The opinion of the court was delivered by: Robson, District Judge.
All of the cases arise out of the crash, on November 23, 1964,
in Rome, Italy, of a Boeing 707 jet airliner, operated by Trans
World Airlines. On the issue of liability, both parties agree
that Italian law should govern. This is clearly called for since
the applicable Illinois conflict of laws principle points
unambiguously to the law of the place of the tort in order to
determine whether in fact a tort was committed. Klaxon Co. v.
Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct.
1020, 85 L.Ed. 1477 (1941); Wartell v. Formusa, 34 Ill.2d 57, 59,
213 N.E.2d 544 (1966).
On the issue of damages, the plaintiff argues that the law of
the place of the tort (lex loci delicti) should also govern. The
Illinois Supreme Court, however, has indicated that in certain
situations the interests of one state will be such as to override
the inflexible rule of lex loci delicti. Wartell, supra; Manos v.
Trans World Airlines, Inc., 65 C 1932 (N.D.Ill. Dec. 18, 1968),
at 5-6. The place of injury in these cases is Italy. The
predominant interests to be served on the issue of damages are
those of the states containing the people or estates which will
receive the recoverable damages, if any, for their injuries or
their decedent's death. Cf. Thigpen v. Greyhound Lines, Inc.,
11 Ohio App.2d 179, 229 N.E.2d 107 (1967). It appears that on this
issue of damages, Italy has little or no interest in having its
law applied, since none of the persons entitled to damages are
citizens of, or live or reside in Italy. In fact, it appears that
the place of the crash was a mere fortuity in relation to the
true interests presently to be served. Pearson v. Northeast
Airlines, Inc., 309 F.2d 553 (2d Cir. 1962); Watts v. Pioneer
Corn Company, Inc., 342 F.2d 617, 620 (7th Cir. 1965); Wartell,
supra, citing with approval Babcock v. Jackson, 12 N.Y.2d 473,
240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963);
Restatement Second, Conflict of Laws, Tentative Draft No. 9, §
379. Also see this court's discussion in Manos, supra, at 5-8.
Italian law, therefore, will not apply in any of these twelve
The plaintiffs, however, have expressed the concern that by not
applying the law of Italy, this court is risking that many
decisions will result from the same air crash. They urge that the
need for uniformity and ease of decision militate in favor of the
lex loci delicti rule.*fn1 The plaintiffs overlook the fact that
this problem of applying numerous states' laws will not arise in
all the twelve cases before this court. Only in those cases where
an actual conflict exists will it be necessary for this court to
decide which state's law applies. This is not merely stating the
obvious. In most of the cases, and on most of the issues, all of
the states whose laws might apply will have substantially the
same law, and, as a result, a "false conflict" will be presented.
Cavers, The Choice of Law Process, at 89 (1965). Where there are
substantial differences, this consideration of differing laws and
differing interests is an essential part of our federal system.
The legitimate interests of a sister state (or even a sister
country) are thereby considered and weighed before a judgment is
rendered. The old lex loci delicti rule, while relatively simple
to apply, worked injustices to some of the parties by ignoring
these interests. E.g., Griffith v. United Air Lines, Inc.,
416 Pa. 1, 13, 203 A.2d 796, 801 (1964). Having thus expressed this
court's guiding principles, there is no need to rule in each of
the cases where no conflict has been shown to exist.*fn2
In five of the cases, however, there is a need to decide which
state's law applies on the question of the statute of
limitations: Schanke v. Boeing Co., 66 C 1586; Gartley v. Boeing
Co., 66 C 1587; Nessler v. Boeing Co., 66 C 1588; McCarthy v.
Boeing Co., 66 C 1589; and Tsamanis v. Boeing Co., 66 C 2139.
Even though it is this court's opinion that certain states'
laws should be applied in these cases on the issue of damages
under the relaxation of the lex loci delicti rule in Wartell,
supra, this does not mean that these same states' statutes of
limitations should also apply. In Illinois, the statute of
limitations question is affected by the existence of the
so-called "Borrowing Statute," Ill.Rev.Stat. 1967, ch. 83, § 21,
"When a cause of action has arisen in a state or
territory out of this state, or in a foreign country,
and, by the laws thereof, an action thereon cannot be
maintained by reason of the lapse of time, an action
thereon shall not be maintained in this state."
