Petition for Writ of Certiorari — Berguido v. Eastern Airlines, Inc.
Supreme Court brief1968
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= 22 THE
CLERK
— Court of the United ees §
October iin. 1967.
* MARION J: BERGUIDO, Individually, MARION J. BER-
GUIDO,‘ROBERT G. ROWE and WARREN H. WOOD-
RING, Executors of the Estate of CARLOS BERGUIDO,
JR., and JUNE BERGUIDO, JOY BERGUIDO, JILL
BERGUIDO and CARLOS BERGUIDO, 3rd, by Their
Guardian, MARION J. BERGUIDO,
2 Petitioners,
- &
EASTERN AIRLINES, INCORPORATED,
cca Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR >
THE sano CIRCUIT. ; 5
.B. NatHanieEt RIicuter,
Sermocr I. Toit,
Q 121 S. Broad ‘Street, ‘
Philadelphia, Pennsylvania,
Attorneys for Petitioners.
e
International, 711 So. 5¢th St., Phila., Pa. 19143—Tel. SA 7-8711 Area Code 215
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- Opinions BELow -.............. ionees Snaseceseues neseee® 2
Jurispictio Teces Sree abe tae aa ecs ea eee aes 2
Questions PRESENTED SENN Os4RODSOSN Cs KeRCUSeceeeseneas 3
WH BEAU VTMS TWIAMD 6 ono hic ccccecnccrceceeceenicne 4
STATEMENT OF 3 RRR Lap aan peR TR el eign! 8
REASONS URGED For GRANTING THE WRIT ................ 9
I. The Scheme of the Warsaw Convention Is Absolute
Liability Upon the Occurrence ‘of a ‘Crash, Damages .
‘for Which Are Subject to the Limitations Expressed
_ in Articles 20, 21, and 22 if the Ticket Meets the
Conditions of Chapter. II, Article 3, § (1) and Is
Properly Delivered piwlbechéveneseseaye pees vba 9
UL. Negligence and Wilful Misconduct Are Irrelevant
- Congepts in an International Air Crash Law Suit -
Unless the Carrier Has Established a’ Proper De-
livery of an Adequate Ticket in Full and Complete
Compliance With Chapter II, Article 3.§ (1) of the
Watt Comme. «o.oo c sv ccccccccicecccecs, 10
. III. The Decision in the Instant Case Is in Cénflict With _
Recent Cases Decided in the Second and Ninth | .
Circuits and the English RED Cabovice cosy. ht 11
IV. An International Flight Ticket Is a Matter Governed
by Contract Subject to the Regulations of the Sev.
eral Articles of the Convention ................:. 27
©. V2 The View of the Solicitor General as to the Lisi Litiga-
tion Relative to the Effect of Non-compliance With
Chapter II, Article 3(1)’of the Convention. Larakets ae
\
7 WGP a inbakasoiae? kes
INDEX (Continued).
Vi. Wilful tila Sails c Leto csnndeusédacameten
Assuming Pro Arguendo Only That the Cont Re-
__ ject Our Contentions Relative to Chapter II,
~ Article 3(2) of the Convention, Petitioner Con-
tends That the Trial Judge Rendered “Clearly
_Erroneous’ Findings of Fact, Based in Part on
Erroneous Tegal Rules and Found in Error:
That Petitioner Did Not Prove That the Carrier
Was Guilty of Wilful Misconduct as Required
Oe NED oo vent vtavadeesees suns eweken
APPENDIX A—Counter Placard Giving “Advice to International
Passengers on Limitations of Liability” in Use at Airline
Counters From November 15, 1964 to May 13, 1966 ....
_ APPENDIX B—Tickets Involved eR gas a aS
APPENDIX. D—Judginent of the Court of Appeals......:.....
APPENDIX E—Order of Court of Appeals Sur Petition for
eerereery Pere ToOTerTTTe Heeverssevvess
APPENDIX F—Opinion of Coutt of Appeals . “ ecaneeuns Jobe
34
TABLE OF CASES CITED.
