Full opinion text
MEMORANDUM OF DECISIONS AND ORDERS BRAMWELL, District Judge. The motions and cross motions before the Court today comprise but another phase in the complicated legal motif emanating from the unwinding arabesque of MDL 227. While the first motion interposed by Eastern Air Lines appeared simple enough, its complexity grew with the stream of further motions, cross motions, reply affidavits and further reply affidavits that poured in quickly thereafter. Indeed, this litigation, which arises out of the tragic air crash of Eastern’s flight 66 at Kennedy Airport on June 24, 1975, is like writing the first sentence of a book that may never be completed. Like Hydra who grew back two heads to replace the one that had been severed, the resolution of one problem in this case appears to breed at least two additional new ones. And the Court not being Hercules, this regeneration continues. The origin of the plaintiffs’ motions and cross motions and Eastern’s motions and cross motions in the non-disputed representative cases may be traced back to certain pre-trial events which transpired in the fall of 1978. To retreat to an earlier phase of this litigation, on September 15, 1978, the plaintiffs in these non-disputed cases approached the bench for the severance of their actions from the impending damage trial and for the entry of judgments on liability against Eastern Air Lines on the basis of the Warsaw Convention as supplemented by the Montreal Agreement. In each of these cases, Eastern Air Lines had interposed in its answer as a first affirmative defense that [t]he travel of plaintiffs’ decedent involved international transportation subject to all terms and conditions of the Warsaw Convention (49 Stat. 3000 et seq.), as amended by the Hague Protocol thereto (if applicable), and as supplemented by the Montreal Agreement of May 4,1966 (if applicable), and defendant Eastern Airlines, Inc. therefore claims exemption from and limitation of liability in accordance with the terms and conditions of the said Warsaw Convention and/or Hague Protocol and/or Montreal Agreement. After hearing argument on this matter, and for reasons hereinafter discussed in section I, infra, the Court granted the plaintiffs’ motions from the bench over the objection of Eastern Air Lines. Thereafter, orders to this effect were drafted by Eastern Air Lines and signed by the Court on September 22, 1978. The autumn of 1978 was prolific regarding legal matters, for the motions in the disputed representative cases also possess this time as a common genesis. As more fully explained in section II, infra, on September 15, 1978, Tierney O’Rourke, one of the plaintiff-representatives in each of these cases, appealed to this Court to enter liability judgments, predicated on the Warsaw/Montreal system, against Eastern Air Lines on behalf of the plaintiffs in these suits. In doing so, he noted that the above quoted defense was interposed by Eastern Air Lines in the disputed as well as the non-disputed representative actions. However, troubled by the visibly awkward posture of the plaintiffs in the disputed cases as they then stood at bar, Mr. O’Rourke’s motions were not granted at that time. Some time later, however, after formal motions had been made and argument had been heard, on December 15, 1978 said motions were conditionally granted. See section II, infra. Adhering to its hydra-headed nature, said rulings inspired the birth of the numerous motions before the Court today. In order to achieve some utility of insight into said motions, rather than setting forth the substance of each motion at this time, they have been divided into separate categories and will be discussed accordingly. .1 PLAINTIFFS’ REQUESTS FOR A RULE 54(b) AMENDMENT OF THE WARSAW/MONTREAL JUDGMENTS IN THE NON-DISPUTED REPRESENTATIVE CASES. A Background The plaintiffs in the Behar, Abbate, Daha, Bright, Hickey, Edmund Bigio, Raphael Bigio and Alzozo cases move and the plaintiffs in the Windbourne, Domangue and Mahfoud cases crossmove for an order pursuant to Rule 54(b) of the Federal Rules of Civil Procedure amending their liability judgments entered against Eastern Air Lines on the basis of the Warsaw Convention as supplemented by the Montreal Agreement. Specifically, they ask that said judgments be amended to reflect that Eastern is not precluded thereby from raising any defenses it may have against them. Further relief is sought by the plaintiffs in the form of a request that this Court also reaffirm the grant of the motions which sired the disputed judgments. Adhering to its litigious nature, Eastern Air Lines vigorously opposes the grant of the instant motions. In doing so, it initially argues that Rule 54(b) provides neither the method nor the requirements for the amendment of a judgment. Accordingly, Eastern concludes that Rule 60 of the Federal Rules of Civil Procedure applies to the instant request, not Rule 54(b). Eastern also directly attacks the propriety of a Rule 54(b) amendment, noting that the plaintiffs have cited no authority supporting any such action. Additionally, Eastern maintains that this Court erred in granting the plaintiffs’ Warsaw/Montreal motions in that it should have reviewed the individual facts and pleadings of each case, determined the applicable, law, and then decided whether the actions could continue to be prosecuted. Considering that this Court did not adopt this approach, Eastern concludes that these issues cannot be resolved now. Rather, Eastern contends that they are to be resolved by the Second Circuit unless, of course, this Court vacates the Warsaw/Montreal judgments sua sponte and sets the plaintiffs’ motions down for a hearing on the merits. It bolsters its argument further by stating that, by virtue of the requested amendment, the plaintiffs are only trying to cure or mitigate the lack of due process which occurred when their motions were granted from the bench. The plaintiffs, on the other hand, note at the outset the significant absence of any claim by Eastern that the Warsaw/Montreal system is not applicable to and thus does not govern their cases. And even if Eastern was denied procedural due process at the time said motions were granted, the plaintiffs contend that their instant noticed motions have served the function of affording it due process now. B Discussion of Rule 54(b) In light of Eastern’s allegation that this Court may not amend the disputed judgments pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, a discussion of the propriety of granting the plaintiffs’ motions must necessarily start with an examination of Rule 54(b) itself: When more than one claim for relief is presented in an action, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. Fed.R.Civ.P. 54(b) (emphasis added). At this point in this litigation, the interlocutory nature of the Warsaw/Montreal judgments is not open to dispute. Such an issue was first resolved by this Court in its Decision and Order of December 1,1978 and was finally put to rest by the Second Circuit’s statement from the bench on January 16, 1979: In the case of the summary judgment relating to the Warsaw Convention cases we find that we have no authority to overrule the Rule 60(a) change made by Judge Bramwell on the clerk’s Rule 