Petition for Writ of Certiorari — Eastern Air Lines, Inc. v. Winbourne

Supreme Court, U.S.

FIL?

)

NO. 84-750 wey 6 196:

ALEXANDER L. STEVAS

CLERK

: In the

Supreme Court of the United States

OCTOBER TERM, 1984

EASTERN AIR LINES, INC.,

PETITIONER

VERSUS

ERNEST GLENN WINBOURNE,

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

FRANCIS G. WELLER

755 Magazine Street

New Orleans, Louisiana 70130

Telephone: (504) 581-5141

Attorney for Petitioner,

Eastern Air Lines, Inc.

MARC J. YELLIN

DARRELL K. CHERRY

DEUTSCH, KERRIGAN & STILES

CORRECTED COPY

SAP ALT EALERTS OTIS! STOLE AAI SA eT EN IT ARES AR EEE,

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

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i

QUESTIONS PRESENTED

MAY A COURT, BY ADDING INTEREST TO A

JUDGMENT, MAKE AN AWARD THAT EXCEEDS

THE MAXIMUM LIABILITY LIMITATION IMPOS.-

ED BY AN INTERNATIONAL TREATY, THE WAR-

SAW CONVENTION, AS SUPPLEMENTED BY THE

MONTREAL AGREEMENT?

The United States Court of Appeals, Fifth Circuit

has answered ‘‘Yes”’ to this question.

The United States Court of Appeals, Second Circuit,

has answered “No.”

This question is presently before this Court on an ap-

plication for writs in Eastern Air Lines, Inc. v. Robert F.

Mahfoud, Etc., (No. 83-4315, 5th Cir. 1984), cert. granted,

53 U.S.1..W. 3235 (No. 83-1807, October i, 1984).

ij

PARTIES TO THE PROCEEDINGS

Pursuant to Supreme Court Rule 21.1(b) and 28.1,

counsel for Petitioner certifies that ...e parties to this pro-

ceedings are: Ernest Glenn Winbourne and Eastern Air

Lines, Inc.

TABLE OF CONTENTS

PAGE

Cees FROONNOE ... or. c ee ere 2 0s basen if

Parties to the Proceeding.......................... ii

Ce itis i ee Te IS iii

EE. Te ar ee iv

Ge es ia vis 9 as whee es 1

ac bine tuce op anes 1

Statutory Provisions Involved...................... 2

SE ee DEG SRP ene 2

Reasons for Granting the Writ..................... 5

A conflict between a decision by the United

States Court of Appeals, Fifth Circuit, and a deci-

sion by the United States Court of Appeals, Se-

cond Circuit, compels issuance of a writ to resolve

the question of whether a court may, by awarding

interest on a Warsaw/Montreal Judgment, exceed

the liability limitation imposed by the Warsaw

Convention and Montreal Agreement. This Court

recently granted certiorari on the same issue in

Eastern Air Lines, Inc. v. Robert F. Mahfoud,

Etc., (No. 83-4315, 5th Cir. 1984), cert. granted, 53

U.S.L.W. 3235 (No. 83-1807, October 1, 1984)..... 5

iv

TABLE OF AUTHORITIES

CASES: PAGE

Domangue v. Eastern Airlines, Inc.,

542 F.Supp. 643 (E.D. La. 1982).................

Domangue v. Eastern Air Lines, Inc.,

722 F.2d 256 (5th Cir. 1984)................ 4,6, 7

Mahfoud v. Eastern Air Lines, Inc.,

(No. 83-4315, 5th Cir. 1984), cert. granted,

53 U.S.L.W. 3235 (No. 83-1807, October 1,

O’Rourke v. Eastern Air Lines, Inc.,

730 F.2d 842 (2nd Cir. 1984) ............. 4, 5, 6, 7

Trans World Airlines, Inc. v. Franklin Mint Corp.,

__ U.S. _, 104 S.Ct. 1776, 80 L.Ed.2d 273

(200 ITS EB SORIA AR is POTS

STATUTES:

Convention for the Unification of Certain Rules

Relating to International Transportation by

Air, October 12, 1929, 49 Stat. 3000 (reprinted

in 49 U.S.C. §1502, T.S. No. 876, 137

L.N.T.S. 11) [Warsaw Convention]...............

