Petition for Writ of Certiorari — Sabena Belgian World Airways v. LeRoy

Supreme Court brief1965

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Saeiniangtalie oo ss 2 _ \

- ; a Office-Supreme on U.S. ;

| ‘ink one 924, FILED - ‘

| LIBRARY, x35 €] out |

SuPpeEME couRT. és, JUL 15. 1986

a - JOHN F. ans, cueRK |

‘eines Court af the Ruited Bates |

OCTOBER TERM, 1965 * ‘ |

No.‘ SE. 2 a | eee d ae

SABENA BELGIAN WORLD AIRWAYS. . ]

- (SOCIETE.ANONYME BELGE D’EXPLOITATION: DE LA |

' NAVIATION AERIENNE), oy

Bi a _ Petitioner, Diet

i, es - . ; wt ;

JACQUES L. LeROY, Adsiinistvator Ad Proséquendum of the

Estate of PAUL LeROY Deceased and as Next Friend of

MICHAEL P. LeROY, CHRISTINE M. LeROYeand MIREN (.

B. ‘LeROY, Saneate, OY)

Respondente ©

~ .

—

, PETITION FOR A WRIT OF CERTIORARI TO THE .

UNITED STATES COURT OF APPEALS FOR-THE ——

SECOND CIRCUIT —

Kjaer, _. , Georce WarNer CiarK,

( ane ® Joun D. Caramanrt,

mo . MarTIN FOGELMAN,

; MAtTHEw J. CorriGan,

' Counsel for Petitioner,

. 27 William Street,

New York, N. Y. 10005.

New York, July, 1965

“INDEX

PAGE

Opinions Below wee eeeees atadeues wiktes fopetevasas “1

Jurisdiction wees see Casper cwoewdseys deveweebabeneee 2

Questions Presijited innietimbnteciens peak dmas wou 2

Statutes and Rules Involved wh ecdyadieesaekipsuces 3

PEE bon ccserchabesiesr cance ascis 3

_ Reasons for mt the Writ at saves 7 5

Conelnsion veteceseceees Web ieescigee Scenes 10

Appendix A—Statutes and Rules fixed ey

Appendix cme and Judgmetits. sarated: ore : | 6a :

Appendix Exhibit 15 in District Court . hihi a oop gh

_ Appendix D—Italian Government Letter f testeess : 52a

Taste oF Cases. :

ley x Great Atlantic &. Pacific Tea Co. aii F.

app. 500, 503 (W. D. Mo, 1962) ............ 5,6

‘Saex United States, 118 F. 2d 724 (2nd Cir, 1940) © 8

Bratt v, Western Air Lines, 169 F. 2d 214, 216 (10

Cir., 1948) eeeseoes ea ee een eesesecers ee eeceees

_. Central Railroad Co. v. ‘Jules 8: ‘Botinék Co, 258 F.

2d 85, 88 (2nd Cir., 106, cerk. dn. 89,0. 8. :

} wi .

| Clark. Vv. Poutiniietéut Railroad Co.,

he (2nd Cir., 1964) ........... prasedseeeteeeeeees

, 928 F. 2a 591

PAGE

j 6 “of

Dictograph Products Company v. hactons ne i

' ton, 230 F. 2d 131 (2d Cir., 1956), cert. den. 352. |

* U: S. 883 (1956) Aa ink maces acacia ated ‘6

“Dilley v. Chesapeake @ Ohio. Railway Company, 327 )

ae eae oe EME); opps: den. BIF'U. 5: EM -

(1965) ar oe ey Cee e es RO eae poser sees oe Teesceces é

‘Eastern Air Lines: v. Dain: Trust isn 201 F.,

2a 62° (D. C. Cir, 1955), rev'd in part and inodi-

I ies, ‘fied 350 U. S_907, 962 (1955) v2.2... ed eee eed

: ‘Fidelity and Casualty Company a New York a

Frank, 227 F. Supp. 948 (D. C. Conn. 1964) .

Gencarella v. Fyfe, 171 F. 2d 419 (ist Cir., 1968

Independent Nail and Packing Co. v. Mitchell, 43 F.

Johnson v. Lutz, 253 N. Y. 124, 170 N. E517 (1980)

3 Lynn v. Smith, 281 F. 2d 501 (34 Cir,, 1960) neececes

ee Palmer v. Hoffman, 318 U. S, 109, 113-114 (1943) .

- Payne 8.8. Nabob, 302 F. 2a 803 (34 Cir., 1962),

. cert. den. 371 U. S. 870 (1962) ishtkawednanaess«

Puggioni v. Luckenbach Steamship Comipang, 286 F. i

cae 2d 340 (2d Cir., 1961) ... Shea Fed OCEN cob Ss oS Cbs :

: Spring Co. v. Edgar, 99 U: S. 645 (1878) GPUS aD

| Thomson v. Gaskill, 315 s S. 442, 446 (1942) .......

United States v. Certain Tracts of Land, 57 F. Supp. .

739 (S. D. Cal, 1944) Gabode\ cdc obs URE Ee

Volk v. Paramount Pictures, Inc., 91 F. : Saas, 8 ¢

(D. Minn, 1950) . stdenecseeeeeseeeneeees seneee

- 94 819 (1Cir,, 1965) ....0. seep eecee he veeseeee *

| o ‘PAGE

‘Annotation 58 ALR 24-1624 (1956) . ee. CC acee 8

| Convention ‘ta. the. Unification of. Certain Rules Re- *

' _-——~. lating to International Transportation by Air (e :

Stat. 3000, United States Treaty, Series ee 73

_ Federal’ Rules of Civil Procedure: sg

Rule 16 eeeveesesves eeope r eevee seeereseeree ees eee ee e < 3

ae Se eee eo |

+ Moore’ 8 Federal Practice (ea ‘Baition), Volume 3, mths =) ; !

$16.16, page 1122 eat aes sereiseee 8 |

ye York Times, June 23, 1965, Vol CXIV, No. 39, :

232, p: 13, col. 2 .....-.++- Rew ee Henao! 6 |

_ 4 United States Code: : pe | wee |

Title 28, QUDA(L) oop cee ecse see evenseneenstes B E ; q

Title 28, § 1732 .......6eeedeeeees Sibeawenesen 28 |

Pile GB YTB sain doa cdenkcimrinnn see tne MrT :

Title 49, $1dét{e) . HEE, ie AeA AT ES J

: & @ . sine i

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a. 3 or |

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“ . ae

- Sen Gort of the United Grates

ae OCTOBER TERM, 1965

| Sapewa Berean Wor Amwavs (Soomrs Awowree

BELGE D "EXPLOITATION: DE La ina AERIENNE),

; “a. ee Wa Petitioner,

: i. am — NSE OS | | :

Jacques L. LeRoy, Administratot Ad plas asi of t

. . Estate of Paut LeRoy, deceased and as Next Friend of

MicHagt P, LeRoy, Cuaistive M. ‘LaRor and Mmex B.

A : |

PEiTiNON Fou: X watt Gi chitionand 40 tm 5

UNITED STATES COURT OF APPEALS FOR THE

_ SECOND CIRCUIT

‘Petitioner prays that a writ of certiorari i issue to review

the judgment of the United States Court of Appeals for

the Second. Circuit entered in the above he geseaat case on

March 31, 1965.

Citations to Opinions Below

“The muniorendiins opinion of the District Court. with re.

spect to petitioner’s motion for a new trial and for reargu-

ment of its motion to set aside ey verdict is ee :

Na vith ° .

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| e es and 3 is tinted in Appendix B hereto, infra, p.. 360 the am

| ++ > 2. pendix to-Defendant’s Brief below [hereafter, DA], 136a-

| 437a). The memorandam opinion of the District Court .

Ree ee with respect to damages is unreported and is printed in.

Wess ee .- Appendix B-hereto, infra, p. 38a (Appendix to Plaintiff’s

Wea .* Priet below (hereafter, PA], 15a-22a).:

', The opinions‘of the United States Court of ‘Appeals ae -

the. Second Circuit-are reported at 344 F. 2d 266, and are

siete in — B hereto, os p. si 3a.

mn 3 | |

The" jtidgment of the Court of Appeals was entered on -

March 31, 1965. R 71a; Appendix B heréin, infra, p. 45a.

Rehearing was denied on April 21, 1965. R, 92a; Appendix

B he#ein, infra, p. 47a: The jurisdiction of this Court is

: ire under 28 U.S. C., = 1254(1)? :

G se

‘ o :

a ne ~ ~ ;

Winstone the court at a pre-trial hearing should rule: on

admissibility of evidence im advance of the trial, and if

so, whether the District Court trying the case is bound by

. such ruling, or whether it should exercise its own discre-

~ tion as to acueeibiity. of Sree’ ‘

Pie es | ‘Whether. a fides international airline, in a negligence :

eee? action against it’arising out of a crash covered by- the.

AN. ___, Warsaw Convention wherein.there were no survivors, is -

S| ee ae 2. entitled to a charge to. the jury that, because of human i in-

: : - re Ay Ma ti! P ee

A ee cp 4a fers othe oa ied nhs Cau bythe Court

a © otha gre

Hie eM re oe : . Fas

14 e * " ¢ . MES z ,

‘.

members of the crew, are presumed to have acted with dili- |

gence and due care. iy pk te x

- Statmtes and Rules Involved

“ The statutory provisions involved are: The Convention ?

for the Unification of Certain Rules Relating to Interna-

tional Transportation by Air (The Warsaw Convention), . ce

- 49° Stat. 3000, United States Treaty Series $76; and 62

_§1733; and Fed. Bules Civ. Proc. Rules 16 and 44. They oe

pp 1a5a.

Stat. 945, 28 U.S.C. 41732; ‘and 62 Stat. 946, 28 US.C.

are printed, so far as material, in Appendix A hereto, infra, —

On February 13, 1955 a Sabena Belgian World Airways

- DC-6 airplane, enroute from Florence to Rome in Italy,

--erashed into the side of a mountain northeast of Rome.

Instead of flight plan ¢ross winds of 70 knots (DA 81a) ‘

the airplane may have encountered winds of 135 knots (DA -

97a) to .155 knots (DA 115a). Everyone on board was —

killed. Respondent, as administrator ad prosequendum of

‘ the estate of one of the passengers, commenced sin action

against Sabena, @ national airline of the “ing. m of Bel-

“here material, provides: that the maximum, monetary lia-.

Pursuant to the Warsaw Convention, the District Court ©

” directed a verdict against petitioner for the maximum lies ©

bilityin’ the absence of wilful misconduct. (computed at

$8,300.00) and submitted to the jury the question of peti-

_. tioner’s wilful’ misconduct (DA- 122a; 125a). The jury

' found that there was such miacondnet (DA 133a) | nt

after a separate trial without a jury on the issue of dam- ;

ages, the District Court awarded respondent Two Hun-

‘Seven Hundred and Five Dol-

Jars ($205,705.00) (PA 15a-22a). A judgment in that

amount was entered on March 18, 1964 (DA 138a), after

petitioner’s motion for a new trial and for reargument

of its motion to set aside the verdict was denied.

Both parties appealed to the Court of Appeals, which

Court affirmed the judgment but remanded the case to the

District, Court for réecomputation of the damages. On

' April 21, 1965 the Court of Appeals amended its opinion

(Appendix B herein, infra, p. 34a; R 96a, 97a) and denied

the Petition for Rehearing (Appendix B herein, infra, p.

47a; R 92a). far

pot ha ape algal Agr IE

eonduct by introducing in evidence Exhibit 15 (Appendix

" + © herein, infra, p. 48a), from which respondent sought to

infer that petitioner’s crew reported the airplane’s

position to the Rome r when the aircraft reported

it passed a beacon located at Viterbo, Italy. It is indis-

putable that there would have been insufficient evidence of |

wilful misconduct had Exhibit 15 been excluded (Appendix

__B herein, infra, p. 36a).

ithe 10 ‘a esr ee art UF atk’ Auignds'to'& report

- prepared by the Italian Government in connection with its

prtiein- grate Race berger That Appendix, in turn, is

allegedly based Dh poe revording of conversations made

at the time of the flight and the crash, to which: had been

ned matter: Neither the recording itself, nor

Appendix’ to

soe Italian Government’s report, were

themselves offered ‘in evidence. The official at the Rome.

airport who supposedly heard and recorded the conversa-

tion did not testify as to the authenticity of the recording, -

Appendix, or Exhibit. AG

“<> At a pre-trial hearing, Judge Bonsét.raled that Exhibit

~ - 15 was admissible (DA 136a). “At the trial, and after hear-

ing the offer of proof, Judge Murphy indicated that he

would not have admitted the Exhibit, but: because of the

_ pre-trial ruling he felt obligated to admit it into evidence

(DA 74a; 136a).. Petitioner contends that the admissibility

(othe Bchibit was a matter for the discretion of the Trial

Judge, and should not have been determined at pre-trial.

