Petition for Writ of Certiorari — Berner v. British Commonwealth Pacific Airlines, Ltd.

1° 2, feta [ Office-Supreme Court, U.S.

(TFT 4 sac FILED

' NOV 1 71965

| JOHN F. DAVIS, CLERK

ee So ehcae ye yD

IN THE

Supreme Court of the United States

OctToBerR TERM 1965

No.7 48

T. ROLAND BERNER and ARTHUR S. LESSER,

Executors of The Estate of WILLIAM KAPELL,

deeeased,

Petitioners,

Uv.

BRITISH COMMONWEALTH PACIFIC AIR-

LINES, LTD., a Foreign Corp., and BRITISH COM-

MONWEALTH PACIFIC AIRLINES, LTD., now

doing business as QANTAS EMPIRE AVIATION,

LTD., a —— Corp.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

T. RoLAnp BERNER

Attorney for Petitioners

135 East 42nd Street

New York, N. Y. 10017

‘ YUkon 6-4080

Of Counsel:

M. Victor LEVENTRITT

AARON LEWITTES

SIDNEY BENDER

ae pene Telasta

C7)

: INDEX

PAGE

Es heb wa deen eae eee 1

POCO iil iss ko Sais ties we eS 2

RINE: POIIION a5 ooo vec ccesnevewces eee 2

AR ie ae a POR (OF eK ial meT IEG Sneha 4

NI iS io wk oils 50s 20 ate eerie dT &e 4

oe, eee GE SG vais wc ee be ic Hee ee eo 5

B. Care om sii Gime... . cc cccccvecsvccaces 5

C..THE INSTRUMENT LANDING SAFETY REGULA- ,

I a a ia ee ee . 5

D. THE PILotT’s VIOLATION OF THE SAFETY IN-

i re NT ad oe Be re i 2

E. VIOLATION, AT COMPANY HEADQUARTERS, OF —

THE CAA INSTRUCTION ....ccccccccccccvcs 7

F. THe Prior Jury VErpictT oF WILFUL MIscon-

DUCT, AND JUDGMENT THEREON, IN Halmos

A re Dade 0 ath a oh Ok RS oh nell cere 8

G..Taap ERCEpnnetl: RHO ©. oon écsin ce siede epee 8

h, A TE: Sb a 5 is 0 ko be er ecw 8

2.- Unliaiond -Laabiity. os «2... 8. TK 9

RE ee ere: 9

4. Discretionary New Trial ................ 9

Reasons For Granting the Writ ....... ede od cidisie b's 10

CE os ode wed dak 4okwees citesdetesee eke ae

ApPEeNDIx A—Opinion of Court of Appeals ........ la

ii

PAGE

AppeNnpIx B—U. S. Treaty (Warsaw Convention of

ee Oe Oi, aes I PD vcccesearecainceses

ApPENDIx C—Order of Court of Appeals dated and

entered June 9,.1965 ........0ceere a maha gee

Appenpix D—Order of Court of Appeals denying

— for Rehearing dated and entered July 20,

SE bs eV ACA ede Ae cakes Dedewhesesaciaaesnes

APPENDIX E—Order of Court of Appeals denying

Petition for Rehearing in Banc dated and entered

ME a 66U Cade eedauedsaens Sa csaeaaeas

| ApPENDIx F—Order of Supreme Court of the United

States, HarRLAn, J., extending time to file Petition

Se © ft ge ee rere

pS ER RR ee ber me reo wae ee Fae ye ey ee

CITATIONS

CASES:

Amer. Airlines v. Ulen, 186 F. 2d 529 (C. A. D. C.)

Berguido v. Eastern Airlines, #15156 (C. A. 3)..

Brown v. Bullock, 294 F. 2d 415 (C. A. 2 in banc)

22a

25a

26a

27a

28a

29a

17

22

20

Grey v. Amer. Airlines, 227 F. 2d 282 (C. A. 2). .16, 22

Halmos v. BCPA, #34123, U.S. D.C., N. D. Calif.

SE ED as bru 6a 4 aetadicken 4.0 4 decesice win/win 4 8, 1

Helvering v. Gowran, 302 U.S. 238 ............ 14, 2]

Lind v. Schenley Industries, Inc., 278 F. 24 79 /

ES PL eee 11

Mertens v. The Flying Tiger Line, 341 F. 2d 851

Le caved kakeadd Casts esd one ce sh ae 22

Pekelis v. TWA, 187 F. 2d 122 (C. A. 2) .....15, 17, 20

U. S. v. United Airlines, 216 F. Supp. 709 (E. D.

MEN Fin 6a CeGdddbewh eh decked we dAe bade saeae

8, 10

iii

PAGE

United States v. Weiner, 335 F. 2d 379 (C. A. 9), .

On0G. Gla. SFO Uy, Be FOS co evoe cdavceeess duees 8, 10

Warren v. Flying Tiger Line, ..,. F. 2d ....,

(C, A.D, WATIGED on ccccaccteccons aaaevs 22

OTHER AUTHORITIES:

Drion: LIMITATION OF LIABILITIES IN INTERNA-

SOUMAL ATR LAW CIBGO) oc o.c ccd civcccdewsces 17

Harper and James, LAw oF Torts, Vol. 2 ........ 19

Prosser, Law or Torts (3rd Ed. 1964) ......... 18

WEsSTER’s NEw INTERNATIONAL DICTIONARY, 2d :

Ree rere ere Pe eee Peepers 17

STAT.:

U. S. Treaty (Warsaw Convention of 1929) 49

eB ee Creer rs reer App. B

™~

—_

IN THE

Supreme Court of the United States

OcToBER TERM 1965

T. RoLAND BERNER and AKTHUR S. LEssEr,

Executors of The Estate of WILLIAM

KAPELL, deceased, :

~ Petitioners,

v.

BRITISH COMMONWEALTH PaciFic Arr- \ No,

LINES, Ltp., a Foreign Corp., and Brit-

IsH COMMONWEALTH PaciFIc AIRLINES,

Ltp., now doing business as Qanras

EMPIRE AYIATION, LtD., a Foreign -

Corp.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals, printed in Appen-

dix A at the end of this Petition, is reported in 346 F. 2d

532-542. It reversed the judgment for $924,396, returned

by a jury empanelled to consider only the amount of the

damages from the death of plaintiff’s decedent, reversed

the District Court’s judgment n.o.v. for the plaintiffs, re-

versed the District Court’s alternative order in the exercise

of discretion granting the plaintiffs a new trial on all issues,

and directed dismissal of the complaint. Judgments have

been entered in the district court taxing costs against

plaintiffs in the total amount of $7,741.25.

2

The District Court’s very detailed opinion on the judg-

ment n.o.v. and the alternative discretionary order for a

new trial appears in the Defendants’ Appendix, at 34a-199a

and is reported in 219 F. Supp. 289-363 (S. D. N. Y.); its

unreported Supplementary Opinion appears in Defendants’

Appendix, at 200a-202a. The opinion of the District Court

refusing to set aside the verdict of $924,396 is reported in

230 F. Supp. 240 (S. D. N. Y.).

JURISIDICTION

The judgment of the Court of Appeals was dated and

entered on June 9, 1965 and its orders denying petition for

rehearing were dated and entered on July 20, 1965. Mr.

Justice Harlan’s order, dated October 11, 1965, extended

the time for filing this, Petition to November 17th, 1965.

The jurisdiction of this Court is invoked under 28 U. S. C.

1254.

¢

QUESTIONS PRESENTED

.1. Whether, as a matter of federal Jaw, the carrier is

collaterally estopped from relitigating in a U. S. District

Court the issue of unlimited liability, arising from wilful

misconduct under the Warsaw Convention, where that is-

sue was finally decided against it by jury verdict and judg-

ment of another U. S. District Court on stbstantially thc

same evidence as here introduced, in the only prior case in-

volving the same crash, brought by the family of another of,

the deceased passengers.

The U. S. Court of Appeals’ decision below, refusing ~

to‘hold that Federal law applies and rejecting collateral es-

toppel, is squarely in conflict with a recent decision rendered

by the U. S, Court of Appeals for the Ninth Circuit.

2. Whether the U. S. Court of Appeals exceeded its

power in reversing the District Court’s order, entered in

3

the exercise of discretion, adjudging that there be a new:

trial on the issues of limited and unlimited liability (condi-

tionally, i.e. if the Court on appeal should reverse the di-

rected verdict and judgment n.o.v. determining such issues

against the defendant carrier as a matter of law), on the

grounds that: (a) the jury was likely to have been misled

by numerous serious misstatements of defendants’ counsel,

by erroneously admitted, prejudicial evidence on the critical

matter of reliability of the safety equipment, and by a con-

fusing charge on the meaning of wilful misconduct; (b)

the verdict was against the weight of the evidence; and (c)

such new trial would be required in the interests of justice,

in addition, because the carrier, to escape limited liability,

was required by Article 20 of the Warsaw Convention to

show that it had taken all necessary measures to avoid the

crash or that it was impossible to take such measures and

the carrier at headquarters had deliberately refused to

transmit an instruction of the CAA which, if transmitted

to and observed by the pilot, would have prevented the

crash.

The Court of Appeals has so far departed from the

accepted and usual course of judicial proceedings as to

call for an exercise of the Supreme Court’s power of

supervision, to assure plaintiffs’ 7th Amendment right to

trial by an unprejudiced jury. : |

3(a) Where, pursuant to his instrument clearance,

having the force of federal law and known to him, the pilot

was prohibited from descending, before he had received

precise, non-verbal signals which, according to the undis-

puted evidence, could be received only over a certain lo-

cation, was the jury entitled to speculate ‘that such signals

were received elsewhere or, alternatively, that the pilot did

not know that violating his clearance would probably lead

4

to the crash, the sole basis of either speculation being that

it is prima facie unlikely that a pilot would risk probable

death to all aboard?

(b) Whether the jury could find that deliberate refusal

by the carrier to transmit to its pilots a CAA safety regu-

lation establishing minimum en route altitude, having the

force of federal law, was merely an honest difference of

opinion, and not misconduct ?

This is an important question of federal law which

has not been, but should be settled by this Court, in the

light of the numerous landings of aircraft in bad weather

in mountainous terrain, extremely hazardous to thousands

of Americans daily unless the safety altitude and safety

instrument landing procedures prescribed by the CAA are

stringently obeyed by the carriers and their personnel

under the treaty sanctions of unlimited or limited civil

liability.