54(b) statement and since there has been no 1292(b), we are without jurisdiction at the moment. Since the Warsaw/Montreal system judgments are not final, the Second Circuit’s statement in Acha v. Beame, 570 F.2d 57 (2d Cir. 1978), is of direct significance: Under the express directives of Rule 54(b) itself, such an interlocutory judgment is “subject to revision at any time before the entry of judgment adjudicating all of the claims and the rights and [the] liabilities of all of the parties.” . . Whether such revision is appropriate in any given case is within the sound discretion of the trial judge. Id. at 63 (citations omitted and emphasis added). Accord, Bache & Co., Inc. v. Taylor, 458 F.2d 395, 396 (5th Cir. 1972) (per curiam); Fireman’s Fund Insurance Co. v. Myers, 439 F.2d 834, 838 (3d Cir. 1971); United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970); Carey v. Greyhound Co., 424 F.2d 485, 487 (9th Cir. 1970); Premier Industrial Corp. v. McGuire, 423 F.2d 1198 (5th Cir. 1970) (per curiam); United Bonding Insurance Co. v. Stein, 410 F.2d 483, 485 (3d Cir. 1968) (per curiam); Stewart v. Bishop, 403 F.2d 674, 680 (8th Cir. 1968). These cases also bear relevance on Eastern’s assertion in its memoranda of law in opposition to the plaintiffs’ Rule 54(b) motions that Rule 54(b) merely defines the nature and character of a judgment upon multiple claims or involving multiple parties [and] does not provide the method or requirements for an amendment of a judgment. A reading of the above cited cases indicates that Rule 54(b) revisions are often accomplished by use of the same procedure employed here, that is, by way of noticed motion. As has been noted, Eastern additionally argues that a Rule 54(b) revision can only be accomplished by reference to Rule 60’s limitations on amendment of a judgment and to its procedure. Worthy of mention, however, is that Rule 60(b) applies only to a “final judgment, order or proceeding.” Since Rule 54(b) speaks only of non-final judgments and since said judgments by their very nature are inconsistent with final judgments, in advancing this argument Eastern Air Lines is unsuccessfully attempting to harness a paradox. Eastern’s reliance on Rule 60(a) is similarly unavailing. While Rule 60(a) applies broadly to judgments, orders or other parts of the record, it is the medication to be applied to cure clerical errors. Unlike the situation presented to this Court on December 1, 1978, no clerical errors are claimed to exist regarding these judgments at this time. Moreover, if use of Rule 54(b)’s broad revisionary powers was to be limited to cases where a Rule 60(a) amendment is proper, not only would the legislature have so stated but also there would be absolutely no reason for the existence of that portion of Rule 54(b) relied on herein. In light of the incontestable nature of these judgments, coupled with the clear import of Rule 54(b)’s directive and the abundant case law supporting a court’s revisionary power, this Court fails to see any merit in Eastern’s argument that this Court cannot revise these judgments. Of further note in this regard is the apparent inconsistency in Eastern’s position. At the outset, it tells the Court it cannot amend the judgments. Despite this claimed lack of power, however, it argues that this Court can vacate them sua sponte. Indeed, it appears that the Court can do either. See United States v. Desert Gold Mining Co., supra at 715. Now that it has been established that the Court possesses the power to revise the Warsaw/Montreal judgments, the next question to be answered is whether it should exercise its discretion and do so. See Acha v. Beame, supra at 63. In order to answer this question as well as to reach a decision on the plaintiffs’ requests that the Court affirm the grant of their Warsaw/Montreal motions, the reasoning underlying this ruling must be explored. The logical starting point for such an examination is a discussion of the Warsaw/Montreal system itself. C The Warsaw/Montreal System Despite the infancy of the aviation industry in 1929, numerous nations “[s]aw the heavens fill with commerce, argosies of magic sails.” Tennyson, “Locksley Hall.” Accordingly, in order to protect the industry in its earliest stages from an apocalyptic financial fate and to establish uniformity in the laws among nations in the event of aircraft accidents, numerous nations entered into the Convention for the Unification of Certain Rules Relating to International Transportation by Air. 49 Stat. 3000 (1934) (reprinted in supplement to 49 U.S.C. § 1502). While the United States was not one of the original participating parties, adherence to this treaty was advised by the United States Senate on June 15, 1934 and was proclaimed by the President on October 29, 1934. Commonly known as the Warsaw Convention, this treaty is a major unilateral agreement among nations which, according to Article 1, governs the rights and responsibilities of carriers with respect to the international transportation for hire of persons, baggage or goods. While one of the central purposes of the Warsaw Convention was to limit the potential liability of a carrier by providing a maximum damage recovery of 125,000 gold francs or approximately $8,300.00 for personal injury or death arising out of an air disaster, this Argus of the aviation industry was not exacted without a price. In exchange for this protection, Article 17 was included to provide that [T]he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of operations of embarking or disembarking. However, still possessing parental concern for the infant industry, the mother nations softened the harsh effect of Article 17 by also including in the treaty Articles 20(1) and 21: Article 20 (1) The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures. Article 21 If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability. Nurtured by industrial advancements in science and technology, between 1929 and 1965 the aviation industry matured into a comparatively safe, swift and profitable business. Disturbed by the fact that Warsaw’s damage limitation had not also grown up with the industry, and faced with the economic reality of the passing years, in November of 1965 the United States gave the requisite notice of its denunciation of the Warsaw Convention. In doing so, it emphasized that its action was motivated solely by the low limits of liability to passengers. Department of State Press Release No. 268, Nov. 15, 1965. Presented with this eventuality, the aviation industry decided “[t]o take arms against a sea of troubles.” Shakespeare, Hamlet, Act III, scene 1. Accordingly, two days before the United States’ denunciation was to become effective, an interim agreement was entered into among a substantial number of air carriers. This agreement provided that the carriers were to file tariffs with the Civil Aeronautics Board which would raise the limits of liability and waive Warsaw’s Article 20(1) defenses. The basic agreement, the tariff, see 31 Fed.Reg. 7302 No. 97, May 19, 1977, and the CAB order, see Agreement CAB 18900, CAB Order No. E-23680, are commonly known as the Montreal Agreement. With respect to the increase in the damage limitation, the airlines agreed to enlarge the maximum limitation