Page
. Block v. Camguguie. Nationale Air France; 229 F. Supp. 801
-(D. C. N. D. Ga., 1964) seRedacdededanewiewsnaeens 22
Citrolla v. Eastern Airlines, Inc., 264 F. 2d 815 (Cc. A. 3, 1959) 47
_ Eck v.-United Arab Airlines, 15 N. Y. 2d 53,(1964) ........ 30
: Eiseman v. P.R. R.; 151 F. 2d 222 (Grd Gir. TOES) .ccccesiccs af
Enfield v. Stout, 400 Pa. 6 (1960) ..... So peesecccaccecese a
Flying Tiger Line, Inc. v. United States, 170 F. Supp. 422 (Ct. |
ures inbend th tavenetekeonavexcuvensassees 23
Galloway: v. United States, 319 U. S. 37Z (1943) ....... cons MO -
Glassman v.-Flying Tiger Air Line, 9 Avi. 18, 295 (1966) .
iy ae ee We TE OI. 6 nn dno c-etewedvnsdeddsectnse s 24
Grey v. The American Airlines, 227 F. 2d 282 (C. A. 2, 1955)
cert. denied 350 U. S. 989 (1956) ............. -11, 25, 26; 32 |
Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 161 A. 2d )
BE Be E CII oko bk iN ocddcecceccesss MAD
Klar v. H & M ‘Parcel Room, Inc., 270 App. Div. 538,.61
N. Y. S. 2d 285 aff'd 296 N. Y. 1044 .............0.. 11
Lachs v. Fidelity & sian Co. of moe York, 306 N. Y. 357
EE saws Rh epicstcdieoksscxedsusstwicse> 29
Lenox v. Greenwich Ins. Co. of N. Y., 165 Pa. 575 (iis) . 30
Lisi v. Alitalia~-Linee Aeree. Italiane, 253 F. Supp. 237 (D. C.
S. D. N. Y. 1966) weed eee e ee eeeeeeeeerecececeree eld, 23 |
Lisi’ v. Alitalia-Linee Aeree Italiane, 370 F. 2d 508 (1966)
| 12,13, 14, 23, 24, 25, 26, 27, 31, 32 ,33, 34
Long v. Union R. R. Co., 175 F. 2d 199 (C. A. 3, 1949) .2.. 9
Mertens v. Flying Tiger Lines, Inc., 341 F. 2d'851 (C. A. 2,
1965) ; cert. denied, 86 S. Ct. 38 sai ; rehearing denied,
See Ff). || eee oe -.11, 23, 25, 26, 27, 28, 32
Mobile Tankers Co. S. A. & Sacony a Co., Inc. v. Mene
_ Grande Oil Co., 363 F. 2d 611 (C. A. 3, 1966) ......... » 46
Noel v. United Aircraft Corp., 342 F. 2d:232 (3rd Cir. 1964) 46 ©
O'Donnell v. Elgin J & E Ry Co., 70 S. Ct. 200 (1949) . 9
Ostrov v. Metropolitan Life Insurance Gompany, decided C. "i me
ear June 27, OF nsce, Shetdedsevwenaccndccnes rma
TABLE OF CASES CITED (Continued).
| Senitent Supply s Service Ineay. Adler, 321 F. 2d 536 (C. A. 3,
‘Tuller v. K. L. M. Royal Diitch Lines, 292 F.2d 775 (C.A..
Dh Gin SUED ecb esedcareszdencssee iveeexe> eeedsecees . =.
So OH. Y. 1966) PR Or eT Oey Por eT odecvescacs 014,23
-U. S. v. Minker, 350 U. S. 179 (1956) - keerueessdaenurs iaeeen 12
United States v..U. S. Gypsum Co., 333 U.S. 364 ....2.2.4.. 46
Warren ‘v. The Flying Tiger, Inc., 352 F. 2d 494 (C.. A. 9,
SUE ces eseee eABedeeskeebendnvetaeectedevresseeveas ety
Westminister Bank v. Imp. Airways, Ltd., 2 All.. E. R. 890
eR er er eee Fame x 24, 26, 27
Zumwalt v. Gardner, 160 F. 2d 298 (C. A. 8, 1947) ..,....5 9
STATUTES AND AUTHORITIES CITED.