~ Reasons for Granting y the Writ?

-4.-'The important. question, never. considered by this

Court—viz., to what extent-a trial judge is bound by &

- yaling of the pre-trial judge with respect to admissibility

of evidence [and, even more fundamentally, whether &

pre-trial judge should rule on questions of evidence]—is

presented -herein.

9 ‘There is conflict in the decisions. In Moore’s Federal

Practice, Second Edition, 416.16, Volume 3, page 1122

- Professor Moore states “The admissibility of evidence

may be ruled on at pre-trial.” In accord are Aley v..Great

Atlantic & Pacific Tea Co., 211 F. Supp. 500, 503 (W. D.

Mo., 1962; admissibility of evidence may be raled on

‘definitively’ at_ pre-trial) ; United States v.. Certam

Tracts ‘of Land, 57 F. Supp. 739 (8. D. Cal, 1944; Volk v.

Paramount Pictures, Inc., 91 F. Supp. 902 (D. Minn., 1950). ;

‘However, Lynn v. Smith, 281 F. 2d 501.(34 Cir. 1960), and 7

rH ames

ARISE

- Fidelity ‘and Casualty Company of New York v. Frank,

227 F. Supp. 948 (D. C. Conn. 1964), are to the contrary.

It is suggested in the Lynm case, supra (p. 507), that x,

admission of unsworn matter in evidence at pre-trial opens

a:Pandora’s Box not in. contemplation by those who so

wisely conceived pre-trial procedures as a medium of ex-

pediting the trial of cases and not as a Sabatitate for the

' regular trial process,

In this case Pandora’s Box was. s opened: The court at

‘pretital ruled that Exhibit 15 was admissible. The Trial — 3

Court stated that, in his opinion it, was not admissible, but

he did admit it because he felt bound by. the ruling at

pre-trial (and because the plaintiff was lulled by the pre- -

trial determination into a false sense of security). A de-

termination by this Court as to whether the admissibility

of ®ach evidence should. be: passed upon.at pre-trial would

clarify the existing problem of whether a trial judge is

bound thereby, or to what extent he is so bound (See Aley ©

v. The Great Atlantic é Pacific Tea Co., supra; Payne v.

‘8. 8. Nabob, 302 F.2d 803 [3d Cir., 1962], cert. den. 371.

U. 8. 870 [1962]; Clark v. Pennsylvania Railroad Co., 328

-. "B94 501 [2d Cir. 1964]; Dictograph Products Company v.

Sonotone Corporation, 230 F. 2d 131 [2d. Cir..1956], cert. |

den. 352 U. S. 883 [1956]). Such determination also would

- obviate any question of parties being lulled, by a pre-trial

order on’ the pe manemnees of arsine into’ & sense of

_ security.

Pre-trial tastiaa, are sesaatitbtty Seti eiinitiald and -:

improved. See N. Y. Times, June 23, 1965, Vol. CXIV, —

. No. 39,232 p. 13, col. 2. The importance of having this

Court determine the scope of pre-trial insofar as ¢oncerns’ —

the admissibility of evidence was noted by the District

_ Court: ‘‘If pre-trial orders are ‘going to have any validity

oO or if pre-trial orders are as good as some claim they are,

Si AE As aah een 06, tent hale effin, Pependis, B

eas infra, p. 37a.

® “ae

3. ‘The general role with respect to admissibility of

- evidence is that it is ordinarily a matter withiy the disere-

tion of the trial court. Spring Co. v. Edgar, 99 U.S. 645

(1878) ; Independent Nail and Packing Co. v. Mitchell, 343 |

_ FB, 24 819 (1 Cir., 1965). The same rule applies to ques- aes

tions of admissibility under 28 U.S.C. $1732. Puggtons

v. Luckenbach Steamship Company, 286 F. 2d 340 (2d Cir.,

1961). , pares enh ‘

It is particularly true with respect: to accident reports

that the trial court should exercise its discretion in de-

- termining whether the document has an inherent ‘¢ proba-

bility of trustworthiness.’’ Palmer v. Hoffman, 318 U.S.

109, 113-114 (1943); Central Radroad Co. v. Jules &. |

Sottnek Co., 258 F. 2d 85, 88 (2d Cir., 1958), cert. den. 359

‘U.S. 913 (1959). In this case, as the opinions below show,

‘there were many facets to the question of probability of

trustworthiness before the Trial Court:

(a) The transeript goes beyond the original alleged eae

recording of voices-by:----

(i) indicating alleged times of transmission (DA

71a-72a) ; eee 2

‘ . (ii) indicating alleged. identity of the parties (DA

Tla); ve ey

(b) Alleged communieations from a flight of another

girline (Swissair), included in Exhibit 15, are inadmissible

under the doctrine of Johnson v: Lute, 253 N. Y. 124, 170

N. E. 517 (1930), because the ‘alleged statement of the —

_ Swissair flight that the Viterbo beacon was operating con-

stitutes multiple hearsay (DA 72a). Gencarelia v. Fyfe,

8 |

- Railway Company, 327 F. 2d °249 (6th Cir.; 1964), cert.

171 F. 2d 419 (1st Cir.; 1948) ; Dilley v. Chesopeake t Ohi

| den, 379 U. ‘S. 824 (1965).

-(e) The alleged recording of the ground: to’ air con-

versations was not offered in evidence. Had it been of-

. fered, the Trial Court indicated it would have excluded

. it im its discretion because “plaintiff obviously failed to

lay any foundation for its admission and could not without

the presence ofa nurnber of Italian Government witnesses . -

- or their depositions’? * (DA 136a; 70a-74a; Appendix B

herein, infra p. 36a). The recording was thus not prop- :

aaa Ieee Serene anor

the Appendix to the Government report, nor the Exhibit,

‘were properly ticated either as an official record

(28 U.S.C. 41733; Rule 44(a)) or as an entry in the regu-. :

lar course of business’ sae ane R doris SERRE

2d 1024 (1956). .

Respondent’s submission to the Court of: ‘aiipeads’ of

an allegedly certified and authenticated transeript of the

conversations, which transcript was not offered at “the

triak i is highly. i improper. Apart from the fact that omis-

sions of proof may not be supplied on appeal (Thomson v. —

Gaskill, 315 U. S. 442, 446 [1942]; Bono v. United States,

(113 F. 2d 724 [2nd Cir., 1940]), here the fact is that the

Italian Government does not certify as to such matters to

private litigants, and the supposed .document offered to

the Court of Appeals was, we submit, ‘spurious. © (See

Appendix D, annexed hereto, infra, p..52a.).

a "It should be ‘hoted that if the government report of

‘the accident were a report of the United States Civil

ecard a Ms Bn th Rata Seer ppm

evidence. 49 UBC. $1441 (e). |

Ei (a) Meus lamsnstinhee teal what onto the oseins :

has been transferred, completely and accurately, to the.

i Anpentin, seach love to She Renibit, (FA. 11a, Anterrogntary

No. 25).

System was

mental”? system. - beet) Tag ae

(f)° The trial court’s conclusion that the Exhibit was -

inadmissible, but that it-would be admitted nevertheless

we @

. “(e) Exhibit 15 indicates that the Instrument Lending

. ing... However, the ‘‘notam’? quoted

in Exhibit 5 indicates that it was functioning only on an

experimental basis, which is a significant matter for 3.

commercial -airline, which would not ‘utilize an ‘ ‘experi-

] the pre-trial ruling, made it ludicrous for coun- -

. —wel to present additional factors relating to authenticity

or trustworthiness—e.g., to develop further that the Italian

Government, since it operated the Viterbo beacon, had a

~~" personal interest in the matter (DA 97a).

_ questions of pre-trial practice.

- recurring question in ‘accident cases generally, and in avia- ©

tion cases in particular. Petitioner unsuccessfully re-

_ with. due diligence and care.”’ (Request to Charge No. 32;. 2

. that the District Court was not. required “to include such _

CE.

‘Judge Murphy heard. evideiice on cabrastwosthiinan, ,

both inherent in tle Exhibit and extrinsic (as outlined

above), and did not trust the Exhibit (Appendix B herein, .

_ infra, p. 36a). ‘The Court below has abrogated this vital

discretionary role of the trial judge.

‘Thus the decision of the Court below was not‘only in

error, but the case presents for review important novel

The Second Circuit is in conflict with the Tenth and

District of Columbia Circuits upon another important and

DA 129a; 133a.) The Court of Appeals in this case held

common sense in-his charge to the jury”? (Appendix B,

herein, infra, p. 21a). In the ‘Tenth and District of Colum

bia Oironits, this would have been clear error, Bratty. = =

: Western Atr Lines, 169 F. 2d 214, 216 (10 Cir., 1948); oF

i * Ss

° 5

2 Pie . » 4, 4 e veh

Ly APA oLRA RN EOD NAR” RY BME TH 5 RET BTR RO cw —_ - ,

33 . ‘ : « = .

| , 10...

ath - . yp -

os ; Desenia die Lines: Uaien Tredt Ootiphigt 201 iF. 24 62

| poe C. Cir., 1955) rev'd im part and modified 350 U. S: 907, .

! 962 (1955). The conflict in cirenits om this vital point of

i | Reitravventaetgscidar seg inay hs yaoi eye

: i ; e box 3 e- “36 ’ 0

Fer the foceasing reanon, this potition for a writ a

of certiorari shegid be ayéaied. S55

ft 3 oe

——

die a atl

: x aeitans ‘Counsel for Petitioner, fe

| 7 . 27 William Street, = —-°= *

>to York, N. te 10005. .

New York; July, 1965. zai! tg

z a ae eee

< é : .

fy .

as PE SOR

ae .

ig RRR LRE REN RAE SEN EE

) Article 20(1)

_ ‘The carrir shall not be Liable if he proves that he and his

x established ty Act . of Renae. = — or r

Article 22(1) > es

In the transportation of passengers the liability of the

carrier for each passenger sbell be limited to the sum of

125,000 franes.. Where, in accordan:

b | cere

» © | ;

D> ° é

” APPENDIX A

e Statutes and Rules Involved |

Tue Convention FOR THE Unigicarion OF Czirarx Buuxs

RELATING TO IeTERNationaL TRANSPORTATION BY ATR (Tue

Warsaw Capeaeren) 49 Srar. 3000, Unrrep Srarzs Senet

‘Sams 876.

_dunage or that it wae ispoonile for him or tem to take

such measures.’?

a :

cé with the law of the

court to’ which the case is submitted, damages may. be

awarded in the form of periodical payments, the equivalent

‘capital value of the said payments shall riot exceed 125,000.

francs: Nevertheless, by special conttact, the carrier and

"the passenger may agree to « higher limit of liability.’ :

Articler25(1) ebipiedot eda tacas

The carrier shall not be entitled ‘eiavatt 1 himself of the ae

‘provisions of this convention which exclude’ or imit his

liability, if the damage is caused by his-wilful n

or by such default on his part as, in oe : : ae =

law of the court to which the case is* subn

sidered to be equivalent to wilful misconduct.”

= % 28 U.S.C. 6 1732. Boword made in regular cnr ot

business; photographie co

(a) In any sort f th Und Sn ad a yaa”

ey.

fies > Oa ahs . g es

“whether im the form of an entry in a book or otherwise,

’ made as a memorandum or record of gny act, transaction,

occurrence, or event, shall be admissible as evidence of such

act, transaction, occurrence, or event, if made*in regular -.

- course of any business, andpif it was the regular course of.

‘such business to make such memorandum or record at the

tinte, of such act, transaction, occurrence, or event or within

a reasonable time thereafter. :

All other circumstances of the -making of men writing

or record, including. lack of personal knowledge by the

entrant or maker, may be shown to affect its weight, but

_ stich: circumstances shall not affect its admissibility.