Agreement Relating to Liability Limitations of

the Warsaw Convention and the Hague Protocol,

Agreement CAB 18990, approved by Order No.

E-23680, May 13, 1966 (Docket 17325), 31

Fed. Reg. 7302 (1966) [Montreal Agreement] ......

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

EASTERN AIR LINES, INC.,

PETITIONER

VERSUS

ERNEST GLENN WINBOURNE,

RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner Eastern Air Lines, Inc., respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit,

entered on August 9, 1984.

OPINION BELOW

The opinion of the Fifth Circuit appears in the at-

tached appendix.

JURISDICTION

The Fifth Circuit entered judgment in this matter on

August 9, 1984. The jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254(1).

\

2

STATUTORY PROVISIONS INVOLVED

1. Convention for the Unification of Certain Rules

Relating to International Transportation by Air, October 12,

1929, 49 Stat. 3000 (reprinted in 49 U.SC. §1502, TS. No. 876,

137 L.N-TS. 11), and more particularly, Article 22 thereof.

(Hereinafter referred to as the Warsaw Convention.)

“ARTICLE 22”

(1) In the transportation of passengers the liabili-

ty of the carrier for each passenger shall be limited

to the sum of 125,000 francs. Where, in accordance

with the law of the court to which the case is sub-

mitted, damages may be awarded in the form of

periodical payments, the equivalent capital value

of said payments shall not exceed 125,000 Francs....”

(Emphasis added)

49 U.S.C. §1502 (Warsaw Convention)

2. Agreement Relating to Liability Limitations of the

Warsaw Convention and the Hague Protocol, Agreernent

CAB 18990, approved by Order No. E-23680, May 13, 1966

(Docket 17325), 31 Fed. Reg. 7302 (1966) [Montreal

Agreement]:

“(A] limit of liability for each passenger for death,

wounding or other bodily injury of $75,000...” (Em-

phasis added.)

STATEMENT OF THE CASE

The instant case arises out of the crash of Eastern

3

Air Lines Flight 66, on June 24, 1975, at Kennedy Interna-

tional Airport. The action was brought on behalf of Ernest

Glenn Winbourne for the deaths of his wife and two

children, who were killed in the crash. The Winbournes

were engaged in international travel, and were subject to

the provisions of the Warsaw Convention, as supplemented

by the Montreal Agreement.

Winbourne filed suit in the United States District

Court, Eastern District of Louisiana, on August 25, 1975.

The case was transferred to the Eastern District of New

York by order of the Multi-District Litigation Panel, where

it was consolidated by Judge Bramwell for trial on the

issue of liability.

as

|

On the day the liability trial was to commence, Win-

bourne moved orally to sever his claims against, Eastern,

and moved for entry of judgment against Eastern, based

on the Warsaw Convention as supplemented by the Mon-

treal Agreement.

Judge Bramwell granted plaintiff's motion, despite

Eastern’s opposition on the ground of procedural

deficiencies.

The United States Court of Appeals, Second Circuit

reversed, with instructions to Winbourne that he reassert

his Warsaw/Montreal motion after remedying the pro-

cedural deficiencies.-Winbourne did not reurge his motion.

Judge Bramwell transferred the case back to Loui-

siana for a trial on damages. Once back before Judge

Robert Collins, United States District Judge for the

Eastern District of Louisiana, Eastern Air Lines, citing

Warsaw/Montreal, moved for a judgment of liability

4

against it. Plaintiff, who had heretofore insisted on the ap-

plicability of Warsaw/Montreal, now opposed it on various

grounds.

