Petition for Writ of Certiorari — Tramontana v. Varig Airlines

Supreme Court brief1966

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TU Bi DEC 3 11966

, CLERK

IN THE JOHN F. DAVIS, CL

Supreme Court of the Wnited States

OCTOBER TERM, 1965

No. : 6 4 .

BEATRICE ANTONETTE TRAMONTANA,

Petitioner,

VARIG AIRLINES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

: UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

EUGENE GRESSMAN

1730 K Street, N. W.

Washington, D.C. 20006

HYMAN SMOLLAR

2000 K Street, N. W.

Washington, D.C. 20006

Counsel for Petitioner

‘INDEX

gt a ee Ce awaies Swecka

JURISDICTION........... aes See as ae

QUESTIONS PRESENTED ........ ey eran rne 2

CONSTITUTIONAL AND STATUTORY /

PUNY IIIEE TIPO. ncn ek cc ccwnscsdaceun 3

PEs i baie 0 680-545 os He eer tre et ny

REASONS FOR GRANTING THE WRIT..........-..--. 12

I os ke or oo a ek ee ee 27

APPENDIX (OPINION AND JUDGMENT a

GF COURT OF APPEALG... . «cis ses cc iues -App. 1, 23

CITATIONS —

CASES: |

Alaska Packers Assoc. v. Industrial Acci-

dent Comm., 294 U.S. 5382 ...... peewee es eee ‘oo eae, 26

American Stevedores v..Porello, 330 U.S. 446. ..5....6.0. 17

Armiger v. United States, 339 F.2d 625 (Ct.Cl.)......... 6°

. Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 ...... 9.

Botling v. Gharpe, S47 US. 407 i. ng se ccncases ee 41,83

Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673 ...... a

Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469. .... ee

Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142 ...... 19

Ciprari v. Servicos Aereos Cruzeiro,

(245 F Supp. 819 (S.D.N.Y.) ... 2. ccccccccccccces 13

Douglas v. New York, N.H.& H.R.R., 279 U.S. 377........ 23

First National Bank v. United Air Lines, 342 U.S. 396..... 19

Goranson v. Capital Airlines, Inc., 345 F.2d 750

(C.A.6), pending on certiorari, No. bias Oct.

Term 1965 ...... POP re rer - eo Seas 12°

Gore v. Northeast Airlines, Inc., 222 F.Supp. 50

ss Ss eres Le ge NL Rae he ag ee

Griffith v. United Airlines, Ine., 416 Pa. 1, 203 |

Pe Ok ee ee ee re er Ter. ce

=WE

PRR pretenses:

(ii) | ‘he

Herndon v. Georgia, 295 U.S. 441 ...... eee ae a “zs, 11

Home Ins. Co. v. Dick, 281 U.S. 397 .............. on

Bee Ws eee, See Ch OOO 6 cee Oe ee ee dae 19, 26

Kentucky Finance Corp. v. Paramount Auto Exch.

eg gt * Yen ee TEEPE ORT OOS

Kilberg v. Northeast Airlines, Inc., 9 N. y. 2d 34,

| WOE ob kn vcs io cc he anu oc dvs io, 1, 27

McGovern v. Philadelphia & R.R. Co., 235 U.S. 389 ...... 14

Michigan Central R. Co. v. Vreeland, 227 U.S. 59...... re ae

' Miller v-. United States, 357_U.S. a 13

Pearson v. Northeast Airlines, Inc., 309 F.2d 553

(C.A.2), cert. denied, 372 U.S. 912 .:....cccccccce 12

Richards v. United States, 369 U.S.1....... errr re

Skahill v. Capital Airlines, Inc., 234 F.Supp. 906

(S.D.N.Y.), aff'd per curiam by C:A.2, cert.

denied, 382 U.S. 878 .....:.. ‘eer rr ere eee

Toomer v. Witsell, 334 U.S: 385...........-. re ee 23

Van Dusen v. Barrack, 376,U.S. 612............2.2025 12

STATUTES:

be eR ee eee ee ere: See ee 7

a | er re Terre rere 11

Art. 67, $4 (Ann. Code of Md.) ...... Fi aie areck eat ea 25

Brazilian Code of the Air, Art. 102.......... cicvaace ae

‘MISCELLANEOUS: y

- Currie and Schreter, Unconstitutional Discrimina-

tion in the Conflict of Laws: Equai Protection,

28 U. Chi. L. Rev. 1 (1960) ........... Se IG ag 24

Kreiridler, Aviation Accident Law, Vol. 1 (1963)...... -16, 17

Restatement (Second), Conflict of Laws (Tent.

Draft No. 9, 1964).........-ee206. Ragen gree ae

Stern and Gressman, Supreme Court Practice (3rd

Perr er ee rrr, Creer ree ree eis cow OE

Wall Street Journal, December 28, 1965...... okt eee ee

REET EAT EE LE TIRANA RIDE ARENA I AOR Ti ws saa — - . oo

—- 7

Supreme Court of the Rnited States &

OCTOBER TERM, 1965

(

BEATRICE ANTONETTE TRAMONTANA,

Petitioner,

£}

. wv

VARIG AIRLINES,*

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO: THE

_ UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The petitioner, Beatrice Antonette Tramontana, prays :

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

the United States Court of Appeals for the District of Co- _ \

lumbia Circuit entered in this proceeding on June 10,

1965.

OPINION BELOW

The only opinion, rendered in this proceeding was that

of the Court of Appeals for the District of Columbia‘€ir-

? The proceeding inthe Court of Appeals was entitled Beatrice

Antonette Tramontana v. S.A. Empresa de Viacao Aerea Rio

Grandense, a Brazilian corporation, t/a Varig Airlines. The

respondent herein is designated by its American trade name.

cuit, dated June 10, 1965. It is reported at 350 F.2d 468,

and is attached as an appendix-hereto.

JURISDICTION

' On October 14, 1963, the United States District.Court

‘entered a judgment in petitioner's favor for $170, the then

current United States equivalent of 100,000 Brazilian cru-

zeiros. Judgment was simultaneously entered in respond-

ent's favor "for all of the plaintiff's claim which exceeds

the sum of One Hundred Seventy Dollars ($170.00) herein

above awarded to the plaintiff."

On June 10, 1965, the Court of Appeals affirmed that

_ part of the District Court judgment in respondent's favor,

And on October 4, 1965, upon a timely filed petition for

rehearing en banc, the Court of Appeals entered an order

denying the requested rehearing, Circuit Judge Wright

dissenting from the denial. This petition is filed within

90 days following that denial.

The jurisdiction of this Court is invoked under 28

U.S.C. $.1254(1). 7

QUESTIONS PRESENTED

“Where an American resident, as the widow and admin-

istratrix of one of 18 American servicemen stationed in

the District of Columbia and killed ina mid-air plane

collision in Brazil, brings a wrongful death action against —

a Brazilian airline company in a federal district court in

the District of Columbia,

(1) Is the federal court, as a matter of federai law,

bound to apply the District of Columbia policy of unlim-

ited damage recovery for wrongful death and to ignore

the Brazilian law limiting suct/ recovery to a maximym

of 170 American dollars? :

(2) Does any provisionof the Constitution of the United

States preclude a federal court in theéPistrict of Columb?

from framing and applying the District conflicts law s

3 e

as (a).to prevent.a Maryland resident from obtaining the

benefit of the District's unlimited recovery policy solely

because of non-residence in the District and (b) to limit

the Maryland resident to a maximum recovery of $170 as ©

provided by Brazilian law despite the:Maryland policy of

allowing unlimited recovery for — death ?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the: United States:

Article IV, Section 1: Full Faith and Credit shail be

given in each State to the public Acts, Records, and judi-

cial Proceedings of every other State.

Article IV, Section 2: “The Citizens of each State shall

be entitled to all Privileges and Immunities of Citizens in

the several States.

Amendment V: No person shall be... deprived of

life, liberty, or property, without due process of law.

Amendment XIV, Section 1: No stateshall. . .deprive

any person of life, liberty, or property, without due proc-

ess of law; nor deny to afiy pexson within its jurisdiction

the equal protection of the laws.

District of Columbia Code: 2:

Title 11, Section-521 (a): ... the United States Dis- .

trict Court for the District of Columbia. . . has original

jurisdiction of all: (1) civil actions between parties, where °

either or both of them are resident or found within the |

District .

Title 16, Section 1201: Whenever by an injury done or

_happening within the limits of the District of Columbia the

death of a person shall be caused by the wrongful act, ne-

glect, or default, of any person or corporation, . . .‘the

person who or corporation which would have been liable

4 ‘

_ if death had not ensued Shall be liable to an action for

_damages for such death, . . . and such damages shall be

assessed with referencetothe i injury resulting from such

— act, neglect, or default causing such death, to the spouse

- and n f kin of such deceased person, and shall also

\incinde the reasonable expenses of last illness and bur-

Annotated Code of Maryland (1957):

Article 67, Section 4: ... in every such [wrongful

death]’action the jury may give such damages as they may

think proportiened to the injury resulting from such death

, to the parties respectively for whom and for whose bene-

fit such action-shall -be rn re

Brazilian Code of the Air, published in Diario Oficial of

June 27, 1938 (as amended to 1947), Chapter VIII, Mid-

Air Collisions and Accidents:

Article 96 — The provisions relative to the Liability of ~

a carrier to third parties, shall embrace any aircraft

which operates over .Brazilian territory, whether public

_or private, domestic or foreign. |

Article 97 — Any damage caused by an siveratt in

flight while executing takeoff or landing procedures, to

individuals or to property on the ground Shall give rise

to a right of indemnification.

Article 100 — The following: shall be jointly liable for

“ damages referred to in the preceding articles:

‘a) The person in whose name the aircraft is regis-

‘tered.

b) The person who uses or operates the aircraft.

* c) Whoever on board the aircraft caused the dam-

S06 . a

Senses

Article 102 — The joint liability with respect to each

accident shall be limited:

a) in the case of physical injury or death to a max-

imum recovery of one hundred thousand cruzeiros (Cr.

$100,000.00) for each person;

b) in the case of damage or destruction of property to

a recovery equal to the fair value of the property.

Sole paragraph. The person liable shall not be entitled

to benefit by these limits, ifthe party in interest can prove

that the damage was the result of intentional wrongdoing.

’

STATEMENT

This case is one of three instituted in the United States

District Court for the District of Columbia growing out of

a mid-air collision of two airplanes over Rio de Janeiro, »

Brazil, on February 25, 1960, Eighteen plaintiffs are in-

volved in the three suits.2

In all three cases a motion for sum ary judgment was

madg by the respective defendants as to so much of the

plaintiffs' claims as exceeded the dollar equivalent of one

hundred thousand (100,000) cruzeiros in Brazilian curren-

cy for each of the deaths for which the several plaintiffs

sought damages. Orders granting summary judgment as

so prayed were erirred by the District Court in the three

proceedings. An appeal was then perfected in the instant

case, the other two being ordered "stetted pending final

' disposition of any appeal taken in the case of Beatrice.