The defendant contends that this statute applies and points to
the law of the plaintiff's or the plaintiff's decedent's domicile
for the applicable statute of limitations. The plaintiffs, on the
other hand, argues that this "Borrowing Statute" should not
apply, and that the Illinois two-year statute of limitations
should govern, since the law of the forum governs as to such
matters of procedure.*fn3
Neither of the parties' positions can be accepted completely.
Several cases have held that the Illinois statute of
limitations applied even though the cause of action "arose"
outside the state. E.g., Wetzel v. Hart, 41 Ill. App.2d 371,
190 N.E.2d 619 (2d Dist. 1963); Jackson v. Shuttleworth,
42 Ill. App.2d 257, 192 N.E.2d 217 (3rd Dist. 1963), and cases cited
therein.*fn4 However, in all of these Illinois cases, either or
both of the parties (corporate and individual) were or became
residents of the State of Illinois at some time before or after
the suit was filed. Although it is true as plaintiffs contend,
that the "Borrowing Statute" is silent on the matter, the cases
have been clear that where both parties resided and continued to
reside outside Illinois, the "Borrowing Statute" is the only
statute which applies. I.L.P., Limitations § 5, at 181; Ester,
Borrowing Statutes and the Conflict of Laws, 15 Fla.L.Rev. 33, 69
(1962), and cases cited therein. In all five of the cases
presently before this court, all of the parties reside and have
resided outside the State of Illinois since the cause of action
"arose."*fn5 Therefore, the "Borrowing Statute" must be held to
apply. However, this does not end this court's inquiry.
The statute provides for the application of the statute of
limitations of that state or foreign country where the cause of
action "has arisen." This term has been unambiguously construed
in tort cases*fn6 to mean that the Illinois courts will apply
the law of the "place where the last act occurred to create
liability." Ester, supra, at 45-48; Janeway v. Burton, 201 Ill. 78,
66 N.E. 337 (1903); Gray v. American Radiator and Standard
Sanitary Corp., 22 Ill.2d 432, 435, 176 N.E.2d 761 (1961); Smith
v. Bain, 123 F. Supp. 632 (M.D.Pa. 1954). This place in these
cases is Italy, and no statute of limitations has been shown to
exist under Italian law that would bar these plaintiffs from
suing in this
court. The defendant might well complain that this approach is
really a statement of the outmoded lex loci delicti rule.
However, this court has no trouble in retaining the lex loci
delicti rule where, as in this case, a statute governs the
application of a foreign state's statute of limitations. However
desirable it might be to apply another jurisdiction's laws, this
court cannot stretch the guidelines set forth in Wartell, supra,
any further. Such a proposition is for the Illinois Supreme Court
or the Illinois legislature, and not for a federal court sitting
The plaintiffs are also basing their recovery on the theory of
express or implied warranty. They claim that since the aircraft
was manufactured, sold and delivered in the State of Washington,
that Washington law should apply, according to the applicable
Illinois conflict of laws principle. The defendant contends that
the law of Italy should apply, since that country was the site of
the crash. Not only does this position of the defendant run
counter to its position on the prior issues of the effect to be
given the signed releases and the law applicable to the issue of
damages, but it runs contrary to one of the defendant's defenses
to the Amended Complaint. See, e.g., Tsamanis, supra, Answer, at
3-4. The defendant correctly points out that the Illinois
choice-of-law principle demands that the law of the state where
the article was sold defines and limits an action for the alleged
breach of an express or implied warranty. Hardman v. Helene
Curtis Industries, Inc., 48 Ill. App.2d 42, 58-63, 198 N.E.2d 681,
12 A.L.R.3d 1033 (1st Dist. 1964); I.L.P., Sales § 4. The
aircraft involved in this crash was sold under a written contract
entered into in Washington on March 19, 1956, and was delivered
on May 9, 1960, also in Washington. The court concludes that the
Washington law should apply.
The defendant goes one step further. It argues that, if
Washington law applies, a three-year statute of limitations which
began to run when the aircraft was delivered bars any recovery
for breach of warranty. Wash.Stat. § 4.16.080. However, under
Washington law, the statute does not start running until the
cause of action accrues, i.e., when the plaintiff has the right
to sue. Wash.Stat. § 4.16.010; Gray v. Goodson, 61 Wn.2d 319,
378 P.2d 413, 417 (1963). The plaintiffs in these actions did not
have the right to sue until the crash occurred on November 23,
1964, and all the suits were filed within the time prescribed by
the Washington statutes.
It is, therefore, ordered that the defendant's motions for
summary judgment be, and ...