eee . Page :
c. 646, Act of June 25, 1948, 62 Stat. 928, 28 U.S. C.§ 1254(1) 2
_ Kessler, Contracts of Adhesion—Some Thought About Freedom
of Contract, 43 Col. L. Rev. 629 (1943) ............... “29
Safety Appliance Laws of the United States, 45 U. S. C. A. ll 9
Sand, “Air Carriers’ Limitation of Liability and Air Passengérs’ -
~ Accident: Compensation under the Warsaw Convention”, 28
J. Air L. & Com. 260, 262-263 (1962) ........ ene 26
- Sincoff, “Absolute Liability and Increased Damages in Inter-
| national Aviation Accidents”, 52 A. B. A. Journal, Bide,
1123 (December, SE inceskencepipeds ‘eendennsevees 26
Vold, Law of Sales (2d Ed. 1959, 447) ......... sccadeinegen. ae
Warsaw Convention, 49 Stat. 3000°............. vadviueus 3, et seq.
Page -
———,,
IN THE
"Supreme Court of the United States
" Cieiie TERM, 1967
No.
ree ?
“MARION J. BERGUIDO, POE LOE MARION: J
BERGUIDO, ROBERT G. ROWE ann WARREN: H.
WOODRING, ExecutTors.or THE EstaTE oF CARLOS >
BERGUIDO, JR., anv JUNE BERGUIDO, JOY
' BERGUIDO, JILL BERGUIDO anv CARLOS BER- |
GUIDO, 3rp, . By THER ‘GUARDIAN, | MARION J.
BERGUIDO, — sand eC
_ Petitioners,
0.
EASTERN AIRLINES, INCORPORATED,
Respondent.
PETITION FOR A WRIT OF CHRTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
'. ‘THE THIRD CIRCUIT.
' To thé Honorable Chief Justice and the Associate Justices
of the Supreme Court of the United States: :
‘Marion J. Berguido, individually, $farion J. i
- Robert G. Rowe and Warren H. Woodring, Executors of the
‘Estate of Carlos Berguido, Jr. and-June Berguido, Joy
Berguido, Jill Berguido and Carlos Berguido,.3rd by their
Guardian, Marion.J. Berguido, by their attorneys, Richter,
Lord, Cavanaugh, McCarty & Raynes, respectfully peti-
tion that a Writ of Certiorari issue to review the judgment
of the United States Court of Appeals for the Third Cireuit
entered on: June 9, 1967.
4 SbiableiiiaaXontsaiaalseiinian
™~
g-*: Petition for a’ Writ of Certiorari
’
. ¥ : . c .
%
| OPINIONS BELOW.
peaks The original opinion of the Court of Appeals in this
case is reported at 317 F. 2d 628. The opinion of the Court
of Appeals denying plaintiff’s timely petition for rehearing.
from the original ‘appeal is reported at 317 F. 2d 633.
_ Circuit Judges Kalodner and Hastie dissented from the
denial of said petition and Judge Kalodner filed his own
dissénting opinion. ; . wie ,
The opinion in this case is reported at 369 F. 2d 874
_ and the opinion on the petition for rehearing, decided
June 9, 1967 is attached as Appendix C to this petition. .
— a one line per curiam affirmarice and a dissent
by Kalodner, J. and Staley, C. J. which discusses the
issues. oy FS
_ SURISDICTION.
: , ; @
The judgment of the United States Court of Appeals in
the Third Circuit was entered on 23 day of November, 1966.
Plaintiff’s petition-for rehearing in said Court was timely
filed. Said petition was denied by an.order of the court
entered June 9, 1967 with Judges Kalodner and Chief Judge
Staley dissenting, The jurisdiction of this Court is invoked
under ¢. 646, Act of Juiie 25, 1948, 62 Stat. 928, 28 U.S. GC.
§1254(1), ens
.@
°
Petition for a Writ of Certiorari 3
QUESTIONS PRESENTED.