'The* ‘term ‘business,’ as used in is section, ‘incl

business, profession, occupation, and g of every kind:

-(b) If any business, institution, member of a profession:

or. calling or any department or agency -of government, in

" the regular course of business or activity. has kept or re-.

corded any memorandum, writing, entry; print, represen-

tation or combination thereof, of any act, transaction,

__° occurrence, or event, and in the regular course of business

i ¢

has caused any.or all: of the same to be recorded, copied, or

- Yeproduced by any photographic, photostatic, microfilm,

micro-card, mirfiature photographic, or other process which

accurately reproduces or forms a durable medium for so

reproducing ‘the original, the original may be destroyed

in the regular course of business unless its preservation

is required by law. -Sucle reproduction, when satisfactorily _

identified, is as admissible in evidence as the original itself

. ™ any judicial or administrative procéeding whether the

original is in existence or not and an enlargement or fac-.

simile of such reproduction is likewise admissible in evi-

dence: if ‘the. original reproduction. is in existence and

« available for inspection under direction of court. The

introduction of a reproduced record, enlargement or copy.

thereof' w hich is A tareataiants admissible under the rules of —

0 pgmemdia A. |

évidence. ‘As amended Aug. 28, 1951, ¢. 351, $1, 1, 3, 65

Stat. 206; Aug. 30, 1961, Publ. 87-183, 75 Stat. 413.

ie 1733. Government records and papers; copies.

_ , (a) -Books or records of account or minutes of proce¢d-

ings of any department or agéncy of the United States

“shall be admissible to prove the act, transaction or occur- -

rence as a memorandum of which the same were made or ~..

kept. 3 “giti¢ F.

re Secnite authenticated copies or transcripts of any

books, records, papers or documents of any department or

‘agency of the United States shall be admitted in evidence

equally with the originals thereet. June 6, 1948, ¢. 646,

62 Stat. 946.

Rule 16. Pre-Trial Procedure; ern er Tinie

In any action, the court may in its discretion direct the

attorneys for the parties to Sppear before it for a con-.

ference to consider

(1) The simplification of the i issues; at

(2) The necessity or —e of amendments to the |

pleadings; ;

(3) The possibility. of sede admissions of fact and —

of documents which will avoid unnecessary proof;

_ (4) The limitation of the number of expert witnesses ; -

- °(5) The advisability of a preliminary reference of issues

to a master for findings to be used as evidence when the

. trial is to be by jury; °

_ (6) Such other matters as may aid i in ‘the disposition of

the action. .

The court shall make an dadas which recites the action

er: ‘at oy rae it the amendments allowed to the

, oo

_ Appendia A.

pleadings, and the agreements made by the parties as to any

of the matters considered, and which limits the issues for

trial to those not disposed of by admissions or. agreements

of counsel; and such order when entered controls the sub-

‘sequent course of the action, unless modified at the trial

to prevent manifest injustice. The court in its discretion

_ May establish by rule a pre-trial calendar on which actions

may be placed for consideration as above provided and

“may either confine the calendar to jury actions or to non-

jury actions or extend it to all actions.

Rule 44. Proof of Official Record

(a) Authentication of Copy. An official record or an

entry therein, when admissible for any purpose, may be

evidenced by an official publication thereof or by a copy

attested by the officer having the legal custody ‘of the rec-

ord, or by his deputy, and accompanied with a certificate

that such officer has the custody. If the office in which the

-. record i is kept is within the United States or within a terri-

tory or insular possession ‘subject to the @ominion of the

United States, the certificate may be made by a judge of

a court of record of the district or political subdivision in .

which the record is kept, authenticated by the seal of the

court, or may be made by any public officer having a seal

of office and having official duties in the district or political

subdivision in which the record is kept, authenticated by

the seal of, his office. If the office in which the record is ,

kept isin a foreign state or country, the certificate may

be made by a secretary of embassy or légation, consul

general, consul, vice consul, or consular agent or by any

officer in-the foreign service of the United States stationed

in the foreign state or country in which the record is kept,

and authenticated by aad seal of his office:

(b) Proof -of Lack of Record. A written statement

signed by an officer having the custody of an official record

pean

or by his ‘deputy tha after diligent ik no record or -

entry of a specified tenor is found to exist in the records —

‘of his office, accompanied by a certificate as above provided,

is admissible as evidence that the records of his otfes ‘con-

tain no such record orentry.. «

of official records. or of entry or lack of entry therein by

- any method authorized by any applicable statute or a the

rules of eyidence at common law. ,

APPENDIX B

_ UNITED STATES COURT OF APPEALS

For THE Szconp ‘Cmourr :

No. 172—September Term, 1964.

(Argued November 17,1964 Decided March 31, 1965.)

Docket No. 29044

—

Jacques L. LeRoy, Administrator and. Prosequendum of ©

. the Estate of Paut LeRoy, deceased, and as Next Friend

of Micwar. P. LeRoy, CunIsTINE M. LeRoy and Mien

B. Lalor,

Plaintif-Appellee-Appellant,

—

' SaBena Briain Wortp Amutnes (Socmets’ ANONYME

_ BELGE.D "EXPLOITATION DE LA NAVIGATION. AERIENNE),

: Defendant-Appellant-Appellee.

’ LuMBaRD, Chief Judge,

" Mabma and MarsHAti, Circutt wis daa

Before:

-s

Appeal from a judgment for the plaintiff 5 a tort

_ action brought in the United States District Court for the

Southern District of New York; Thomas F. Murphy, J.,

on behalf of the children and the estate of a passenger i

. killed in the crash. of one of the defendant’s planes.

Affirmed and remanded for recomputation of the award.

—.

ee, 3

| ; | Appendic B. :

Sisntaire Se Simi, Hie Mi Y. asad

Kelner, Stelljes &Stelljes, New York, N. Y.

on the brief), for aia i lee

Menon Conniaan, New York, N. y. (Thomas

W. Wilson, Mendes & Mount, New York,

N. Y., on the brief), for nen

_ appellee. . 2Oie

Lumeanp, Chief Judge:

On February 13, 1955, a Sabena Belgian World , ae

DC-6 crashed into the side of a mountain northeast of Rome,

killing everyone aboard. This suit was brought against

Sabena in the District Court for the Southern District of

New York on behalf of the estate and children of one of the

passengers, Paul LeRoy. +43

Because LeRoy was on an sataeiaalieans flight, ‘Sabena’ |

liability is governed by the Warsaw Convention, 49 Stat®

3000 (1934). Sabena therefore could avoid liability only by

showing that ‘‘all necessary measures to avoid the damage’ P

were taken. On the other hand, however, on the facts of

. this case, the plaintiff’s recovery is limited to $8,300. unless

che establishés that Sabena was guilty of wilful misconduct.

- Judge Murphy directed a verdict for the plaintiff for .

$8,300, but the question of wilful misconduct was submitted

‘to a jury, which resolved it in the plaintiff’s favor. After

a separate trial, without a jury, on the question of damages,

Judge Murphy awarded $205, 705. Both parties have ap-

pealed. |

‘Sabena contends that the district court erred in admitting

certain evidence and in its instructions to the jury. The

plaintiff argues that it was error to take account of federal

(as

' Appendix dia B,

and state income taxes in estimating Paul LeRoy’s- hie aoe

Hip _» net earnings and that the method nsed to discount the con-

i ' ° tributions which LeRoy would have made to his family to

ip - their present value was incorrect. We find no error in the

rulings of the district court. However, as we find that the |

district court should have computed the award on somewhat

different principles, we remand the case for recomputation —

| of the award. : a

I. Wilfal Misconduct

__ The Sabena plane crashed on the last leg of a Brussels-

to-Rome flight; it should have been flying within a ten-mile

wide airway between Florence and Rome. The plaintiff’s

case begins with the fact that the site at the crash was over ©

30 miles east of the airway. Ss |

_ The piaintiff does not contend that the plane was off

°~ eourse as a result of wilful misconduct. Rather, he contends ; |

that the Sabena crew deliberately mislead the Rome con- —

- troller as to their position and that the controller therefore

; authorized a descent. which, though it would have been safe."

within the airway, was fatal over the mountainous country

to_the east, where the plane was then flying.

The airway and crash site appear in approximate scale

on the following diagram. The dashes mark the course

taken by ‘the plane urider the plaintiff’s theory; the num-

bered circles indicate its hypothetical positions at one-

minute intervals just. before the —

~ 1848

Pu ‘1849

1850

1851

1852

ess ae

- Crash site

Viterbo

- 10a

Appendic B.

“the plaintiff’s theory depends heavily on the range of

the Viterbo radio beacon, which marked the airway, and on.

the transcript of radio conversations between the. Sabena

plane (fight ODB) and Rome. csc Ra cide chases

script is the most important. |

‘“118]48 ODB [da] : Rome—Leaving 9500 ft. at 48

ODB ‘

"Rome “

ODB *

Rome ‘“

Rome—Did you report over Vi-

terbo?

ODB—Will you confirm if Viterbo.

beacon is operating on full

power please? |

Rome—Another aircraft has biseod®

by Viterbo now stand by

w’ll ck on Viterbo. (Nota:

Roma-Controllo chiama ]’ae-

reo svizzero 302 por avere

conforma sui funzionamento

del radiofaro di Viterbo).

- Rome—Have you been working

with Viterbo Beacon?

Rome—Request if the IMV beacon

is Working all right.

* 302 —Roger I checked it thank —

you very much. an

Rome—Have you been working

with Viterbo Beacon—how

did he work?

, 302 —Roger we were sheen Civi-

tavecchia at 47 and estimat-.

. ing Urbe at 52.

302 [da] Rome—Report at 4000 ft.

'ODB *

ODB. “

OpB

The parenthetical note at 1848, was translated by tna,

plaintiff’s translator as ‘‘Rome control is calling Swiss air-. \

51° Rome ‘‘

lla

: Appendia B.

ODB—7500 ft. now.

Rome—7500 ft. is it roger?

ODB—That is affirmative.

‘Bome—Roger how is Viterbo Bea-

“+ gon? Are you still unable to

‘pick it up? =

ODB—N legative.

: ODB—Passed Viterbo tas os

minute ago at 7500 ft.

Rome—Passed Viterbo at 50—7500

ft. Stand by and advise

- Abeam Civitavecchia.

- Rome—Cleared: to 5500 ft. advise

abeam INR beacon.

ODB—Leaving 7500 ft. for 5500 ft.

‘Bome—That.is correct.

-ODB—Is ILS operating and if so

in what channel please?

| Rome—Stand by for confirmation. 7

-- Rome—ILS is operating. ;

ODB—Bumore indefinible..

Rome—Go ahead. | !

3 Rome—Go ahead. 29

plane 320 in order to- have confirmation: on the workings

of radio beacon.of Viterbo.’’ ‘*Rumore appar at. 1853, .

was translated as ‘‘undefinable noise.’*

Oo §

| - Appendia B.

The plaintiff’s theory is that the noise at 1853 was pro-

duced when the plane’s external antenna struck trees on ~

the mountainside. Since the plane had reported passing

Florence, 114 nautical miles way, 24 minutes earlier and :

the speed of a DC-6 in descent is about 285 knots, the plane ~

must have followed a straight line from Florence to the

_- erash site, and its position from 1848 to 1853-must have |

_. been as indicated -on the above diagram. This inference

- Teceives some support from the line of the swath cut by the

plane as it crashed through the trees.

_ The plane’s hypothetical position at 1850, wees its.crew .-

reported that it passed the Viterbo beacon, is more than 30

‘miles from the beacon. The plaintiff’s witness testified,

-however, that the maximum range at which a radio com-

a would home onthe beacon Was only about 22 miles. .

t is the plaintiff’s contention that the Sabena crew falsely

reported their position—since their report implied at least

that they. had obtained a radio compass bearing on the

beacon’'—in order to avoid the delay which the Rome

controller would have required if they had reported that —

they were uncertain of their position. - .

° The plaintiff: ’g theory rests on deductions from tedirect -

evidence, and Sabena offered contrary evidence on essen-

tial points, particularly 23 te the range of the Viterbo.

‘beacon. But the inferenses required are not unreasonable,

‘and it was for the jury to weigh out the conflicting evi-

dence. Its finding must be accepted unless Sabena was

prejudiced by the improper admission of evidence or im-

proper instructions. :

1 The anion’ $ identifying ve ipa which consisted of a steady tone ©

interrupted at intervals by a apparently could be picked up ata -

_ substantially greater distance than that at which a radio compass

would home ‘on the beacon, but. the jury could properly ‘have found

that the position: report did tarry the implication that the crew had

obtained a radio compass ‘bearing and not oaey the signal.

186

& Append: B.