4. Whether, by virtue of Article 3(2) of the Warsaw

Convention, the carrier lost its treaty defenses of limited

or no liability, because it violated the requirement of Article

3(1)(c) that it deliver a passenger ticket to the passenger

that sets forth, inter alia, the agreed stopping places.

This important question of Federal law has not been,

but should be, settled by this Court.

U. S. TREATY

Pertinent provisions of the Warsaw Convention are

contained in Appendix B at the end of this Petition.

STATEMENT

The following facts. were either conceded by defend-

_ants or established by the undisputed evidence.

}

‘;

pcccneeneeees

A. The Crash .

Defendants’ plane, having crossed the Pacific and ap-

proaching San Francisco International Airport for a

scheduled landing; descended into the clouds and crashed

into Kings Mountain at 2,000 feet. All aboard were killed:

the crew of eight and 11 passengers, including William

Kapell, the famous young American pianist. This action

is brought in behalf of his widow and orphans.

B. Cause of the Crash

The crash resulted directly from the pilot’s failure to

comply with the instrument landing approach for which the

plane had been cleared by the Control Tower and acceptance

of which instruction the pilot had acknowledged to the Con-”

trol Tower.

It would also have been prevented had the pilot been

informed by company headquarters of, and maintained, the

3500 foot altitude set for that area by the Civil Aeronautics

Administration.

Defendants conceded that they had not proved that they

and their agents had taken all measures necessary to avoid

the accitfent or that it was impossible for them to take such

méasures.*

C. The Instrument Landing Safety Regulation

The Airport is “On San Francisco Bay. Except for

the narrow gap at the Golden Gate on the southwest

shore? San Francisco Bay is entirely ringed by hills and

mountains. The mountains rise in places as high as 2,500

feet. Upon the hills and mountains separating the Bay area

*“We have to prove, by a preponderance of the evidence, that the

airline took every measure to avoid the loss, or that it was impossible

fairness,

sustained that burden of proof. We haven’t brought in any evidence

to show.” (R. 1821)

6

from the Pacific, there rests, very commonly, a bank of

low-lying clouds, sometimes enveloping the hills and moun-

tains completely and at other times leaving peaks exposed.

Safety regulations, promulgated by the Civil Aeronau-

tics Board and having the force of federal law, have been

devised to permit aircraft coming in from the Pacific to

cross over the mountains and approach the airport safely

under the conditions described above. Under the prescribed

procedures, the pilot must stay above the clouds until he

establishes his flight position over the ILS Outer Marker,

which is past the mountains (App. 94-97a, 104a-105a,

108a-llla; D. App. 83a-84a). The essence of this instru-

ment approach safety regulation is that the pilot may es-

tablish his position over the ILS Outer Marker only by

receiving two unique signals on the 4nstruments in the

plane actuated by the two transmitter$’of the ILS Outer

Marker (App. 94a-97a, 104a-105a, 108a-1lla). Neither

of these signals could» have been received~in any area

reached by the plane; a fortiori,*both could not. Thus,

defendants’ experts testified that the first signal, waver

and reversal of the ADF needles in the plane, could not

have occurred except as the plane was passing directly

over the ILS Outer Marker, although for the guidance of

the pilot to the ILS Outer Marker, the ADF needles begin

to point toward it 25 miles away (App. 10la, 94a-97a,

104a-105a, 107a-1lla; D. App. ha, 52a). Defendants’

experts testified further that the second signal, a blue light

accompanied by continuous aural dashes, could not have

been received in any area more than two miles from the

ILS Outer Marker and defendants conceded that the plane

didn’t corte closer to it than 10% nautical (12 statute) miles

(App. 107a-11la, 94a-97a, 104a-105a, D. App. 42a).

Under the instrument clearance, the pilot was forbidden

to-approach by means of visual reference to the ground.

e ees

«ee

\ rd

D. The Pilét’s Violation of the Safety Instruction

The pilot did not fly over the ILS Outer Marker (App.

103a-104a, 11la, 101a; D. App. 44a). There was no evi-

dence of any emergency justifying a departure from the

prescribed approach procedures.* Intentionally descending

into the clouds, the pilot hit Kings Mountain.

E. Violation, at Company tieadquarters, of the CAA

Instruction

Defendant BCPA’s applicable prescribed instrument

— an,

approach into San Francisco Airport, authorized by the

Civil Aeronautics Administration, showed on its face that

the minimum altitude beween Half Moon Bay and the ILS

Outer Marker was 3500 feet (PX 55, D. App. 323a).

A misunderstanding had arisen, among pilots and oper-

ations personnel, as to whether the said 3500 feet minimum

applied when Air Traffic Control cleared the flight to main-

tain “500 feet on top” of the clouds until over the ILS

Outer Marker. To eliminate the misunderstanding, the

CAA, by letter dated November 1, 1951, informed BCPA

that on a clearance of “500 feet on top”, BCPA pilots

must maintain the minimum en route altitude (3500 feet)

and instructed BCPA to disseminate the ruling to its pilots

(App. 37a-39a, PX 51). BCPA considered such letter,

as appears from notations on the face of it (App. 39a),

but decided not to, and did not, transmit the ruling to its

pilots (App. 99a-100a, 201a-202a) even though BCPA

was required to comply with the rulings of the CAA in

conducting its flight operations in the United States (App.

94a-98a). The crash occurred at 2000 feet.

Court so charged the jury as a matter of law (D. App.

). ‘the Sopemd its {00k no exception to this part of the charge

the appeal did not contend

i

8

F. The Prior Jury Verdict of Wilful Misconduct, and

Judgment Thereon, in Halmos v. BCPA

An action was brought against defendant BCPA, in

the U. S. District Court, for the death of one of the other

passengers on the same flight. Halmos v. BCPA, #34123,

N. D. Calif. March 9, 1959. In the first trial there, a jury

verdict for defendant was set aside; in the new trial, a ver-

dict for $35,000 was returned based on wilful misconduct

of the defendant, including the pilot; judgment entered

thereon was not appealed.

The record in the case at bar contains no evidence relied

on by defendants, which was not in the earlier case. Also, all

evidence against defendant in the earlier case is included,

with additional such evidence, in the present record.

G. The Decisions Below

Pertinent to the present Petition are four issues decided

below* :

1. Collateral Estoppel. After the District Court re-

jected plaintiffs’ contention that the carrier was estopped by

the prior final judgment against it, in Halmos, from reliti-

gating in the present case the issue of wilful misconduct, the

U. S. Court of Appeals for the Ninth Circuit handed down

its conflicting decision in U. S. v. Weiner, 335 F. 2d 379,

404, adopting and affirming the carefully considered opinion

in U. S. v. United Airlines, 216 F. Supp. 709, 718-25. The

Court of Appeals below has declined, we contend errone-

ously, to follow the Ninth Cjrcuit’s holding that in a multi-

accident crash, the carrier is bound by the first determina-

tion, as a matter of federal law.

' *The U, S. District Court's jurisdiction is based on removal from :

SHOUD custidive of muerest ant cue 28 Ure the matter exceed-

1,000 exclusive of interest and costs. 28 U. S. C. §§ 1332, 1441.

9

2. Unlimited Liability. After the District Court reserved

decision on plaintiffs’ motion for a directed verdict, it denied

plaintiffs’ request to instruct the jury that wilful misconduct

included “‘acts of carelessness without regard of the conse-

quences” (R. 1992-3). However, the District Court granted

plaintiffs’ motion for judgment n.o.v. on t pund that

wilful misconduct had been shown as a matter of law (D.

App. 113a-119a). The Court of Appeals reversed- on the

grounds that: (a) the Trial Court had erred in holding

that “wilful misconduct is ‘carelessness without any regard

for the consequences’” (346 F. 2d at 537 ), and (b) the

jury could reasonably find no misconduct on either stand-

ard (346 F. 2d at 537 ).. We contend that, as a matter of

law, the District Court was right as to both the standard

and its application and that the Court of Appeals was in

error even ig the application of the erroneous standard it

laid down.

3. Limited Liability. The Court of*Appeals has even

held that the jury could reasonably find that defendants

had shown that they and their agents had taken all measures

necessary and possible to avoid the accident (thereby re-

lieving them of limited liability up to $8300) in face of

defendants’ contrary concession which was compelled by

the record (supra, p. 5, footnote). *

-

4. Discretionary New Trial. The District Court, in

the exercise of discretion, ordered a new trial on all issues -

(conditionally, viz. if its judgment n.o.v. be reversed), not

only because the verdict was dgainst the weight of the evi-

dence, but also because the jury’ had been misled, particu-

larly by defendants’ counsel. The Court of Appeals, in a

decision probably without precedent, reversed this direction

as. an abuse of discretion. We believe the decision # in.

error in that the Court allowed dissatisfaction with the

10

Trial Judge’s view of the law to carry over: into an un-

warranted rejection of his sound discretion (346 F. 2d, at

535 and 539, footnote 5).*

REASONS FOR GRANTING THE WRIT

1. The holding of the U. S. Court of Appeals for the _

Second Circuit, below, that the carrier was not bound by

the prior final decision of another U. S. District Court

(supra, p. 8) on substantially the same evidence that the

crash in question resulted from wilful misconduct at-

tributable to the carrier, is in direct conflict with that of

the Court of Appeals for the Ninth Circuit in United

States v. United Airlines, Inc., 216 F. Supp. 709, 718-25

(E. D. Wash. 1962) aff’d on the opinion below sub. nom.

United States v. Weiner, 335 F. 2d 379, 404 (C. A. 9),

cert. dism. 379 U. S. 951. -

There is no distinction of substance: between the two

cases. United Airlines was also a multiple accident, diver-

sity jurisdiction case involving an airplane crash; the evi-,

dence in the two successive federal suits was substantially

the same; adopting an extensive, carefully considered opin-

ion the Court of Appeals for the Ninth Circuit held that

as a matter of federal law, the prior federal judgment

was final for purposes of res judicata or collateral estoppel,

even though the plaintiffs in the successive suits were differ-

ent, since there was no reason to adhere any longer to the

discredited notion of “mutuality of estoppel”.

The Court of Appeals below refused to decide whether

or not federal law applies. 346 F. 2d, at 540. That it does,

was not only the decision above of the Ninth Circuit based

‘*There is no issue of Trial Judge prejudice in this case. Any allu-

gm eben hon one tert end ane

aits his gust tesounced dec Wartew Convention on this very ground.