to $75,000 per passenger. The airlines’ waiver of the Article 20(1) defenses effected a change in the substantive approach to air carrier liability. While cases apparently unaffected by the Montreal Agreement speak in terms of a “presumption” of liability, see, e. g., Benjamins v. British European Airways, 572 F.2d 913, 917 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (U.S. 1979), cases affected by the Montreal Agreement employ the language of absolute liability. To illustrate, in Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976), the Second Circuit stated: Under the Montreal Agreement, liability for injuries described by Article 17 of the Warsaw Convention became absolute and the maximum damages were, increased to $75,000. Id. at 33 (emphasis added). Accord, Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1259 (9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Such a characterization of the nature of liability under the Montreal Agreement finds support in the Civil Aeronautics’ Press Release regarding the Agreement: [B]y agreeing to forego certain defenses which they could raise under the terms of the Convention, the participating carriers are accepting the principle of absolute liability, i.e., liability without fault on the part of the airline. CAB Press Release 66-61; 382-6031, May 13, 1966 (emphasis added). Furthermore, the State Department similarly remarked: Airlines in international travel will be absolutely liable up to $75,000 per passenger regardless of any fault or negligence. Recovery by those who need it most will thus be maximized and expedited. Department of State Press Release No. 110, May 13, 1966 (emphasis added). Thus, as the Warsaw/Montreal system stands now, unless a plaintiff wishes to seek unlimited recovery against the airline by virtue of its willful misconduct, see Art. 25 of the Warsaw Convention, or has contributed to the accident, see id. Art. 21, the need for litigation of the issue of the airline’s liability for fault has been eliminated. This does not mean, however, that a plaintiff is automatically entitled to the receipt of a $75,000 check from the airline. To the contrary, he must still prove his damages and is entitled to recover the damages so proved up to the ceiling amount of $75,000. Having highlighted the underpinnings of the Warsaw/Montreal system, the reasoning behind the grant of the autumn Warsaw/Montreal motions is now appropriate for discussion. D Reasoning Underlying the Grant of the Autumn Warsaw/Montreal Motions in the Non-Disputed Cases Cognizant of the character of the Warsaw/Montreal system, and there being no dispute regarding its applicability to the cases then at hand, when faced with the plaintiffs’ requests on September 15, 1978, the Court opined that, as to liability and liability only, no question of fact existed. See Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 392, 358 N.Y.S.2d 97, 103, 314 N.E.2d 848, 852 (1974). In so deciding, the term “liability” was employed in its purest sense, that is, as synonymous with fault. Indeed, this was the common usage of the term with respect to the Warsaw/Montreal system. See Day v. Trans World Airlines, supra at 33; CAB Press Release 66-61, supra ; Dept. of State Press Release No. 110, supra. In granting the requested relief, therefore, the Court passed only on the issue of fault. No judgment was passed on the issue of whether Eastern Air Lines was liable in damages to the plaintiffs, especially in light of Eastern’s multifarious defenses of lack of capacity to sue, application of foreign law, and, in all but the Behar, Hickey and Bright cases, lack of authorization by decedents’ next of kin. Seeing these defenses in a light more closely related to the issue of liability for damages, the plaintiffs’ motions for entry of judgments on the issue of liability for fault were granted. See Rosman v. Trans World Airlines, Inc,, supra at 400, 358 N.Y. S.2d at 110, 314 N.E.2d at 857. While this approach may be somewhat unorthodox in the face of Eastern’s defenses, it must be remembered that this litigation is not the garden variety negligence case. The very definition of multidistrict litigation encompasses suits commenced in various federal courts throughout the nation and synthesized in one federal court. In granting the plaintiffs’ motions, this Court did not scorn the individual personalities of Eastern’s defenses in search of a Procrustean solution of the issues before it. Rather, the complex nature of the litigation coupled with the myriad of particular problems attendant to Eastern’s defenses were compelling factors in the decision to grant the plaintiffs’ motions. To illustrate, turning first to Eastern’s defenses of lack of capacity to sue, it was realized that said defense contests a party’s right to come into court and, consequently, is usually decided as a threshold issue. Nonetheless, the unique questions raised by the multidistrict character of this case prompted the Court to do otherwise. Rule 17(b) of the Federal Rules of Civil Procedure provides that the question of a representative’s capacity to sue is governed by the law of the state where the district court is situated. At first glance, it appears that New York law would therefore govern the capacity issue in all of these cases. However, in Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), the Supreme Court held otherwise. Ironically, the novel issue raised in Van Dusen resulted from the multitude of actions commenced after an air crash disaster in Boston. There, the Court was faced with the potential transfer of forty cases pending in a Pennsylvania Court, where the plaintiffs had capacity to sue, to a Massachusetts Court, where 100 similar actions were pending and where the Pennsylvania plaintiffs would not have capacity to sue. In finding that a transfer would only result in a change of courtrooms, not a change of law, the Court stated: Since in this case the transferee district court must under § 1404 apply the laws of the State of the transferor district court, it follows in our view that Rule 17(b) must be interpreted similarly so that the capacity to sue will also be governed by the laws of the transferor State. Id. at 639, 84 S.Ct. at 822. At this point, mention must be made of the varied birthplaces of the suits at bar. The Domangue, Mahfoud, Hickey and Windbourne plaintiffs commenced their suits in Louisiana federal courts. Actions were commenced by the Behar, Abbate, Daha and Alzozo plaintiffs in the Southern District of New York. The Bigio suits are the only actions native to the Eastern District of New York. While the Van Dusen holding would not affect the New York born suits, it would affect the Louisiana actions. As to this group, Van Dusen dictates that Louisiana law would apply to the resolution of the capacity issue. Moreover, Eastern’s defenses of lack of authorization of the decedents’ next of kin appear to come within the breadth of Rule 17(b) and the rationale of Van Dusen. Consequently, Louisiana law would also apparently apply to the resolution of these defenses in the Domangue, Mahfoud and Windbourne cases. Since a remand of the Louisiana cases to their respective home districts was contemplated by the Court when it granted the September motions, in