Antonette Tramontana v. S.A. Empresa De Viacao Aerea

Rio Grandense, t/a Varig Airlines, Civil Action No. 637-

62 in this Court, counsel having stipulated that the final

ruling in said case will be controlling herein." Py

‘ The instant appeal involves only one of the three suits, Civil

Action ‘No. 637-62, brought by one plaintiff, the petitioner here-

in. The other two cases are: Givil Action No. 592-61, Armi-

ger, etal.v. Real S.A. Transportes Ae veos , brought by eleven

plaintiffs; Civil Action No. 600-61, Albrecht, et al. v. Real

S.A: Transportes Aeveos ,brought by six plaintiffs.

As indicated, the incident giving rise to this three-

pronged litigation was the collision of two planes over

Rio de Janeiro, Brazil. The two planes were a civilian

DC-3 aircraft, owned by Real S.A. Trdnsportes Aereos

(a Brazilian corporation t/a Real Airlines), and a United

States Navy R6D-1 aircraft. J.A.6. Included on board

the Navy aircraft were 18 members of the United States

Navy Band, on tour in South America. All 18 were killed

instantly.

The fact that the United States Navy Band is a military

establishment stationed in the District of Columbia is a

well-known fact of public record. As revealed in findings

of fact incorporated by the opinion of the Court of Claims

dealing with an unrelated facet of this same accident, Ar-

miger v. United States, 339 F.2d 625, 633,° the Navy Band

is permanently stationed in Washington, D.C., being head-

quartered at the Sail Loft of the Navy Yard. Findings 3

and 7. Each member, including the 18 decedents, is an

enlisted man in the Regular Navy and subject to military

orders; the administrative control of members is in the

hands of the Commanding Officer of the U.S. Navy Station

in Washington, D.C. Findings 5and7. The functions of

the Band include participation in official Government

events and concerts, both within and outside the District

of Columbia. Finding 4. And the South American tour,

on which the fatal accident occurred, was an official event

that both began and ended in Washington, D.C. Finding

24.

S The Aymiger case, twice referred to in the opinion below,

was a Congressional reference matter. The Court of Claims

there recommended, based on equitable considerations, that

the United States pay the estate of each of the 18 deceased

Navy Bandsmen the sum of $25,000. There was found to have

been an unwarranted failure by Band personnel to follow the

usual practice of distributing commercial flight insurance ap-

plication forms prior to the fatal flight, as a result of which

the decedents left no insurance. Congress has yet to act on

the recommendation. See H.R. 5912 and S. 1503, 89th Cong.,

ist Sess. "

BP NI ALE Be a OS HEE.

The instant suit was filed in the District Court on Feb-

ruary 23, 1962, by the petitioner, the widow of one of the

deceased Bandsmen. She sued in her individual capacity

and as the duly appointed and qualified administratrix of

her husband's estate. She was identified in the caption

of the amended complaint as residing "c/o Mr. Vincent

Cozzolino, 1613 Dayton Road, West Hyattsville, Maryland."

J.A.1. The various plaintiffs in the other two actions also

sued in their individual capacities and as administratrix

or executrix of the deceased Bandsmen; some also sued

as the mother and next friend of minor children of the de-

ceased. Of the other 17 plaintiffs, three were listed as

residents of the District of Columbia, eight as residents

of nearby Maryland communities, and the remainder scat-

tered among New York, California, North Carolina, Penn-

sylvania and Wisconsin.

The named defendants were Real S.A. Transportes

Aereos, t/a Real Airlines, andits successor assignee, S.A.

Empresa De Viacao Aerea Rio Grandense, t/a Varig Air-

lines. Both defendants were identified as Brazilian cor-

porations with offices in the District of Columbia. J.A. 1.

Service of process was later quashed as to Real Airlines,

leaving as the sole defendant — and the respondent here-

in — its successor assignee, Varig Airlines.

The suit was instituted under the provision of the Dis-

trict of Columbia Code‘ that invests jurisdiction in the

United States District Court over all civil actions between

parties where either or both of them are residentorfound .

within the District of Columbia. It was alleged that the

negligent acts of the defendant Real Airlines, in the op-

eration of its plane that collided with the Navy aircraft,

had caused the death of petitioner's husband in Brazil on

4 at the time the suit was instituted, the provision was knownas

11 D.C. Code § 306; it has since been recodified as 11 D.C.

Code §521(a). |

February 25, 1960.° Judgment was sought in the amount

of $250,000. ¢

The amended complaint further alleged that the negli-

gence with respect to the operation of the Real plane was

"in violation of various provisions of the Brazilian law."

J.A.:2. Articles 127, 128, 129, 130 and 132 of the Brazil-

ian Code of the Air, dealing with liability respecting inju-

ry or death suffered in mid-air collisions and accidents,

were then set forth in detail. J.A. 2-3.

On July 3, 1963, the respondent Varig Airlines filed an

answer to the amended complaint, denying the allegations

of jurisdiction and negligence. Thereafter Varig Airlines

filed a motion for summary judgment in its favor or, in

the alternative, "for summary judgment for the defendant

for so much of plaintiff's claim as exceeds the U.S. equiv-

alent of 100,000 cruzeiros, Brazilian currency." J.A. 5. °*

Attached to the motion were copies of Articles 96, 97, 98,

100 and 102 of the Brazilian Code of the Air, Article 102

of which provides for a limitation of an air carrier's lia-

bility "in the case of physical injury or death to a maxi-

mum recovery of one hundred thousand cruzeiros (cr.

$100,000.00) for each person."

On October 14, 1963, following a hearing, the District

Court entered an "Order Granting Summary Judgment" as

follows (J.A. 37-38):

(1) Judgment was entered in favor of the petitioner ‘

against the respondent Varig Airlines "in the amount of

One Hundred Seventy Dollars ($170.00) without costs to

either party and... execution therefore be had."' This.

part of the judgment was premised upon the consent of

5 The record reveals that the Navy plane, with petitioner's |

husband aboard, had started its flight in Buenos Aires, Argen-

tina. The Real plane was concluding a flight from Campos,

Brazil, which is northeast of Rio de Janeiro. Both planes

were being directed toward landings at the time of the colli-

sion. e

eo ORAM ES STD GL ah i hs RTOS

counsel ¥° Varig Airlines to a judgment in petitioner's

favor for’$170.00, "being the dollar value at current rates

of exchange of one hundred thousand (100,000) cruzeiros

of Brazilian currency."

(2) Judgment was also awarded in favor of the re-

spondent Varig Airlines and against petitioner, without

costs, "for all of the plaintiff's claim which exceeds the

sum of One Hundred Seventy Dollars ($170.00) herein-

above awarded to the plaintiff." This was the portion of

the judgment that was the hasis of petitioner's appeal to

the Court of Appeals.

The Court of Appeals affirmed the action of the Dis-

trict Court in awarding judgment to Varig Airlines for all

of petitioner's claim in excess of $170. In so doing, the

Court of Appeals for the first time established as the con-

flicts law of the District of Columbia the "newer and more

realistic judicial approach" to conflict of laws problems —

i.e., that the choice of law tobe appliedto each legal issue

presented is to be made in light of the jurisdiction which

has the strongest interest in the resolution of that issue,"

thereby applying "'the law of the place which has the most

significant contacts with the matter in dispute." See Kil-

berg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d

526; Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279;

Richards v. United States, 369 U.S. 1.

By application of this new "contacts" theory of conflicts

law, the Court of Appeals concluded that the District of

Columbia's "connection with the occurrence and with the

parties, and its interest in the resolution of the issue be-

fore us, are, if not wholly remote, certainly less than

Brazil's" and hence the Brazilian law limiting a wrongful

death recovery to $170 American dollars should be ap-

plied. The court emphasized the fact, in assessing the

relative interests of Brazil and the District, that neither

petitioner nor her decedent are or were residents of or

domiciled in the District of Columbia and that petitioner

and her children accordingly could never become public

charges on the District relief rolls. And the respondent —

Varig Airlines was said to be subject to suit in the Dis-

trict only because of its international operations, which |

gave rise to its operation of a ticket office in the District.

In short, said the court, "the only relationship of the Dis-

trict of Columbia to this claim is tnat it provides a forum

with jurisdiction over"! Varig Airlines.

Brazil, on the other hand, was not only the scene of the

accident but has a national policy protective of Brazilian

corporations like Varig Airlines. In the court's view,

which was not related to any fact of record, the success

of the Varig enterprise "is a matter not only of pride and

commercial well-being, but perhaps even of national se-

curity" from Brazil's standpoint. The court added that

the Brazilian Code of the Air, which contains the limita-

tion in question, was enacted in 1938 ''with a view toward

protecting what was then, and still is, an infant industry

of extraordinary public and national importance."" And

the court felt that the inflationary drop in the value of the

cruzeiro should not be deemedto render obsolete Brazil's

legitimate concern in limiting recoveries against her air-

lines.

As indicated, the prime element in the court's mind

that deprived the District of any substantial interest in

the issue of recoverable damages was the fact that neither

petitioner nor her deceased husband was resident or dom-

iciled in the. District. But, said the court, the fact that -

they were resident in Maryland made Maryland's "inter-

est in the matter of appellant's [petitioner's] recovery

¢ In 1938, when the Brazilian Code of the Air was enacted, the

value of 100,000 cruzeiros in American dollars was approxi-

mately $6000. In 1963, at the time of the judgment entered in

* this case by the District Court, the value had dropped to $170.

In 1964, at the time of the oral argument before the Court of

Appeals, the value had declined to about $62.50. At the pres- .

ent time (December, 1965) the value has descended still fur-

ther to about $46.30. See Wall Street Journal, Foreign Ex-

change Prices, December 28, 1965, p. 16, col, 4.

11 ,

. . not insignificant, for it is on the citizens of Maryland

that the burden of her support, if she is unable to support

herself, is likely to fall in the first instance." The court

thus felt it.necessary to strike a balance between the law

of Maryland and the law of Brazil.

In striking that balance, the court below gave the same

weight to Brazil's interests as it had done in comparing

them with the District's interests. But in assessing the

"not insignificant" interests of Maryland, stemming from

petitioner's residence, the court simply concluded that

"a Maryland court would not have ignored the Brazilian

limitation on recovery if this action had been brought

there originally." In other words, Maryland's interest

was translated into terms of the supposed Maryland con-

flicts rule rather than in terms of Maryland's substantive

law of damages for wrongful death (see Art. 67, § 4, Ann.

Code of*Md. (1957), which permits unlimited recovery).