A The Radio ‘Transeript

Sabena Sindee that the radio transcript, designated as

exhibit 15, should have been’ excluded on the ground that

it was. hearsay and no foundation had been laid for its

‘admission. The transcript is several stages removed from

the conversation which is alleged to have taken place on

February 13,1955.” The conversation was recorded at the -

time; a transcript was made from the recording as part of

the Italian government’s inyestigation of the crash and was

_ included as an appendix to its report; exhibit 15 is a copy

of that transcript. Analysis of its admissibility requires

tracing back this chain:

First, if the appendix to the accident: report would oc

been admissible, was exhibit 15 admissible? Second, if the

original recording would have been admissible, would the _

appendix have been admissible? Third, would the originai

recording have been admissible? In addition, a further issué

’. arises from the. fact that Judge Murphy did not consider

the exhibit’s admissibility de novo but based his ruling on |

a pre-trial ruling by Judge Bonsal that it was admissible.

The first of these questions is the most easily answered.

The only objection relevant to this link in the chain is that

the exhibit was not certified as required by Rule 44(a) of

the Federal Rules of Civil Procedure. But Sabena con-

ceded that there is ‘‘no discrepancy’’ between the exhibit

and the appendix to the Italian government’s report.

Certification could have done no more. Accordingly, exhibit

15 was admissible if the ‘appendix would have pean ad--_

misgible.

Concessions by Sabena also go far toward answering the

second question—whether the appendix would have been

admissible. Sabena’s answers to pre-trial interrogatories

establish that the transcript was indeed an appendix to an

accident report and that the report. was compiled by the

Ministerio Difesa Aeronautica of .the Italian government. -s

‘

lta

_ Appendia B.

. That a report has been prepared by.a government official

or agency does not always require its admissibility. But in

most cases in which such reports have ‘been excluded, :there

: has been reason to suspect bias, Hoffman v. Palmer, 129

F’, 2d 976, 991 (2 Cir. 1942), ‘aff’d, 318 U. S. 109 (1943), or

the report has contained conclusions ‘or ‘hearsay, Johnson

v. Luta,. 253.N. Y. 134, 170 N. E. 517°(1930), or, in the case

of Civil Aetonautics Board accident reports, exclusion has -

been required by statute, 49 U.S. C. § 1441(e). See generally .

153 A. L. RB. 163.

“Whatever may be inthe report as a whole, no conclu-

sions are drawn in the appendix. Nor does Sabena claim

that the Italian government was biased in this matter. To

‘. the “extent that the transcript gives no information not

. obtainable from the recording, we therefore see no reason:

for excluding it if - reeording’ itself would have been

. admissible.

- Sabentargues that the transcript does go beyond the —

reeording i in neertain gesvects. The most important of these

are the notation’ ‘of the times of transmission; the paren-

thetical notes, of whieh one appears at 1848 in the portion

_ quoted above; and the idéntification of the parties who are

- transmitting. "But the times could be obtained from the re-

' cording without difficulty, and the notations do little more as 3

_ than summarize the messages with which, they are associ-

’. ated. It is of course possible that: the method used to |

interpolate times was unreliable, but the speculative possi-

bility of error or dishonesty onthe part of the government |

agency in performing such a mechanical task is too mini-

mal to give reason for exclfiding the document. See Banco

de Espana v. eh ied Reserve Bank, 114 F. 2d 438, 446

- (2 Cir. iret a.

i«® This is in Sa: ways a stronger case for admissibility. than

_existed in Banco de Espana. The defendant in that case apparently .

had not had access to the original sinineni record, but Sal na con-

Oo ae

The identity of the parties does present a problems bat

not one relevant to this second question, where we assume

that the recording would have been admissible. It is suffi-

- cient here to say that the identity of the Sabena flight is

explicit and that of the controller i is implicit 3 in the sont of

the messages.

. With respect to the recording itself, we think that it ‘was

admissible i in view of the provisions of 28 U. S. C. § 1732:

. “In any court of the United States and i in any court

established by Act of Congress, any writing or record,

whether in the form of an entry in a book or otherwise,

made as a memorandum or record of any act, transac-

tion, occurrence, or event, shall be admissible as evi-_

dence of such act, transaction, ‘occurrence, or event, if

made in regular course of any business, and if it was

_the regular course of such business to make such

memorandum or record at the time of such act, trans-

action, occurrence, or event, or within a reasonable time

. . thereafter.

All other circumstances of the making of such writ-

ing or record, including lack of personal knowledge by

the entrant or maker, may be shown to affect its weight,

_ but such circumstances shall not affect its admissibility.

__ The term ‘business,’ as used in this section, includes —

business, profession, occupation, and calling of every

kind.’ 99

' The archetype of the Sadie to which § 1732 was intended

to apply is the typical business accounting record, a -rou-

tine factual entry normally made without reference to

anticipated litigation. Because such entries are e likely to be

‘accurate e and, perhaps more important, because modern

= the a accuracy of the copy from the appendix to’ the accident _

rt and Captain Pierre Dils, then chief pilot of Sabena’s European

Division, heard the oe recording.

léa

Appendiz B.

business organization makes it impractical to produce in

court all the persons directly responsible for the entry,

§ 1732 and similar state statutes were enacted. See Judge

Frank’s extensive discussion of such legislation in Hoffman

v. Palmer, 129 F. 2d at 983 et seq. .

The statute’s rationale is equally applicable to the record-

ing here -involved, which was a simultaneous recording

made as part of a regular air control procedure. From

Sabena’s’ answers to pre-trial interrogatories, the deposi-

tion and testimony of Captain Pierre Dils of Sabena, and

the undisputed testimony of the plaintiff’s expert, Captain

Richard Hettenbaugh, it appears that major airports were

required to keep either a written or a recorded telecom-

munications ‘log. The latter type-was in use in Italy in

1955, and, as Sabena conceded, ‘‘on February 13, 1955, and

for a considerable time prior thereto, it was a practice to

record communications between airplanes and controlling

agencies on the ground, in the country of Italy.’’

The recording thus was at least the equivalent of a ‘egu-

lar written journal kept by the Rome controller’ and was

* Cf. State v. Meyer, 37 Wash. 2d 759, 226 P. 2d 204 (1951), in

which the yon: tay a recording of an interview made‘in a hos-

pital by an attending doctor was itted under the state business

records statute as part of the hospital clinical record. For some

purposes a recording might be equated with the testimony under oath

‘of a third-party auditor of the conversations rather than merely a

written record. See 2 Wigmore, Evidence § 669, at p. 790 n. 4

(1940) ; cases cited in Annotation, 58 A. L. R. 2d 1024, 1041. But -

cf. United States v. McKeever, 271 F. 2d 669, 676 (2 Cir. 1959).

But the distinction is irrelevant to this discussion since the only

substantial objection to admission of the recording is that the

recorded statements are themselves hearsay. That objection is not

met by equating the recording with the testimony of a sworn wit-

ness. Cf. People v. Buckowski, 27 Cal. 2d 629, 233 P. 2d 912

(1951), cert. denied, 343 U. S. 928 (1952) (recording admitted to

show fact that statement was — ; Paulson v. Scott, 260 Wisc. 141,

50 N. W. 2d 376 (1951) (r

admissions of an adverse party).

ing admitted under exception for

17a

Appendi B.

8 contemporaneous business record. That is all that 41732

purports to require. Despite the section’s express reference

to hearsay, however, courts have been cautious about al-

lowing admissions of business records where the informa-

tion was obtained only through hearsay. See, e.g., Standard

Oil Co. v. Moore, 251 F. 2d 188, 212 (9 Cir. 1957), cert.

denied, 356°U. S. 975 (1958) ; United States v. Grayson, 166

F. 2d 863, 869 (2 Cir. 1948) (L. Hand, J.).

The leading ease in thus limiting the admission of busi- Fas

ness records is Johnson v. Lutz, 253 N. Y. 124, 170 N. B.

517 (1930),* in which the report of a. police officer was held

inadmissible because it was based in large part on the vol-

unteered statements of bystanders. But the statements in-

volved in this case are not the gratuitous reports of per-

sons not involved in the bustzess. If the plane crews were

not required to make such reports, it certainly was at least .

the regular business practice for them to do so. To such re-

ports Johnson v. Lute does not apply. See Pekelis v.. Trams-

continental & Western Air, Inc., 187 F. 2d 122, 180-31 (2

Cir.), cert. denied, 341 U. S. 951 (1951) ; United States v.

Grayson, supra (dicta); Note, 48- Colum. L. Rev. 920, 926

‘(1948).. Such reports should be as reliable as the typical

‘business record,® and they surely are just the kind of hear-

say which, in the words of the gues ‘‘may be shown to

affect [the — *s] weight, but ... shall not affect its

admissibili

Moreover, . even if the principle of Johnson v, Lutz is |

assumed to apply here, the objection based on it can be met

on its own termis. — the objection applies only to ‘*mul-

* The New York provision interpreted i in Johnson v. Lutz, “quoted

in 253 N. Y. at 126, is the predecessor of C. P. L. R. Rule 4518(a)

and is substantially ‘similar td § 1732.

5 We do not think-that the plaintiff's challenge to the truth of one

such statement—the Sabena plane’s position report at’ Soke

cuts the argument for their ore reliability.

18a

Appendiz B.

tiple hearsay,’’ it does not apply to the ‘‘rumore in-

definible’’ or to the interpolation of times. Nor does it

apply to the statements of the Rome controller, including

the identification of their source that is implicit in them;

the recording is at least as satisfactory as a written record

kept by the controller, and his statements and identification

should be no less admissible for having been tape recorded

rather than written down. eiopee

The transmissions from the Swissair flight, on the other.

hand, are hearsay, but it is difficult to see how Sabena was

prejudiced by their admission. They tend to establish, if

anything, that the Viterbo beacon was operating. Since one

of Sabena’s principal contentions to the jury was that its

plane could have picked-up the, Viterbo beacon at 1850, it

could only ‘have been to its advantage to establish that the

beacon was operating.

The transmissions from the Sabena plane also are hear-

say, but if we can assume that they did in fac: come from

‘that plane, they fall within the exception for admissions

of an opposing party and therefore do not render the rec-

ord inadmissible. Missouri Pacific RR.v. Austin, 292 F. 2d

415, 421 (5-Cir. 1961). There was a tentative identification

by Captain Dils, who testified that he had listened to the

recording and was ‘‘practically sure’’ that he recognized

the voice of the particular crew member. In addition, the

- eontext of the transmissions makes it highly unlikely, to

-, say the least, that a transmission purportedly coming from -

the Sabena plane did not in fact.do so. We think that the

source of the- transmissions was sufficiently identified.

- The final issue with respect to admission of exhibit 15

arises from the fact. that Judge Murphy appears to have

admitted it solely on the basis of Judge Bonsal’s pre-trial

ruling. Whether that was a sound basis for admitting the

exhibit is a nice question. It is of course customary for a

district judge to follow an earlier ruling by one of his

19a

| Appendia: B.

brothers in the same litigation, thougii he. is. not bound to

» doso. Dictograph Products Co. v. Sonotone Corp., 230 F.

2d 131 (2 Cir.), rehearing denied, 231 F. 2d 867, petition

_ for cert. dismissed, 352 U. S. 883 (1956). But despite Pro--

‘fessor Moore’s flat ‘statement that admissibility may be

ruled on at pre-trial, 3 Moore, Federal Practice 116.16, at

p. 1122 (1964), the efficacy of such rulings necessarily. is.

limited by the first judge’s inability to foresee the circum-

stances of the trial which may be relevant to admissibility.

Cf. Fidelity and Casualty Co. v. Frank, 227 F. Supp. 948

(D. Conn. 1964). .

_ We need not resolve that issue here, however, for this

is not a case in which‘ admissibility was a matter within

the district court’s discretion. We conclude that in this

case § 1732 required admission of exhibit 15.

. The district court’s discretion with respect to 4 1732 is a

discretion in judging whether the document offered ‘‘has

an inherent probability of trustworthiness.’’ Central RR v.

Jules S. Sottnek Co., 258 F. 2d 85, 88 (2 Cir. 1958).° It is’

therefore a nécessary premise for its exercise that the docu- °

ment’s trustworthiness be in doubt. See Shenker v. United

States, 322 F. 2d. 622, 627 (2 Cir. 1963), cert.:denied, 376

U. S. 907 (1964) (entry made by employee of party);

Puggioni v. Luckenbach Steamship Co., 286 F. 2d 340 (2

Cir. 1961) (same); Central RR v. Jules S. Sottnek Co.,

supra (accident report based on bystanders’ volunteered

- statements and containing conclusions as to the accident’s

_.cause). As we have attempted to demonstrate, however,

nothing in the nature or content of exhibit 15 gives any

reason to doubt its trustworthiness, and Sabena in all of

its argument has suggested no extrinsic circumstances

which would raise such doubt. To exclude such a document _

as exhibit 15 on the mere speculative possibility of error

or fraud would frustrate the evident purpose of the statute.