On March 31, 1982, Judge Collins ruled that the terms

and conditions of Warsaw/Montreal were applicable.

On April 5, 1982, tne court granted plaintiff's motion

for summary judgment, and ruled that interest was to be

awarded on the Warsaw judgment.

Eastern then confessed judgment in the amount of

$225,000,00, the full amount for which it could be liable under

Warsaw/Montreal, and deposited that sum into the court’s

registry.

Judgment limiting Eastern’s liability to $225,000.00,

plus interest, was entered on January 24, 1983. (Appendix A.)

The United States Court of Appeals, Fifth Circuit,

citing its own decision in Domangue v. Eastern Air Lines,

Inc., 722 F.2d 256 (5th Cir. 1984), affirmed the award of in-

terest on a Warsaw/Montreal judgment, even though the im-

position of interest would increase the award against the car-

rier to more than $75,000.00 per passenger seat. (Appendix B.)_

On March 2, 1984, the United States Court of Appeals

for the Second Circuit, ruled that, as a matter of law, the

liability limitation was designed to be and is absolute, and

that prejudgment interest may not be awarded if the effect

is to exceed the stated liability limitation. O'Rourke uv.

Eastern Air Lines, Inc., 730 F.2d 842 (2nd Cir. 1984).

This Court, on October 1, 1984, granted petitioner's

5

Petition for Writ of Certiorari in Eastern Air Lines, Inc. v.

Robert F. Maufoud, Etc., (No. 83-4315, 5th Cir. 1984), cert.

granted, 53 U.S.L.W. 3235 (No. 83-1807, U.S. October 1, 1984).

At issue in that case is the identical question being presented

in this Petition.

REASONS FOR GRANTING THE WRIT

A conflict between a decision by the United States

Court of Appeals, Fifth Circuit, and a decision by the United

States Court of Appeals, Second Circuit, compels issuance

of a writ to resolve the question of whether a court may, by

awarding interest on a Warsaw/Montreal Judgment, exceed

the liability limitation imposed by the Warsaw Convention

and Montreal Agreement. This Court recently granted cer

tiorari on the same issue in Eastern Air Lines, Inc. v. Robert

F. Mahfoud, Etc., above.

The decision of the Fifth Circuit Court in Winbourne

v. Eastern Air Lines, Inc., 83-3109 (5th Cir. 1984), directly

conflicts with the decision of the Second Circuit Court in

O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842 (2nd Cir.

1984).

Each circuit considered the question of whether pre-

judgment interest could properly be awarded against Eastern

Air Lines, consistent with Article 22 of the Warsaw Conven-

tion, when the result would Le a judgment exceeding the

$75,000 per seat limitation cf lability.

The Fifth Circuit has ruled that the limited liability

amount of $75,000 pe seat, as provided by Article 22 of the

Warsaw Convention, and as supplemented by the Montreal

Agreement, does not preclude the award of prejudgment in-

terest over and above that amount, if certain equitable con-

siderations are met.

_ _In awarding interest in this case, the Fifth Circuit

has held that the district court may award interest, as it

held in its earlier decision in Domangue v. Eastern Air

Lines, Inc., above. In Domangue, the Court remanded the

interest issue for a factual determination of who was ‘‘at

fault’’ for the delay in bringing that case to trial. The Court

held that if Eastern was at fault, then, as a matter of equi-

ty, interest could be awarded.

The Second Circuit in its O'Rourke opinion expressly

disagreed with the Fifth Circuit, stating:

“Moreover, we do not agree with the fifth cir-

cuit's interpretation of the Montreal Agreement.

The speedy resolution of claims was apparently

not an important United States objective at the

conference. See Lowenfeld & Mendelsohn, supra

note 15, at 572. The principal purpose of the

United States at the Montreal Conference was to

increase the liability limit to $100,000. The ab-

solute liability provision was introduced as a

means of getting the United States to accept a

liability limit lower than $100,000, see id. at 563,

570-71, and was not one of the prime objectives of

the American delegation. See id. at 572 (“The

United States delegation was itself divided on

{this} issue, and its instructions were not firm on

the point.”’). Thus, the payment of prejudgment

interest would not advance any of the underlying

objectives of the Convention or the Agreement,

but it would undercut, as we discussed above, two

of the Convention's major objectives.”