Because the issue and the implications of the applica-

bility of the Maryland law had not been briefed or argued

by the parties, as the court conceded, petitioner felt im-

pelled to file a petition for rehearing en banc, particular-

ly in view of the serious constitutional problems ensuing

from the court's distinctions between residence in Mary-

land and residence in the District of Columbia. The pe-

tition for-rehearing was the first time petitioner had an

opportunity to present these problems to the court. below,

these problems having been created by the unexpected rul-

ing. It was a ruling that the litigants could not reasona-

bly have anticipated from prior decisions and thus they

had no prior chance to consider or analyze the matters

involved in the court's decision on this point. See Brink-

erhoff-Faris Trust Co. v. Hill, 281 U.S. 673, 677-678;

Herndon v. Georgia, 295 U.S. 441; Stern and Gressman,

Supreme Court Practice (3d ed. 1962), p. 99. —

The petition for rehearing en banc was summarily de-

nied by the court, Circuit Judge J. Skelly Wright noting

that he would have granted the petition. In that petition,

petitioner presented the following federal constitutional

questions: |

(1) Does the petitioner, as a Maryland resident, have

_ a right under the Privileges and Immunities Clause, Art.

IV, § 2, to bring suit in the District of Columbia.for a

foreign wrongful death and to obtain the same benefit of

the unlimited recovery policy as would be accorded a

- District plaintiff? |

(2) Does the petitioner have a right under the Equal

Protection Clause of the Fourteenth Amendment, as ap-

plied to the District of Columbia, to equality of treatment ©

in this case with a District plaintiff ? |

(3) Does the Full Faith and Credit Clause require rec-

ognition and application of Maryland's unlimited recovery

statute and is petitioner denied due process of law under

the Fifth Amendment by the failure of the Court of Ap-

peals to recognize and apply that statute?

REASONS FOR GRANTING’THE WRIT

As the court below noted, this case "presents an inter-

national variant of a recurring domestic conflict of laws

problem, namely, the applicability in the forum (the Dis-

trict of Columbia) of a monetary damagé limitation con-

tained in the wrongful death statute of the place of injury

(Brazil)."7 At the same time, this "international variant"

’ The recurring nature of the domestic aspects of this conflict

of laws problem, in the context of airplane accidents, is il-

lustrated by such cases as Kilberg v. Northeast Airlines, Inc.,

9 N.Y. 2d 34, 172 N.E. 2d 526; Pearson v. Northeast Airlines,

Inc., 309 F. 2d 553 (C.A.2), cert. denied, 372 U.S. 912; Grif-

fith v. United Airlines , Inc.,416 Pa. 1, 203 A.2d 796; Goran-

son v. Capital Airlines , Inc., 345 F. 2d 750 (C.A. 6), now pend-

ing on petition for certiorari, No. 757, Oct. Term, 1965; Ska-

hill v. Capital Airlines, Inc., 234 F. Supp. 906 (S.D.N.Y.) aff'd

per curiam by C.A. 2, cert. ‘denied, 382 U.S. 879; Gore v.

Northeast Airlines , Inc., 222 F. Supp. 50 (S.D.N. M4 See also

Van Dusen v. Barrack, '376 U.S. 612.

Pony ary next page)

has created problems of federal law and of constitutional

law that distinguish it from all previous cases of this gen-

eral nature. So important are those problems as to war-

rant the grant of certiorari. ;

1, The decision below raises important questions as

. to the applicablity of federal law in determining

the damages recoverable in a District of Columbia

court for the wrongful death in Brazil of an Ameri-

can serviceman stationed in the District of Colum-

bia.

The court below had unquestioned authority to adopt, as

the conflicts law of the District of Columbia, the choice-

of-law rule that takes "into account the interests of the

State having significant contact with the parties tothe lit-

igation." Richards v. United States, 369 U.S. 1, 12; and

see Alaska Packers Association v. Industrial Accident

Commission, 294 U.S. 532, 547-548. And it is this Court's

policy normally not to interfere with local rules of law

fashioned by the courts of the District of Columbia. Miller

v. United States, 357 U.S. 301, 306.

But the nature of the decision below transcends those

considerations. In making its otherwise allowable as-

sessment of the interests of Brazil and the District in the

amount of damages recoverable in this case, the court

below has completely ignored the national or federal in-

terest at stake. The unconscionable result is to limit the

recovery by survivors of an American seryiceman to a

mere pittance of $170, thereby imposing capitan Amer-

ican jurisdiction the burden of supporting thos@survivors

should they ever become public charges.

(Footnote 7, continued)

A similar "international variant" of the problem, involving

the applicability of the Brazilian limitation in a suit brought

in a federal court in New York, is pending before the Second

Circuit on appeal from Ciprari v. Servicos Aereos Cruzeiro,

245 F.Supp. 819 (S.D.N.Y.). _

That there is a national concern in the outcome of this

case, a concern that overrides the Brazilian interest in

limiting the liability of its airline corporations and that

justifies the invocation of an unlimited recovery rule as

a matter of federal law, would seem clear from the fol-

lowing considerations:

(1) In the international setting of this case, involving

the wrongful deaths of American’servicemen while on

duty in a foreign land, the United States has a clear in-

terest in securing adequate compensation for those fi-

nancially injured by the wrongful deaths. A major pur-

pose of any wrongful death cause of action — and there

is no reason for supposing that the Brazilian Code cause .

of action is any different in this respect — is to compen-

sate '"'certain dependent; members: of the family for the

deprivation, pecuniarily, resulting to them from his

wrongful-death." Michigan Central R. Co. v. Vreeland,

227 U.S. 59, 69. And it is the domicile of the decedent

and his next of kin, as the court below seemed to indi-

cate, that has the prime interest in securing such com-

pensation, for it is the place of domicile rather than

the place of injury that must bear the potential burden of

support should adequate compensation not be forthcom-

ing.

The place of domicile, in terms of American service-

men killed in 2 foreign country, may fairly be termed

that of the United States. Is it not in the national interest

to provide uniform treatment to the survivors of all such

servicemen? Why should any state or jurisdiction within

the United States be forced to support the survivors of

these servicemen? So far as their domicile or resi- -

dence in any of the American statés/ is concerned, "what

difference can it make where they may reside?" McGov-

ern v. Philadelphia & R.R. Co., 235 U.S. 389, 400. In the

words of the Court in the McGovern case, at 400, "It is

the fact of their relation to the life destroyed that is the

circumstance to be considered, whether we consider the

injury received by them or the influence of that relation

upon the life destroyed."

15 . ;

€ - |

(2) The stress placed by the court below on the.sup-

posed fact that petitioner is a resident of Maryland ® and

that the District of Columbia tkys has no concern what-

ever for her welfare misses the whole nature of the real

competing interests. The question is whether, in.an in-

ternational tort of this nature, the United States or Bra-.

zil has the greater concern with the amounts recoverable

by the American survivors of American servicemen. If

it be concluded that the place of reSidence or domicile —

to wit, the United States — has the greater intérest, the

particular state or jurisdiction within our shores where-

in the survivors currently reside becomes of little ifany ~

Significance, save perhaps in terms of the maximum dam-

age recovery. In this case, since neither the District nor

Maryland has any limit on the amount recoverable, the

residential factor becomes totally irrelevant.

Indeed, the District of Columbia may fairly be said to

.represent the national concern with the welfare of survi-

vors of those American servicemen killed abroad who

were stationed in the District. The District, as the home

of the. Federal Government, has a continuing and close

relationship to federal employees working in the District ~

and residing in surrounding Maryland and Virginia sub-

urbs — as was true in this case. SeeCardillo v. Liberty

Mutual Insurance Co., 330 U.S.. 469, 476. And that inter- _

est is not lessened by the fact that the survivors, subse-

quent to the wrongful death of such employees, may move

to other jurisdictions. Modern metropolitan mobility

does not lend itself to static domicile.

The fact that domicile is so frequently fluid in nature

' serves to emphasize the reality of the national concern

° The unreality of such. stress is emphasized he the fact,

though it is not of récord, that petitioner is now a resident

of New York. e Maryland address given in the caption of

the complaint was true as of the time the suit was filed in .

1962, but petitioner has since moved. ‘The current burden of

supporting her, should she become a public ee would be

on New York »not Maryland.

~ ‘ ete

hie ae

. with the substantiality of compensation for those harmed

by the wrongful death of servicemen serving abroad. In

these circumstances it ill-behooves the District to refuse

a, meaningful recovery to the survivors of a serviceman

stationed in the District on the theory that the relief rolls

of a suburban Maryland community rather than those of

thd, District should or will bear the ultimate burden.

(3) Underlying the national concern with the recover-

able damages in this international tort is the fact that the

application of the Brazilian rule of damages means anab-

surdly low maximum recovery. The Brazilian maximum

of 100,000 cruzeiros, as the judgment below indicates, re-

sults in an unjust limitation of $170 in American coin.

No American state pretends to impose such a de mini-

“mis limitation on wrongful death recoveries. Of the 50

states in the union, 37 have no limitation whatever — nor

has the District of Columbia. Of the other 13 states, none

has a limitation of less than $10,000.° Even under inter-

national air tort standards, the $170 limitation is irra-

tional. The Warsaw Convention, to which both the United

States and Brazil were signatories, makes the maximum.

amount recoverable for the death of an aircraft passen-

ger $8,292; and the United States has yet to ratify the:

more recent Hague Protocol, which doubles the Warsaw

limitation to $16,584. The State Department, reflecting

the American viewpoint that the maximum, if any, should

9 it is noted by Kreindler, Aviation Accident Law, Vol. 1,

$11.01 [4], p. 345 (1963) that:

"Thirteen states do have maximum limitations .

of damages for wrongful death, however, (Colorado —

$25,000; linois — $30,000;.Kansas — $25,000;

Maine — $20,000; Massachusetts — $20,000; Minne-

sota — $25,000; Missouri — $25,000; New Hamp-

’ shire — $10,000 ~$25,000; Oregon — $20,000; South

_ Dakota — $20,000; Virginia — $30,000; West Vir-

Sa ginia — $20,000; and Wisconsin — $20,000). The

» number has decreased in recent years, and the lim-

itations have increased. No states limit liability

for personal injury."

ray

be no less than $100,000, has sought denunciation of the

Warsaw Convention and disapproval of the Hague Proto- .

col. Andthe state law limitations that remain have. been la-

beled by the New York Court of Appeals as “unfair ,"'

"anachronistic," "absurd," and "unjust." Kilberg v.

Northeast Airlines, Inc., 9 N.Y.2d 39, 172 N.E.2d 527.2°

The utter absurdity of a $170 limitation on recovery

for a wrongful death, "the supreme personal injury,"

American Stevedores v. Porello, 330 U.S. 446, 460, is too

obvious to require elaboration. When the Brazilian Code

of the Air was enacted in 1938, the value of th 0,000

cruzeiro limitation approximated $6,000. Inflation and

the vagaries of foreign exchange rates reduced value

to $170 at the time of the judgment below — and to less

than $50 at present. ,

* To insist upon imposing the $170 limitation in the in-

terest of protecting the airline industry of Brazil, at the

expense of the American survivors of American service-

men, is consistent with no rational notion of international

comity. There is no evidence whatever that Brazil con-

templated or intended to limit the liability of its airlines

to $170 per human life, or that Brazil foresaw that such

a low limit would be applied in an international tort situ-

ation so as to make meaningless any possible recovery by

American beneficiaries. By any American standard, be

it state law, federal law or treaty, a $170 limitation can-

not be recognized as consistent with the public policies

attaching to wrongful death actions.

