(dissenting):
Federal jurisdiction is based on diversity of citizenship. 28 U.S.C.A. § 1332. The case is therefore one for the application of Erie-Tompkins principles.
As stated in the majority opinion, Air France asserts three defenses: (1) that the flight was governed by the Warsaw Convention limiting liability to $8,291.97 for each person killed, (2) that the flight charter agreement or the tickets issued to each passenger purporting to incorporate by reference to the Warsaw provision, restricted recovery to the amount limited by the Warsaw Convention, and (3) that the law of France, where the accident occurred was controlling and that by such law the Warsaw limitation was applicable.
It is my view that the courts of Georgia, including a Federal court in a diversity case, are free to reject a limitation of liability of the law of the place where the fatal injury occurred and apply its own more liberal rule of unrestricted liability. Pearson v. Northeast Air Lines, 2nd Cir. 1962, 309 F.2d 553. The public policy of Georgia, enforced by its courts, renders invalid any contractual provision limiting the liability of a carrier of a fare-paying passenger for personal injuries. Southern Railway Co. v. Watson, 110 Ga. 681, 36 S.E. 209; Central of Georgia Railway Co. v. Lippman, 110 Ga. 665, 36 S.E. 202, 50 L.R.A. 673. These principles would permit and probably would require a Georgia court to allow the plaintiffs in this litigation to recover such damages as they might prove, in the event liability is established, unless precluded from so doing by the Warsaw Convention.
*354Near the beginning of the majority opinion it is declared thal “The Warsaw Convention applies to the international transportation of passengers under a contract of carriage on a ‘voyage’ charter flight.” If I thought this was a correct statement of principles, I would agree that the judgment of the district court should be affirmed. Holding the view that the statement is not a correct statement of the controlling rule of law, I dissent.
The Warsaw Convention does not expressly include charter flights within the limitation of liability provision, nor are such flights expressly excluded from its operation. A treaty is to be construed in the light of the conditions and circumstances existing at the time of the treaty. Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 54 S.Ct. 361, 78 L.Ed. 695; In re Zalewski’s Estate, 292 N.Y. 332, 55 N.E.2d 184, 157 A.L.R. 87; Universal Adjustment Corporation v. Midland Bank, 281 Mass. 303, 184 N.E. 152, 87 A.L.R. 1407. The date of the Warsaw Convention was 1929. The Lindberg flight was two years earlier. The establishment of transatlantic passenger service was in 1939, ten years after the treaty. The circumstances existing in aviation were such in 1939 as to make it improbable that charter flights were within the contemplation of those who made the treaty.
If alternative meanings can be placed upon a treaty, the one adopted should, if possible, be that which is least restrictive of the rights of individuals. Universal Adjustment Corporation v. Midland Bank, supra. The rule that invalidates contract provisions which restrict the rights of passengers to recover for personal injuries is one ^generally prevailing in the United States. 13 C.J.S. Carriers § 629, p. 1182. The rule is founded upon public policy. Aetna Casualty & Surety Co. v. Prather, 59 Ga.App. 797, 2 S.E.2d 115; Philippine Air Lines, Inc. v. Texas Engineering & Manufacturing Co., Inc., 5th Cir. 1950, 181 F.2d 923. Where the meaning of a treaty depends upon construction, as I think is the case here, the meaning adopted should be that which is consistent with a generally prevailing rule of public policy rather than one which should override it.
The scholarly magnum opus of the majority is most persuasive but I remain unconvinced. Therefore I dissent.