O'Rourke, 730 F.2d 842, 854, footnote 20.

* This case also arose out of the crash of Flight 66.

t~

7

7

Further, the Second Circuit noted that the Warsaw

Convention is a treaty adhered to by the United States,

and that—

“{I}n the absence of any contrary intent on the

part of the framers, we [the court] may not read

into the document a provision that allows the

payment of prejudgment interest above the

$75,000 liability limitation.” (Footnote omitted)

O'Rourke, 730 F.2d 842, 853.

The issue before the Court concerns an important

federal question, with international ramifications. Its

resolution will determine whether one of the fundamental

concepts of the Warsaw Convention will survive.

“Secretary of State Cordeii Hull, in transmitting

the Warsaw Convention to the Senate in 1934 in-

dicated that the purpose of t’xe liability limitation

was ‘to fix at a definite leve the cost to airlines

of damages sustained by their passengers and of

insurance to cover their damages.’ Reed v. Wiser,

555 F.2d 1079, 1089 (2d Cir.), cert. denied, 434

U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977).

Domangue v. Eastern Air Lines, Inc., 542 F.Supp. 643, 653

(E.D. La. 1982).

The decision by the Fifth Circuit allowing interest

over and above the $75,000.00 maximum limit of damages

recoverable under the Warsaw Convention/Montreal

Agreement is contrary to the drafters’ intent. Neither this

Court nor any other federal appellate court had ever award-

ed interest over and above the maximum liability limita-

tion before the Fifth Circuit did so in Domangue, above.

8

As this Court recently said in Trans World Airlines,

Inc. v. Franklin Mint Corp.:

‘We may not ignore the actual, reasonably har- ©

monious practice adopted by the United States

and other signatories in the first 40 years of the

Convention’s existence....

“The conduct of the contracting parties in im-

plementing that contract in the first 50 years of

its operation cannot be ignored.’’ (Citations

omitted.)

Franklin Mint, 104 S.Ct. 1776, 1787 (1984).

If upheld, the decision of the Fifth Circuit will defeat

the Warsaw Convention's specific purpose.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that this petition for writ of certiorari be granted.

Respectfully submitted,

FRANCIS G. WELLER

Attorney for Petitioner,

Eastern Air Lines, Inc.

MARC J. YELLIN

DARRELL K. CHERRY

DEUTSCH, KERRIGAN & STILES

(Of Counsel)

A-l

APPENDIX “A”

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NO. 75-2715

SECTION “C”

ERNEST GLENN WINBOURNE

VERSUS

EASTERN AIR LINES, INC. and

THE UNITED STATES OF AMERICA

SESEEEEESEE

JUDGMENT

This matter was tried before the Court, sitting without

a jury. Pursuant to the Opinion of this Court and in accor-

dance with the provisions of Fed. R. Civ. P. 58;

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that JUDGMENT shall be entered in favor of

plaintiff, Ernest Glenn Winbourne, and against defendant,

Eastern Air Lines, Inc., in the amount of TWO HUNDRED

TWENTY-FIVE THOUSAND and no/100 DOLLARS

($225,000.00), plus interest from date of judicial demand.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that JUDGMENT shall be entered in favor of

plaintiff, Ernest Glenn Winbourne, and against defendar:t,

the United States of America, in the amount of SEVEN

HUNDRED EIGHTY-FIVE THOUSAND SIX HUN-

DRED TEN and 24/100 DOLLARS ($785,610.24) with in-

terest from date of Judgment.

A-2

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the defendants bear costs of this suit.

New Orleans, Louisiana, this the 24th day of

January, 1983.