_ The need for the recognition of the federal interest in

10 "The imposition of a maximum limitation of damages repre-

sents a-departure from ordinary American tort principles.

The very essence of our tort law, based as it is upon fault,

lies in the concept of the tortfeasor bearing the responsibility

and the cost of damage ... in wrongful death cases, our law

and our courts attempt to measure the precise amount of pe-

cuniary loss sustained by the surviving beneficaries." Kreind-

ler, Aviation Accident Law, Vol. 1, § 11.01[4], pp. 344-345

(1963).

determining the relative merit of the conflicting interests

in this case seems plain. It is that national interest that

is at,stake here, an interest that must be recognized and

applied as a matter of federal law. The importance of the

problem is such as to warrant full review by this Court.

As air travel continues to grow apace, the problem will

recur again and again until a definitive resolution has

been supplied. —

2. The decision below raises important questions as

to the constitutional validity of a discriminatory

choice-oflaw rule which precludes any meaning-

ful recovery solely because of the plaintiff's res-

idence outside the forum.

The inevitable consequence of the failure of the court

below to recognize and apply federal law in assessing the

federal interests at stake in this international tort has

been the creation of unrealistic, discriminatory and un-

constitutional distinctions as between plaintiffs, premised

on their residence or non-residence within the District of

Columbia.

In disregard of the fact that in this setting the particu-

lar residence of the American survivors of an American

serviceman killed abroad should make no difference, the

basic thrust of the opinion below gravitates toward the

residence or domicile of this particular petitioner. Had

’ she been a resident of the District of Columbia, the opin-

ion clearly indicates that\the District's concern with her

welfare as a District resident would suffice to overcome

Brazil's interest in limiting recovery; she would there-

fore be entitled to the benefit of the District's unlimited

recovery policy. But since she was found to be a Mary-

land resident -— and solely by virtue of that finding — she

was held limited to the Brazilian maximum recovery of

$170. Whether that Brazilian limitation is applied to her

directly or under a "renvoi''theory, petitioner's residence

outside the District was held to be the decisive element

causing her to lose the benefits of an unlimited recovery

policy. Not even Maryland's conceded interest in her

right to a substantial damage recovery was thought to

save her from the fate of a $170 recovery limitation.

Important constitutional questions inescapably emerge

from such a discriminatory choice-of-law ruling:

1. Does the petitioner, as a Maryland resident, have

a right under the Privileges and Immunities Clause, Art.

IV, § 2, to bring suit in the District of Columbia for a for-

eign wrongful death and to obtain the same benefit of the

unlimited recovery policy as would be accorded a District

plaintiff ? . .

This Court has held that a state may not, consistently

with the Constitution, arbitrarily close the doors of its

courts to actions for wrongful deaths occurring in anoth-

er state. Hughes v. Fetter, 341 U.S. 609; First National

Bank v. United Air Lines, 342 U.S. 396. And, having

_ opened the doors of its courts to such actions, a state may

not then condition the access on discriminatory terms as

between residents and non-residents of the forum.

This latter principle, which is at stake here, was most

pertinently recognized nearly sixty years agoin Chambers

v. Baltimore & Ohio R. Co., 207 U.S. 142. In that case, a

Pennsylvania resident brought an action in an Ohio court

for the wrongful death of her husband in Pennsytvania.

An Ohio statute authorized such an action for a foreign

wrongful death only when the death was that of a citizen

of Ohio. The Court, viewing the statute as making no dis-

crimination based on the residence of the plaintiff to the —

suit (as distinguished from the residence of the deceased),

affirmed the dismissal of the suit. Mr. Justice Harlan

and two others dissented.

The majority in Chambers, however, recognized cer-

tain fundamental propositions under the Privileges and

Immunities Clause (207 U.S. at 148-149):

eee subject to the restrictions of the Federal

Constitution, the state may determine the limits of

the jurisdiction of its courts, and the character of

the controversies which shall be heard in them.

The state policy decides whether and to what extent

the state will entertain in its courts transitory ac-

tions,. where the causes of action have arisen in

other jurisdictions. Different states may have dif-

ferent policies, and the same state may have diff-

erent policies, at different times. But any policy

the state may choose to adopt must operate in the

same way on its own citizens and those of other

states. The privileges which it affords to one class

it must afford to the other. Any law by which priv-

ileges to begin actions in the courts are given toits

own citizens and withheld from the citizens of other

states is void, because in conflict with the supreme

law of the land."

Mr. Justice Harlan's dissent, while viewing the impact

of the Ohio statute differently than the majority, expressed

much the same constitutional views (207 U.S. at 154-155):

"It thus appear’ that the final judgment in this

case for the railroad company rests upon the dis-

tinct ground that the courts of Ohio cannot, under

the statute of that state, take cognizance of an ac-

tion for damages on account of death occurring in

another state and caused by wrongful act, neglect,

or default, except where the person wrongfully killed

was a citizen of Ohio. In that view, if two persons,

one a citizen of Ohio and the other a citizen of Penn-

sylvania, traveling together on a railroad in Penn-

sylvania, should both be killed at the same moment

and under precisely the same circumstances, in

consequence of the negligence or default of the rail-

road company, the courts of Ohio are closed by its

statute against any suit for damages brought by the

widow or the estate of the citizen of Pennsylvania

against the railroad company, but will be open to

suit by the widow or the estate of the deceased cit-

izen of Ohio, although by the laws of the state where

the death occurred the widow or estate of each de-

cedent would have, in the latter state, a validcause

of action.

_'Is a state enactment having such effect repug-

nant to the clause of the Federal Constitution, art.

4, §2, which declares that ‘the citizens of each

state shall be entitled to all privile and immu-

nities of citizens in the several states?' Will not

that constitutional guaranty be shorn of much of its

value if any state can reserve, either for its own

citizens, or for the estates of its citizens, privi-

leges and immunities which, even where the facts

are the same, it denies to citizens or to the es-

tates of citizens of other states?"

The applicability of the foregoing principles to this case

seems plain. The District of Columbia, having opened the

door of its courts to suits for wrongful death occurring

in Brazil and other foreign jurisdictions, has in this in-

stance closed the door to all meaningful relief to a non-

resident plaintiff solely because she is a non-resident.

The privilege of securing an unlimited amount of recov-

ery has b&en accorded only to those plaintiffs who reside

in the District and for whom the District has a paternal

concern. But because the District has no such concern

for a non-resident, that plaintiff is barred from any

meaningful recovery. The recovery allowable such a

‘plaintiff — $170 — is too miniscule to qualify as a mean-

ingful recovery; for all practical purposes, the door of

the District of Columbia court has been shut on this pe-

titioner.

That door to effective relief having been shut solely

because petitioner is a non- District resident, the princi-

ples of the Privileges and Immunities Clause come into

operation.’! To be sure, the District is free to adopt a

choice of law doctrine which weighs the residence of the

plaintiff‘as one of the factors in assessing the contacts

of the forum with the matter in issue. And in given sit-

uations, the residential factor may be decisive in resolv-

ing the prevailing-contact. But in this case the court has

11 While that clause technically may not be applicable to the

District, the principles therein established must be consid-

ered binding upon a District of Columbia court flealing with

non-resident plaintiffs. Cf. Bolling v. Sharpe , J47 U.S. 497,

500 (In view of our decision that the Constitution prohibits

the states from maintaining racially segregated public

schools, it would be unthinkable that the same Constitution

would impose a lesser duty on the Federal Government.").

made residence not only the decisive factor vis-a-vis the

interest of Brazil in limiting the liability of its airlines

‘but also the sole and decisive factor as between the plain-

tiffs entitled to take advantage of an unlimited recovery

policy and thus avoid the Brazilian limitation. And it has

done so in circumstances where the home state of the

non-forum plaintiff (Maryland) has an unlimited liability

policy identical to that of the forum (the District) and

where by use of the "renvoi" doctrine the home state's

policy is made inapplicable. The sum total of these rul-

ings is to preclude any kind of effective relief to this pe-

titioner solely because she is a non-District resident,

while allowing a District resident to secure a recovery

unbounded by the Brazilian limitation. |

Petitioner does not take the position that she has an

unqualified constitutional right to the benefits of the Dis-

trict's wrongful death rec y policy. What she does

claim is a right under the Privileges and Immunities

Clause not to be denied effective access to the District of

Columbia courts and to effective relief therein — where

the sole and decisive reason therefor is her non-District

residence. The unconstitutional discrimination with re-

spect to the effective access of the District of Columbia

courts is, in petitioner's view, between two types of

plaintiffs:

(1) The District resident, whose residency in the Dis-

trict would \give the District sufficient contact with the

recovery issue to permit recognition of the District's un-

limited recovery policy; and —

(2) The non- District plaintiff who resides in a state

where such residency would constitute a sufficient con-

tact with the recovery issue to permit recognition of that

state's unlimited recovery policy, a policy identical with

that of the District.

In these circumstances, to permit unlimited recovery

only to the District plaintiff and to confine the non-Dis-

trict plaintiff to a de minimis recovery is to effectuate a

gross and unwarranted discrimination. The Privileges

and Immunities Clause of course permits disparity of

treatment as between residents and non-residents "where

there are perfectly valid independent reasons for it."

Toomer v. Witsell, 334 U.S. 385, 396; and see Douglas v.

New York, N.H. & H.R.R., 279 U.S. 377, 387. But no such

"valid independent reasons" are here apparent. No con-

cept of choice of law or notion of renvoi can justify the

disparity effectuated here between a District plaintiff and

this Maryland plaintiff.

2. Does the petitioner have a right under the Equal

Protection Clause of the Fourteenth Amendment, as ap-

plied to the District of Columbia, to equality of treatment

in this case with a District plaintiff?

The Equal Protection Clause of the Fourteenth Amend-

ment provides that, no state shall "deny to any person

' within its jurisdiction the equal protection of the laws,"

a principle which applies with equal force to the District

of Columbia. See Bolling v. Sharpe, 347 U.S. 497. And

a foreign suitor in the courts of a state for purposes of

litigation is clearly a "person within its jurisdiction" so

as to be entitled to the equal protection of the laws. Ken-

tucky Finance Corp. v. Paramount Auto Exch. Corp., 262

U.S. 544, 550. Thus the petitioner, as a foreign suitor

permitted to sue in the District of: Columbia courts ona

-foreign wrongful death action, was entitled to the equal

protection of the District's laws in the course of anedl

essing that action.