N. Y. Times, Nov. 16, 1965, p. 94.

4

a

-

-~

>

11

on the facts present here as there that both successive suits

were in federal courts. Present in our case is the additional

fact that the issues turn on the interpretation and applica-

tion of a U. S. treaty.

The Court of Appeals below also speculated that the

carrier may not have put forth its “full efforts” in the prior

suit. 346 F. 2d, at 541. But such speculation is con-

tradicted by the record: defendants introduced no new evi-

dence on the issue of wilful misconduct; and on the issue

of limited liability, the defendant put in no “effort” in the

present case, admitting as it did that it had shown no

excuse for the crash (supra, 'p. 5, footnote). Besides, the

very purpose of the judicial policy underlying collateral

estoppel is to foreclose the kind of speculation the Court

of Appeals indulged in.

The double conflict between the Second and N inth Cir-

cuits— (a) does federal law apply where the successive

suits are in U. S. District Courts and (b) does it call for

invoking collateral estoppel where the carrier has nothing

to offer in the second suit over what it offered in the first-—

as well as the novel and important question whether federal

law so requires where the substantive issue turns on U. S.

law, should be resolved by this Court.

2. The Court of Appeals, in reversing the District

Court’s discretionary order for a new trial, has exceeded

its power and so far departed from the accepted and usual

course of judicial proceedings as to call for an exercise

of the Supreme Court’s power of supervision to assure plain-

tiffs their 7th Amendment right to trial by an unprejudiced

jury. The Court of Appeals’ action is unprecedented in the

federal system and in the circumstances of this case is a

shocking denial of justice. 4

Lind v. Schenley Industries, Inc., 278 F. 24 79 (C. A.

3) was one of the few cases which upset a new trial order,

12

but the new trial had been granted only because thé verdict

(for plaintiff) was allegedly against the’ weight of the

evidence. Biggs, C.J., forthe majority, held that the appel-

_. late court could review siicH"an order to satisfy itself that

the trial court had not invaded the province of the jury

but that such an order

“may be sharply distinguished from (2) new trials

ordered for other reasons: for example, evidence

improperly admitted, prejudicial statements by coun-

sel, an improper charge to the jury or newly dis-

— covered evidence . . . In the latter instances, (2)

supra, the trial court delivered the jury from a pos-

sibly erroneous verdict arising from circumstances

‘over which the jury had no control. Under these

conditions there is no usurpation by the court of the.

prime function of the jury as the trier of the facts

and the trial judge necessarily must be allowed wide

discretion in granting or refusing a new trial.” (1d.,

90)

» In our case, although the District Court granted the new

trial, not only because the verdict was against the evidence,

but also because the jury was misled, e.g. by evidence im-

properly admitted and by prejudicial statements by counsel,

the Court of Appeals below failing to make the ‘sharp

distinction’ laid down by the Third Circuit, substituted its

own judgment for that of the District Court as to both

categories of grounds for the new trial. —

(a) The jury was likely to have been misled by numer-

ous, serious misstatements of defendants’ counsel, by erro-

neously admitted, prejudicial evidence on the crucial matter

of reliability of the safety equipment, and by a confusing

charge on the meaning of wilful misconduct. Defendants’

\

13

counsel made seriously prejudicial statements to the jury

about the evidence. E.g. .

« (1) That the ILS Outer Marker “has nothing to

do with the geographical position” (D. App. 176a- 2

1784). Undisputedly, the whole purpose of the ILS

Outer Marker was to establish geographical position

(D. App. 45a-47a; App. 94a-97a, 104a-105a, 108a-

111a). i

(2) That “when he received the proper signals, he

started the letdown, he intentionally went into those

clouds” (D. App. 181a). There is nd evidence he re-

ceived the proper signals; in fact, all\the evidence is

to the contrary (App. 101a, 111a, 103a-105a; D. App.

44a).

(3) That “we know he (the pilot) was at the proper: ‘ie

place for the procedure turn” (D. App. 194a). This i

is directly contradictory to their own admission. 4

(App. 25a-26a, 101a, 111a, 163a-105a, D. App. 44a). :

‘(4) By insinuation, that the radio transmitters /

at the ILS Outer Marker and the plane’s radio naviga-

tion receivers of signals therefrom were not working

normally (D. App. 13la-132a, 135a, 136a-138). The

undisputed evidence was that they were working nor-

mally (D. App. 85a-90a, 367a-368a, items 1, 2, 3,6 — F

and 7). 3

(5) By insinuation, that a “mistake ‘had been

made . . . on the part of radio facility maintenance”

(D. App. 196a).: This is contradicted by the record (D.

App. 85a-90a, 368a, item 7). aes pees

Indeed, defendants’ counsel went so far as to -

ture non-existent testimony. He told the jury that plaintiffs

had not ‘asked questions of witness Andrews, a former

i nh herent poem

\

he

CAB employee, as to the cause of the accident, because

they were afraid of the answers, which would be to the éffect

that no one knows how the accident occurred (D. App.

147a). This ‘was highly prejudicial; it went to the core of

the case. It was unfair, also, because his conclusions as a

CAB investigator were excluded by statute (D. 155a)

and defendants had already indicated (D. App. 156a) that

they would not waive this exclusionary rule.*

Evidence likely to mislead the jury was cited to it on

the critical matter of reliability of safety equipment (D.

App. 139a-141a). This was a distinct basis for the Dis-

trict Court’s exercise of discretion (D. App. 14l1a) which

the Court of Appeals overlooked (346 F. 2d, at 541) al-

though called to its attention by brief before decision

and by petition for reconsideration. As the District Court

held, such evidence was “too remote” in time to be admis-

sible (D. App. 141a). That its admission was prejudicial

to a fair verdict was within the sound discretion of the Dis-

trict Court to determine; although it had no bearing on the

issue, the jury might easily have been misled by it into mis-

trusting the reliability of the ILS instrument landing: sys-

tem

The charge to the jury was misleading in a double

respect. First, the District Court denied plaintiffs’ request

to instruct the jury that wilful misconduct covers not only

acts accomplished with deliberation, but also acts of care-

*The Court of Appeals gave as one ground for its reversal of

the new trial order that objectiom was not made to all the prejudicial

remarks when uttered. F. 2d, at 542. However, that ground

is clearly untenable: (i) The District Court relied on such preju-

dicial remarks as a basis for granting a new trial in the exercise of

discretion’ and plaintiffs may therefore rely on them to support the

order ; Helvering v. Gowran, 302 U. S. 238, 245-7. (ii) The District

Court cautioned counsel against interrupting opposing counsel’s

summation (R. 1844).

6 1 5 ; 0

lessness without regard of the consequences (R. 1992-3).

Second, the charge given was internally confusing.*

(b) A new trial is required in the interests of justice

(if the n.o.v. for the plaintiffs is not to be reinstated). De- .

fendants’ liability has already been found by verdict and

judgment in Halmos, supra. Moreover, in this case, de-

fendants refused to obey the District Court’s order to permit

discovery of pertinent records in their possession to plain-

tiffs (App. 200a). They had intentionally refused to obey

the CAA’s directive to pass on to the pilots the 3500 foot alti-

tude requirement. The accident would not have occurred if

the pilot had received and obeyed this safety instruction. De-

fendants admitted that they had not proved that they and

their agents had taken all necessary measures to avoid the

crash or that it was impossible for them to take such meas-

ures (supra, p. 5, footnote) ; in the face of this concession

requiring at least a judgment for $8300 for the widow and

children, the Court of Appeals has dismissed the complaint,

resulting in the imposition against them of a judgment for

$7,741.25 costs! This is so unjust as to create disrespect for

our judicial processes.**

*The charge started out with the enunciation of two ingredients,

both together necessary for wilful misconduct, distilled from Pekelis

(219 F. Supp. at 360; D. App. 15a). The Trial Court then gave a

definition of wilful misconduct substantially different from that origi-

nally stated and enumerated four elements in that definition (219

F. (Me at 360; D. App. 16a-17a).

The Court proceeded to give examples of wilful misconduct. It

then concluded with a further definition, which was ambiguous as to

whether the two separate ingredients mentioned in the at 15a

must be found together or whether either one would meet defini-

tion of wilful misconduct (219 F. Supp. at 363; D. App. 24a).

**The Court of A S$ says it was not a judicially conclusive

concession and speculatively attributes jury confusion to the

rhetoric of plaintiffs’ trial counsel (346 F. 2d, at 542).

But this does not negate the need for a new trial in the interests of

justice and an $8300 judgment as the minimum in the light of de-

fendants’ considered admission based on the overwhelming evidence

and contradicted by none. To say, as the Court of Appeals does,

that the “plaintiffs cannot now complain”, is to make a game of

justice. ,

a ; 16

- The Court of Appeals’ insensitivity to the discretion of

the District Court in protecting plaintiffs’ constitutional

right to trial by an unprejudiced jury, to the requirements

of the federal air safety regulations, and to the compensa-

*tion policy of the treaty, all call for the supervisory inter-

vention of the Supreme Court.

3. The liability of air carriers for violating federal en

route altitude and instrument landing, safety regulations

has not been passed on by the Supreme Court. This is an

_. Important matter which should be settled by this Court,

particularly because on its correct construction depends in

large measure (a) the integrity of the Federal government’s

air safety regulations and the safety of thousands of Amer-

icans daily engaged in international flights as passengers

and members of flight crews, and (b) effectuation of the

public policy to award just compensation to the families of

passengers killed in such flights.

(a) As to limited hability. Article 17 of the treaty

imposes, for the purposes of the limited damages (up to

$8300) granted by Article 22, “absolute liability . . . regard-

less of fault” unless the defendant carriers can affirma-

tively show, under Article 20, that they “have taken all

necessary measures to avoid the damages or that it was

impossible . . . to take suc’ measures” (D. App. 309a-310a ;

Grey v. Amer. Airlines, 227 F. 2d 282, 285 (C. A. 2)).

The Court of Appeals im effect characterized defendants’

conduct at headquarters in not transmitting the CAA rul-

ing as “negligence” (346 F. 2d, at 538). It did not cite

any evidence that satisfied this burden of the defendant

carrier; there is none; and the defendants’ admitted it

(supra, p. 5, footnote). The Court of Appeals’ reversal

4 and dismissal of the complaint was plain error.