»
‘1. Does. the failure of an airline to print in, adequately .
informative, clear, proper, legible form its claim for limi-
tations of damages following a crash in international flight
as required by Chapter II, Article 3(1) of the Convention
leave the carrier subject to the absolute liability imposed
- upon it by Chapter ILI, Article 17? ¥..
2. Where the carrier has failed fo comply with Chap-
ter II, Article 3(1) of the Convention as to the form and
eontents of the ticket or proper delivery of the same, does
not. the absolute liability imposed by Chapter III, Ar-
ticle 17 on the. carrier remain in effect and are not thé
issues of negligence or wilful misconduct irrelevant as
unreached?
3. Was not the ticket in the instant casein violation
of the requirements of Chapter HI, Article 3(1) of the Con-
vention because of its miniscule illegible print and its fail-
ure to state the claimed monetary limitation of damages
as well as to expressly note Jacksonville as one of the
agreed stopping places? - Te
4. Was not the finding of fact that jets were the cause
of the crash ‘‘clearly erroneous’’ and untenable where it
was based exclusively on proof by defbsition and such evi-
dence was vague, self contradi¢tory and overwhelmingly
:
disproved by official government records and the testimony
of a host of impartial witnesses?
5. If this court decides that in this international flight
crash the carrier is not entitled to the limitations of dam-
ages of Articles 20, 21 and 22 because it issued inadequate
‘and defective tickets, should not this Court enter judgment
for petitioner in the sum of $375,000 plus interest and
costs where the trial judge without exception thereto found .
_ petitioner suffered damages in that amount?
a)
¥
>
a
4 Petition for ‘a Writ of Certiorari
THE STATUTES INVOLVED.
The Warsaw Convention, 49 Stat. 3000, provides as
follows:
CHAPTER II |
TRANSPORTATION DocuMENTS
Section I—Passenger Ticket ©
Article 3
(1) For the transportation of passengers the cafrier :
must deliver a passenger ticket which shall contain the fol-
lowing particulars: ° |
(a) The place and date of issue;
(b) The place of departure and of destination;
(ec) The agreed stopping places, provided that the
carrier may reserve the right to alter the stopping -
places in case of necessity, and that if he exercises that
right, the alteration shall not have the effect of depriv-
ing the transportation of its international character;
(d) The name and ‘address of the carrier or
carriers; | ,
(e) A statement that the transportation is subject
to the rules relating to liability established’ by this
convention. , | :
(2) The absence, irregularity, or loss of the passenger
ticket shall not affect the existence or the validity of the
contraeé.of transportation, which shall none the less be sub-
ject to the rules of this convention. N. evertheless, if the
carrier accepts a passenger without a passenger ficket hav-
ing’ been delivered he shall not be entitled to avail himself
of those provisions of this convention which exclude or limit ~
his liability. “ »
Petition for a Writ of Certiorari ‘ a
Section II—Baggage Check
Article 4
ss 4
(1) For the transportation of baggage, other than
small personal objects of which the passenger takes charge
himself, the carrier must deliver .a baggage check. _&€
(2) The baggage check shall be made out in duplicate, :
one part for the passenger and the other part for the 's
carrier.
(3) The baggage check shall. contain the following :
particulars: oe | ;
(a) The place and date of issue ; | ‘
(b) The place of departure and of destination ; 8
(c) The name and address of the carrier or
carriers;
(d) The number of the passenger ticket ; Say ict
(e) A statement that delivery of the baggage will” «= |
be made to the bearer of the baggage check; |
(f) The number and weight of the packages;
(g) The amount of the value declared in accord-
ance with article 22(2);
(h)- A statement that the transportation is subject
to the rules relating to liability established by this
_convention. i
(4) The absence, irregularity, or loss of the baggage
check shall not affect the existence or the validity of the .
contract of transportation which shall nonetheless ° be
subject to the rules of this convention. N. evertheless, if the
carrier accepts baggage without a baggage check having
been delivered, or if the baggage check does not contain
the particulars set out at (d), (f), and (h) above, the car- |
rier shall not be entitled to avail himself of those’ pro-
visions of the convention which exclude or limit his liability.