For the same reasons set forth with respect to the

Privileges and Immunities Clause claim, the discrimi-

nation here created as to the petitioner because of her

non- District residence would appear to violate the prin-

ciples of the Equal Protection Clause. The nub of this

Clause is an insistence upon reasonableness in any dis-

crimination or classification established by a state. But

something more than a classification in terms of resi-

dence is needed to satisfy that requirement. It is not

enough that such a classification coincides with a state's

interest is applying its own laws to its own residents or

opening its doors to effective relief for its own residents,

thereby reflecting a lack of concern with the welfare of

an out-of-state suitor. See Currie and Schreter, Uncon-

stitutional Discrimination in the Conflict of Laws: Equal

Protection, 28 U. Chi. L. Rev. 1 (1960).

In short, the residence per se of a party plaintiff can-

not be recognized as a reasonable basis for classifying

who shall receive the benefits. of any legal policies of a

state — at least where the right to bring suit is unrelated

to one's residence. Yet, as has been indicated, petitioner —

has been denied the benefits of an unlimited recovery pol-

icy solely because of her non-District residence. That

this discrimination was effected through the process of

a choice-of-law doctrine does not make the discrimina-

tion any less real or the constitutional problem any less

substantial. ; .

This constitutional problem obviously deserves the full

attention and consideration of this Court.

3. Does the Full Faith and Credit Clause require rec-

ognition and application of Maryland's unlimited recovery

statute and is the petitioner denied due process of law un-

der the Fifth Amendment by the court's failure to recog-

nize and apply that statute ?

The court below has held that the District of Columbia

has no legitimate interest or contact with the accident or

with the issue of recoverable damages. It apparently

views the matter solely as one to which Brazil and Mary-

land have competing claims, the Maryland one being of a

"not insubstantial" nature due to the residence therein of

the petitioner and her late husband. The court seemingly

indicates that this Maryland interest or contact is suffi-

cient enough to ioe selarianak pahag 9g interest; other-

wise the court's extensive Séarch into. the Maryland law

would be meaningless.

2 _—

Aa heb lemon aemAtn bine a sidan nah Bt 3

(aiabsee rast Sina ann Nee 0

Maryland, of course, has a provision in its wrongful

death statute permitting recovery without limitation. Art.

67, § 4 (Ann. Code of Md., 1957). That provision would -

be the pertinent one to reflect Maryland's conceded inter-

est in the matter here involved. Yet through the use of

the renvoi doctrine, by which the Maryland conflicts rule

rather than the Maryland law of da es, was applied,

that provision is ignored and its ope made unavaila-

ble to the petitioner. !2 :

Thus the District of Columbia, lbs is said to have

no interest” in the matter, has applied its choice of law

doctrine so as to exclude the one provision of Maryland

law that mirrors Maryland's prevailing contact. And when |

the disinterested forum applies its conflicts law in such ‘<

a, way as to defeat substantial rights available under a

pertinent law of another state, there is a denial of due

. process in the constitutional sense. Home Ins. Co. v. ©

Dick, 281 U.S. 397. As the Court said in the Dick case,

p. 410, the forum state "may not abrogate the rights of

parties beyond its borders having no relation to anything

done or to be done within them." 3

The substantiality of the due process rights of the pe-

titioner that have been abrogated is not to be denied. The

failure to permit petitioner to secure the benefits of § 4

of the Maryland wrongful death statute means that she is

denied all opportunity for meaningful relief against Varig ©

Airlines, being confined to a maximum recovery of $170.

- Under the normal "contacts" theory of choice-of-law, the

substantive law of the jurisdiction having the closest contact

with the matter in question is selected and applied by the

forum court. See Restatement (Second), Conflict of Laws

(Tent. Draft No. 9, 1964), §379 and comments thereon. But

the court below chose not the Maryland substantive rule of :

damages but the Maryland conflicts rule, holding that had the

suit been brought in Maryland the Brazilian limitation would

have been applied. This is a classic example of the "renvoi"'

doctrine in operation, a doctrine that is foreign to the "con-

tacts" choice-of-law principle.

26 eee

Thus petitioner and others in her position are left reme-

diless and put in danger of becoming public charges of

Maryland — "both matters of grave concern to the state."

Alaska Packers Assoc. v. Industrial Accident Comm., 294

U.S. 532, 542.

By the same token, the District's refusal to apply the

Maryland provision of law relating to damage recoveries

for wrongful death would seem, in these circumstances,

to violate the basic purpose of the Full Faith and Credit

Clause. By the court's ruling, the District has no inter-

est, no statute or no policy at stake here. Its sole con-

cern is to assess the contacts as between Brazil and

_ Maryland and to give full faith and credit to the relevant

statute reflecting the prevailing contact or interest., And

if Maryland's interest prevails, the relevant Maryland

statute would become controlling by force of the Full

Faith and Credit Clause. Hughes v. Fetter, 341 U.S. 609.

Thus is put in bold relief not only the incongruity and

inequity of the use of the renvoi doctrine in this case but

also the constitutional invalidity of such a resort to the

doctrine. If the renvoi doctrine results in the denial to

the litigant of the right to a substantial recovery which

the substantive law of the state of his residence would

give him, then the renvoi doctrine must be constitution-

ally suspect under the Due Process Clause. And if the

renvoi concept is used to deny recognition of an other-

wise pertinent substantive law of the state of plaintiff's

residence, it must also be suspect under the Full Faith

and Credit Clause. These are matters that plainly de-

serve the full consideration of this Court.

—~—

CONCLUSION

. D 7

For the foregoing reasons, this petition for a writ of —

certiorari should.be granted. ;

Respectfully submitted,

EUGENE GRESSMAN °

1730 K Street, N. W. |

Washington, D.C. 20006 —

HYMAN SMOLLAR

2000 K Street, N. W.

Washington, ‘D.C. 20006

Counsel for Petitioner

App. 1

Rnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 18,277

Beatrice ANTONETTE TRAMONTANA, APPELLANT

ss)

n°

S. A. Empresa De Viacao Arerea Rio GRANDENSE,

a Brazilian Corporation,

t/a Varic AIRLINES, APPELLEE

Appeal from the United States District Court

for the District of Columbia

Decided June 10, 1965

Mr. Eugene Gressman, with whom Messrs. Hyman Smol-

lar, Ronald Rosenberg and George K aufmann were on the

brief, for appellant.

~ Mr. John L. Laskey, with whom Mr. Harry A. Bowen

was on the brief, for appellee. —

Before Fany, Dananer and MoGowan, Circuit Judges.

McGowan, Circuit Judge: This appeal presents an inter-

national variant of a recurring domestic conflict of laws

problem, namely, the applicability in the forum (the Dis-

trict of Columbia) of a monetary damage limitation con-

App. 2_

tained in the wrongful death statute of the place of injury

(Brazil). We have, thus, no concern with the Full Faith

and Credit Clause of the Constitution, nor is it claimed’

that any international engagement of the United States

compels recognition of the foreign law. On the record

before us, however, we do not find that the District Court

erred in according such recognition; and we affirm its

judgment. \

Vincent Tramontana was killed on February 26, 1960,

when the United States Navy airplane in which he was

traveling on naval orders collided over Rio de Janeiro,

Brazil, with an airplane owned and operated by. a Brazil-

ian airline. At the time of his death, Tramontana was a

member of the United States Navy Band, which was on an

official tour of Latin America. The record does not show

his permanent duty station, but he resided with his wife,

appellant here, in Hyattsville, Maryland. The Navy plane

in which he was travelling when he was killed was en route

from Buenos Aires in Argentina to Galeao, Brazil. Ap-

pellee Varig Airlines is a Brazilian corporation having its

principal place of business in Brazil but carrying on its

transportation activities in many parts of the world, includ-*

ing the United States. The Brazilian plane was on a regu-

larly scheduled commercial flight from Campos, Brazil, to

Rio de Janeiro when thé accident occurred.

Almost two years after. her husband’s death, appellant

*The Brazilian plane was, at the time of the accident,

owned and operated by Real S. E. Transportes Aeros, a Bra-

zilian corporation, appellee’s assignor. Appellee, however,

does not contest its status as Real’s successor in interest or

otherwise disclaim liability on this ground. For conveni-

ence, appellee is sometimes referred to hereinafter as the

owner and operator of the plane at the time of the collision.

App. 3

instituted this action in the District Court against Varig

and its predecessor, alleging that negligence in the opera-

tion of the Brazilian plane had caused her husbaxid’s death.

She explicitly based her claim for recovery on certain

provisions of the Brazilian Code of the Air which provide

a cause of action for injury or death resulting from negli-

gent operation of aircraft in Brazil. She claimed damages

of $250,000. Service was made on Varig Airlines, which

concededly is subject to suit in the District of Columbia.”

Varig filed an answer to appellant’s amended complaint

and the same day moved for summary judgment dismiss-

ing the eomplaint or, in the alternative, for summary judg-

ment in respect of so much of appellant’s claim as exceeded

the U. S. dollar equivalent of 100,000 Brazilian cruzeirés.

Varig relied on Article 102 of the Brazilian Code, which

limits liability for injury or death in aviation accidents to

that amount. The District Court, with Varig’s consent,

entered judgment in favor of appellant in the amount of

$170.00, the current dollar value of 100,000 cruzeiros. It

‘awarded judgment in favor of Varig ‘‘for all of the plain-

tiff’s claim which exceeds the sum of One Hundred Seventy

Dollars ($170.00).’’ From this latter judgment Mrs. Tra-

montana appealed.*

2 Appellant based jurisdiction on 11 D.C. Code § 306, now,

in amended version, 11 D.C. Code § 521(a), which conferred

on the United States District Court for the District of Co-

lumbia jurisdiction of “all cases in law and equity between

parties, both or either of which shall be resident or be found

within said district.” Service of process upon Real was

quashed on the ground that that company was not doing

business within the District of Columbia. See 13 D.C. Code

§ 334 (a), formerly 13 D.C. Code § 103.

8’ Seventeen other members of the Navy Band perished in

the collision. They are represented in two other actions in

the District Court, one involving eleven plaintiffs, the other,

six. Appellee had summary judgment on the same terms in

App. 4

The only question now before us is whether Brazil’s lim-

itation on the damages recoverable for death sustained in

airplane accidents occurring there is to be applied in this

suit in the District of Columbia. Appellant appears to

concede that her cause of action, if any, was created by,

and arises under, a provision of Brazilian law enacted

coincidentally and in conjunction with the damage limita-

tion. She argues, however, that the forum law regarding

damages for wrongful death occurring in the District of

Columbia, ie., unlimited recovery, should govern that aspect

both suits. Only appellant has appealed. The other two cases

have been ordered “stetted pending final disposition of any

appeal taken in the: case of Beatrice Antonette Tramontana

v. S. A. Empresa De Viacao Aerea Rio Grandenge, t/a Varig

Airlines, Civil Action No. 637-62 in this Court, counsel hav-

ing stipulated that the final ruling in said case will be con-

trolling herein.” Of the seventeen other plaintiffs in these

two suits, two, and perhaps three, were listed as residents of

the District of Columbia, eight as residents of Maryland, and

the remainder as residents of other states. We, of course,

decide only the case before us, which involves a non-resident —

appellant suing in respect of the death of a non-resident

decedent. A tactical decision by counsel to stipulate that

the result of this appeal shall apply in cases not on appeal

does not enlarge the record before us.