(b) As to unlimited habtilhty; pilot’s misconduct. Under

Article 25, the arbitrary maximum of Article 22 is removed

&

x»

Th .

where the crash resulted from the carrier’s or pilot’s wilful

misconduct or its judicial equivalent. This has been inter--

\preted to include “carelessness without regard for the con-

sequences” in accordance with the explicit “legislative”

history leading to the formulatidn of the clause, e.g. Pekelis

v. TWA, 187 F. 2d 122, 125 n.2 (C. A. 2) ; Amer. Airlines

v. Ulen, 186 F. 2d 529 (C. A. D. C.); yet the opinion of

the Court of Appeals below, in conflict with these authori-

ties, rejects this test, 346 F. 2d 532, 536-7, in favor of the

requirement, later inserted in the Hague amendment and

not adhered to by the United States, of “knowledge that

damage would probably result” id. This was also plain

error. See Drion: Limitation of Liabilities in Interna-

tional Air Law (1954), p. 233:

“Realization of a 1% chance, that an aircraft will

crash as a result of a certain act or omission may

be sufficient to make the decedent’s conduct ‘wilful

misconduct’ in the sense of Article 25.”*

The extreme hazards of flying require stringent safety

regulations and meticulous compliance therewith; this4s

especially so with respect to government-prescribed safe

altitudes and government-prescribed instrument landing

procedures for bringing planes down safely through clouds

in mountainous terrain. |

*The Court of Appeals evidently thought that because the pilot

was dead, the jury should be free to speculate that he believed that

despite his violation of the safety clearance, a crash was not “prob- |

able”, 346 F. 2d, at 536. But such speculation should not be per-

mitted, especially since defendant admitted that: “the pilot knew that

he was over mountainous terrain and also knew the perils attendant

upon an imprecise instrument let-down.” (Deft’s Brief below, p. |

35). To a layman, the word “probable” means more likely than

not—more than 50% probable. See, e.g. Webster’s New International

Dictionary, 2d Ed. (1959) entries under “probable” and “probably”: ’

Playing “Russian roulette”, with one of six chambers of the revolver

loaded, is not wilful or any other kind of misconduct ‘under the

standard set by the Court of Appeals in the decision below. |

ay

18

In the present case, the undisputed evidence sHowed that

these regulations, having the force of law and known to

the carrier, including the pilot, were flouted, in the absence

of any emergency warranting departure from them. The

pilot had descended into the clouds without receiving

thé unique navigational signals which he knew were the

only lawful means of his establishing that he had passed

over the mountains and was in the lawful, safe, descent

area. Neither “confusion as to his actual position’* nor

even a momentary clear view of the terrain through the

cloud bank could exculpate him from the legal duty of

passing éver the ILS Outer Marker before descending.

In addition carrier headquarters: had.deliberately not in-

formed him of the CAA requirement that he fly at 3500

feet in the area upon receiving a “500 feet on top” clear-

ance. Had either requirement been observed, the crash

would have been avoided.

The District Court held that these facts gave rise, as

a matter of law, to unlimited liability under the Warsaw

Convention for the fatal crash caused by such violation of

government safety regulations: liability for the full damages

because the crash was caused by wilful misconduct or its

judicial equivalent (Article 25). The District Court held

that the “test is an objective one” 219 F, Supp. at 325.

Although the Court of Appeals conceded that wilful mis-

conduct is not “an entirely subjective matter’, it permitted

the jury to speculate “as to what a man in the pilot’s posi-

tion should have done” because “we cannot know all the

facts needed to make any kind of judgment, subjective or

objective”. 346 F. 2d, at 538, n. 4. The Court’s hodge-

podge of a ‘subjective and objective’ test is also plain

error.**

*The irony is that the entire purpose of the ILS is to preclude

confusion as to actual position.

**Prosser, Law of Torts (3d Ed. 1964) states, most pertinently

in light of the fact that in fatal airplane crashes the pilot, crew and

passengers will not be available to testify, that “an objective standard

19

What the pilot “should have done” but did not do was

clear from the undisputed evidence, which the Court of

Appeals overlooked. Thus, the Court of Appeals ignored

the critical concessions of defendants and their experts that:

the pilot did not pass over the ILS Outer Marker before

descending into the clouds, which, as the pilot knew, was

required by the prescribed instrument landing clearance;

that, as the pilot knew, this prescribed procedure required

that he establish such passing over in only one way, viz.

by receiving two unique signals which were receiva

there and nowhere else; and that the equipment of the ILS

Outer Marker for transmitting and of the plane for re-

ceiving such signals was in proper working order at the

time of the accident (D. App. 367a-368a, items #1, 2, 3, 6,

and 7). The Court of Appeals thus overlooked the neces-

sary consequence from these undisputed facts (not, as the

Court stated, merely “inferences to be drawn from essen-

tially circumstantial evidence” 346 F. 2d, at 538) that the

must of necessity in practice be appli in determining whether

there has been wilful misconduct and, accordingly, that wilful mis-

conduct is established

“in any case where it is clear from the facts that the defend-

ant, whatever his state of mind, has proceeded in disregard of

a high degree of danger, either known to him or apparent to

a reasonable man im his position.” (Footnotes omitted. Under-

scoring supplied, p. 189)

Harper and James are in accord (Law of Torts, Vol. 2):

“It is submitted that no particular state of mind should be

required for a finding of wanton or wilful misconduct. If de-

fendant’s conduct, in the light of circumstances which he knew

or should have known, involved a high degree manifest

danger, that should be enough without regard to defendant’s

mental attitude. Thus if the driver of a trailer ¢ruck under-

takes to pass another trailer truck as they both near the brow

of a hill on a two lane highway, it should make no differ-

ence at all whether the mind of the overtaking driver was

filled with anxious solicitude for his fellow travelers or with

an utter indifference to probable danger to them.” (Footnotes

omitted) (Underscoring supplied, pp. 954-5).

-

aie

S

= 20

pilot descended without having received those unique, un-

mistakeable signals, thereby violating the safety clearance,

and thus hit the mountains, which-that safety clearance was

specifically designed to avoid. By completely overlooking

the critical undisputed evidence and degrading a necessary

logical consequence into a merely possible inference, the

Court of Appeals again committed plain error.

The alternative basis for the decision’below is that even

if the pilot descended, in deliberate violation of his clear-

ance, that was not necessarily wilful misconduct. 346 F. 2d,

at 537-8. Such a holding is error of law. It permits the

pilot to substitute his own opinion for the law of the land.

This is subversive of the U. S. Government’s entire air-

safety public policy and is also plain error : “ ‘wilfully’ means

a thing done without ground for believing it is lawful.”

Brown v. Bullock, 294 F. 2d 415, 420 (C. A. 2 in banc;

underscoring supplied). There is no basis in the evidence

for an inference that the pilot, although not receiving the

signals, had any ground for believing he had. If the Court

of Appeals sanctioned such speculation, it erred.

Any trained pilot would know that violation of the clear-

ance exposed all on board to grave risk of death or serious

injury. Of course, it wasn’t likely that the pilot tried to

commit suicide and murder 18 others, but this is all there is

to support the Court of Appeals’ decision.* Surely, that

presumption shouldn’t be enough to exculpate the carrier.

¢

*This “evidence”, which the Court says (346 F. 2d at 537-8) shows

the pilot may have thought he was in the proper position, has no ten-

dency to show confusion as to the prescribed way of getting there.

Grant that the pilot “was making a proper landing . . . apart from

location” ; grant that he did not intend to commit suicide; grant that

there may have been some radio communication trouble—which had

nothing to do with the separate radio navigational instruments in-

volved in the instrumerit approach. Grant all these—the inescapable

fact remains that the pilot let down into the clouds knowing he had

21

(c) As to wilful misconduct at headquarters. The

Court of Appeals was also plainly in error in holding that

deliberate refusal to follow an order of the CAA “cannot

be characterized as’ wilful miscbnduct; at best it was negii-

gence arising out of an honest difference of 6pinion”. 346

F. 2d, at 538. There.can be no honest difference of opinion

with the law. To violate the law is misconduct. To violate

the law deliberately, after explicit notice, is wilful miscon-

duct.*

4. An important question of Federal law that has not

been, but should be, settled by this Court is the meaning

of Article 3(2) of the Warsaw Convention.

Article 3(1) sets forth rigorous requirements of what

a ticket must contain, including, inter alia, a statement of

the agreed stopping places (Clawse c). In; this“case, the

ticket omitted Honolulu and the accident occurred on the

leg from Honolulu to San Francisco.

In order to enforce the requirements of Article:3(1),

Article 3(2) provides that unless “a passenger ticket” is

not seceived the prescribed signals and so crashed; that was wilful

misconduct as a matter of law, under Pekelis and Brown, supra.

The Court’s statement 2>~t not “likely to have tried to land with-

out having received the signals” (at 538) is ambiguous. There was

no evidence he had received the signals, supra, pp. 19-20; so what is

left is the bare presumption against suicide and homicide.

*There is no. substance to the suggestion (346 F. 2d, at 53&) that

the CAA letter, directing BCPA to communicate to its pildts the

CAA’s official interpretation of its own regulation, should have been

excluded as hearsay. That letter, received by the defendant from

the CAA, constituted notice to the defendant of the law, which it

wilfully breached. ;

The Court of Appeals also overlooked (id.) the fact that mis- °

conduct at headquarters was urged at the trial (App. 33a-36a includ-

ing references therein). The District Court sustai this ground

(en Op. in D App. 200a, first sentence and 201a, item 4), so it

was plainly available to plaintiffs to the District Court’s

judgment. Helvering v. Gowran, 302 U. S. 238, 245-7.

® Oa Ae a ken

22

delivered by the carrier to the passenger, the carrier loses

its treaty defenses of limited liability or exculpation. The

complete omission of an agreed stopping place is more than

a mere irregularity because each landing and ascent ma-

terially increases the passenger’s risk and failure to notify

him thereof deprives him of the opportunity to protect him-

self therefrom e.g. by refusing to take that flight or by

insurance. Such omission means therefore that there has

been a failure to deliver to the passenger a passenger ticket

within the requirement of Article 3, exposing the carrier

to absolute liability under the Convention. Mertens v. The

Flying Tiger Lime, 341 F. 2d 851 (C. A. 2); Warren v.

Flying Tiger Line, F. 2d (C. A. 9, 10/25/65)

(the first so holding where the ticket was not handed to

passenger until he was already on plane and the second so

holding where the ticket was handed to him at foot of board-

ing ramp).*

CONCLUSION

FOR THE FOREGOING REASONS, THIS PETITION FOR

A‘ WRIT OF CERTIORARI SHOULD BE GRANTED.