light of the foregoing, it appeared that judicial economy would best be furthered if the resolution of Eastern’s capacity defenses was deferred until a later pre-damage trial stage or, if necessary, when a settlement was near. Although New York law would determine the issue of capacity to sue in the Behar, Abbate, Daha, Alzozo, and two Bigio cases, it must be remembered that the Warsaw/Montreal judgments were directed solely to the issue of fault, not damages. Thus, Eastern was not thereby compelled to pay any damages to an improper plaintiff. Moreover, at the time the subject motions were granted, neither party had informed the Court what law would govern the capacity issue. Although the actions are native New Yorkers, the respective decedents did not and their next of kin do not hail from New York. Having not been apprised of the relevant law, therefore, in September this Court was troubled by the possibility that New York law might refer to Venezuelan law in the Behar and Bigio cases, Syrian law in the Alzozo case and Italian law in the Abbate case for the resolution of the capacity issue. If this was so, to paraphrase Judge Friendly’s remarks in the air crash case of Nolan v. Transocean Air Lines, 290 F.2d 904 (2d Cir.), cert. denied, 368 U.S. 901, 82 S.Ct. 177, 7 L.Ed.2d 96 (1961), quoting 276 F.2d 280, 281 (2d Cir. 1960), vacated and remanded, 365 U.S. 293, 81 S.Ct. 555, 5 L.Ed.2d 571 (1961), this Court opined that it would have to determine what the New York courts would think the [Italian, Venezuelan and Syrian] courts would think on an issue which neither has thought. 290 F.2d at 905. Such legal labyrinths, in the Court’s view, were better left for resolution immediately before the commencement of separate damage trials or, if necessary, before settlement. Eastern Air Lines, however, takes issue with this Court’s approach to its capacity defenses. Meeting this reasoning head-on, Eastern claims its capacity defenses should have been determined prior to the grant of the plaintiffs’ motions since, if proven, said defenses would mandate the dismissal of these actions. While some of the legal authority cited by Eastern gives the color of support to the view it advances, heed must be given to those cases which hold that where the defect may be cured by the substitution of the proper representative, dismissal is not warranted. Instead, such cases grant the plaintiff leave to amend his complaint. See, e. g., St. Louis, San Francisco & Texas Railway Co. v. Seale, 229 U.S. 156, 162, 33 S.Ct. 651, 57 L.Ed. 1129 (1913); Marston v. American Employers Ins. Co., 439 F.2d 1035, 1041 (1st Cir. 1971); Hunt v. Penn Central Transportation Co., 414 F.Supp. 1157, 1160 (W.D.Pa.1976); Weinstein v. Medical Center Hosp. of Vermont, Inc., 358 F.Supp. 297, 299 (D.Vt.1973). See also cases cited in section VII, infra. Of significance to those cases governed by New York law is the New York Court of Appeals’ approach to the issue of a representative’s capacity. In Stolz v. New York Central Railroad, 7 N.Y.2d 269, 196 N.Y. S.2d 969, 164 N.E.2d 849 (1959), much to the defendant’s dismay, the Court of Appeals refused to sanction the dismissal of the plaintiff’s wrongful death and survival actions with prejudice, notwithstanding her apparent lack of capacity to sue. By declaring plaintiff’s appointment invalid and thereupon dismissing these actions, Trial Term appropriated to itself certain discretionary powers which the Legislature confided only in the Surrogate. Here, the Trial Judge not only improperly exercised the discretion which the Legislature reposed in the Surrogate’s Court but, indeed he virtually assumed there was no room for the exercise of any discretion. When at the close of trial he was alerted to the fact that there was a question as to the validity of plaintiff’s appointment, he should have recognized that the Surrogate, with full knowledge of the facts, could have authorized the administratrix to continue these actions. It was, therefore, error to dismiss them. Id. at 272-74, 196 N.Y.S.2d at 971-73, 164 N.E.2d at 850-51. The Stolz Court additionally noted that a dismissal would consequently not prejudice [the administratrix] individually in any respect. It would, however, if the limitations period barred future actions, prejudice the rights of the ultimate beneficiaries and promote a windfall for defendant railroad. Id. at 275, 196 N.Y.S.2d at 973, 164 N.E.2d at 852. The reasoning underlying this decision is noteworthy, not only to the instant New York cases but also to the other capacity defense cases as well. Of additional note is that the Stolz Court breathed life into the foregoing considerations by fashioning a procedure to be followed in representative capacity cases: A suspension of these [wrongful death and survival] actions, however, pending action by the Surrogate’s Court — which may be the retention of plaintiff as administratrix or the appointment of a new administrator who could be substituted as party plaintiff in these suspended actions — within a reasonable time, would preserve the rights of the ultimate beneficiaries since these actions were timely brought in the first instance. Id., 196 N.Y.S.2d at 973, 164 N.E.2d at 852. In light of the foregoing, this Court was not persuaded that Eastern’s capacity defenses, even if proven, would mandate the dismissal of the actions at hand. This being so, when considered in conjunction with the additional reasoning behind the grant of the subject motions, the Court thought it best to defer ruling on the capacity questions until a later, more appropriate time. Continuing on with the exploration of the unique problems presented by an immediate September resolution of Eastern’s defenses and an explanation regarding the deferment of their resolution, Eastern’s defense of the application of foreign law appears next on the agenda. At the outset, it must be noted that this defense is yet another mystery that remains untold in this case. Although Eastern asserted this as a second affirmative defense in each of the instant cases, and in doing so, assured that notice thereof will be given in accordance with Rule 44.1 of the F.R.C.P. upon ascertainment of applicable law[,] to date, no specifics as to which foreign law or how its application would bar the prosecution of these actions has been forthcoming. No enlightenment was provided by Eastern in September when the Warsaw/Montreal motions were argued and, despite adequate opportunity to do so now, Eastern has still not come forward with any specifics or arguments that would warrant a vacatur of the Warsaw/Montreal judgments on the basis of this defense. The decedents and next of kin in the Windbourne, Domangue, Hickey and Bright cases resided and reside in Louisiana. The Windbourne action concerns the husband of one decedent and the father of two decedents suing as plaintiff. In the Domangue case, plaintiff is the decedent’s widow who apparently qualified in Terrebonne, Louisiana as the tutrix of the only children of the decedent. In the Hickey case, Edgar Bright and Mansuel Hickey were apparently appointed by Will as executors of the estate of Jane Bright Hickey. Similarly, in the Bright case, Edgar Bright was apparently appointed executor of the estate of Ethel Bright. While