1 was heard, the Court of Claims of the

award of $25,000 to the families of each of these

eighteen decedents. Armiger.v. United States, 339 F.2d 625 ©

(Ct.Cl. 1964). This recommendation was founded on purely

equitable grounds, and rested upon the circumstance that,

prior 46°tke fatal flight, there had been a failure to follow

the usual practice of distributing application forms for pri-

_ vate flight insurance. The possibility of suit against the

United States under the Federal Tort Claims Act is pre-

cluded by that statute’s express exclusion of claims “aris-

ing in a foreign country.” 28 U.S.C. § 2680(k).

App. 5

of her claim. Initially, she accepts the applicability of the

traditional conflict of laws rule in personal injury cases

that the lex locus delicti, the law of the place where the

injury occurred, generally governs iii a suit brought else-

where, but she asserts that a court sitting jn the District

of Columbia should adopt the familiar exception to the

effect that the forum will refuse to apply the otherwise

applicable foreign law if it is contrary to some strong

public policy of the forum. Appellant asserts the existence

of a strong policy of the District of Columbia in favor of

unlimited recovery for wrongful death, which she claims is

evidenced by Congress’ repeal in 1948 of the $10,000 maxi-

mum until theh contained in the local wrongful death

statute.* She points also the fact that only thirteen states

still limit recovery for wrongful death, and that none im-

poses a ceiling as low as that contained in the Brazilian

‘16 D.C. Code § 2701 was amended in 1948, 62 Stat. 487,

eliminating the $10,000 ceiling on damages recoverable for

wrongful death. As amended, it provides in relevant part:

When, by an injury done or happening within the

limits of the District, the death of a person is caused

by the wrongful act, neglect, or default of a person or

corporation, and the act, neglect, or default is such as

will, if death does not ensue, entitle the person injured,

or if the person injured is a married woman, entitle her

husband, either separately or by joining with his wife,

to maintain an action and recover damages, the person

who or corporation that is liable if death does not ensue

is liable to an action for damages for the death, notwith-

standing the death of the person injured, even though

the aan is caused under circumstances that constitute

a felony.

The damages shall be assessed with reference to the

injury resulting from the act, neglect, or default caus- .

ing the death, to the spouse and the next of kin of the

deceased person; and shall include the reasonable ex-

penses of last illness and burial. . . .

App. 6

Air Code. She cites the Warsaw Convention; which gov-

erns generally accidents involving international air car-

riers and which now permits recovery up to $8,292, as con-

stituting in essence an international standard of fairness in

such matters.* And, finally, she relies on the New York

Court of Appeals decision in Kilberg v. Northeast Airlines,

Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961),

as a persuasive precedent for the position she urges us to

adopt. Another contention, which we treat separately here-

inafter, is that the Brazilian limitation should be dis-

regarded because of the striking decline which has taken

place in the value of the cruzeiro in terms of the dollar.

Appellant’s essential effort throughout is to urge us to

follow the ‘‘newer and more realistic judicial approach’’ -

to conflict of laws problems exemplified by Kilberg and

Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240

N.Y.S.2d 743 (1963), and more recent decisions of the

Supreme Court, and to reject the assertedly outmoded and

discredited teaching of Slater v. Mexican Nat’l R.R., 194

U.S. 120 (1904), and kindred decisions. Under the test we

are asked to employ, ‘‘the choice of law to be applied to

each legal issue presented is to be made in light of the

jurisdiction which has the strongest interest in the resolu-

tion of that issue.’’ Appellant’s Brief, p. 10. ‘‘Emphasis

is [to be] placed . . . upon the law of the place which has

the most significant contacts with the matter in dispute.’’

Id. at 26. A cornerstone of this newer thinking, appellant

contends, is the forum’s reluctance to subordinate its poli-

cies to those of another state when its own interest in the

case is real and substantial.

The Supreme Conrt, in its decisions in Richards v.

* Both Brazil and the United States are signatories to the

Convention, but its coverage is limited in‘terms to claims

by or on behalf of passengers of the eafrier against which

recovery is sought.

App. 7

United States, 369 U.S. 1 (1962), and many earlier cases,°

has recognized the inadequacies of the theoretical under-

pinnings of Slater and its progeny. The latter cases have

a highly attenuated precedential weight, both in authority

and reason.’ Thus we are free to explore the question

presented by this appeal in the light of the newer concepts

of conflict of laws. Our coriclusion that the District Court

properly applied the Brazilian limitation rests upon an

‘examination of the respective relationships of Brazil and

the District of Columbia with the accident, and with the

parties here involved; and a consideration of their respec-

tive interests in the resolution of this issue.

The interest underlying the application“of Brazilian law

seems to us to outweigh any interest of the District of

Columbia. Not only is Brazil the scene of the fatal colli-

sion, but Varig is a Brazilian corporation which, as a

national airline, is an object of concern in terms of national

policy. To Brazil, the success of this enterprise is a

matter not only of pride and commercial well-being, but

perhaps even of national security. The limitation on recov-

ery t airlines operating in Brazil was enacted in the

¢ ie. Wen v. Employers Liability Assur. Corp., 348

U.S. 66, 72 (1954); Vanston Bondholders Protective Comm.

v. Green, 329 U.S. 156, 160-62 (1946) ; Alaska Packers Ass’n

v. Industrial Acc. Comm’n, 294 U.S. 532 (1935). See gen-

erally Currie, The Constitution and the Choice of Law: Gov-

ernmental Interests and the Judicial Function, 26 U.CHI.L.

REV. 9, 75-84 (1958).

"See, e.g., Babcock v. Jackson, 12 N.Y. 2d 473, 191 N.E.

2d 279, 240 N.Y.S. 2d 743 (1968); Cavers, A Critique of

the Choice-of-Law Problem, 47 Harv. L. ‘REV. 173, 178

(1933) ; Cheatham, American Theories of Conflict of Laws:

Their Role and Utility, 58 Harv. L. REV. 361, 379-85 (1945) ;

Yntema, The Hornbook Method and the Conflict of Laws, 37

YALE L. J. 468, 474 et seq. (1928). ;

App. 8

early days of commercial aviation,’ no doubt with a view

toward protecting what was then, and still is, an infant

The Brazilian limitation in terms applies only to airplane

accidents, unlike the Massachusetts provision rejected in

Kilberg, which was an across-the-board ceiling on recovery

for wrongful death in that state. The focus of Brazilian

concern could hardly be clearer.

We have seen nothing that would suggest that Brazil’s

.concern for the financial integrity of her local airlines

should be deemed to be less genuine now than when Article

102 was enacted, simply because of the depreciation of the

cruzeiro. The failure to amend that provision may reflect

a conscious desire to avoid enlarging the potential liability

of local airlines during a period of general economic diffi-

culty. It may represent an unwillingness to contribute to

the inflationary spiral by adjusting ‘‘prices” fixed by

statute, which the government can control. Or it may be

attributable in part to both motives. In any event, we are

not persuaded that the fact of inflation itself—with the

result that 100,000 cruzeiros are worth now considerably

less than when the limitation was enacted—should be

deemed, to render obsolete Brazil’s legitimate interest in

limiting recoveries against her airlines.

Appellant relies primarily on the New York Court of

Appeals decision in Kilberg v. Northeast Airlines, Inc.,

supra, as a precedent for the course she asks us to follow.

A close analysis of that court’s reasoning reveals that the

relationships and interests, which it thought compelled the

result reached, do not parallel those here. The decedent in

®* The Brazilian Code of the Air, including Article 102, was

enacted in 1938. Air transportation has become increasingly

important in Brazil, both because of the size of the country,

and because of the relative inadequacy of surface transporta-

tion.

App. 9

Kilberg was both a resident and a domiciliary of New

York. He was a paying passenger on the defendant air- .

line, which relationship had originated in New York. As

the Court of Appeals pointed out, onée on béard the plane

the place of the injury was merely ‘‘fortuitous.’? New

York’s long-standing policy in favor of unlimited recovery

in actions for wrongful death coalesced in this case with

its real and immediate interest in providing full compen-

sation for the death of one of its own citizens. And its

interest would have been the same whether the defendant’s

aircraft had crashed in New York, in Long Island Sound,

_ Or, as it did, in Massachusetts.

In the case before us neither appellant, her children,

nor her husband were or are resident or domiciled in the *

District of Columbia. Vincent Tramontana was not a

passenger on appellee’s plane, and his ‘‘relationship” with

appellee commenced and ended in Brazil in one shattering

moment. The place of injury, under these circumstances,

was clearly not fortuitous, although the accident was some-

thing of a freak. Vincent Tramontana could not have been

killed by Varig’s Campos-to-Rio flight except in Brazil.

To suggest that he might have been killed here in the

District, or in Maryland, by one of Varig’s international

flights is to ignore the facts of this case.” It is one thing

*The possible locations of Varif’s wrongdoing, if such it

was, are irrelevant to the determination of which law should

measure appellant’s recovery except insofar as they have some

other connection with the parties or the accident, or some

independent interest in the resolution of this isue. If the

mere possibility, however remote, that Vincent Tramontana

might have been killed through some negligence of pellee

in the District of Columbia were thought to give the District

some interest in the application of its law, whatever pre-

dictability remains in the conflict of laws of torts would

disappear. Concededly, predictability is a depreciated coin

in tort law, see Babcock v. Jackson, 12 N.Y; 2d 478, 478, 191

N.E. 2d 279, 281, 240 N.Y.S. 2d 743, 746-47 (1963), but it

App. 10

to say that airlines should not be the beneficiaries, nor

their passengers the victims, of the vagaries of weather

and faulty equipment that cause an aircraft to crash in one

jurisdiction rather than another. It is quite another to

say that an American traveler, who is injured in Brazil

through the negligence of the operator of a local airline

on which he was not a passenger and with which he had

no previous connection, is entitled to the benefit of the law

of a forum which is not his home, because its successor

happens to do business there.”

The District of Columbia’s connection with the occur-

rence and with the parties, and its interest in the resolu-

tion of the issue’ before us, are, if not wholly remote, cer-

still retains some value. Varig’s ability to predict and ob-

tain the cost of insurance, for example, may depend to some

extent on ‘its ability to estimate its potential liability. Com-

pare EHRENZWEIG, CONFLICT OF LAWS, § 213, at 555 (1962).

