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BAPES v. TRANS WORLD AIRLINES

October 5, 1962

JULIA BAPES, ADMINISTRATRIX TO COLLECT OF THE ESTATE OF CONSTANTINOS P. BAPES, DECEASED, PLAINTIFF,
v.
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 of Illinois.

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
  wilful misconduct.
    "(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 as follows:

    "(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 ...

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