_ We therefore conclude that there was no errer in receiv-

ing exhibit 15.

200

Appendia B.. oe

B. Sabena’s Other Objections

Of Sabena’s other objections, only two merit discussion.

The first is directed at exhibit 7, a pair of United States

Air Force maps which together show the Italian peninsula-

from Florence to Rome. The Florence-Rome airway and

the Viterbo beacon appear on the maps, and Captain. Het-

tenbaugh added other markings to illustrate the plaintiff’s-

theory. These consist of a line and numbered circles, as

in the above diagram, which indicate the plane’s hypotheti-

cal course and pre-crash positions; there also are concentric

circles around the Viterbo beacon which ‘mark ren of

10, 15 and 20 miles.

Sabena objected to admission of the exhibit on the.

grounds that its planes did not use such maps; that the

maps’ accuracy was not established ; more particularly, that

they do not show all of the radio facilities in the area; and

that the markings were taken only subject to connection.

and were never connected,

Since the charts. were used only to illustrate distances —

and positions, the only question concerns their accuracy,

and Captain Hettenbaugh testified as to that; it is wholly

irrelevant whether Sabena ever used such a map. Captain —

Hettenbaugh also explained his markings, which are amply

connected by exhibit 15 and by testimony as to the —

of a DC-4 and the Viterbo beacon’s range. 3

There are some discrepancies between exhibit 7 and an-

other map, a radio chart used by Sabena, as to radio facil-

ities existing in the area. However, Sabena made no

reference to the discrepancies when it objected to admis-

sion of exhibit 7, and it introduced no evidence relating to

them after the exhibit was admitted, Moreover, it was for

the jury to decide which of the maps was in error. In sum,

Sabena has not established any error in the admission of

exhibit 7, much less that there was so substantial an error

as to require reversal.

2la a

° Appendi« B. Lout

- Sabena’s final claim of error is that the district court ..

erred in refusing to charge the jury that, ‘‘because of the

human instinct of self-preservation and the disposition of

men to avoid personal harm,’’ the crew of the Sabena plane

“are presumed to have acted with diligence and due care.’’

This is not an unreasonable presumption, and it is sup-

ported by a number of cases. But many, perhaps most, of

' these cases involve use of the presumption by an appellate

court in determining whether a jury verdict is supported |

by the evidence. E.g., Eastern Air Lines, Inc. v. Union .

Trust. Co., 221 F. 2d 62, 72 (D. C. Cir.), rev’d in part per

curiam, 350 U. S. 907, 962 (1955) ; Atchison, T. & S. F. Ry.

v. Toops, 281 U.S. 351, 356 (1930). Whether Judge Murphy

was required to include such common sense in his charge

to the jury is another matter. We do not think that he was.

Ii. Damages

Judge Murphy concluded that New York would apply

the law of the place of the tort, Italy, to the question of ©

damages. He did so with some reservations in view of re-

cent New York conflict of laws decisions. See Babcock v.

‘Jackson, 12 N. Y. 2d 473, 191 N. EB. 2d 279 (1963). Since

both parties presented their cases below on the theory that .

Italian law governs and neither has raised the issue here,

we see no reason to review Judge Murphy’s conclusion.

Judge Murphy arrived at the $205,705 award as follows:

He found that Paul LeRoy would have earned some $600,-

000 before’ retirement in 1993 at age 65. He deducted

from this amount 15 per cent for United States and New,

York income taxes (LeRoy, worked in New York) and re-

duced the balance by 25 per cent to allow for LeRoy’s per-

sonal expenses. The resulting figure—the estimated con-

tribution that LeRoy would have made to his family—was

$382,000. > :

22a .

Appendiz B.

To reduce this to present value, J mine Murphy aciiniell

the contributions over 37 years and rounded the result to

$10,000 per year. The $205,705 award is the present value

'. of annual payments of $10,000 for 37 years.

Although neither party has raised the point, we think it

_ necessary to consistent discussion that a minor arithmetical

error in the district court’s computations be corrected. The

‘number of years from 1955 to 1993 is not 37 but 38, and

_for purposes of this discussion we will modify the plain-

-tiff’s contentions accordingly. Because this error arose |

only after the total contribution was cannes # it affected

only the averaging and discounting.

_ The plaintiff’s first contention is that it was: error to de-

duct estimated federal and state income taxes from Le-

Roy’s future earnings. It is the general rule in this Circuit

_ that, where federal law controls or applicable state law is

silent, income taxes should not be considered in estimating

future net income. The rule applies to both jury and non-

jury trials. McWeeney v. New York, N. H. dé H. R.R., 282

me 2d 34 (2 Cir.), cert. denied, 364 U. S. 870 (1960) (jury

trial); Cunningham v. Rederiet Vindeggen, 333 F. 2d 309

(2 Cir. 1964) (non-jury trial).

The defendant has notargued that there is an Italian

rule in point, and, in any event, there is nothing in the rec-

ord to support such an argument. Although each party’s

Italian law expert testified at some length as to the factors »

considered in assessing damages, neither made any men-

tion of the effect of income taxes. There was testimony

that damage awards under Italian law are intended to com-

pensate for ‘‘actual’’ loss. But this nearly universal prin- -

ciple of ‘damages was expressly held in Cunningham not to

a sufficient indication ‘that income taxes are taken into .

consideration. 333 F. 2d at 313-314.

_ We therefore conclude that McWeeney controls. That

case did not lay down a flat rule, however. It left open the

23a

* Appendia B.

possibility that adjustment for income taxes would be

proper if the income were so high that the award would

otherwise be excessive, 282 F. 2d at 38, and we subsequently ia,

affirmed the existence of this exception in dicta in Montel-

. lier v. United: States, 315 F. 2d 180, 186 (2 Cir. 1963). .

- Although in M ontellier we upheld the district court’s re-

fusal to deduct estimated income taxes, we indicated that

it could properly have done so on the facts of that case and

also that it would have been error not to do so if a suffi-

‘ ciently high income had been at issue.

Whether or not the district court. was required to: allow.

_for the effect of income taxes in this case, we think.that it

was at least a proper exercise of its discretion to do so.

The estimated future income on which the award was based

averaged $16,000 and reached $25,000 for nine years. This

compares with an estimated income of $11,150 in Montellier,

202 F. Supp. 384, 422, and it contrasts even more sharply |

« with"McWeeney ($4,800) and Cunningham ($6,281—see 60

Adm. 247, S. D. N. Y., April 13, 1962). Certainly the risk

"that the federal and New York governments will cease to

take a substantial portion of a $16,000 income is one of the

smaller uncertainties involved in the computations in this’

case, and the 15 per cent figure adovted by Judge Murphy

is a reasonable estimate of what that portion would prob-

ably. be.

The plaintiff’s second ,contention is that the district

court’s method of discounting the award to present-value

was not proper and resulted in too low an award. The

plaintiff has not fully developed his position in his brief,

but it appears to be substantially as follows: J udge Murphy

averaged LeRoy’s contributions over the period 1955-1993

(though he used a figure of 37 rather than 38 years), and

_ he discounted the contributions to their 1955 value. The:

- plaintiff’s approach, on the other hand, would take, aecount

of the fact that 9 of the 38 years had passed by the time =

beet 24a

Appendix B.

judgment was-rendered.: In his view, the $382,000 should

- be averaged over only the remaining 29 years, and the re-

sulting average annual contribution, approximately $13,000,

“should be discounted’ only back to 1964. ‘This would give

-an award of about $234,000. . -

We agree with the plaintiff’s premise that the 38 year

_ period should be treated as having begun in 1955, but we

‘, cannot accept the computations which he makes on thi8

basis: It is not that the plaintiff i is too generous with him-

self. On the contrary, this is one of those rare instances.

in which our view of the award is‘ more favorable to the

plaintiff than is the. nin own.° ,

The ‘award in this case is)intended to be the financial

equivalent of the contributions which LeRoy would have —

. made to his family. It should not simply be the sum of

these contributions, however. The award may be regarded -

as having been paid at the time of judgment, 1964,’ while

it is assumed that the contributioris would have been made

from 1955 to 1993.- As a matter of economics, therefore, .

each contribution which would have been made prior to

the judgment should be increased by the. allowance of pre- |

judgment interest from the date the contribution would

have been made, while those which would have been made

\subsequent to the judgment should be discounted back to

- the date of judgment... .

It is not the law of economics that we are applying, how-

ever, but the law of Italy. Judge Murphy found that -pre-

jadement interest is allowed under Italian law esd when

e ee we reject the plaintiff’s contention with respect to con-

sideration of the federal and state income tax, however, the recovery

' to which we find the plaintiff to be entitled i is less: than the amount:

- which he seeks on this appeal.

* Payment of the judgment may be aastids for example, pend-

ing appeal, but the addition of post-judgment. interest makes the

ultimate payment economically equivalent to payment at the time of

judgment. _

25a

A ppendia B.

scsi would so ; deman ? and he held that it hehe not be ©

awarded in this case. The plaintiff has not challenged this

holding, and, in any event, we cannot say that Judge

Murphy’s. finding as to the application of Italian law is

clearly. erroneous. The contributions for 1955 to 1964

therefore should enter into the award only at their face |

value. -

. In Judge Murphy’s caleuintions, however, these contribu-

tions were not merely left: at face value; all of the contri-

butions—from 1955 to 1993—were discounted ‘pack to 1955.

Since no prejudgment interest was allowed, this had the

effect of valuing contributions for 1964, for example, at -

only about seventy-five cents on the dollar, even though

they would have been received at ata the | same

time as the award.

If Italian law required sucha result, we weeld of course

be bound to accept:it. Buit since there has been no sugges-

tion that it does, we think that it was error to ignore eco- _

nomics and the approach of recent casés. See.Conte v. Flota

Mercante Del Estado, 277 F.-2d 664, 670 (2 Cir. 1960); |

Montellier v. United States, 202 F. Supp. 384, 424 (ED:

ee 1962), aff’d without discussion of this point, 315 F.2d -

180 (2 Cir. 1963); Tweedy v. Esso Standard Oil Co., 190

-F. Supp. 437, 442 (S. D. N. Y. 1960) (dictum), aff’d per —

curiam, 290 F. 2d 921 (2 Cir. 1961). Contributions which —

would have been made prior to the date of judgment should

enter into the judgment at face value; contributions which

~ » would have been made subsequent to the date of judgment .

_ should be discounted but only back to the date of judgment.

- The final point relates to the averaging of the contribu-

tions which LeRoy would have made over the 38 years. The

point was not raised by the parties, but because it is to

‘some extent intertwined with the preceding point and

should not require introduction of additional evidence on

remand, we. . proceed to consider it. ;

26a

eu Appendiee B.

- Since averaging transfers money from the years of high

contributions to the years of low contributions, it would --

have no effect on the award if all years were treated alike.

But it is the purpose of discounting to present value to

treat different years differently ; discounted at the 314 per

cent rate used by Judge Murphy, a dollar which would Have

-° beeri contributed at the time of the judgment is worth a

Hope dollar, one which would have been contributed 10 years —

- ‘later is worth about 71 cents, and one which would have

been contributed 29 years later is worth only about 37

cents. See Am. Jur. 2d Desk.Book, Doc. No. 132,(1962).

The result is that the transfer of money bacRward or -

forward over the\ years through averaging increases or

re decreases the award.. The change may not be significant.

where the term of years is short or the difference between

the maximum and minimum contributions is not great or

' where the high and low years are scattered more or less

_at random over the term. None of these describe the in-

stant case, however. |

Judge Maeva made the following projection of. LeRoy’s

income: —

ee tee | ee

$6,180. 1 yr. 2% mos. ey epee

ene 3.” ae "$7,467.50

_ 9,600 8 yrs: to 7/1/64 ~ 76,800.00

12000 8 yrs. to 7/1/72 ~ 96,000.00 °

“16,000 - 12 yrs. to 7/1/84 ~—«:192,000.00

25,000. 9 yrs. to 7/1/93 —~~—=—«225,000.00

Total ..... sett biwoes xg SOTO”

evista the contributions which LeRoy would have made ~

’ out of these projected earnings shifted many thousands ‘of

dollars from -the later years to the earlier years and thus

atau affected the wees. ;

27a

Appendiz B.

- We do not suggest that it is necessary separately to dis- —

count the contribution for each year. Contributions for the’

years prior to the judgment may, as discussed earlier, sim- |

ply be totaled. Contributions for the subsequent years may

be averaged within the income steps indicated in the above

projection; it is necessary only that the average not be over

so long a term or inelyde so great-a range of contributions

- as seriously to distort the result.