10 The presentation to us of this appeal by both parties was

depressingly devoted almost entirely to a discussion of the

merits of Kilberg. Actually, the resemblance of this case to

Kilberg begins and ends with the circumstance that death

in each case occurred while in flight. Decision of this case

involves a great deal more than measuring one’s respect for

the memory of Professor Beale by means of one’s attitude

towards Kilberg. The case before us is much the same as if a

resident of the State of Maryland, while on_a summer vaca-

tion trip to Europe and while crossing the street in Amster-

dam, were run over and killed,by a beer truck making a local

delivery. If Holland had a wrongful death act with a limita-

tion on damages, and if the brewing company had a sales

office in the District of Columbia, then a suit in the District

by the Maryland widow would present us with a problem

virtually identical with that we now have. The increasing

international mobility of both ordinary citizens and business

enterprises suggests that the issue is an important one al-

ready and is likely to become more so. There are obvious im-

plications to be considered in respect of the degree of comity

which should obtain between sovereign nations unrestrained

by a full faith and credit clause in a world constitution.

App. 11

S :

tainly less than Brazil’s, Neither appellant nor her

decedent are or were residents of the District of Colum-

bia. Varig Airlines is subject to suit here only because of

the international operations in which it is engaged. What-

ever negligence it may have been guilty of assuredly did

not occur here, nor, manifestly, did the decedent ’s death.

If appellant and her children should ever become public

charges, the burden will rest not on the District of Colum-

bia but on the citizens of Maryland, where appellant

resides.”

Although Maryland, the state of the decedent’s and ap-

pellant’s resi , might be thought to have a substantial

interest in the amount recoverable for his death, no sug-

gestion has been made that we should apply the law of

Maryland to determine the iss#e before us.” But this

1 The New York Court of Appeals’ dominating concern in

Kilberg was to ensure “protection for our own State’s peo-

ple against unfair and anchronistic treatment of the lawsuits

which result from these [airline] disasters.” 9 N.Y. 2d at

39, 172 N.E. at 527-28, 211 N.Y.S. 2d at 185. The immediate

objects of that concern were, of course, the victims and their

dependents. The implicit assumption, however, was that if

protection were not provided them, the cost of their support

might have to be born by the state and citizens of New York.

The District of Columbia may have an altruistic interest in

seeing that the survivors of residents of nearby states do not

go uncompensated, but it faces no additional burden if com-

pensation is not provided. *3

*? Neither in her brief nor at the oral argument did appel- °

lant urge us to consider any other alternative'than the ap-

plication of District of Columbia law. Her failure to rely,

at least in the alternative, on the law of Maryland, the state

of her residence as well as that of her husband’s, may be at

least in part attributable to the fact that at least some of

the eighteen plaintiffs appear to reside in states which have

damage limitations in their wrongful death acts. It is more

likely due to: counsel’s: awareness of what appears herein-

. after with respect to the state of Maryland law in this area. .

App. 12

possibility inevitably suggests itself, and we the?efore

are inclined to say why we think that, even as between the

law of Maryland and the law of Brazil, we are without

warrant to look to the former. In striking this balance,

the weight to be accorded the interests of Brazil remains

unchanged. The question is whether Maryland has a sig-

nificantly greater claim to application of its law than

the District of Columbia. ‘Maryland’s only relationship

with the parties or the transaction is that it is appellant’s

residence, and was that of the decedent, but its interest

in the matter of appellant’s recovery is not insignificant,

for it is on the citizens of Maryland that the burden. of

her support, if she is unable to support herself, is likely

to fall in the first instance. Yet it appears likely that a

Maryland court would not have igno the Brazilian

limitation on recovery if this action had been brought

there originally.

Section 2 of Maryland’s wrongful death statute provides

that, in suits based on acts committed outside the state,

the courts of this State shall apply the law of such

other state, District of Columbia or territory of the

Tnited States, to the,facts of the particular case, as

though such foreign Taw were the law of this State,

provided, however, that the rules of pleading and pro-

cedure effectivé in the court of this State in which the

action is pending govern and be so applied as to give

effect to the rights and obligations created by and

existing under the laws of the foreign jurisdiction in

which the wrongful act, neglect or default occurred....

Mp. Ann. Cope, art. 67, §2 (1957). (Emphasis added.)

This provision was enacted in 1937 specifically to overrule

several Maryland cases refusing to entertain suits for

of Congress and the Court of Claims, been assumed to some

degree by the citizens of the entire United States.

—

€)

App. 13

wrongful death based on foreign wrongful death acts that.

were “dissimilar”? to the Maryland statute.* The Mafy-

land courts previously appeared to accept the traditional

lex locus delicti rule-in personal injury cases. The new

section, far from changing this allegiance, invested it with

statutory authority. It opened the Maryland courts to

suits based on a foreign law, regardless of its content, and

instructed the courts to give effect to each and every sub-

stantive element of that law. The result was to expose

Maryland residents to suit at home for acts committed out-

side the state, with the survivors of Maryland residents

killed away from home dependent upon foreign law for

any rights of recovery.

The Maryland Court of Appeals has held that, where

both accident and death occurred ‘in another state, the

defendant’s liability—and thus the plaintiff’s right to

rm,

* See, e.g., Davis v. Ruzicka, 170 Md. 112, 183 Atl. 569

(1936) ; London Guarantee & Acc. Co. v. Balgowan S.S. Co.,

161 Md. 145, 155 Atl. 334 (1981) ; Dronenburg v. Harris, 108

Md. 597, 71 Atl. 81 (1908); Ash v. Baltimore & O. RR., 72

Md. 144, 19 Atl. 643 (1890). See also Kaufmann v. Service

Trucking Co.,.139 F. Supp. 1 (D. Md. 1956). ‘Prior to Erie

R.R. v. Tompkins, 304 U.S. 64 ( 1938), however, the federal

courts in Maryland did permit such suits. See, e.g., Stewart

' Vv. Baltimore & O. R.R., 168 U.S. 445 (1897) ; Weissengoff

Vv. Davis, 260 Fed. 16 (4th Cir. 1919) ; Rose v. Phillips Pack-

ing Co., 21 F. Supp. 485 (D. Md. 1937).

See Kaufmann v. Service Trucking Co., supra, note 14,

at 5; 50 Va. L. REV. 353; 364 n.51 (1964). While there ap-

pear to be no pre-1937 Maryland cases expressly endorsing

the lex locus rule, neither have we discovered any that dis-

approved or rejected it. Moreover, the essential premise of

the decisions barring suit on dissimilar foreign statutes, see

note 14 supra, was that the law of the place of injury gov-

erned, and in each instance it was that law that the Mary-

land Court of Appeals refused to enforce. See London

Guarantee & Acc. Co. Vv. Balgowan S.S. Co., supra, note 14.

App. 14

recover—depends on the law of that state.* It has not had

an opportunity to consider whether the amount of damages

recoverable is an element of that right, but it is speculative

in the extreme for us to infer that it would hold it to be

otherwise. The~amount of damages recoverable for a tort

is, in traditional theory, a matter of substantive law. The

New York Court of Appeals, shortly after Kilberg,

abandoned its position in that case that the measure of

damages was governed by New York, and not Massa-

chusetts, law because damage limitations are procedural

in nature, and not substantive.” The broad language of

the Maryland statute, enjoining the courts to give effect

to “the rights and obligations created by and existing

under the laws of the foreign jurisdiction,’’ suggests

strongly that Maryland would enforce a foreign limitation

on the damages recoverable for wrongful death. Though

Section 2 is in terms applicable only to suits based on the

laws of another state, the District of Columbia, or a terri-

1 Wilson Vv. Dailey, 191 Md. 472, 476, 62 A2d 284, 285

(1948). See Kaufmann v. Service Trucking Co., supra, note

14, at 5:

Sec. 2 clearly indicates that the Maryland legislature

intends that the Maryland courts shall apply the sub-

stantive law of the jurisdiction where the cause of ac-

tion arose. This is in accord with the general rule “that

all matters pertaining to the substantive right of recov-

ery under a wrongful death statute, including the right

to recover, the nature of the right, and the party in

whom it is vested, are governed by the law of the state

where the injury resulting in death occurred.” [Cita-

tions omitted.] °

See also King v. Cooper Motor Lines, Inc., 142 F. ‘flupp. 405,

406 (D. Md. 1956). :

17 See Davenport v. Webb, 11 N.Y. 2d 392, 183 N.E. 2d

902, 230 N.Y.S. 2d 17 (1962). ‘See also LEFLAR, CONFLICT

or Laws, § 65, at 118, § 114, at 220 (1959) ; Currie, Conflict,

Crisis and Confusion in-New York, 1963 DUKE L. J. 1, 5.

App. 15

tory of the United States, there is no reason for us_to

suppose that the Maryland couris would refuse to follow

the approach it represents when the cause of action arises -

under the law of a foreign country.** And if a Maryland ‘

- court would not disregard Brazilian law for the benefit of

one of its own residents in a suit brought there, why should

a court. sitting in the District of Columbia do so at the

expense of substantial and legitimate interests of Brazil?

Two recent cases support the decision we reach here.

Truath v. Northeast Airlines, Inc., Civil No. 149-256, S.D.

N.Y., grew out of the same accident as Kilberg, and it was

initially consolidated for trial with Pearson v. Northeast

Airlines, Inc., 199 F.Supp. 539 (S.D.N.Y. 1961), aff'd, 309

F.2d 553 (2d Cir. 1962) (en banc), cert. denied, 372 U.S.

912 (1963). Both the deceased passenger and his surviving

dependents were residents of New Jersey. After the trial

judge ruled in Pearson that he was bound to follow the

New York rule enunciated in Kilberg, the plaintiff in

Truath moved to amend her complaint to allege damages

in excess of the Massachusetts limitation. Her motion was

denied on the ground that there was no indication that New

Jersey would have followed any law except that of the.

place of the injury. Although this ruling was never ap-

pealed because Mrs. Truath’s claim was settled prior to

trial, it seems to us to represent a correct understanding

of the policies that were thought to control in Kilberg.

New York, whose conflict of laws rule the District Court

was obliged to follow,?® had no interest in enforcing its

18 There is no evidence, for example, that Section 2 was in-

tended to implement an obligation, real or imagined, im-

posed upon the State of Maryland by the Full Fafth and

Credit Clause of the Constitution. See Hughes v. Fetter, 341

US. 609 (1951).

1 See Klazon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487

(1941).

App. 16

protective policy where both the deceased‘ and his de-

pendents were non-residents, especially when the state of

their residence would not have asserted its own interest if

the suit had been brought there. The proper law to apply

was that of Massachusetts, “the only state having an

interest in the matter.’”°

In Gore v. Northeast Airlines, Inc., 222 F.Supp. 50 (S.D.