Respectfully submitted,

T. RoLAND BERNER

Attorney for Petitioners

Of Counsel:

M. Victor LEVENTRITT

AARON LEWITTES

SIDNEY BENDER

November 17, 1965.

*This question has been answered favorably to the carrier by

the Second Circuit (Grey v. Amer. Airlines, 227 F. 2d 282, 284);

so raising it below would have been a futile act; but it is now up for

decision by the Third Circuit (Berguido v. Eastern Airlines, #15156,

recently argued and now sub judice).

“wr

APPENDIX A

| Opinion of Court of Appeals .

UNITED STATESOURT OF APPEALS

4

For THE SECOND CIRCUIT

(Argued December 7, 1964 ° Decided June 9, 1965.)

Docket No. 29633 ESE rc

dy.

“‘e

T. RoLanp BERNER and ArTHUR S. LEssErR, Executors

of the Estate of William Kapell, deceased,

Plaintiffs-A ppellants-A ppellees,

—against— °

BritisH COMMONWEALTH PaciFic AIRLINES, LtpD., a

Foreign Corp. and British COMMONWEALTH PACIFIC

' AIRLINES, Ltp., now doing business.as Qantas Empire

Aviation, Ltd., a Foreign Corporation,

Defendants-A ppellees-A ppellants.

Before:

WATERMAN, Moore and KAUFMAN,

Circuit Judges.

+.

.

Moore, Circuit Judge:

',. This is a diversity action for damages for wrongful

death arising out of an airplane accident on “October 29,

1953. ‘In 1953 a pilot for defendant British Commonwealth

Pacific Airlines, Ltd. (BCPA), an Australian corporation,

Pout ar

2a

Opinion of Court of Appeals

in a plane coming from Honolulu, began an instrument

landing, during which operation it crashed against a moun-

tain near the San Francisco, California, airport. All

aboard were killed, including plaintiffs’ deceased, the noted

pianist William Kapell.

The flight having been international, BCPA and de-

fendant Qantas Empire Aviation, Ltd. (Qantas) claimed

that liability was limited by the Warsaw Convention,’ under

which plaintiffs could recover no more than $8,291.87, un-

less BCPA had been guilty of “wilful misconduct.’”” If, on

the other hand, BCPA had taken all necessary means to

avoid the accident, or if that were impossible, then BCPA

would not be liable to plaintiffs for any amount.’

After a jury trial in 1961 before Judge Willis Ritter,

the jury found for defendants on all issues; no damages

were awarded. Plaintiffs moved for judgment notwith-

standing the verdict or for a new trial, and two years later

Judge Ritter granted judgment for plaintiff as to liability,

ordering a new trial only as to damages. He also ordered

a conditional new trial on all issues if the judgment n.o.v.

were reversed on appeal. 219 F. Supp. 289 (S. D. N. Y.

1963). Defendants object to both determinations.

After a trial in 1964 before Judge McLean a jury found

damages of $924,396. Plaintiff moved for the addition of

pre-judgment interest from date of death—1953—to date

of judgment. The motion was denied, 230 F. Supp. 240

(S. D. N. Y. 1964), and plaintiffs appeal.

1Convention and Additional Proctocol with Other Powers Relat-

ing to International Air Transportation, October 12, 1929, art. 22,

49 Stat. 3000 (1934).

_ 2Jd. at art. 25.

®Jd. at art. 20.

<

3a

Opinion of Court of Appeals

The Pleadings

As.a first cause of action against BCPA, the complaint

alleged in substance that the crash “was caused solely by

the wilful misconduct of defendant BCPA, its agents and

employees, in and about the management, operation, con-

trol and maintenance of the aforesaid airplane, .. .” Other

causes of action alleged negligence on the part of BCPA.

These causes of action were repeated against BCPA “now

doing business as Qantas Empire Aviation, Ltd.” on the

theory that Qantas became a successor in interest to, and

assumed the obligations of, BCPA. British Overseas Air-

ways Corp. (BOAC) was made a defendant in two causes

of action on the theory that BOAC was negligent in choos-

ing BCPA as the air carrier to transport Kapell. Except

for certain factual admissions not in dispute, BCPA (and

BCPA d/b/a Qantas), denied liability generally although

admitiing that in its liquidation it had transferred only

certain assets to Qantas. For an affirmative defense BCPA

(and Qantas) alleged that the flight was in “international

transportation” and that the “Convention for the Unifica-

tion of Certain Rules Relating to International Transpor-

tation by Air and Additional Protocol,” referred to herein

as the “Warsaw Convention” or “Convention,” limited its

liability to each passenger to 125,000 francs ($8,291.87).

The Trial

The trial before a jury consumed thirteen days. Some

thirty-seven witnesses testified in person or by deposition.

Their testimony covered a range from technical airplane

piloting and landing procedures, the rules and regulations

pertaining thereto, weather conditions, the sound of the

plane and the crash, to Kapell’s then and future earning

capacity.

oe be trtenhetey

~ serious

4a

Opinion of Court of Appeals

At the conclusion of plaintiffs’ case, Qantas moved for a

directed verdict, which motion was denied. Decision was

reserved until after verdict on a similar motion at the end

of the entire case. The many issues of* fact were submitted

to the jury ina lengthy charge. The jury returned a verdict

“Unanimous for the defendant.”

The Charge

The trial court first expounded its views of the effect

of the Warsaw Convention. After mentioning the limited

damages aspect of the Convention, the Court charged, “If

what the pilot or crew did, or failed to do, was ‘wilful mis-

conduct,’ there are no limits imposed by the Warsaw Con-

vention upon the damages that may be recovered.” The

court then proceeded in a charge most favorable to plaintiff

to define “wilful misconduct” as it might be found in a

series of hypothetical situations in the operation of the

airplane while attempting to land, including the comment

that “it may be that a jury would feel justified in coming

to tie conclusion that some relatively minor breach of a

safety regulation amounts to ‘wilful misconduct,’ although

it would not do so in places and on occasions when the

consequences of such an approach would be much less

° ies.

The jury were told that it was their function not only

to take into consideration “all of the facts and circumstances

in proof” but also all the inferences fairly and reasonably

to be drawn from the facts as proven. Even on the ques-

tion of the pilot’s knowledge in the definition of “wilful

misconduct” the jury were instructed that proof thereof

did not have to be by direct evidence but that they had

“a right to infer that the pilot or flight crew in charge of

Sa”

Opinion of Court of Appeals

the aircraft had such knowledge or would have had such

knowledge.” As the court finally summarized the case, in

addition to weighing the evidence, the circumstantial evi-

dence and all inferences therefrom, the jury were to hold

the- defendants “liable to the plaintiffs for the damages

caused by that death without limitation” if the defendant

“knowingly and intentionally violated any of the Civil Air

Regulations or the landing instructions from the San Fran-

cisco Approach Control Tower.” “The jury was to apply

the law “to the facts which you may find have been estab-

lished in this case.” .

The jury acting upon these instructions found for the

defendant. Over two years later the court, ‘upon the same >

proof as had been submitted to the jury for their resolu-

tion of the facts, directed,judgment n.o.v. in favor of plain-

tiffs and ordered a new trial on the issues of damages only.

The Court’s Opinion

In a lengthy opinion, the court reviewed its version of

the facts and by granting plaintiffs’ motions, in effect,

substituted itself for the jury and drew its own inferences

from the facts.

Some twenty printed pages are given to an analysis of

the Warsaw Convention. Reference is made to various

‘comments of German, British, Luxembourg, Italian, French,

Brazilian and Swiss delegates to the Warsaw Conference

with respect to “dolus,” “dol,” and “faute lourde” and the

translation of these words into our law.as “wilful mis-

conduct” (a phrase accepted and used by the court in its

jury charge). However, the impression is gained from the

opinion that to the court “‘the Warsaw Convention was a

device by which to subsidize the then infant industry of

6a

Opinion of Court of Appeals

international air transportation” and that “it is a strange

"concept to us in the United States that the subsidy should

be taken out of the widows and orphans of the passengers.”

219 F. Supp. at 322-23.

The Interlocutory Judgment

The court not only directed a judgment against defen-

dant “on the issue of liability” but also, in the alternative,

ordered a new trial on all issues “if the judgment non

obstante veredicto is set aside on appeal.”

The Primary Appellate Issue

The primary issue to be resolved upon this appeal is

whether the trial court was justified in settinggaside the

jury’ s verdict in favor of defendant and, assuming the

jury’s role as fact finder, granting judgment to plaintiffs.

The separate roles to be played by the jury with respect

to the facts and by the court with respect to the law have

been rather firmly settled for many generations. As the

Supreme Court said in Tennant v. Peoria & Pekin Union

Ry., 321 U. S. 29, 35 (1944) :

“Tt is the jury, not the court, which is the fact-findirlg.

body. It weighs the contradictory evidence and in-

ferences, judges the credibility of witnesses, receives

expert instructions, and draws the ultimate con-

clusion as to the facts. The very essence of its func-

tion is to select from among conflicting inferences

and conclusions that which it considers most reason-

able. [citing cases] That conclusion, whether it re-

lates to negligence, causation or any other factual

_ matter, cannot be ignored. Courts are not free to

reweigh the evidence and set aside the jury verdict

“ 7a

Opinion Of Court of Appeals

merely because the jury could have drawn different

inferences or conclusions or because judges feel that

other results are more reasonable.”

