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:
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 ...