N.Y. 1963), which, also arose out of the Nantucket crash,

the same District Judge who had presided in Pearson and

Truath denied the plaintiff’s motion to strike Northeast’s

affirmative defense based on the Massachusetts damage

limitation. The plaintiff, suing as executor of the deceased

who had himself been a New York domiciliary, was a

citizen of Maryland and a resident of the District of

Columbia. The deceased, like Kilberg and Pearson had

purchased his ticket in New York. But his beneficiaries all

lived outside New York. His widow and two minor children

had taken up residence in:‘Maryland a month after his death. _

Two adult children, from a prior marriage, at all times rele- _

vant resided in California. The District Judge concluded,

correctly we think, that’New York’s protective policy which

had been held to govern in Kilberg was directed at ‘‘the

deceased’s surviving dependents who are domiciled in New

York.’’ He noted that in both Kilberg and Pearson not

only the accident victims but also their sole beneficiaries

were New York domiciliaries, both at the time of the

> accident and at the time of the suit. He further concluded

that either California or Maryland would have applied the

Massachusetts limitation if the suit had been brought

there. In short, in both Truath and Gore the court found

that New York had no interest of its own substantial

‘ enough to justify rejection of the Massachusetts limitation

2° See Currie, Conflict, Crisis and Confusion in New York,

1968 DUKE L. J. 1, 31-32, discussing Truath v. Northeast

Airlines, Inc., Civil No. 149-256, S.D.N.Y.

App. 17

when the deceased’s beneficiaries resided elsewhere, and

that a New York court would not ignore that limitation if

the state of their residence would fiot do so.

Our decision is consistent as well with the most recent

formulation of the Restatement (Second), Conflict of

Laws." Section 379 sets forth the general rule in tort

cases as follows:

(1) e local law of the state which has the most

significant relationship with the occurrence and with

_—_ parties determines their rights and liabilitie\in

(2) Important contacts that the forum will con-

sider in determining the state of most significant re-

» lationship include:

(a) the place where the injury occurred,

(b) the place where the conduct occurred,

tion, and place of business of the parties, and

(d) the place where the relationship, if any, be-

tween the parties is centered. 7

(3) In determining the relative importance of the

contacts, the forum will consider the issues, the charac-

ter of the tort, and the relevant purposes of the tort

rules of the interested states. ?

This enumeration of significant relationships does not in-

clude that of forum qua forum.” The injury in the case

*1 RESTATEMENT (SECOND), CONFLICT OF LAws (Tent.

Draft No. 9, 1964).

22 Compare Currie, The Constitution and the Choice of Law:

Governmental Interest and the Judicial Function, 26 U. Cut.

L. REv. 9-10 (1958). Even for those who prefer to start

with the fact of the forum and to place the burden of proof

on those who would displace its law, such burden can be

sustained by a showing. of the lack of significant - relation-

ships between the forum, on the one hand, and the parties

or the event, on the other. See EHRENZWEIG, CONFLICT OF

LAWS § 213, at 555 (1962):

(1) Here, as elsewhere, the law of the forum is the

App. 18

before us occurred in Brazil, as did appellee’s negligent

conduct, if it was negligent at all. Vincent Tramontana

was an American national, domiciled in Maryland, and so

are his widow and children. Varig is a Brazilian corpora-

tion, which does business throughout the world. The ‘‘re-

lationship’’ between the parties, if it can be called that,

existed fleetingly—and in Brazil. By these criteria, the

only state, other than Brazil, with a substantial claim to

the application of its law is Maryland, which apparently

would apply ‘the Brazilian law in a case brought there.

“Thus it is that the only Yrelationship of the District of

Columbia to this claim is that it provides a forum with

jurisdiction over the appellee. That is hardly a reason

for the forum to prefer its own notions of policy to those

embodied in the Brazilian law which created the claim

appellant is asserting.”

starting point. . . . This law will be displaced only “if

there is a compelling reason for doing so. -

(2) Such a reason exists where in an automobile or

private airplane accident the wrongful death occurred in

an operation participated in by both parties both of

whom were domiciliaries of the same state. In that case

the law of that state will be applied as that whose im-

pact both parties could have reasonably foreseen... .

(3) In all other cases the lex fori remains applicable

unless either the plaintiff or the defendant has been

forced into a forum ‘devoid of any such contact as would

' justify application of its own law. [Emphasis added.]

23 Tentative Draft No. 9 of the Restatement (Second) also

includes a provision, Section 391, which is expressly appli-

cable to suits for wrongful death:

In an action for wrongful death, the local law of the

state where the injury occurred determines the rights

and liabilities of the parties, unless some other state has

a more significant relationship with the occurrence and

the parties as to the particular issue involved, in which

event the local law of the latter state will govern. .

A note to this section makes clear that in wrongful death

3 App. 19

A separate facet of appellant’s public policy argument

is that the Brazilian limitation on recovery for wrongtul

death should be disregarded entirely because of the recent

marked decline in the dollar value of the’ Brazilian

eruzeiro. Brazil’s current economic problems are a matter

of common knowledge, including the fact that inflation

has depreciated the Brazilian currency by more thah 600

per cent since the accident oecurred in 1960. This dfreten- |

ment undoubtedly contributes to the appeal gf appeHant2s

argument, but it does not, in our view, warrant a result

different from that we would reach had the value of the

cruzeiro in terms of the dollar remained unchanged.

Brazil’s interest in the protection of the financial in-

tegrity of its most important means of domestic trans-

portation’ almost certainly has not been diminished by the

decline in the value of its currency. Indeed, its concern

may well have increased in proportion to the rate of

domestic inflatiom A reluctance to reflect that decline in |

those prices that are subject to direct government control

would be wholly understandable. See text at page 10 supra.

Moreover, an unpredictable and virtually immeasurable

factor would be imported into the decision of international

conflict of laws cases if the otherwise applicable law were

Subject to being displaced because of the recent history of —

the relative values of the curregcies involved. Courts

‘would be called upon in each case to determine at what

_ point a declining rate of exchange of a foreign currency

_ made application of the foreign law intolerable. Should

Brazilian law be disregarded if the cruzeiro had depreci-’

ated only 300 per cent? Or 50 per cent? Victims of the

same oe might recover widely — simounte,

actions also the state of “most elanthenile ‘relationship” is

to be ascertained “by the same principles as control selection -

—_—

' App. 20

re)

depending, not on where they lived—a not irrelevant

factor, as we have suggested—but on when they sued.

Considerations of comity among sovereign nations cer-

tainly have relevance in this context. International balance.

of payments problems have a way of assailing the weak

and the strong alike, and it is not only the underdeveloped

nations who feel the sometimes rapidly fluctuating effects

upon their exchange rates of both domestic and inter-

national economic factors, over some of which at least

_ they have little or no control. If the courts of one country

make the applicability of the law of another turn on the

way the exchange balance happens to be inclined at the

moment, a speculative and highly artificial element would

be intruded into those considerations normally recognized

by civiliz6@ nations as germane in the choice of applicable

law. And the forum so motivated, whether it knows it or

not, ‘wields a two-edged sword.

One further question remains, though it is one not

raised by the parties.* The District Court converted’ the

100,000 cruzeiro ceiling on recovery into dollars at the

rate of exchangé prevailing on October 14, 1963, the date

of the entry of its judgment. Although New York, alone

among jurisdictions in this country, and England appear to

follow a rule that recovery in tort is to be measured in

terms ‘of the rate of exchange on the date of the wrong,

we think the District Court applied the sounder | rule.

This “day of judgment” rule has the support of the

authors of the Restatement (Second), Conflict of Laws

2* Appellant’s argument has been that, because the judg-

ment in dollars reflects a striking weakness of the cruzeiro

vis-a-vis the dollar as of the day of its entry, the forum should

disregard the Brazilian limitation entirely and apply its own

law. It has not asked, even alternatively, that the conver-

sion rate used in the judgment be that either of the date of

the accident or of the initial enactment of the Brazilian Air

Code. —

at tin ity Yo

: App. 21

§ 612a (Tent. Draft No. 11, 1965), and is in accord with

the Supreme Court’s most recent decision on the point,

Deutsche Bank Filiale Nurnberg v. Humphrey, 272 U.S.

917 (4926). It has been endorsed by the majority of writers

have considered the problem.”* And it has been

pplied by both the Second Circuit and the United States

District Court in Maryland in tort cases. Shaw, Savill,

Albion & Co. v. The Fredericksburg, 189 F.2d 952 (2d Cir.

1951); The Integritas, 3 F.Supp. 891 (D. Md. 1933). The

rule provides the plaintiff with the dollar equivalent of

the amount he would recover if he had sued in the “ountry

whose law determines his right to recovey, and it thereby

ensures that he neither suffers nor benefits from the fact

that he chose another forum in which to litigate his claim.

‘The judgment appealed from is

Affirmed.

Fany, Circuit Judge, concurring: I concur in the opinion

of Judge McGowan for the court that the forum law=ré-—

garding damages for wrongful death occurring ‘in the

District of Columbia does not govern this case, and that

the Brazilian limitation of recoverable damages applies.

5 See, e.g., MANN, THE LEGAL ASPECT OF MONEY 315

( 1953) ; NUSSBAUM, MONEY IN THE LAW 372 (1950) ; Evan,

Rationale of Valuation of Foreign Money Obligations, 54

MIcH. L. REV. 307 (1956) ; Fraenkel, foreign Moneys in Do-

mestic Courts, 35 COLUM. L. REV. 360 (1935) ; Note, 40 HaRv.

L. REv. 619 (1927). Compare Gluck, The Rate of Exchange

in the Law of Damagesf 22 Cotum. L. REV. 217 (1922) ;

Note, 65 CoLuM. L. REv. 490 (1965). Cf. Aratani v. Ken-

. nedy, 115 U.S.App.D.C. 97, 317 F.2d 161, 328 F.2d 427

(1963), cert.- granted, 375 U.S. 877, motion for reference

granted, 376 U.S. 936 (1964).

‘.®

App. 22

However, were it not for the fact that plaintiff seerfis to

concede that should the District of Columbia limitation not

apply the limitation found in the Brazil. Air Code governs

the amount of recovery, I would leave the amount of re-

covery open for determination upon the basis of more

ample information as to what the Brazilian law, as applied -

by the, courts of Brazil, would permit to be recovered in.

this case. |

App. 23

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1964.

No. 18,277 Civil 637-62

“a,

Beatrice Antonette Tramontana,

Appellant,

Vv. j

E. A. Empresa De Viacao Aerea

Rio Grandensg, a Brazilian

Corporatio t/a Varig Airlines,

2 ; Appellee. ‘ ; Pui

APPEAL FROM the United States District Court for the

District of Columbia. ;

rt Fahy, Danaher and McGowan, Circuit Judges.

“

JUDGMENT

THIS CAUSE came on to be hea~d on the record onyap- |

peal from the United States District Court for the Dist#ict

of Columbia, and was argued by counsel.

ON CONSIDERATION WHEREOF It is ordered and ad-.

judged by this Court that the judgment. of the District

Court appealed from in this cause me and i it is hereby,

affirmed. =

Y =

Kk is further ORDERED by the Court that each party

bear its own costs-on this appeal.

Per Circuit Judge-McGowan.

Dated: June 10,1965. | OF pmaal

' Separate concurring opimion by Circuit Judge Fahy.

v ; ‘

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