/S/ Signed

UNITED STATES DISTRICT JUDGE

A-3

APPENDIX “B”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 83-3109

ERNEST GLENN WINBOURNE,

Plaintiff-Appellee,

versus

EASTERN AIRLINES, INC.,

Defendant-Third Party-

Plaintiff Appellant,

UNITED STATES OF AMERICA,

Third Party Defendant-

Appellant.

Appeals from the United States District Court for

the Eastern District of Louisiana

(August 9, 1984)

Before REAVLEY, JOHNSON and JOLLY, Circuit

Judges.

PER CURIAM:*

* Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on the

basis of well-settled principles of law imposes needless expense on the

public and burdens on the legal profession.”’ Pursuant to that Rule, the

court has determined that this opinion should not be published.

A-4

The wife and two daughters of Ernest Glenn Win-

bourne died in the crash of an Eastern Air Lines plane in

1975. Liability is conceded by Eastern and by the United

States, the employer of air traffic controlle-s assumed to

have been negligent. The district court awarded total

damages of $1,010,610.24. Of this, Eastern’s liability is

limited to $225,000 under terms of the Warsaw Convention

and the Montreal Agreement. The United States’ liability

is therefore $785,610.24.

Eastern appealed the award of interest on the

$75,000 per seat limitation, but that issue was decided

adversely to Eastern by a panel of this cour’ a Domangue

v. Eastern Air Lines, Inc., 722 F.2d 256 (5tn Cir. 1984).

The United States complains that the amount of the

damages is excessive. The district court assessed the

damages as follows:

1. $500,000 for the loss of love and affection of

plaintiff's wife.

2. $210,610.24 for the economic loss due to wife’s

death. There were two components of this

economc loss: her teacher’s salary and her

household services.

3. $150,000 for the loss of love and affection of his

8 year old daughter.

4. $150,000 for the loss of love and affection of his

4 year old daughter.

This award was made by the trial judge in a careful and

detailed opinion. The economic loss computations were bas-

ed on the specific “estimony of an economist. The evidence

A-5

established the unusval nature of this plaintiff’s damages

in the loss of his family. From a very happy family man,

vigorous in his life and work, he became not only a man

crushed by sudden tragedy but one who remained lost and

disturbed. None of this evidence was rebutted or question-

ed by the defendant. We cannot upset the district court’s

damage findings unless we hold them to be clearly er-

roneous. “‘Because the assessment of damages for grief and

emotional distress is so dependent on the facts and is so

largely a matter of juagment, we are chary of substituting

our views for those of the trial judge. He has seen the par-

ties and heard the evidence; we have only read papers.”’

Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 783 (5th

Cir. 1983).

Appellant argues that Louisiana courts have not

awarded comparable damages, and in Caldarera this court

specifically held the sum of $250,000 was the maximum

award that could be allowed for the emotional losses aris-

ing from the death of the wife.

We cannot judge the justification of damages by

mere comparison with the awards upheld or reversed in

other cases. Each case presents its own facts. See Coco v.

Winston Industries, Inc., 341 So.2d 332 (La. 1976). But it

is helpful to compare the Winbourne and Caldarera cases.

Peter Caldarera lost his mother, wife and eight year old.

His four year old son remained in his home. While this

court placed a $250,000 maximum on emotional loss due to

the death of the wife, we did not reduce the total award

against the United States, wherein the trial judge had in-

cluded $400,000 for the emotional loss of the wife. This

court affirmed the total damages award of $797,021. That

is about $200,000 less than the Winbourne award. Over

half of that differential is represented by lost wages of Mrs.

A-6

Winbourne, a gifted teacher. This economic loss is not

questioned by the United States.

So Mr. Winbourne receives an extra $100,000. But

his entire family is gone. He lost his second daughter and

has no son. He has no one. Furthermore, the depth of this

plaintiff's devotion and identification with his family was

unique and unquestioned. We are unable to say that the

district judge was clearly erroneous.

AFFIRMED.