comply with the requirements of the dimension because it does not fulfill all the conditions including proper notice.

Justice William J. Brennan: Now which one of the five or all of which does not to satisfy?

It has the place and date of issue doesn't it?

Mr. Theodore E. Wolcott: Yes sir.

Justice William J. Brennan: Has the place of departure and destination?

Mr. Theodore E. Wolcott: Yes sir.

Justice William J. Brennan: Does it have the agreed stopping places?

Mr. Theodore E. Wolcott: Yes sir.

Justice William J. Brennan: It does?

Mr. Theodore E. Wolcott: Yes.

Justice William J. Brennan: Does it have the name and address to the carrier carriers?

Mr. Theodore E. Wolcott: It has the name of the carrier, may not have the address but I don't think that's particularly material --

Justice William J. Brennan: Well then, that really comes down to E, doesn't it?

Mr. Theodore E. Wolcott: E, that's right.

Justice William J. Brennan: That's the only one which you argue it does comply.

Mr. Theodore E. Wolcott: I think that that statement has to be clearer and unequivocal and I think it has the state that the -- and very clear prominent way that there is a limitation of liability.

And that the amount of recovery will be limited.

Justice Hugo L. Black: Well that gets down, does it not, to the readability of the type?

Mr. Theodore E. Wolcott: Well, there are two things that its here.

Justice Hugo L. Black: What other, talking about E?

Mr. Theodore E. Wolcott: Well, you see, if you can read it, number one, an number two it has to be intelligible, it has to tell the passenger what it supposed to tell him and it doesn't do it.

Justice William J. Brennan: Well can you say with in fact does tell him?

What does it tell him?

I can read most of it “If the passenger's journey involves an element destination or stop in a country other than the country of departure the Warsaw Convention maybe” and then it's gone, I cant follow the rest.

Mr. Theodore E. Wolcott: Well, that's it Warsaw Convention maybe, but you see there isn't any clear and definite statement --

Justice William J. Brennan: You mean that doesn't say the rules providing the liability that this transportation is subject to the rules relating to liability established by this Convention?

Mr. Theodore E. Wolcott: Right it does, that's correct sir.

It doesn't say that this is transportation subject to the Warsaw Convention.

There isn't any clear equivocal statement and that the -- and doesn't say this transportation is subject limited liability.

It doesn't say that.

In other words the passenger does not --

Justice William J. Brennan: You mean that if it had said only what E says if the only statement the ticket was “This transportation is subject to the rules relating liability established by the Warsaw Convention” that's not enough?

Mr. Theodore E. Wolcott: I would say -- it doesn't say that sir --

Justice William J. Brennan: No, I say if it did say that, you could still say that.

Mr. Theodore E. Wolcott: I don't think that's enough, I think it has adhering --

Justice William J. Brennan: But then to go on and say and what that means is that if you're there's a limitation of liability at $83,000.00 whatever it might offer?

Mr. Theodore E. Wolcott: I would say that it should say that if you're killed or injured that there's a limitation of liability on the amount you can recover in the sum of $82,090.00.

And that the point is that the -- they don't even say it's subject to which is the -- and it's been held, there's some English cases that I cite which hold that that is deficient.

Now, the Convention itself would have no purpose in opposing this one sided advantage that it would be -- would make any sense unless the passenger got notice of what was involved.

Because otherwise this would be a legislation of the most repugnant kind which you took away fundamental rights and we are faced with this extreme position.

Now, the difference in drafting between Article III and Article IV is my opinion easily explain because Article IV we have unaccompanied baggage, Article VIII unaccompanied goods.

You have to make certain things mandatory because otherwise it couldn't identify the goods or couldn't identify the baggage.

And so that if there's anybody going to be penalized, they decided to be the carrier rather than the shipper or the passenger for failure to state these very fundamental things, so there's a definite difference.

Chief Justice Earl Warren: Very well.

Mr. Theodore E. Wolcott: Thank you sir.