This admonition was re-emphasized in Lavender v. Kurn,

327 U. S. 645, 653 (1946) : :

“Tt is no answer to say that the jury’s verdict in-

volved speculation and conjecture. Whenever facts

' are in dispute or the evidence is such that fair-

minded men may draw different inferences, a meas-

ure of speculation and conjecture is required on the

part of those whose duty it is to settle the dispute

by choosing what seems to them to be the most

reasonable inference. Only when there is a com-

plete absence of probative facts to support the con-

clusion reached does a reversible error appear. But

where, as here, there is an evidentiary basis for the

jury’s verdict, the jury is free to discard or dis-

believe whatever facts are inconsistent with its con-

clusion. And the appellate court’s function is ex-

hausted when that evidentiary basis becomes appar-

ent, it being immaterial that the court might draw

a contrary inference or feel that another conclusion

is more reasonable.”

o useful purpose will be served by even a resume of

. y factual issues outlined in the court’s charge or

raised by the testimony set forth in great detail in ‘the

opinion of 86 pages. Suffice it to say that the trial court

presented the factual issues to the jyry in the charge,

” giving to them the broadest leeway to draw such inferences

as to wilful misconduct as might be warranted. They obvi-

of

8a

© Opinion of Court of Appeals

ously resolved the facts and inferences therefrom as not

supporting wilful misconduct. |

~

I. “Wilful Misconduct’ as a Matter of Law.

In granting plaintiffs’ motion for judgment n.o.v., Judge

Ritter held that the evidence established “wilful miscon-

duct” as a matter of law; i.e., that the only conclusion a

reasonable jury could have reached was that the defen-

*dants were guilty of wilful misconduct. See, e.g., Wilker-

son V. McCarthy, 336 U. S. 53, 62-63 (1949) ; Marsh v. Iih-

nots Cent. R. R., 175 F. 2d 498, 500 (Sth Cir. 1949) ; Blum

v. Fresh Grown Preserve Corp., 292 N. Y. 241, 245-46,-54

N. E. 2d 809, 810 (1944).

A. The applicable standard of wilful misconduct.

1. As stated by prior decisions. Although it is imma-

terial to the jury’s resolution of the facts, the court in its

opinion was in error in concluding that the Second Circuit

does not require knowledge that damage would probably

result. The charge of the trial court in Pekelis v. Trans-

continental & W. Air, Inc., upheld by this court in 187 F.

2d 122,124, (2 Cir.) cert. dented, 341 U. S. 951 (1951),

and referred to by the trial court in the present case, was

that: “

“wilful misconduct is the intentional performance of

an act with knowledge that the performance of that.

act will probably result in injury or damage, or it

may be the intentional performance of an act in such

a manner as to imply reckless disregard of the

probable consequences . . ., [or] the intentional

omission of some act, with knowledge that such

omission will probably result in damage or injury,

or the intentional omission of some act in a manner

a Wee

a es

9a

_ Opinion of Court of Appeals

from which could be implied reckless disregard of

the probable consequences of the omission . . .”

(Italicized portions omitted by trial court below. )

We held that an instruction requested by the plaintiff in

that case was properly denied

“because it failed to state that the employee must

either have known that the... [test] was necessary

for safety, or his duty to make it must have been

so obvious that in failing to make it his conduct

would be reckless, rather than merely negligent.*”’

(Id. at 125 (footnote omitted).)

Then, in Grey v. American Airlies, Inc., 227 F. 2d 282,

285 (2d Cir. 1955), cert. denied, 350 U. S. 989 (1956),

Judge Medina “in accordance with precedent” approved a

charge requiring “proof of ‘a conscious intent to do or omit

doing-an act from which harm results to. another, or an

intentional omission of a manifest duty. There must be a

realization of the probability of injury from the conduct,

and a disregard of the probable consequences of such con-

duct.’” To like effect was the charge upheld in American

Airlines, Inc. v. Ulen, 186 F. 2d 529, 533 (1949), which

said that it would be wilful misconduct if the carrier

“wilfully performed any act with the knowledge

thatthe performance of that act was likely to result

in injury to a passenger, or performed that act with

reckless disregard of its probable consequences; . . .

the mere violation of those [safety rules and regu-

lations], * * * even if intentional, would not neces-

sarily constitute wilful misconduct, but if the vio-

lation was intentional with knowledge that the

10a

Opinion of Court of Appeals

violation was likely to cause injury to a passenger,

then that would be wilful misconduct, and likewise,

if it was done with a wanton and reckless disregard

of the consequences.”

See also Koninklijke Luchtvaart Maatschappij N. V. KLM

Royal Dutch Airlines, Holland v. Tuller, 292 F. 2d 775,

779-82 (D. C. Cir.), cert. denied, 368 U. S. 921 (1961).

2. As stated by the trial court. After excerpting only

parts of the charge upheld in Pekehs, supra, the court

concluded that “the Second Circuit does not” require knowl-

edge that damage will probably result, 219 F. Supp. at 323,

as is required by the Hague Protocol—an amendment

to the Convention which is not in force in the United

States. Rather, the court indicated approval of a statement

that wilful misconduct is “carelessness without regard for

the consequences,” #bid. (emphasis in original), and stated

that to establish wilful misconduct “it is enough that he

[the pilot] realizes, or from the facts which he knows,

should realize that there is a strong probability that harm

may result, even though he hopes or even expects that his

conduct will prove harmless.” Jd. at 325-26.

B. Wéilful misconduct in the plane’s approach.

There is no justification for the conclusion that the only

permissible inference from all the evidence was that the

pilot had been guilty of wilful misconduct—whether under

Judge Ritter’s standard or under that stated by the prior

cases. .°

Defendants argue that a reasonable inference for the

jury to have made was “that the pilot, from some inscrut-

able cause,’ became confused as to his actual position and

-)

lla

Opinion of Court of Appeals

commenced his let-down from a point he believed to be the

proper one.” If that were so, wilful misconduct would not

have been established under any standard. We cannot

doubt that a jury could reasonably have thought it so on

this record. The evidence shows that the pilot quite possi-

bly thought he was making a proper landing—in most re-

spects he was, apart from location. There is evidence from

which the jury could have inferred that the pilot would not

have been likely to have tried to land without having re-

ceived the requisite signals, thereby violating his clearance.

The evidence also suggests that there may have been some

radio communication trouble.

Against this, plaintiffs argue that, because of the techni-

cal and electronic characteristics of the indicators involved

—which they assert to have been operating properly—the

pilot could not have received all the signals which he was

required by his cleatance to receive before beginning his

let-down. Because of this, they say, the pilot must have let

down knowing that he had not received the proper signals,

or with reckless disregard for whether or not he had. How-

ever, all these questions depend upon inferences to be

drawn from essentially circumstantial evidence. Those

who alone could provide direct evidence as to what in fact

led the pilot to act are, unfortunately, not able to do so.‘

One can hardly imagine a clearer case in which such ques-

tions should have been left to the jury. See, e.g., LeRoy v.

Sabena Belgian World Airlines, 344 F. 2d 266, 271 (2d

*We do not mean to suggest that “wilful misconduct” is an entirely

subjective matter, see Prosser, Torts 189 (3d ed. 1964), but merely

that we cannot know all the facts needed to make any kind of judg-

ment, subjective or objective, as to what a man in the pilot’s position

should have done. The fragmentary reconstruction that can be made

permits inferences other than wilful misconduct. That is enough to

let a jury’s verdict stand. ; =

i

= Speen

aiesinnneeneenen vont tener on eon

Ue 12a

Opinion of Court of Appeals

Cir. 1965). We cannot even say that the pilot’s or the air-

line’s negligence was established as a matter of law, much

less wilful misconduct. Once the case went to the jury, its

verdict should not have been upset if reasonable men could

find in defendanf’s favor, as they certainly could here.

Markusen v. General Aniline & Film Corp., 16 F. R. D. 455

(S. D. N. Y. 1954), aff'd on the opinion below, 221 F. 2d

479 (2d Cir. 1955); see, e.g., Lavender v. Kurn, 327 U. S.

645, 652-53 (1946); O’Connor v. Pennsylvania R.R., 308

F. 2d 911, 914 (2d Cir. 1962); 2B Barron & Holtzoff,

Federal Practice & Procedure, § 1075 at 378 (1961).

C. Wailful misconduct at headquarters.

Plaintiffs also urge that as a matter of law there was

wilful misconduct at BCPA headquarters in the failure to

instruct pilots as to a CAB letter interpreting clearance

regulations concerning minimum altitudes in approaching

San Francisco. Even if the letter itself were admissible,

BCPA’s conduct cannot be characterized as wilful mis-

conduct; at best it was négligence arising out of an honest

_difference of opinion. However, this theory is not avail-

able to upset the jury’s verdict. It was apparently not urged

at trial and the jury was not charged about it. The trial

judge made no ruling on it. The only semblance of sup-

port is a statement in Judge Ritter’s “Supplemental

Opinion” that from BCPA’s failure to excuse its non-

production of certain documents it was permissible to infer

that the failure was deliberate and that “such documents

would be unfavorable to defendant, BCPA, on such issue

[wilful misconduct].” In particular, BCPA failed to prda~

duce a file relating to prescribed approach procedures, al- \

though an unspecified number of documents in that file

13a

Opinion Of Court of Appeals

were produced. Even if the non-production could establish

that BCPA failed for some reason—perhaps a justifiable

one—to tell pilots of the CAB interpretation, as we have

said, that could not establish wilful misconduct as a matter

of law under the theory of the case.

/ II. Collateral Estoppel.

Plaintiffs argue that deféndant BCPA is collaterally

estopped from relitigating the question of liability for “wil-

ful misconduct” because of a prior judgment against

it in a case involving a different passenger killed in

the same crash. Halmos v. British Commonwealth Pac.

Airlines, Ltd., No. 34123, N. D. Cal. March 9, 1959.

action by Kapell’s estate against BCPA and Qantas seek-

ing $750,000 had been consolidated with Halmos. Prior

to the frst trial, summary judgment was granted in favor

of Qantas, and the Kapell action against BCPA was dis-

missed on stipulation. After a jury in Halmos had re-

turned a.verdict for BCPA, Judge Ritter, sitting in Cali-

fornia by designation, granted plaintiffs’ motion for a new

trial. After the second trial, also before Judge Ritter, a

jury found for plaintiffs and assessed damages at $35,000

in contrast to $500,000 sought on the complaint. BCPA

did not appeal. In 1954, when the Kapell action in Cali-

fornia was begun, similar actions were also begun by

Kapell’s estate in the Supreme Court of the State of New

South Wales, Australia, and in the Supreme Court of the

State of New York. Service of a summons on the present

defendants in the latter action was upheld in Berner v.

United Airlines, Inc., 2 Misc. 2d 260, 149 N. Y. S. 2d 335

(Sup. Ct.), aff'd, 3 A. D. 2d 9, 157 N.Y. S. 2d 884 (1st

Dept. 1956), aff'd, 3 N. Y. 2d 1003, 170 N. Y. S. 2d 340, 147

N. E. 2d 732.(1957). Thereafter in 1959 a complaint was

l4a

Opinion of Court of Appeals.

served and the defendants had the action removed to the

Southern District of New York.’ It is this action that gave

rise to these ap ae

_ Application of the doctrine of collateral estoppel raises

many questions. Plaintiffs suggest that the lack of mutual-

ity of estoppel (BCPA could not assert a judgment against

Halmos as a bar to this action) need be no barrier here

under our recent decision in Zdanok v. Glidden Co., 327

F. 2d 944 (2d Cir.), cert. denied, 377 U. S. 934 (1964), 64

Colum. L. Rev. 1141. However, it is not altogether clear

that Zdanok would govern the question of collateral estop-

pel in this case. Zdanok involved two federal court cases

5When the instant case came on for trial in the Southern District,

it was assigned to Judge Ritter, then sitting here by designation.

