United States District Court, Northern District of Illinois, E.D
October 5, 1962
JULIA BAPES, ADMINISTRATRIX TO COLLECT OF THE ESTATE OF CONSTANTINOS P. BAPES, DECEASED, PLAINTIFF,
TRANS WORLD AIRLINES, INC., A CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Miner, District Judge.
This matter coming on for hearing on the motion of the
defendant to dismiss the Amended Complaint filed in this
cause, and the Court having heard oral argument thereon,
having read and considered memoranda filed in the cause, and
being fully advised, the Court enters its Findings of Fact and
Conclusions of Law, as follows:
FINDINGS OF FACT
1. The defendant, Trans World Airlines, Inc., is a
corporation organized under the laws of the State of Delaware;
the plaintiff, Julia Bapes, is the appointed administratrix of
the Estate of Constantinos P. Bapes and a citizen of the State
2. The original Complaint alleges that on or about April 26,
1956, the deceased, Constantinos P. Bapes, was a passenger on
defendant's airplane enroute from Chicago, Illinois to Athens,
Greece, and that the plaintiff's decedent sustained injuries
on that date which caused his death on September 13, 1958;
that the said injuries and death were caused by the negligent
conduct of the defendant.
3. This suit was filed on September 11, 1959, more than two
years after April 26, 1956, the alleged date of the occurrence
and the date upon which the said flight was to have arrived at
its destination at Athens, Greece, but within two years from
the alleged date of death of the plaintiff's decedent.
4. On February 3, 1961, plaintiff filed her Amended
Complaint asserting that the injuries complained of were
caused by the wilful and wanton misconduct of the defendant.
5. The plaintiff was engaged in international transportation
at the time of the alleged injuries as defined in Article 1 of
the Warsaw Convention.
6. Article 25 of the Warsaw Convention, concerning which the
United States has declared its adherence, provides as follows:
"(1) The carrier shall not be entitled to avail
himself of the provisions of this convention
which exclude or limit his liability, if the
damage is caused by his wilful misconduct or by
such default on his part as, in accordance with
the law of the court to which the case is
submitted, is considered to be equivalent to
"(2) Similarly the carrier shall not be
entitled to avail himself of the said provisions,
if the damage is caused under the same
circumstances by any agent of the carrier acting
within the scope of his employment."
7. Article 29 of the Warsaw Convention provides
"(1) The right to damages shall be extinguished
if an action is not brought within 2 years,
reckoned from the date of arrival at the
destination, or from the date on which the
aircraft ought to have arrived, or from the date
on which the transportation stopped.
"(2) The method of calculating the period of
limitation shall be determined by the law of the
court to which the case is submitted."
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the parties to and the
subject matter of this suit.
2. The rights and obligations of the parties fall under and
are controlled by the provisions of the Convention for the
Unification of Certain Rules relating to International
Transportation by Air with Additional Protocol, commonly known
as the Warsaw Convention, Treaty Series, No. 876, 49 U.S.Stat.
at L. 3000, concluded at Warsaw on October 12, 1929, and
adhered to by the United States on July 31, 1934, and by
Greece on January 11, 1938.
3. Neither the exclusion nor the limitation of liability
referred to in Section (1) of Article 25 of the Warsaw
Convention operates to render inapplicable the limitations
provisions set forth in Article 29 of the said Convention.
4. The limitations provisions set forth in Article 29 of the
Warsaw Convention operate to extinguish any cause of action
for damages arising under the said Convention which is not
filed within the period specified in Article 29, whether the
cause of action is based on negligent conduct, wilful and
wanton misconduct, or otherwise.
5. Defendant is entitled to a judgment order dismissing this
cause for the reason that it was not filed within the time
limited by law, and that the Complaint and Amended Complaint
fail therefor to set forth a cause of action.
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