Eastern sets forth its defense of the application of foreign law in these cases with a thrust akin to athletic energy, it remains mute as to which law is to be applied and how its application bars the continuation of these actions. Similarly, in the Behar case, Eastern merely points out that the decedent’s home was Venezuela and concludes, therefore, that Venezuelan law must have some relevance to the action. The same opinion is attached to Eastern’s observation that Edmund and Raphael Bigio were unmarried Venezuelan citizens who are survived by two brothers who are Israeli citizens and one sister who is a Swiss citizen. Again, Eastern concludes that foreign law must have some relevance regarding the Daha, Alzozo and Mahfoud cases, all of which concern Syrian decedents and beneficiaries. The only instance where Eastern is even vaguely specific regarding the application of foreign law is the Abbate case wherein it notes that a workman’s compensation lien apparently exists under an unspecified Italian law against the proceeds of a damage recovery or settlement. By its own terms, however., the existence of such a lien would have no bearing on the issue of fault but only on the distribution of any damages. Faced with a rainbow chain of neon signs blinking diverse nationalities, Eastern’s observation that foreign law may apply is certainly not without merit. This Court, however, fails to see how this would affect Eastern’s liability for fault. According to Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (U.S. 1979), the Warsaw Convention provides a universal source of a cause of action. Id. at 919. Thus, it would appear that, this being a policy of international law, any application of foreign law could not obstruct access to this source. Cf. Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir. 1962) (en banc), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963); Rosman v. Trans World Airlines, Inc., supra, at 398, 358 N.Y.S.2d at 108, 314 N.E.2d at 856. Rather, following along the channels of diplomacy, foreign laws could be employed to provide the details for the enforcement of this policy, such as providing guidelines to which relatives are to be the beneficiaries. Cf. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961). Thus, it appears that if foreign law is to be applied at all, it would be relevant only to issues which may arise in the event of a damage trial or settlement. Even if this Court steps aside from the new era marked by Benjamins on the basis that Benjamins’ new expression may be limited to those cases where jurisdiction is unavailable under 28 U.S.C. § 1332 (1976), Benjamins, supra at 919, and that such jurisdiction exists here, the application of foreign law nonetheless appears relevant only to the issue of damages. Prior to Benjamins, it was consistently held that Husserl v. Swiss Air Transport Co., Ltd., 388 F.Supp. 1238, 1243 (S.D.N.Y.1975). Accord, Noel v. Linea Areopostal Venezuela, 247 F.2d 677 (2d Cir.) cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Karfunkel v. Compagnie Nationale Air France, 427 F.Supp. 971, 977 (S.D.N.Y. 1977); Zousmer v. Canadian Pacific Airlines, Ltd., 307 F.Supp. 892, 899 (S.D.N.Y. 1969); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393, 401 (S.D.N.Y. 1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). In determining which wrongful death statute provides a claim for relief in diversity actions, a federal court must apply the conflict of laws rule prevailing in the state in which the court sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). the Warsaw system does not create any claim for relief but . . . merely (1) creates a presumption of liability if the otherwise applicable substantive law provides a claim for relief based on the injury alleged .... Earlier courts automatically applied New York’s black letter lex loci rule and thus turned to the wrongful death statute of the place of the injury. See, e. g., Komlos v. Compagnie Nationale Air France, supra, 111 F.Supp. at 400; Supine v. Compagnie Nationale Air France, 100 F.Supp. 214, 216 (E.D.N.Y.1951); Wyman v. Pan American Airways, Inc., 181 Misc. 963, 965-66, 43 N.Y.S.2d 420, 423 (Sup.Ct.1943), aff’d mem., 267 App.Div. 947, 48 N.Y.S.2d 459, aff’d mem., 293 N.Y. 878, 59 N.E.2d 785 (1944), cert. denied, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 (1945). Cf. Pearson, supra at 557; Kilberg, supra. However, New York Courts abandoned this approach and adopted in its stead Professor Brainard Currie’s interest analysis technique to choice of law problems. See, e. g., Long v. Pan American World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513, 213 N.E.2d 796 (1965). In following this formula, a court essentially analyzes the principles and policies underlying the apparently conflicting laws and the relationship they have to a particular case. After completing this inquiry, the court then applies the law of the jurisdiction with the paramount interest. The implementation of this approach to the instant cases might well indicate that this Court’s hands should stretch across the ocean, grasp the wrongful death statutes appearing in the decedents’ varied homelands and employ them as the source of a cause of action. Cf. Pearson, supra. Even if such an exploration reveals that the relevant countries do not recognize a wrongful death cause of action, it would appear that the wrongful act having occurred in New York gave rise to an enforceable cause of action here under the New York wrongful death statute. See Husserl, supra at 1243; Komlos, supra at 400; Wyman, supra 181 Misc. at 965-66, 43 N.Y.S.2d at 423. However, with respect to Eastern’s foreign law defense as applied to the question of the propriety of the Warsaw/Montreal liability judgments, the foregoing may be but unnecessary legal gymnastics. This is so because courts have consistently held that when a plaintiff covered by the Warsaw system commences suit in the United States, the substantive law regarding liability for fault and limitation of damages which must be applied is that of the Warsaw Convention. See, e. g., Benjamins, supra at 917; Reed v. Wiser, 555 F.2d 1079, 1092 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977); Garcia v. Pan American Airlines, Inc., 269 App.Div. 287, 55 N.Y.S.2d 317 (2d Dept. 1945), aff’d, 295 N.Y. 852, 67 N.E.2d 257, cert. denied, 329 U.S. 741, 67 S.Ct. 79, 91 L.Ed. 640 (1946); Berner v. United Airlines, Inc., 2 Misc.2d 260, 149 N.Y.S.2d 335 (Sup.Ct.), aff’d, 3 A.D.2d 9, 157 N.Y.S.2d 884 (1956), aff’d, 3 N.Y.2d 1003, 170 N.Y.S.2d 340, 147 N.E.2d 732 (1957); Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768 (Sup.Ct.1951), aff’d mem., 281 App. Div. 965, 120 N.Y.S.2d 917 (1953). Such a determination is mandated by the Warsaw Convention itself. Article 24 provides that any action "however founded” may only be brought “subject to” the “conditions and limits set out in [the] convention.” See Husserl v. Swiss Air Transport Co., supra at 1251-52. Thus, as Judge Van Graafeiland noted in his dissenting opinion in Benjamins, no matter whether the action is founded in tort or contract, whether in domestic or foreign law, the limitations and conditions of the Convention will apply. 