6 * Petition for a Writ of Certtorart
Section II1I—Air Waybill
CHAPTER Ill
_ LIABILITY OF THE CARRIER "
Article 17
The carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger or any other
bodily injury suffered by a passenger, if the accident caused
the damage so sustained took plaze on board the aircraft
or in the course of any of the operations of embarking or
disembarking.
, Article 20
(1) The carrier shall not be liable if he proves that he
and his agents have taken all necessary measures to avoid
the damage. or that it was nm for him or them to
take such measures. |
(2) In the transpertation” of ‘goods and ‘ei ‘the
carrier shall not be liable if he proves that the damage was
_ occasioned by an error in piloting, in the handling of the
aircraft, or in navigation and that, in all other respects, he |
and his agents have taken all necessary measures to avoid “
_ the damage. | »
| Article 21 ;
If the carrier proves that the damage was caused by
-or contributed to by the negligence of the injured person
the court may, in accordance with the provisions of its own
law, exonerate the earrier wholly or partly from his
liability. |
ps . Article 22
» (1) In the transportation of passengers the liability
of the carrier for each passenger shall be limited to the
sum of 125,000 francs. Where, in aceérdance with the law
Petition for a Writ of Certiorari a
of the court to which the case is submitted, dam-zes may be
awarded in the form of periodice) payments, the equivalent
capital value of the said payments shall not exceed 125,000 ‘
francs. Nevertheless, by special contract, the carrier and
the passenger may agree to a higher limit of liability.
(2) In the transportation ‘of checked baggage and of
‘ goods, the liability of the carrier shall be limited toasum :
of 250 franes per kilogram, unless the consignor has made,
at the time when the package was-handed over to the car- __
rier, a special declaration of the value at delivery and has A
paid a supplementary sum if the case so requires. In that
case the carrier will be liable to pay a sum not exceeding
the declared sum, unless he proves that that sum is greater
than the actual value to the consignor at delivery.
(3) As regards objects of which the passenger takes...
charge himself the liability of the carrier shall be limited
nl
to 5,000 francs per passenger.
—
(4) The sum mentioned above shall be deemed to refer
to the French france consisting of 6514 milligrams of gold
_at the standard of fineness of nine hundred -thousandths.
These sums .may be converted into any national currency -
in round figures. .
Article 25 pat Ps
(1) The carrier shall not be entitled to avail himself F
of the provisions of this convention which exclude or limit
_ his liability, if the damage is caused by his wilful miscon-
duct or by such default on his part as, in accordance with .
the law of the court to which the case is submitted, is
considered to be equivalent to wilful misconduct.
™ FOE Tae Te ee ee Ne eee
(2) Similarly the carrier shall not. be entitled: to avail
himself of the said provisions, if the damage is caused -
under the same circumstances by any agent of the carrier
acting within the scope of his employment. ’
s ‘ »
ete a Oe aed
.
TT ee ee ee}
a
8 _ | Petition for a Writ of Certiorari
s .
STATEMENT OF THE CASE.
Carlos Berguidlo, Jr. was killed in the erash of. an
Eastern Airlines plane on December 21, 1955 in the vicinity -
of ‘Imeson Airport, Jacksonville, Florida. .We are now
almost twelve years.from that accident. The- facts of the
accident and the rulings of the trial judge of importance
here are related atp. 34 et s seq., infra. Of special importance
is the admission by the carrier that it could not prove as
required by Article 20, supra, at p.-6 that it had taken all
- nedessary measures to avoid the damage or that it was
_ impossible for it to do so. Trial Record (118a). We have
. seen in the wake of its wreckage, two mistrials, a jury ver-
dict for the widow and children in the amount of $454,658;
a reversal by the Court of Appeals for the Third Circuit on
an evidentiary point remanding for a new trial; a petition
for certiorari to the Supreme Court of the United States
by present, petitioner denied; a. jury finding of no wilful
misconduct; a reversal by the trial judge of the jury’s
verdict of no wilful misconduct; a petition for mandamus
by present respondent to the-Court of Appeals: C: A. 3
denied; and most recently a judgment for the defend-- .
ant by a trial gudge sitting without a jury. There was
then an affirmance by the Court of Appeals by a two-to-one
vote and finally a denial of a Petition for Rehearing with
two judges dissenting and writing an opinion where no
opinion is written for the majority on the Petition for
‘Rehearing, but merely a- statement that the Petition for
Rehearing is denied. This petition followed.