' Most. of the factual assumptions necessary for recalcula-

tion of the award already appear in Judge Murphy’s opin-

ion. However, as there is some uncertainty as to whether —

_ Judge Murphy would have made the same allowance for

‘ income taxes and personal expenses for all of the year if

. he had been dealing separately with the years of lower and

higher i income, we remand for recomputation of the award -

in the light of this opinion.

To summarize, the award should consist of two parts so

far as computation is concerned—one for the years prior

to judgment and a second for the years subsequent to judg-

ment. The first-is simply the sum of LeRoy’s projected

earnings for the pre-judgment years reduced by what Judge

Murphy finds to be a proper allowance for income taxes «

and personal. expenses. The second part begins with the

projected earnings for the post-judgment years, which like-

_ wise must be adjusted for taxes and personal expenses in

order to compute the coritributions which would have been

made. These contributions-must then be discounted to their -

_ 1964 value; this discount may be based on the average con-

- tributions within each. of the income steps projected by

Judge Murphy, but averaging the contributions over the

full 29 years would not be proper, in view of the differences .

in income over those years.

Accordingly, we ane for recomputation of the omenk

sé

28a

Appendia B. .

| Meprna, Circuit Judge (concurring and, in part dissenting) :

In my opinion the judgment should be affirmed with only

one very. minor change. Accordingly, I concur in the view

of the majority that a substantial recovery was warranted,

but I dissent from that portion of the majority opinion that

remands the case for a recomputation of the award. I shell

first discuss two preliminary matters.

a |

Exhibit 15 |

I believe the reasoning adopted by my brothers to sup-

port the admissibility of Exhibit 15 is unduly involved and

circuitous. The concessions made by Sabena in its answers

to pre-trial interrogatories establish that this Exhibit is a

composite report compiled by the Department of the Italian _

Government charged with the duty of preparing such re-

ports in-connection with areoplane accidents. As the trial

record contains absolutely nothing to challenge the trust-

worthiness of this composite report or even to indicate that |

it is in rticular inaccurate, the report was properly

received in evidence. Of course the report contains hearsay.

But the very purpose of the Federal Business Records Act,

28 U.S. C., Section 1732, is to make such hearsay admis-

sible, subject to proof affecting the probative weight to be

given to the document and its contents by the trier of the

“facts. It is particularly important that the rule be simply

stated and easily applied in cases of aeroplane accidents

where, more often than not, there are no survivors.

The Pre-trial Order

As F. R. C. P. Rule 16 expressly provides that the pre-

trial order ‘‘when entered controls the subsequent course

29a

' Appendia B..

of action, unless modified at the trial to prevent manifest

-injustice,’’ I construe Judge Murphy’s ruling as a refusal |

to modify Judge Bonsal’s pre-trial order making Exhibit

15 admissible, but reserving the right of Sabena to intro-

duce proof to contradict it. That a contrary ruling at trial

would have caused rather than prevented manifest injustice —.

. seems to me to be clear. Judge Murphy’s ruling was cor-

rect, despite the fact that he mistakenly supposed no foun-

dation had been. laid for the admission of Exhibit 15. But -

this is not to say that a trial judge has ne power to change.

@ ruling made at pre-trial. See Clark v. Pennsylvania Rail-

‘road Company, 2 Cir., 1964, 328 F. 2d 591; Dictograph

Prods. Corp. v. Sonotone Corp., 2 Cir., 1956, 230 F; 2d 131,

134-36, petition for cert. dismissed, 352 U. S. 883.

The Measure of Damages

The aon phase of the case is governed by Italian law. .

The parties so stipulated and the ‘‘merely fortuitous cir- —

cumstance,’? Babcock v. Jackson, 1963, 12 N. ¥. 2d 473, 480,

191 N. E, 2d 279, 240 N. Y. S. 2d 743, 748, that the plane

- erashed in Italian territory gives Italy a sufficient comnec- ..

tion with this litigation to warrant respect for the agree-

ment of the parties. Alfieri v. Cabot Corp., 1962, 17 A. D.. .

2d 455, 235 N. Y. S. 2d 753, ‘760, affirmed, 1963, 13 N. Y. 2d

1027, 195 N..E. 2d 310, 245 N. Y. S. 2d 600. Furthermore,-

no vital New York policy i is eompromised by a holding that

damages be awarded pursuant to Italian law. Cf. Daven-

port v. Webb, 1962, 11 N. Y. 2d 392, 183 N. E. 2d 902,

- 230 N.Y. S. 2a 17. Though the decedent worked primarily

in-New York he resided in New Jersey.. And since the acci-

dent in 1955 his widow and infant children, on whose behalf

- this action was instituted, have lived ini Belgium. Cf. Bab-

cock v. Jackson, supra; Kilberg v. Northeast Airlines, Inc.,

80a

Appendia B.

1961, 9 N. Y. 2d 34, 172 N. g. 2d 526, 211 N. Y. S. 2d 133;

‘Pearson v. Northeast Airlines, Inc., 2 Cir., 1962, 309 F. 2d .

553, 557, cert. denied, 1963, 372.U. S. 912, 83 S, Ct. 726,

9 i E. 2d 720. See generally Annot., 92 A. L. R. 2d 1180.

My principat reason for dissenting from the views ex-

pressed by my brothers of the majority on the subject, of

the computation of the award of damages is that I think

their ruling constitutes an unwarranted encroachment :on

the fact-finding powers of the trial judge. .

Judge Murphy could have approached the assessment of

damages from a variety of different angles, each of which

involved a certain amount of intelligent and reasoned

guesswork. The exercise of judicial discretion in such a

matter should not be disturbed in the absence‘of an award —

shockingly excessive or inadequate ‘or. some } demonstrated

‘inaccuracy.

The method pursued by Judge Murphy seems to me to

be entirely reasonable and the amount he arrived at is

neither excessive nor inadequate, except for the mathemati-

eal error discovered by my brothers with respect'to the use

of 37 instead of 38 years in averaging and discounting. ,

My understanding of the method, adopted by J udge

Murphy is as follows: First, a calculation is made ofsthe

full projected earnings until the date of probable retire-

ment, a gross figure of $600,000. This, of course, is on the

assumption that Dr. LeRoy lived until 1993, that during -

this time he was nat incapacitated from work by illness or

accident, that he continued over the years to display the

. degree of initiative and ability that marked his efforts as

_. @ young man, that his widow did ‘not die or remarry, that

the children lived until they attained their majority, that

he remained with the same company and did not change

' - his occupation. Second, the income taxes were estimated

at 15% over the whole period from 1955 to 1993, and 25% -

+ met

dla

Appendix B.

of the remainder was estimated to ahi eis: amount that

would have been spent by Dr. LeRoy for his own personal

needs, Thus the total is reduced to $382,000. Third, as .

, this sum averaged out to $10,000 a year for the entire pe-

riod from 1955 to 1993, Judge Murphy discounted it at the

rate of 344% per annum and arrived at a figure of $205,705.

Fourth, no ‘‘non-patrimonial’’ damages; for suffering and

loss of guidance were allowed, although permissible under

Italian law, for the reason that such an allowance ‘‘would

be purely speculating.’’ Fifth, while Italian law allowed

pre-judgment interest ‘‘where equity would so, demand,”’’

Judge Murphy found that in this case equity would not so

demand and he ruled out pre-judgment interest.

The interrelation of these various elements seems per- |

fectly plain to me. Judge Murphy was ‘not dealing-with a

mathematical formula. | He was endeavoring as best he ©

could to deal with a series of imponderables, just as juries

must do in arriving at their verdicts in personal injury

and death cases generally. Who can say that 15% or 20%

_ or some other percentage is the proper deduction for in-

come taxes? Was 25% or 30% the proper figure for per-

sonal expenditures? Why select 314% rather than 4% as

the rate of discount? Because the subject i ls not expressly

referred to, can it be supposed that an experienced and

capable trial judge wes unaware of the fact. that the

$600,000 gross total was based on a series of assumptions

as to the continued life and health of Dr. LeRoy and his

wife and children and other circumstances above referred

‘ to, so favorable to plaintiff as to require some balancing ..

element by. way of counterweight? Is it not clear that the

reason it would‘ have been inequitable to allow pre-judg-

‘ment interest, amounting to some $75,000, was that the

various assumptions on which the calculations were based

were made with knowledge of the fact. that no pre-judg- -

ment interest would be eneeay?

Appendia B. |

_ It is by just such a combination of elements as those

; weighed by Judge Murphy that a trial judge is supposed

' to exercise his judicial discretion in the fixing of an award

of damages in a case such as the one before us. :

. And yet my brothers of the majority would ignore the

synthesis of these various elements. Thus my brothers .

‘single out for disapproval *the averaging technique em-

ployed by Judge Murphy to compute Dr. LeRoy’s potential

earnings, They also hold that he must segregate the earn-

ings attributable to the period between the date of death

and the date of judgment from those that would have ac-

crued between the date of judgment and the date of proba-

ble retirement in 1993, And they apparently would give no

consideration whatever to the possibilities of death, in-

capacity or change of occupation of Dr. LeRoy, or the-re-

marriage of the widow or her death prior to 1993.

With all due respect for the views of my brothers, I must

dissent.: I think the rules which they lay down unduly

shackle the broad discretion vested in trial courts to arrive

-- at just results and unrealistically presuppose that once a

trial court hag’set down certain basic figures there is but

one way to determine their significance. .

Experience has demonstrated that it is absolutely. essen-

tial to the fair administration of civil justice that. trial

judges be vested with a very large measure of discretion

in fring recoveries in personal injury and wrongful death

actions. ‘See, e.g., Gardner v. National Bulk Carriers, Inc.,

4 Cir.,.1964; 333 F. 2d 676; Prosser, Torts 930-31 (3rd ed.

1964) ; ef. National Airlines, Inc. v. Stiles, 5 Cir., 1959, 268 ~

F, 2d 400, cert. denied, 361 U. S. 885 (apparently granting

. absolute discretion to trial judges). For as was stated in

Whitaker ‘v. Blidberg Rothschild Co., 4 Cir., 1961, 296 F.

2d 554:

‘‘Insistence on mhatheristionl precision would be il-

lusory and the judge or juror must be allowed a fair

33a

‘ Appendix B.

latitude to make reasonable approximations guided by

judgment and practical eT - ip

An award for personal injuries or wrongful eat, can-

not justly be based. solely upon slide-rule computations.

. & purely mechanical approach is not required as matter

of law when, as here, the human elements are so significant

as a practical matter and the accumulation of uncertainties

is so imponderable.

One-final point. My brothers cacieiie state that J udge

Murphy used the figure of 37 years instead of 38 in aver- —

aging and discounting. As Judge Murphy rounded off

$382,000, the amount of LeRoy’s contributions, to $10,000

per year from 1955 to 1993, itAs apparent that any error. .

however, a relatively slight difference. between the valye

of a 37-year annuity for $10,000 and one for 38 years.

The award should, therefore, be modified from $205,705 to

$208,410. With this minor exception, I think the — 3

should be affirmed, with costs to the —. aeaeae

% -

34a ;

Appendiz B.

‘UNITED STATES COURT OF APPEALS

For THE SEconp Cmourr

No, 172—September Term, 1964.

(Argued November 17, 1964 Decided March 31, 1965. )

Docket No. 29044 ee a i

_ Jacques L. LeRoy, Administrator ad Prosequendam of the .

Estate of Paut LeRoy, deceased, and as Next Friend

‘of Micnaet P. LaRor, Curistine M. LeRoy and Miren

B. LeRoy,

Plaintif-Appelie-Appelan, ?

ealllighie =

SaBeNa Beiciaw Wortp Arures (Societe AnonyME BELGE

_ __ D’EXPLoFTaTION DE LA NaVIGATION AERIENNE), _

Defendant-Appellant-Appelice.

‘Meters: ei

‘Lumeparp, Chief Judge,

Meppya and MarsHatt, Circuit Judges.

April 21, 1965

PER Cun:

It is ordered that the opinion of this court, filed on March

31, 1965, be amended as follows: as ?

~ 3

35a °

Appendiz B.

Strike the second and third sentences of the paragraph

beginning on page 1597 of the ey sheet senate and sub-

stitute the following:

. “From the deposition and ilies of Captain Pierre

Dils of Sabena and the undisputed testimony of the.

plaintiff ’s expert, Captain Richard-Hettenbaugh, it ap-

pears that major airports were required to keep eithér

a written or a recorded telecommunications log. .The .

latter, which automatically ‘records transmissions to °.

and from the controller, was in use in Italy i in 1955.°?