572 F.2d at 922. Given this proposition, the question of Eastern’s fault would not be determined by the application of foreign law. Accordingly, since the judgments at issue herein pertain only to the issue of Eastern’s fault, it appeared that the application of foreign law would apply, if at all, only to the issues regarding damages. The Court, therefore, granted the plaintiffs’ motions with said considerations in mind. Of note at this juncture is that similar considerations persuaded the Court that any defect in the authorization to sue by the decedents’ next of kin could also be adequately considered at a later time. Initially, it must be remembered that this defense was not interposed in the Behar, Hickey and Bright cases. Of the eight remaining cases, a glaring inconsistency exists when this defense is aligned with the facts in the Domangue and Windbourne cases. The Windbourne plaintiff is the surviving husband and father of the three decedents concerned in that action, and the Domangue plaintiff is the widow of the decedent in that case. Thus, it appears that Eastern is alleging that the next of kin have not authorized themselves to commence these suits. As set forth in note 12, infra, a similar shadow of doubt is cast over the validity of this defense as it applies to the Abbate, E. Bigio and R. Bigio cases. Of significance with respect to the Alzozo and Daha cases is that this defense cannot be critical to said actions as these suits are in the process of being settled. For that matter, the pending settlements in these cases quell the initial vigor with which Eastern proffers its argument that the existence of all three of its defenses renders the Warsaw/Montreal judgments improper. With respect to the Mahfoud case, no comment regarding defective authorization can presently be made as the individual facts pertinent to this issue remain within the silent knowledge of the particular attorneys involved therein. However, since Eastern could not and, indeed, has not been prejudiced by the failure of this Court to resolve this issue in these as well as the other cases, for no action whatsoever can be taken on the disputed judgments until a damage trial ensues or a settlement is reached, the deferring of a ruling on Eastern’s authorization defense until a later time appeared warranted. The grant of the plaintiffs’ motions in the face of the three defenses just discussed appeared consistent with the bifurcated path the MDL 227 litigation had been following. Since all the parties to this litigation chose to travel this path, it did not seem unreasonable to deny Eastern a detour from it on the eve of trial. Indeed, Eastern could have moved for the resolution of these matters a few years ago, but apparently decided not to do so. Moreover, considering that Eastern did not point to any injury sustained by virtue of these judgments, a postponement of the day of reckoning, as viewed from the bench on September 15, 1978, appeared proper. E Disposition of the Plaintiffs’ Rule 54(b) Motions Evident from the foregoing discussion is the absence of the Court’s intent to deprive Eastern of its three defenses by the grant of the questioned Warsaw/Montreal motions. Notably demonstrated by Mr. Sincoff’s remarks, the plaintiffs had no such intent either: Unter [sic] the Montreal Agreement, Warsaw Convention, the airline is liable, without proof of negligence, and consequently these plaintiffs are entitled to have judgment on liability only entered against Eastern and by entry of such a judgment it cannot prejudice subsequent determinations as to any defenses they may have; damage limitation, interest, pre-judgment interest, capacity to sue or whatever they wish to raise. Consequently, in order to eliminate these passengers from trial which hopefully will commence on Monday morning, we have asked that judgment be entered against Eastern only on liability only[,] leaving all issues for a later time. (Sept. 15, 1978 Tr. at 23). Reiteration of this same idea occurred later in the argument: Mr. Sincoff: If [Eastern Air Lines] has any defense, any defense, entry of judgment is not going to prejudice that defense. (Id. at 30). Also worthy of mention are the earlier remarks of September 11,1978 that accompanied the verbal entry of liability judgments against the United States. In consenting to the entry of said judgments, Mr. Pangia, counsel for the United States, emphasized that said judgments were to be entered with respect to liability only, and it is without prejudice to the Government’s right to contest jurisdiction, any matters of release, standing or capacity of any plaintiffs to sue or of any defense relating to damages. (Sept. 11,1978 Tr. at 12). Considering that said judgments pertained only to the issue of liability for fault, a tight similarity may be drawn between these and the Warsaw/Montreal judgments. Antedating the proceeding at issue by four days, Mr. Pangia’s remarks color the background of intent behind the September 15th motions. A study of the works of Pablo Picasso and Marc Chagall illustrates that, unlike photo realist Richard Estes, an artist may paint an image in such a manner so as to visibly distort its inherent reality. Eastern’s litigious artistry of portraying the plaintiffs’ Rule 54(b) motions as only being a scheme designed to cure or mitigate Eastern’s alleged denial of due process, when viewed in conjunction with the intent visible in the record, does just this. Therefore, for all of the foregoing reasons, the Windbourne (76 C 237), Domangue (76 C 241), Mahfoud (76 C 457), Behar (76 C 250), Ab-bate (76 C 251), Daha (76 C 253), Bright (76 C 572), Hickey (76 C 573), E. Bigio (76 C 1023), R. Bigio (76 C 1024) and Alzozo (76 C 252) plaintiffs’ motions to amend the liability judgments entered on their behalf against Eastern Air Lines pursuant to the Warsaw/Montreal system to include specific language to the effect that said judgments do not preclude Eastern from raising any defense it may have against the plaintiffs are granted. Said amendments are to refer explicitly to the three defenses discussed herein. Faithfulness to the record of September 15, 1978 further dictates that said orders -are to include that said judgments do not preclude Eastern from raising the issue of interest or prejudgment interest or both. II PLAINTIFFS’ REQUEST FOR A REAF-FIRMANCE OF THE WARSAW/MONTREAL JUDGMENTS IN THE NON-DISPUTED REPRESENTATIVE CASES A review of all the motion material fails to disclose the existence of legal or factual arguments that would warrant a departure from the reasoning underlying the grant of the disputed Warsaw/Montreal motions, see section 1(C), supra, or a vacatur of the resulting liability judgments. Accordingly, the plaintiffs’ motions in the Windbourne (76 C 237), Domangue (76 C 241), Mahfoud (76 C 457), Behar (76 C 250), Abbate (76 C 251), Daha (76 C 253), Bright (76 C 572), Hickey (76 C 573), E. Bigio (76 C 1023), R. Bigio (76 C 1024) and Alzozo (76 C 252) cases for orders reaffirming the grant of their motions for the entry of liability judgments against Eastern Air Lines on the basis of the Warsaw Convention and Montreal Agreement are granted. With respect to this decision and the Rule 54(b) amendment decision, each plaintiff is to settle an order on notice to Eastern Air Lines in conformity