At the beginning of the trial, BCPA moved that he disqualify

himself on the onget of personal prejudice against it, citing 28

U. S. C. A. §144 which stenttien that

whenever a party to any proceeding in a district court makes and

files a timely and sufficient affidavit that the judge before whom

the matter is pending has a personal bias or prejudice either

against him or in favor of any adverse party, such jtdge shall

proceed no further therein .. .

Judge Ritter declined to do so. Defendants then petitioned this

court to grant prohibition or mandamus on the same ground. We

stated that.

while we do not necessarily endorse Judge Ritter’s charge on

wilful misconduct in the second trial in the Nortfiern District

of California in all res , we perceive no basis in this or

in other papers for con ~~ the Judge would not charge

the jury with respect to the Warsaw Convention in accordance

with its language and applicable decisions of the Court. Pekelis

v. Transcontinental & Western Air, 2 Cir. 187 F. 2d 122, 23

A. L. R. 2d 1349; Grey v. American Airlines, Inc., 2 Cir., 227

F. 2d 282. Accordingly, we deny the application for prohibition

or mandamus, th leaving it to Judge Ritter to determine

whether or not, even he is not in our judgment disqualified

under 28 U. S. C. § 144, he desires to proceed as the trial judge.

rpren’ Me ne th Pac. Airlines, Ltd. v. Ritter, ahreported,

Judge Ritter proceeded.

15a

Opinion of Court of Appeals

resting on federal question jurisdiction. We have two fed-

eral court cases here, but in both jurisdiction rests on

diversity of citizenship. Therefore, in light of the radia-

tions of Erie R. R. v. Tompkins, 304 U. S. 64 (1938),

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487 (1941),

and Angel v. Bullington, 330 U. S. 183 (1947), we might

properly look initially to New York law to determine what

law governs. Under it the question of collateral estoppel

would seem to be governed by New York local law. See

Hinchey v. Sellers/7 N. Y. 2d 287, 295-96, 197 N. Y. S. 2d

129, 133-34, 165 N. E. 2d 156, 160-61 (1959). Compare

Peare v. Griggs, 8 N. Y. 2d 44, 47, 201 N. Y. S. 2d 326, 327,

167 N. E. 2d 734, 735 (1960). But see Restatement (Sec-

ond), Conflict of Laws § 430a (Tent. Draft No. 10, 1964).

New York does not permit other persons injured in an acci-

dent to avail themselves of a prior plaintiff’s judgment.

Elder v. New York & Pa. Motor Express, Inc., 284 N. Y.

350, 31 N. E. 2d 188, 133 A. L. R. 176 (1940). Should

New York look to California law, the result would seem to

be the same in a multi-plaintiff accident case like this.

See Nevarov v. Caldwell, 161 Cal. App. 2d 762, 773-775,

327 P. 2d 111, 119 (1958) (hearing denied by California

Sup. Ct.); cf. Zdanok v. Glidden Co., supra, 327 F. 2d at

955. But cf. Bernhard v. Bank of America, 19 Cal. 2d

807, 122 P. 2d 892 (1942) ; Teitelbaum Furs, Inc. v. Domin-

ton Ins. Co., 58 Cal. 2d 601, 25 Cal. Rptr. 559, 561, 375

P. 2d 439, 441 (1962).

There are further questions. The collateral estoppel

-effect to be given to a prior federal court judgment in a

subsequent action in either a federal or state court might

itself be a matter of federal law. The same holds for the

collateral estoppel effect to be given to a prior judgment—

federal or state—in a subsequent federal court action. -

l6a

Opinion of Court of Appeals

Here both the prior judgment and the subsequent actions

are federal, although they are both, as noted, diversity

actions. Thus, in United States v. United Airlines, Inc., 216

F. Supp. 709, 718-25 (E. D. Wash. 1962), aff'd on the opin-

ion below sub nom. United Airlines v. Weiner, 335 F. 2d

379, 404 (9th Cir.), cert. dismissed, 379 U.S. 951 (1964),

the court determined as a matter of federal law that a prior

federal court judgment in a diversity case was “final” for

the purposes of res judicata or collateral estoppel, cf. Lum-

mus Co. v. Commonwealth Oil Ref. Co., 297 F. 2d 80, 89-90

(2d Cir. 1961), cert. densed sub nom. Dawson v. Lummus

Co., 368 U. S. 986 (1962); moreover, it indicated that the

same federal rule would apply even if the first judgment

was in a state court. Even so, the application of either res

judicata or collateral estoppel was in fact determined as a

matter of state law;* jurisdiction in bothgtases was based,

to the extent here relevant, on diversity of citizenship.

' A choice among these various routes need not be made.

For even if this case might be subject to a federal rule

including the elimination of mutuality (see Zdanok), the

defendants here should not be confronted with the Zdanok

rule. Abandonment of mutuality was there thought sound

unless (1) assertion of the plea of estoppel in successive

actions would create anomalous results, or (2) the party

had not had a full and fair opportunity to litigate the issue

effectively. As Halmos and this case seem to be the only

actions by the estates of passengers involved in this acci-

*As a matter of state law, the court allowed plaintiffs to assert as an

estoppel a judgment, then under appeal, for different plaintiffs against

the same defendant in a federal district court action in California in

which 24 actions involving passengers had been consolidatéd. As the

second court noted, the first case “was litigated to the hilt” and the

defendant had affirmatively indicated that it had no new, different or

additional evidence. 216 F. Supp. at 728. The ju t in the first

action as to liability was subsequently affirmed. 335 F. 2d at 388-92.

17a

Opinion of Court of Appeals

dent, there is no probability of anomalous results. How-

ever, while not necessarily suggesting that BCPA did not

have a “full and fair opportunity to fate” in Halmos,

we think it would be unfair in this case to use the result of

the second Halmos trial to the disadvantage of BCPA. At

the conclusion of the second trial, Zdanok had not been

decided. The result of the first trial was a victory for

BCPA;; of the second, a relatively small judgment. Had it

sought still a third trial, it had to weigh victory against a

much larger judgment. The failure to appeal for correction

of whatever errors may¢have been made seems altogether

reasonable and would very probably not have been the case

if BCPA knew then that that judgment would govern the

Kapell action in which far more—$7,003,000—was sought

as damages.’ In Zdanok, however, the first action was liti-

gated as strenuously as would seem possible, see 327 F. 2d

at 946 n. 1, and the issues—-interpretation of a collective

bargaining contract—were not likely to be decided on the

basis of a jury’s choice among different fattual inferences,

as was the case here.

’ f

a

™Had Zdanok been décided then defendants would still have been

in a dilemma. On a third trial, it could suffer a judgment anywhere

between zero and $500,000. The $35,000 judgment in hand would

be quite attractive. Whether that judgment would be used against

it would then depend upon where a subsequent action was brought

and, if that court followed a Bernhard-Zdanok approach, whether the

first action were found to have provided defendants a “full and fair

opportunity to litigate” the issues—not the most certain or objective

standard to apply im futuro. Here the instant case had already been

transferred from the state court to the Southern District by the time

Halmos II was decided. Had it not been, BCPA might reasonably

have expected New York law to govern, under which there could

be no estoppel. Of course, even more uncertainty would exist if the

pi sem statutes of limitations had not run, nor been tolled, and the

subsequent action had not even been begun at the time of the first

judgment.

‘4 ae 18a

Opinion of Court of Appeals

Even if the Zdanok approach were thought applicable to

this prior judgment, mutuality should not so quickly be

discarded in multiple accident cases like this. See 327 F. 2d

at 955. The rejection of mutuality in United States v.

United Airlines, Inc., supra, 216 F. Supp. at 725-29, may be

distinguished on the ground that the first judgment in-

volved 24 of 31 pending actions; the gravity of the po-

tential liability is shown by the fact that the ultimate

judgments against the airline totalled $2,337,308. 216

F. Supp. at 730. Obviously, the airline would have exerted

its full efforts with so much at stake. See note 5 supra.

Moreover, the first judgment was being appealed, so that

possible errors were not being overlooked. Although the

first judgment was affirmed, a reversal would presumably

have redounded to the benefit of the defendant in the sec-

ond action, compare Maryland for Use of Levin v. United

States, 380 U. S. ; n. 38, 85 S.Ct 1293 (1965);

consolidation of the actions on appeal eliminated much of

the possible conflict.

Thus, whether the applicability of collateral estoppel is

governed by federal, New York or California law, the

‘ result in this case would be the same; BCPA was free to

relitigate the question of “wilful misconduct.”

III. Conditional Grant of a New Trial on All Issues.

~, Defendants attack as an abuse of discretion Judge Rit-

ter’s decision conditionally ordering a new trial on all

issues if his granting of judgment n.o.v. were reversed on

appeal. We agree. We observe initially that our review

of this issue is hampered somewhat ‘by the fact that Judge

Ritter gave no reason for granting a new trial. Plaintiffs

had asserted several possible grounds in making the motion,

but our study of the record reveals that the grounds relied

19a

Opinion of Court of Appeals

upon must have been (1) that the verdict was against the

weight of the evidence and (2) that defendants’ counsel

was guilty of prejudical misconduct in his argument to the

jury. Cf. Leighton v. One William St. Fund, Inc., 343 F.2d

565, 567 (2d Cir. 1965).

A. Verdict against the weight of the evidence.

We have already held that there was sufficient evidence

to go to the jury either under the governing Second Circuit

standard or under Judge Ritter’s lesser standard of wilful

misconduct. To order a new trial on the asserted ground

when there was sufficient evidence to go to the jury need

not be an abuse of discretion in every case, see 6 Moore,

Federal Practice J 59.08(5), at 3817, 3820 (2d ed. 1953),

but we find that it was in this case. In light of the possible

inferences as to what actually happened when the pilot

began his let-down, we cannot agree that, viewed in light

of the proper standard, the verdict could be called against

the weight of the evidence. Cf. Damanti v. A/S Inger,

314 F. 2d 395, 398 (2d Cir.), cert. denied sub nom. Daniels

& Kennedy, Inc. v. A/S Inger, 375 U. S. 834 (1963).