_ Between the second and third fall paragraphs on page

1606 of the slip sheet opinion, add the rahe new

paragraph: :

“a lidge ‘Murphy | discounted the contribution at a

rate of 3% per cent: We have held, however, that the .

discount rate should be at least 4 percent. Alexander .

_v. Nash-Kelvinator Corp., 271 F 2d 524, 527 (2 Cir...

1959). Since there was no evidence that Italian. courts -

would apply a lower rate—indeed, the plaintiff’s ex-

pert testified ‘that Italian courts use a 5 per cent rate

for pre-judgment interest—we think that a rate of not

less than 4 per cent must be applied to the future cfh-

tributions in this case.| Cf. Conte v. Flota Mercaffte

Del Estado, 277 F 2d sf 670 (2 Cir. 1960).’’

In the last sentence of ‘“ last paragraph of the opinion, ~_

add the words ‘‘at 4 per cent’ after the words ‘‘These con-

tributions must then be discounted.’’ _

)

86a

Appendix B.

"Memorandum Opinion by Murphy, D:J.

No. di

“UNITED STATES DISTRICT COURT

: _ SouTHERN District or New York

Civ. 117-114 ©

(SAME TITLE] |

_ Munpny, D. J.

- Defendant’s motion for a new trial and for reargument -

of its motion to set aside the verdict ‘has only one substan-

tial: point, viz., the introduction in evidence of Exhibit 15;

the “transeript?? of the Rome airport conversation with

the airplane. The motions are denied. -

In our opinion Exhibit 15 was the most important: piece

of evidence in the case and the plaintiff: obviously failed

_ to lay any foundation for its admission and could not with-

out the presence of ‘a number of Italian government wit-

nesses or their depositions. We received it into evidence .

without this necessary proof because in the pretrial order

it appears that Judge Bonsal ruled that it was admissible |

and should be received in evidence with an spay to

the defendant to offer proof to contradict it. |

‘‘The parties also agreed on the following matters: . ...

. At the request of the attorney for the plaintiff on J une 6 26,

1962, attorneys for both parties ap Ppeared before the Hon-

orable Dudley B. Bonsal in chambers at Part 1, of this

court and the judge ruled that; the radio transcript of the

Italian Government had on 119.3 MCS dated February 13, |

1955, affixed to the plaintiff’s interrogatories dated August

. 31, 1960, shall be admitted in evidence reserving the fast :

37a 3

Appendix B. AS

of the defendant to introduce evidence contrary thereto... |

Defendant objects to’ the ruling and intends to restate its

_ Objections at the trial.’’ Pretrial order Gates J anuary 4,

1963, pp. 13-14.

If pretrial orders are going to have any validity or if :

pretrial orders are as good as. some claim they are, this i is

an ideal case to test their efficacy. Cf. Clark y. The Penn-

sylvania R. R., 2d Cir., decided 2/14/64. We did not admit

. it merely becanse J adge Bonsal admitted it but rather

because the defendant did nothing about Judge Bonsal’s”

-Tuling although it was made two years before the trial,

thus lulling the plaintiff into a sense of security and pre-

venting him from preparing the necessary foundation for

its admission either by calling the Italian witnesses or tak-

ing their testimony abroad. It seems to. us-that the de- -

fendant could have done more than sit idly by for two’

years. It could have made a motion to reargue, using all

the objections it now raises and perhaps J udge Bonsal

might have reconsideréd his ruling. —

These are orders. .No settlements are necesseary.

Dated, New York, N . Y., March 17, 1964.

‘

Ret ee me

Appendia B.

Memorandum Opinion by Murphy, D.J.

‘ on Damages No. 29764 .

SS ge

. UNITED STATES DISTRICT COUBT

_ * Soursznit Disratcr or New York

_ Civ. 117-114

’

ISAME- TITLE]

- _—s

Srdene, DJ. | ;

he aaiian walisad Sikes: Talk the Sigel oll dims

after a jury, to. whom the issue of liability was tried, had ite

found the defendant guilty of wilful misconduct. Accord-

ingly, after a hearing, we make the following. findings of

- fact:

Paul Leroy was killed on February 13, 1955, when defend-

ant’s airplane n n the slopes of a mountain in Italy.

He had been on an international flight from New York to

Africa and was killed o second leg of the flight from

Brussels to Rome. He was 27 years old at the time and left

- ‘surviving him his wife, Madeline (of the same age) and

two children, Michael Paul, born June 13, 1952, and Chris- buat

tine Marie, born February 28, 1954, and a posthumous

daughter, Miren, born July 8, 1955. The decedent," who

- enjoyed exceptionally: good health from birth, was a bril-

liant student’ and a promising young geologist; in fact he

was on a mission to Africa for his employer, a subsidiary

With some members of his family he migrated in 1940

from Belgium, the land of his birth, to this country and at-

tended high school, college and university in New York,

| Appendia B.

\wenciiaaiion trian each with honors. At Iona College he

graduated magia cum laude and at Columbia University,

where he took his doctor’s degree in geology, he was con-.

sidered by his professor as an exgeptional student and one

of the top 10% of those ever graduating. from Columbia -

with the degrée of Doctor of Philosophy in Geology. He .

had worked part time for a subsidiary of the Kennicott -

Copper Company during his university training and joined

the same company upon graduation,

In 1954 when the decedent started his ‘permanent em-:

ployment with the Kennicott subsidiary: he was employdd |

as an ‘Assistant Geologist at a salary of $5,040 a year and

at the time of his death in 1955 was receiving a salary .

of $6,180 a year. We are also persuaded that it was the

decedent’s intention to live and work in the United States.

He received-an Honorable Discharge from the United

States Army on April 6, 1947, and received his citizen- —

ship on March 22, 1951. Although he was married in

Belgium in May, 1954, he and his wife lived in New Jersey

and had made arrangements prior-to his. —_ to buy a

home there. —

His wife, presenily ; residing in Belgium, i is an attractive,

_ educated woman, the daughter of a Belgium in the diplo-_

matic service of his country. It was her testimony.that her.

husband was very handy around the house; was frugal, did

not drink, smoke og gamble; their rent. was $75.per month —

_and their food for the household was $30 a week; the de- -

- ‘eedent bought very little clothes and brought his lunch to

_ work; they owned an automobile and he had a $10,000 life

insurance ,poliy (there was no. evidence as to the costs

of these two items). It was also her testimony, and. that

of hig brother, that the decedent wea, very,fond of and:at- :

.: tentive to the small children. —

There was testimony, which we accept, that the. starting

salary today for a Doctor of Philosophy in Geology. would

_ Appendia: B.

i be $9,000. and that ¢ a Doctor of Philosophy i in Geology with

nine years experience, such.as the decedent would have

shad’ hadthe lived to today, would. be receiving somewheres

between $14,000 and $18,000 a year. There was other tes-

timony; which we accept, that the following are the grades -

and average salaries of Kennicott. geologists as of today:

’ Assistant Geologists, who usually stay in that category .-

from three to five years, range between $553 and $820

per month or between $6,636 and $9,840 @ year.

Geologists, who usually stay in that grade from five to

pes tim ysarit, ‘range betwonh $614 and 492) per month or

between $7,368 and $11,040 a year. 3

- Senior Geologists, who usually stay in that grade from °.

- five to ten years, range between $799 and $1,199’ per

. month or: between $9,588 and $14,388 a year..

. District Geologists (top grade), range from $1,239 to .

—- $1,859 per month or between sensei and wey a

year. sete

President of a hints in the United States $25,000

Wi yest, ad tn: Contida $37,500 ¢ your. —

An. ‘deadeie: of the. salaries of fellow employees who -

‘started at the same salary as the decedent at or about the.

same time indicates that one is now getting $11,160 a year;

another $16,500 a year; another $11,400 a year and ‘the—

- president of the company $25,000 a year. Accordingly, we

- . find. that had the decedent survived and worked for the

__samne company until ‘he ‘retired at’ the age of 65 he would

- have received $600,000. = °* -—

This sum of $600,000 was arrived at by finding that Mr.

Leroy would have advanced =e various sine in .

the following manner:

Asst. Geologist $ 6180 to7/1/56 . -$* 7 ASTD.

“ala Paar

. Appendia Bo. . te ae

Average Annual ‘Period of Years Total Earnings’ |

Grade ' Salary in Grade in Grade ~ im Grade

' Lyr. 244 mos.

Senior Geologist 12,000 8yrs.to7/1/72 - 96,000.00

District Geologist / 16,000 12 yrs. to 7/1/84 ~. 192,000.00

. President of Sub-’ , be pis ¥ |

| ‘sidiary 25,000, _ 9 yrs, to 7/1/98 ~ 225,000.00

| Taking round figures and because we , averaged the rie.

of time in each grade, we adopt a total figure of $600,

We have found that Mr. Leroy would be compelled

retire at the age of 65 and thus terminate his ph “a

on July 1, 1993. Since, however, there was no proof offer

‘ as to what kind of a retirement plan was in effect or what

contributions he would have had to make, we make no pro- .

vision for any anticipated i income a aE 65, or ay

—— for any deductions from-gress-incom

. he might have been contributing ‘a a ieee plan. We find, -

therefore, that his anticipated work and i ineome producing

life would end on July. 1, 1993, which would be in his 65th |

year. te eee go

Since ‘we find that this is the type of a case where there

_ \ should be deducted from gross income, income taxes that

would normally have been paid (and we do not read

McWeeney v. N.Y.N.H. & H.R. Co., 282 F. 2d 34 (2d Cir.,

1960) tobe contrary to this finding) we have estimated

that the United States and New York State taxes (the de-

cedent worked in New York) at the old rates would be

apETeey #146, 000, which is paneaximetaly, 19% of

42a

_ Appendia B.

| ae $600,000. In view of the facts ‘that this estimate is based

ae -* on a-minimum amount of deductions and exemptions and‘

ae the lower tax rates now prevailing, it would seem fair to

ea allow 15% to be deducted for taxes; thus the decedent "gS

ee ‘after tax earnings would be. $510,000, Le., $600,000 minus

$90,000. Then by estimating 25% as his ‘share. of the ‘‘take

, home amount’’ of. $510,000 there is left app tely

$382,000. for the use of the wife'and children. Dividing by .

the 37 years. left to his age of retiremer the result is ap-

_ proximately $10, . per year. ‘The ae. value, using an .

| ae ‘. investment rate Of 344%, would th oré equal: $205,705

~ and, accordingly, we direct that a judgment be entered i in

favor of the plaintiff in that amount. | |

Since three infants are involved we determine their re-

“spective shares as follows, assuming 96 ‘support’? years:

_ "18 years for Michael Paul ........... “$ 38,700 -

20 years for Christine Marié ......... 42.855

| i 21 years for Miren............---.--. 44,999

“ell P «BT years fe for Mrs. Davee ME asset epeseee- —T9,A51-———

| Total pire $205,705

; We have ch the damages according to New York

Ko substantive law. At the hearing both parties assumed

Italian law was applicable and each elicited téstimony from —

‘Italian legal experts on that subject. Oddly enough both -

| Ghee aanaeh _experts agreed on the factors that should be considered:in ~~

“|| compating- compensatory damages (there called patrimo-

K os niaj damages) ee = Sa

York law. * ~

- ‘We are -not eortain that’ New York would in ‘this case

under its its conflicts rule apply Italian law for it would ap-

pear that New York has abaridoned the traditional rule

48a

Appendia B.

thay the law of the vleen of the. tort invariably governs Seiad

- has replaced it. with one based on a jurisdiction’s*interest

in the outcome of an.issue. The mechanics of determining

interest is known as the grouping ‘of contacts or “‘center

of gravity’’ doctrine. The rationale, as expressed in Bab-

cock v. Jackson, 12 N.Y. 2d 473 (1963) is that ‘‘justice

fairness and the;‘best practical result’ ... . may best be

achieved by giving controlling effect to the law of the

_ jurisdiction which, because ‘of its relationship or contact

-with the occurrence or the parties, has the greatest concern |

with the specific i issue-raised in the litigation.”

The decedent, although he lived in New J ersey wotked i in

_ New York for a New York corporation, the ticket. for the

. flight on the Belgium airline was purchased in New York

and that airline certainly war a great deal of business 1 in

New York. * |

But assuming fiat Italian aa is applicable on the issue _

of: compensatory damages there is no conflict. as to the

factors to be considered so-we: need not concern. ourselves

with a choice of law. With reference to patrimonial (com-

pensatory) damages there was, however, some conflict be- _

tween the two Italian experts on how an Italian Judge

wee compute the monetary figure.