with said decisions on or before noon of May 22, 1979. III PLAINTIFFS’ REQUEST FOR A REAF-FIRMANCE OF THE WARSAW/MONTREAL JUDGMENTS IN THE DISPUTED REPRESENTATIVE CASES Like the plaintiffs in the non-disputed representative cases, all but one of the plaintiffs in the disputed representative cases approach the bench for a reaffirmance of the grant of their Warsaw/Montreal motions. To assist in the understanding of these motions, it is appropriate, once again, to reminisce and to dig among the bones of past facts. After Eastern Air Lines’ motion to consolidate the separate actions commenced by various people on behalf of one decedent’s next of kin was granted, the Court was left with eight distinct cases wherein two plaintiffs were competing for the title of personal representative. Only seven of these cases, Priniotakis, Alexandridis, Hadzis, Wolfgang Hansen, Peter Hansen, Merkouris and Manias, are of present concern. The eighth case, Pefanis, is apparently not governed by the Warsaw/Montreal system. In each of these seven cases, Tierney O’Rourke stands in one corner of the ring as the Public Administrator of Queens. In the Wolfgang Hansen bout, Karin Marianne Hansen and in the Peter Schmidt Hansen bout, Mary Hansen stand in the opposite corner as his opponent. In the match for the representative title in the Priniotakis, Alexandridis and Hadzis cases, Mr. O’Rourke’s rival is Mr. Cappiello, who was issued Letters of Administration in Pennsylvania. Standing in the opposite corner in the Manias and Merkouris title fights is Mr. Jennings, who was apparently issued Letters of Administration of these estates in California. Mr. O’Rourke initially moved for entry of judgments in these cases pursuant to the Warsaw/Montreal system in September of 1978. Troubled by the fact that Mr. O’Rourke’s title challengers did not join in his motion, the Court deferred ruling on these applications pending notice to and an opportunity to be heard by Mr. O’Rourke’s respective opponents and Eastern Air Lines. Grasping the opportunity thus afforded to them, the Hansen pugilists and Mr. Jennings initially opposed the grant of the requested relief while Mr. Cappiello supported it. However, in keeping with the ambiance of this litigation, not surprisingly, on October 27,1978 the Hansen contestants and Mr. Jennings retreated from their earlier positions and joined wholeheartedly in the O’Rourke applications. After due deliberation, on December 1, 1978, this Court rendered an oral decision granting the Warsaw/Montreal motions on the condition that the resulting judgments be entered without prejudice to Eastern’s rights to challenge the plaintiffs’ capacity to sue, to question whether authorization to sue had been given by the decedents’ next of kin and to raise any other defenses Eastern may have. It was further ordered that said judgments were to contain an explicit provision prohibiting the commencement of damage trials or the effectuation of settlements until the issue of representation had been resolved by the Queens Surrogate’s Court. Additionally, this Court reaffirmed its order of October 21, 1976 which found that the proper arena for the representative title match was the Queens County Surrogate’s Court and, accordingly, directed the parties to commence the title fight in that ring. When the Court granted these disputed plaintiffs’ motions, the considerations deemed compelling in the grant of the non-disputed plaintiffs’ Warsaw/Montreal motions were found to be equally compelling and applicable to the disputed cases. Since these considerations have been set out at length in section 1(C), supra, the Court will not outsing itself by reiterating them now. Of note to the disputed cases, however, is that Eastern was given more than ample time to oppose the Warsaw/Montreal motions. Thus, a claim by Eastern regarding these cases that it has been denied procedural due process would be as infertile as trying to lay a lawn on a sidewalk. Of additional note is that said judgments explicitly contain a guardian clause that protects Eastern’s right to raise its defenses and prohibits the commencement of damage trials or the effectuation of settlements until the representation dispute is resolved. Eastern’s rights, therefore, were not prejudiced, and it was protected from being forced to proceed at its peril with the trial or settlement of an action with one representative who might later be found not to be the proper representative. In light of this clause, the absence of any dispute regarding the applicability of the Warsaw/Montreal system, and this Court’s opinion that Eastern’s defenses were more appropriate for resolution at the pre-settlement or pre-damage trial stage, the plaintiffs’ motions as conditioned were granted. No new facts or law having been unearthed which would mandate a change of this position, the instant motions for a reaffirmance of the grant of the Warsaw/Montreal motions in the Peter Schmidt Hansen cases (76 C 255), the Wolfgang Hansen cases (76 C 256), the Merkouris cases (76 C 258), the Priniotakis cases (76 C 260), the Alexandridis cases (76 C 265), the Manias cases (76 C 1022) and the Hadzis cases (76 C 1025) are granted. Both representatives in each of these consolidated cases are to join in one order which is to be settled on notice to Eastern Air Lines in accordance with this decision and which is to be submitted under the respective consolidated docket numbers on or before noon of May 22, 1979. IV CAPACITY TO SUE IN THE R. BIGIO, E. BIGIO, ALZOZO, DAHA, BEHAR AND ABBATE CASES The plaintiffs in the Raphael Bigio, Edmund Bigio, Alzozo, Daha, Behar and Abbate cases, all of which are non-disputed representative cases, approach the bench with the additional request that this Court find as a matter of law that Tierney O’Rourke, the plaintiff in each case, has capacity to sue. Despite the fact that Eastern directly attacks Mr. O’Rourke’s capacity by way of an affirmative defense in its answer, it nevertheless opposes a determination of this issue at this time. Although it cites no authority in support of its proposition, Eastern claims that this Court must vacate the Warsaw/Montreal judgments and start anew. Should the Court abide by this procedure, Eastern claims that it needs additional time to complete discovery on the capacity issue, notwithstanding the fact that the subject cases are approximately three years old. Despite the energy with which Eastern proffers its arguments, a closer analysis reveals its position to be somewhat blind and indefinite. As has already been noted in section 1(B), supra, this Court possesses the power to amend the judgments at issue under Rule 54(b) of the Federal Rules of Civil Procedure. Moreover, Eastern’s proposal that it be given additional time to respond to this issue does not persuade this Court to further delay the proceedings in these cases. Indeed, Eastern has been given more than enough time to come forward with specific reasons why Mr. O’Rourke as administrator in each case lacks capacity to sue. Rather than seizing such an opportunity by responding with legal and factual authority sustaining its position, Eastern has come forward with only vague generalities. In light of the applicable law, this is not enough. An appropriate launching point for a discussion of whether Mr. O’Rourke has capacity to sue in each of these cases is Rule 17(b) of the Federal Rules of Civil Procedure. As has been noted, this Rule provides by process of elimination that a representative’s capacity to sue is to be determined by the state in which the district court sits. Since all of these cases were commenced in a district court in New York, New York law regarding capacity to sue would govern. Cf. Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). The New York law of significance to the determination of the capacity issue is found in the Surrogate’s Court Procedure Act (hereinafter “S.C.P.A.”). That part of section 203 of the S.C.P.A pertaining to subject matter jurisdiction provides: The [Surrogate’s] court obtains jurisdiction in every case to make a decree or other determination by the existence of the jurisdictional facts prescribed by statute. The jurisdiction of the court is exercised by the commencement of a proceeding in the court. . A refinement of the Surrogate’s jurisdiction is found in section 206(2) of the S.C.P.A. which grants jurisdiction to the Surrogate’s Court over the estate of any non-domiciliary of the state who (a) left property within that county and no other, or (b) left personal property which since his death, disappearance or interment has come into that county and no other and remains unadministered, or (c) left a cause of action against a domiciliary of that county for damages for wrongful death of the decedent and who left no property in any other county. In order for one to have the power to administer the estate of an intestate, he must petition the Surrogate’s Court and thereafter be issued Letters of Administration. Recognizing the strong psychosocial ties of the family, section 1001 of the S.C.P.A. enumerates a priority for the issuance of Letters, commencing with the family member most intimately associated with the decedent and spiraling down to more distant relatives. However, a condition precedent to the issuance of Letters is that the petitioner be eligible to receive them. Notably, section 707 of the S.C.P.A states that a non-domiciliary alien is ineligible to receive Letters, but for an instance not relevant to this discussion. In light of such a limitation, section 1001(8)(a) of the S.C.P.A. provides: When letters are not granted under the foregoing [priority] provisions and an appointment is not made by consent as hereinbefore provided then letters of administration shall be granted in the following order: (a) to the public administrator . . , Accordingly, sections 1002 and 1116 of the S.C.P.A. authorize the Public Administration to petition for and receive Letters, and, in the instant matters, that is precisely what Mr. O’Rourke did. Specifically, on August 8, 1975, Mr. O’Rourke petitioned the Queens County Surrogate’s Court for the issuance of Letters of Administration of the estates of Dorio Abbate, Ahmed Alzozo, Edmund Bigio, Raphael Bigio, and Lucienne Behar. Three days later, he petitioned the Court for Letters of the estate of Omar Daha. Thereafter, on August 12, 1975, Letters of Administration of the estates of Behar, Ab-bate, Alzozo, E. Bigio and R. Bigio were issued to Mr. O’Rourke by the Surrogate of Queens County. Letters of Administration of the estate of Daha were issued on August 13, 1975. In asserting that Mr. O’Rourke lacks capacity to sue, Eastern directly attacks the validity of the foregoing letters which provide the foundation for Mr. O’Rourke’s title as plaintiff in these actions. See N.Y.Est., Powers & Trusts Law § 5-4.1 (McKinney 1967). This onslaught, however, is defeated by the watchfulness of the law’s stronger army. As Judge Clark cogently noted many years ago in Hart v. Mutual Benefit Life Ins. Co., 166 F.2d 891 (2d Cir.), cert. denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 389 (1948): There seems an even more basic ground upon which this decision should go against the plaintiffs. For they are attacking collaterally and without adducing any adequate reason a decree of court which we must accept as at least presumptively, if not conclusively, immune to such an attack. This, it seems to us, is made clear by the several pertinent provisions of the state statutes Id. at 894-95. Today, such pertinent provisions are found in sections 703 and 204 of the S.C.P.A. Section 703 provides: [L]etters granted by the court are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed or modified upon appeal or the letters are suspended, modified or revoked by the court granting them. Of even greater significance to the instant issue, however, is section 204’s unequivocal statement: Where the jurisdiction of the court to make a decree or other determination is drawn in question collaterally, the jurisdiction is presumptively and in the absence of fraud or collusion, conclusively established by an allegation of the jurisdictional facts contained in a verified pleading. . N.Y.Surr.Ct.Proc.Act § 204 (McKinney 1967) (emphasis added). Significantly, according to Professor Siegel, section 204 was enacted to prevent from happening exactly that which Eastern wants to happen here. The area in which the section most frequently functions is that concerned with the appointment of a representative of the estate. Once appointed, his duties may entail litigation, and in that litigation his authority to represent the estate may come in issue. If the petition in the surrogate’s court proceeding in which he was appointed alleged facts which (as a jurisdictional matter) authorized the appointment, section 204 aims at preventing the other parties to the litigation in which the representative is now involved from collaterally attacking the appointment (and thus defeating the litigation upon the ground that the representative has no authority to represent the estate). David D. Siegel, McKinney’s Practice Commentary, N.Y.Surr.Ct.Proc.Act § 204 (McKinney 1967) (emphasis added). An examination of the instant petitions reveals an allegation of jurisdictional facts supporting Mr. O’Rourke’s appointments. See N.Y.Surr.Ct.Proc.Act §§ 206(2) and 1001(8)(a) (McKinney 1967). Thus, the Surrogate’s jurisdiction to issue the Letters and the concomitant validity of the Letters is presumptively established. This does not end the inquiry, however, for Eastern Air Lines has not asserted that any fraud or collusion existed in obtaining these Letters. Thus, the Surrogate’s jurisdiction has been conclusively established, see N.Y.Surr.Ct. Proc.Act § 204, supra, and the Letters issued are conclusive evidence of Mr. O’Rourke’s authority to prosecute the instant cases, see N.Y.Surr.Ct.Proc.Act § 703, supra. Accord, Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 189, 52 S.Ct. 84, 76 L.Ed. 233 (1931); O’Rourke v. Merry Queen Transfer Corp., 370 F.2d 781, 783 (2d Cir. 1967); Hoskins v. Eastern Air Lines, Inc., 265 F.Supp. 842, 845 (E.D.N.Y.1967); Meehan v. Cent. R. R. Co. of N. J., 181 F.Supp. 594, 603 (S.D.N.Y.1960); Stolz v. N. Y. Central R. R., supra at 274-75, 196 N.Y.S.2d at 973, 164 N.E.2d at 851. In light of the foregoing, this Court finds that Mr. O’Rourke possesses capacity to sue as plaintiff in the R. Bigio (76 C 1024), E. Bigio (76 C 1023), Alzozo (76 C 252), Daha (76 C 253), Behar (76