Nor can we accept plaintiffs’ suggestion that the jury

\dcted not on the evidence but out of prejudice and misunder-

standing because it failed to award even the limited dam-

ages allowed under the Convention. It is true that defend-

ants’ counsel in his argument to the jury virtually conceded

that their burden of proof on complete immunity had not

been met. His statement, however, did not have sufficient

. formality or conclusiveness to be a judicial admission.

See Rhoades, Inc. v. United Airlines, Inc., 340 F. 2d 481,

484 (3d Cir. 1965) ; Note, Judicial Admissions, 64 Colum.

L. Rev. 1121, 1132-33 (1964). Moreover, plaintiffs’ counsel

&

20a

Opinion of Court of Appeals

thereafter urged quite ardently that the jury should award

all or nothing. The jury having adopted the latter sug-

gestion, plaintiffs cannot now complain because their quite

understandable strategy backfired.

B. Prejudicial statements.

Nor can we find anything in what defendants’ counsel

said to the jury to warrant awarding a new trial. With

few éxceptions—none of which is substantial—apparently

no objection was made at the time to remarks now chal-

lenged as being so prejudicial. Thus, “this challenge, raised

for the first time on the motion for new trial, came too

late.” Giffin v. Ensign, 234 F. 2d 307, 316 (3d Cir. 1956) ;

see Vareltzis v. Luckenbach S.S. Co., 153 F. Supp. 291

(S. D. N. Y. 1957), aff'd 258 F 2d 78 (2d Cir. 1958).

In any case, the evidence here was almost entirely cir-

cumstantial. Any verdict would depend upon the infer-

ences drawn from the known fragments, and most of what

edefendants’ ‘counsel did was to. suggest certain inferences

which could be drawn. In their memorandum to the trial

court and on appeal, defendants have adequately shown that

either they did not misstate the evidence or that any slight

misstatements were not prejudicial. Misstatements of the

law, if such there were, would not call for a new trial

where the court’s charge more than countered any such

misstatements. Cf. A. B. C. Needlecraft Co. v. Dun &

Bradstreet, Inc., 143 F. Supp. 686 (S. D. N. Y. 1956), rev’d

on other grounds, 245 F.2d 775 (2d Cir. 1957). Nor can we

agree with the trial judge that plaintiffs’ claim of mis-

conduct constituted grounds for a new trial. See “Appen-

dix B,” 219 F. Supp. at 327-28.

21a

Opinion of Court of Appeals

IV. Defendants’ Other Claims.

Because we reverse for the above reasons, we do not

reach defendants’ arguments as to the admissibility of

various items of evidence, nor Qantas’ argument as to its

possible responsibilities for the liabilities of BCPA.

V. Plaintiffs’ Appeal as to Pre-Judgment Interest.

We reverse both the granting of judgment n.o.v. and

the conditional granting of a new trial, thus reinstating the

jury’s verdict in favor of defendants and setting aside the

judgment entered upon the second jury’s determination of

“damages; the question of pre-judgment interest is moot.

Cf. Mertens v. Flying Tiger Line, Inc., 341 F. 2d 851, 858

(2d Cir. 1965), petition for cert. filed, 33 U. S. L. Week

3376 (U. S. May 14, 195) (Nod. 1168 1964 Terin; No. 142,

1965 Term). Consequently, we dismiss plaintiffs’ appeal

from Judge McLean’s order denying interest.

Judgment reversed with instructions to enter judgment

upon the jury’s verdict in favor of defendants. Plaintiffs’

appeal from the order denying pre-judgment interest is

dismissed. ise

22a

APPENDIX B

U. S. Treaty

CONVENTION FOR THE UNIFICATION OF CERTAIN

RULES RELATING TO INTERNATIONAL TRANSPOR-

TATION BY AIR AND ADDITIONAL PROTOCOL

(Warsaw CONVENTION OF 1929)

49 U. S. Stat. 3000

ARTICLE 3

(1) For the transportation of passengers the carrier

must deliver a passenger ticket which shall contain the fol-

lowing particulars:

(a) The place and date of issue;

(b) The place of departure and of destination;

(c) The agreed stopping places, provided that the

carrier may reserve the right to alter the stopping places

in case of necessity, and that if he exercises that right,

the alteration shall not have the effect of depriving

the transportation of its international character ;

(d) The name and address of the carrier or car-

riers;

(e) A statement that the transportation is subject

to the rules relating to liability established by this con-

vention. ‘

(2) The absence, irregularity, or loss of the passenger

ticket shall not affect the existence or the validity of the

contract of transportation, which shall none the less be sub-

ject to the rules of this convention. Nevertheless, if the

carrier accepts a passenger without a passenger ticket hav-

ing been delivered he shall not be entitled to avail himself

of those provisions of this convention which exclude or limit

his liability. 49 Stat. 3015.

oy

23a

U. S. Treaty

49 U..S. Stat.. 3000

ARTICLE 17

The carrier shall be liable for damages sustained in the

event of the death or wounding of a passenger or any other

bodily injury suffered by a passenger, if the accident which

caused the damage so sustained took place on board the

aircraft or in the course of any of the operations of em-

barking or disembarking. 49 Stat. 3018.

* * *

ARTICLE 20

(1) The carrier shall not be liable if he proves that he

and his agents have taken all necessary measures to avoid

the damage or that it was impossible for him or them to

take such measures.

(2) In the transportation of goods and baggage the

carrier shall not be liable if he proves that the damage was

occasioned by an error in piloting, in the handling of the

aircraft, or in navigation and that, in all other respects, he

and his agents have taken all necessary measures to avoid

the damage. 49 Stat. 3019.

ARTICLE 22

(1) In the transporation of passengers the liability of

the carrier for each passenger shall be limited to the sum

of 125,000 francs.* Where, in accordance with the law of

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

awarded in the form of periodical payments, the equivalent

capital value of the said payments shall not exceed 125,000

*Accepted in this country as $8,300.00.

POT ee Te ee SOL nT eee Pee Ne!

SRN Ea Ey SUN TIE I SS NG SSRIS Se ae

Sa dost Lt 1 eg RIALS ASR GUAR SE SS

Aaah Bi

ty

+

s

¥

-

$

%

¥

i

:

24a

U.S. Treaty

49 U..S. Stat. 3000

francs. Nevertheless, by special contract, the carrier and

the passenger may agree to a higher limit of liability. 49

Stat. 3019.

ARTICLE 25 |

(1) The carrier shall not be entitled to avail himself of

the provisions of this convention which exclude or limit his

liability, if the’damage is caused by his wilful misconduct

or by such default on his part as,.in accordance with the

law of the court to which the case is submitted, is considered

to be equivalent to wilful misconduct. .

(2) Similarly the carrier shall not be entitled to avail

himself of the said provisions, if the damage is caused

under the same circumstances by any agent of the carrier

acting within the scope of his employment. 49 Stat. 3020.

td

1p NR ENE IOI LIL LA LOT A TEE I BO AS

25a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT _

Ata Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United- States

Courthouse in the City of New York, on the ninth day of

June one thousand nine hundred and sixty-five.

Present: «

Hon. STerRY R. WATERMAN,

Hon. LEonarpD P. Moore,

Hon. Irvine R. KAUFMAN, | }

dy.

ro

[SAME TITLE]

a.

vv

Appeal from the United States District Court for the

Southern: District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was-argued by counsel.

ON CONSIDERAPION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is reversed and the action be and

it hereby is remanded with instructions to enter judgment

upon the jury’s verdict in favor of defendants-appellants

in accordance with the opinion of this court with costs to

defendants-appellants.

It is further ordered, adjudged and decreed that the

appeal of the plaintiffs-appellants from the order denying

pre-judgment interest be and it hereby is dismissed in

accordance with the opinion of this court.

A. DANIEL Fusaro

Clerk

0

APPENDIX D

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the

twentieth day of July, one thousand nine hundred and

sixty-five.

Present:

Hon. STERRY R. WATERMAN,

Hon. Leonarp P. Moore,

Hon. Irvinc R. KAUFMAN, |

Circuit Judges.

[SAME TITLE]

ay.

r

A petition for a rehearing having been filed herein by

counsel for the plaintiffs-appellants,

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. DANIEL FusarRo

4 Clerk

c ~*

i Be

é

27a

APPENDIX E

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the twen-

tieth day of July, one thousand nine hundred and sixty-five.

Present:

Hon. J. Epwarp Lumsarp, Chief Judge,

Hon. STERRY R. WATERMAN,

Hon. LeEonarp P. Moore,

Hon. J. JosEpH SMITH, *~

Hon. Irvine R. KAUFMAN,

Hon. PAu. R. Hays, _

Hon. THuRGoopD MARSHALL,

Hon. Rosert P. ANDERSON,

Circuit Judges.

T. Roland Berner and Arthur S. Lesser,

Executors of the Estate of William

Kapell, deceased, ; ,

Plaintiffs-A ppellants,

»

‘United Airlines, Inc., British Overseas

Airways Corp.,

Defendants,

British Commonwealth Pacific Airlines,

Ltd., British Commonwealth Pacific Air-

: lines, Ltd., now d/b/a Qantas Empire

‘ Aviation, Ltd., |

Defendants-A ppellants.

A petition for a rehearing in banc having been filed

herein by counsel for the plaintiffs-appellants,

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. DANTIgL Fusaro

Clerk

28a

APPENDIX F

Order Extending Time To File Petition For

Writ of Certiorari

te

SUPREME COURT OF THE UNITED STATES

a , October Term, 1965

T. RoLAND BERNER and ARTHUR S. LEsseEr, Executors

of the Estate of W1LL1AmM KAPELL, Deceased,

Petitioners,

vs.

BriTIsH COMMONWEALTH PaciFic AIRLINES, LTD., ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsIDERATION of the application of counsel for

petitioner (s),

It Is Orverep that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including November 17,

1965. |

7/s/ Joun M. HARLAN

Associate Justice of the Supreme

Court of the United States

Dated this 11th day of October, 1965.

APPENDIX G

Defendants’ Exhibit L

Fiicut Coupon No. 3

pruapenseomy on Sopeeys eabny ereeie’y 18 covensiren Ow

77 2717 yy OW

Paes ee 22

on VOOE 11 A.

Pe : set ; 6 pf

Fansov

aa we re

> a _ ee sen Ep y

% :

43NDL WIONAITSVE

s hom ad — ae

Bc at penne .

apySu Oma k

Vaso: “OM MOENOD LHOM :

NWD3MD IDVOOVE BS

1M NO