- With reference to such damages we accept the view of

the defendant’s expert that a judge in Italy would take into

- congideration the internal economy of that country and the

value of its currency, but we find that such personal con-

BI erations are not binding on us as a trier of the facts in

this country since the decedent worked in this country for

- 8 domestic corporation and was paid in dollars. ‘Aceord-.

_ ingly, we do not take into consideration the internal econ-

omy of Italy.or make any. appraisal of its currency vis-a-vis

its purchasing power in that country. We da thts tor oa

other reason too, viz., there was no proof offered as to how

ee. differed from the wees States: |

OEE a

& 4

> oe

Le |” Appeddia B.

a & We find also as a fact that sisiningitittaiiatad damages

_/ (damages for the pain and anguish suffered by the _ -.

_ bereaved). would be allowed in this case under’ Italian

' law and both experts so agréed. However, we accept the

opinion of the defendant’s expert that such damages are

« difficult to assess, in fact we find them: too difficult. We

would be purely’ speculating and assess none. Accord-—

~ ingly, whether New York or Italian law is | applicable the é 3

| _.Tesult.is the same. ,

The Italian experts nies ainaieed on 1 prejudgment in-

terest. We are satisfied that there is no Italian statute,

| _evering this subject and that ‘Article 1282 of the Italian

. = ’ Civil Code is not applicable. We accept the defendant’s. .

opinion that prejudgment interest is allowed only when’

equity would so demand. This is'no such case and ‘ac-

+ cofdingly we apply the New York conflicts rule (Daven-

= port v. Webb,‘11 N. ¥. 2d 392 (1962) ; St. Clair v. Eastern

\. . Airlines, Inec., 302 F.2d 477 (2d Cir., '1963), ‘and hold: that

the plaintiff is not entitled to prejudgment: interest.*

The clerk is. therefore directed to enter judgment for |

- the plaintiff in the sum of $205, 705, without interest.

+t this memorandum stand in Hew of findings of. fact

‘and eonclusions of law. fe &

: ‘abe Txo. F. ‘Moar’

U. S. D. J.

Dated, New cory N. Y., March ” 1964,

4 ie

eters) eee e

*In the wake of Babcock, is fea to the eb Dei

‘is far from certain. In view of the uncertainty created by

ock itself, tiowever, we feel bound to give effect to Davenport

23 “inthe absence of a clear statement by’ New York court that iis no

“Anpendi B.

UNITED stars covnr 0 or APPEALS

_-—— i} ForThe: :

J _—-

—_—

<). |. iaeaien Cenoaree

a ro o> RS

* , oe

poe on

‘At a Stated Term of the United States Court of ‘Aaiinie,

in. and, for the Second Circuit, held. at the United States

- Courthouse in the City ‘of New York, on the thirty-first

, day of March one ) thonaeat mine — and piatz.Ave,

_-Present: at eae 5

- Hon. J. Ewan LuMBagD, | ‘

aye , Chief: Judge,

./ > iam Hanotp R. MeEpina, 2) ee

as Hon. Txuncoop MarsHAtt,

oe | Cireuit Sehncsad

dé.

. Jacques L. LaRoy, detiletvenan: ad Criccamehies “of

the Estate of Paut LeRoy, deceased and as Next. Friend ;

of Mionax. P. ae eG LzRoy and Mmex

_B. LeRoy, infants,“ .

‘Plaintf-Appellant,

a lee Berauas Wor. ‘hesitate ite Anonyes Bear |

D’Exrtomanion » La Navication -AERIENNE),”

| ‘Defendant-Appellant

. 4s

. Appeal from the Uni ‘States Dini Court for the

Southern District of New York.. 3 .

Arergeep sn

ei Southern District of New York, and was argued by counsels .

7 as ON consIDERATION WHEREOF, it is now hereby: ordered,

Court be and it hereby is affirmed. -

_., patation of the award in accordance with the opinién of

this court.

‘9 &

46a :

“Apriniia 2.

This cause came on to be ane on i ti ereaideetgt of és

record from the United States District Court for the

«Further. ordered, adjudged and pate that the action

bé and it hereby is remanded to the United States District

Court for the Southern District of New York for. recom-. “

A Dawn Fusaro

‘Clerk

ie ae ae - 4 : 47a, : = : mgr es, BD.

> SS pe 1 oe aT

“\ > Appendia B. Sete gen a

__/ UNITED STATES COURTOF APPEALS

- ~ ’ ¢

il : <8

‘the Estate of Paui LeRoy, deceased, and as Next Friend

of Micuazt P. LeRoy, Cunisrine M. LeRoy and Mmen —

: B. LeRoy,. . Tip Gea 1, | igo te sated Meek s

a z : Plaintiff-Appellee-Appellant, as a oat .

: ft \ ; : ’ eo |

ov. ; ; : =% \ Te

|. Sapena Brrous W . FAmmwes (Soontte Axoxrus Brice ag

-D’Expvorration Dz La Navication Aznienne), - | 2 i ee

piri ‘Defendant-Appellant-Appéllee. | | J

: : | Parmmiox ‘FOR Sinieonines @ a ot 33 es

—. Mendes & Mount, New York, N. Y., | ) a

, Yor defendantappellantappallee, =

; Petition denied. = evo tw ol x “ab

A” sie ee uth ES

eS i hn

21 April 1965 |. Hes

‘APPENDIX c

Comomroamtoxt F ptose le ‘hvesaees Tas L han 00-SDE E Roma

o ConzRoLLo Suuna Freq. Hg. 3 MCS—Giouwo 13 Guannaso 1955 . 4

- Btabone Siasions Be ye

_. ehiamata -, Chiamante. Testo Meseiaet ;

1829 ,Rome da 00-SDB _oDB a at 17500 ft. passed Florence -

ie UE ise Be at 29 estimating Viterbo at 47. 8

i ia lemiry lsc ciebebaomte s ictapackily “Vit : 29 is it OK? 2

% Rome. ‘“ ODB _—I say again—passed Florence 29°

ectond ees sien 4 17500 ft. estimating Viterbo at 47

' .ODB,> .“ Rome — —Roger—DB at 17500 ft’ estimating ‘*

ay po, Brae She ee 47 : ry ;

31 Rome * QDB —That i is affirmative

ODB: ‘¢ Rome —Cleared to the’ Rome Beacon Via

. od "ei Viterbo direct to cross Viterbo,

Aa RES pala . at. 7500 ft—-maintain 7500. ft—No-

Ore ae _, delay expected | 3

“% ODB ~~ ‘“ Rome —Did you get .my clearance?

"Rome ‘ QDB‘ —Roger—understand we are ‘cleared

Rae aeot ‘ to descend -and cross Viterbo at

bod 7500 ft—7500 ft—No rage ex-

: pected and cleared direct: Viterbo

; é vy .%0 Rome Beacon, direct—is it

sie oe : “a ‘correct? > - 3

ODB ‘* Bome - —Affirmative— ee eg

_ Rome QODB .—RogerDB - |

Hitler nites bts es are now to cross Viterbo at 11500-

gd ate . ft and maintain 11500 ft.

Bos ee

ee a

| ee

Le “Appendia €.

Stazione* Stacione

chicmata « Chiamante Testo Messaggi

Rome. ‘da ODB —At_ eae ‘we dre still at 17500

; soe | _ | ft—17500 ft a,

» , ODB ‘¢ Rome ‘Roger. at 17500 ft—Pisa altimeter :

Rig Soc Ce SO aaa TOTS mbs—Report leav-

ee a * ing 17500 ft. |

Rome ¢ ODB Roger? 1007. 0 and cleared to dese. —

ae | to 14500 ft -

“ QODB - ‘* Rome —Report leaving 17500 ft,

_ ., ODB . . ‘. Rome —Roger leaving 17500 ft at 35—-

' DB hold N.W. of Rome Beacon. -

eer ss ‘EAT 1901 ah

35 ‘“* ODB -—Say it again please?

ODB' + Rome ae N.W. of Rome Beacon EAT

"| Rome —* ODB_-- —Hold Rome beacin EAT 1901

1838 Rome ‘“ ODB —Go ahead.

38 Rome =“ ODB *~ —Did you call DB.

- 89 ODB ‘¢ Rome saree oie tories i ccntnel 3

ZN. (Nota: Roma—Controllo stava

: ay yey un altro. acreoel’"ODB

, eredera che la, chiamata fosse per

ae eT | ess : ’

‘42 ODB o Rome —You are cleared to cross Viterbo |

: | 3 descending Abeam Civitavecchia: ~~

: Mes ' 7500 ft. maintain 7500 ft. o

43 Rome ‘* ODB '—Ynderstand cleared to dese to 7500 ra

Ara omnes gente

ODB- ~--** Rome — = afirmative—Report leaying te

a : gi HAE MOVOL . 32755

Rome “ ODB —We just had.12500 ft.—leaving now.

te’

K ?

as | Appendia C.

* g “> ¢ fe i 3 = 2 | °

chtamata chiamante Testo Messaggi

Rome .—DB leaving 12500 ft. at 44.

45 Rome ‘“ ODB —Is passing 11500 ft.

. ‘Rome _ —Roger leaving 11500 ft. at 45

47 Rome . “ ODB —Is passing 9500 ft.

‘48 ODB ‘“ Rome —Leaving 9500 ft. at 48

Bome «& ~ODB’ —Will you confirm if Viterbo beacon

SS is operating on full power please?

ODB ‘¢ Rome. —Another aircraft has passed by

ae orth Viterbo now stand by will ck on.

_ -Viterbo. ota: Roma-Controllo -

chiama l’aereo svizzero 302 per

avera conferma sul funz onameute '

That is affermative.

rs 4 del rad eferoof Viterbo). m3

49 302 ‘* Rome —Have you been working with ie

302 -* ‘* Rome —Reauest it the it, the IMV Beacon is

Bome - “ 302 “Roger I ceded i hak you very }

“1849 302 2” «~Rome Have you been working with

é | ot ~""Viterbo Beacon —how did he workt

; | | a at 47 and estimating Viterbo

: 302 “ Rome —Report at 4000 ft.

a 50 Rome “ ODB ‘“—7500 ft. now. —

ODB; ‘“ Bome —7500 ft. is it roger?

Rome ** ODB

5la

es Appendiz C.

St ° St Fae ; .

‘chiamata : chtiamante Testo Messaggi .

ODB da Home + —Roger how is Viterbo Beacon? Are ~

| oor ren eet ne

“<> Rome + Cy: — Negative |

ago at 7500 ft.

ODB ‘* Rome ~—Passed Viterbo at 50—7500 ft. :

| Stand by and advise —— Civita-

vecchia.

ODB ‘* Rome —Cleared wath 5500 ft. ‘gtelas abeam

Rome ‘““ ODB —Leaving re ft for 5500 ft.

ODB “* Bome —That is correct. | “i

52. Rome * ODB —Is‘It8 pH 0 and if 80 in what

ina ~ channel please? - a

‘ODB ‘‘ Rome - —Stand by for confitmation. -

- ODB ‘* Rome ~ +-ILS is operating. — | “ae

58. Rome ‘“ ODB = —rumore indefinibile.

ODB “« Bome ‘’—Go ahead: :

-ODB ts Rome

—Go ahead.

a el i a he th eS eee ae?

. a

52a

| APPENDIX D

Rome, iv ovitabis 30, 1963,

- Mansray OF ess nen-tiRienanorecs

Inspectorate of Telecommunications

and of Flight Assistance |

_ Inspector :

“Atty. Prof. Angelo Piero Sereni |

10 Via. Toscana —

Rome

Subject : Le Roy ve Sabena Belgian World Airlines

Accident: February 13, 1955—Rieti :

Request for certificate

mis in’ veply’'to letter of October 30th on the same 3

subject.

Fér reasons of principle and in erie: to elias most

rigid objectivity, this Administration does not agree to

release proofs or certificates to any party in a pending

legal action. -

. When, for Veseense: of administration of justios, it is

zr aepenenry ter ohtein: for: the process definite documents or—

other proofs, this Administration makes them available |

exclusively at the request of Judicial Authority, . _

In the particular action here involved, it would therefore

be necessary that the Judicial American Authority which

- desires to acquire information concerning NOTAM in force

in Italy at the time of accident under reference, should

require the -Italian Judicial Authority by means of letters

rogatory and the respective documents will be furnished

to that oT because they are not covered by military

- secret. acy

ees : Inarnot0n 67 Pmmcceescondarsone ;

(s)-Gen.- Mario Bucont

Eva R. Hickey Tresdlation Service

15 Park Row, New bein N. Y. 10038 ' Barelay 71-8234

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.