Petition for a Writ: of. Certiorari _
REASONS URGED FOR GRANTING THE WRIT.
_ I. The Scheme of the Warsaw Convention Is Absolute Lia-
- _ bility Upon the Occurrence of a Crash, Damages for
Which Are Subject to the Limitations Expressed in
Articles 20, 21 and 22 if the Ticket Meets the Require-
‘ments of Chapter II, Article 3, § (1) and Is Properly
Delivered.
" The majority opinion 369 F. 2 874 holds that even if
the carrier violated Article 3(1) that:
‘*. .. ..Suecess of the latter argument would have re-
moved the Conventiop defense of timited liability and
allowed the suit to piheod to trial, with the plaintiff’s
burden. being merely to prove the negligence of the
defendant, rather than wilful misconduct, this ap-
proach being the appropriate substitute for appellant’s
urged absolute and unlimited liability without fault
theory’’. (Emphasis supplied.) mnt
With this view of the scheme of the Warsaw Convention
petitioner violently disagrees. She disagrees that the ap-
pellant’s position as to Article 3(1) is, that if it was violated
- she still could recover only if she also proyed carrier
negligence. Under no reading of the Convention nor the
ratio decidendi of any case is negligence the basis of re-
covery in international air crash cases. The appellant’s
position has consistently been that she wins on proof of
failure by the carrier to comply with Article 3(1) and that
she need prové neither negligence nor wilful misconduct.
. Only if this court holds that the ticket in fact complies with
1. Once the airline fails to comply with Article 3(1) the issue of
negligence should never have been reached and certainly this’ case
could not turn on it as the majority ‘opinion rules. It is totally
irrelevant. Indeed if the case were so charged to the jury it would
be reversible error as it was held to be in‘cases under the Safety
Appliance Laws of the United States, 45 U. S.C. A. 11 where, too,
negligence is not a requirement to a recovery thereunder. In the case
of Long v. Union R. R. Co., 175 F. 2d 199 (C. A. 3, 1949) the 3rd
. Circuit so held. Zumwalt v. Gardner, 160 F. 24 298, 304 (C. A. 8,
1947) and O’Donneil v. Elgin J & E Ry Co., 7) S. Ct. 200 (1949)
are in accord. es
fa .
ties PAA Ieee TO
10 Petition for a Writ of Certiorari
Article 3(1) does petitioner then need to prove wilful
misconduct. per es | :
All of the discussion of the factual findings of the trial
judge re negligence and wilful misconduct, supra, pales into
meaninglessness for the majority opinion in this case
demonstrates .a complete failure to recognize that negli-
gence’ vel non is a completely irrelevant consideration in
this case in the posture in which it was as of the time of its
submission to the trial judge for adjudication.. For this is
a case under the Warsaw Convention. And the carrier’s
ticket did not comply with Chapter II, Article 3(1). Peti-
_tioner therefore completely disagrees with the statement
in the opinion by the majority that if the carrier failed to
‘comply with Article 3(1) of the Convention that the plain-
' , tiff would still have ‘‘the burden to prove the negligence of
the defendant rather than wilful misconduct, this approach
being the appropriate substitute. for appellant’s urged
absolute and unlimited liability without fault theory”. 369
’ F. 2d 879 (Emphasis supplied). 2
II. A Passenger Need Not Prove N egligence or Wilful Mis-
conduct Once He Has Established a Faulty Ticket
Because the Carrier Violated Chapter II, Article 3, .
§(1). | ee a
_ The Court of Appeals’ conclusion that “an analysis of
the question [of the extent of the carrier’s liability on the .
; Warsaw] does not support absolute unlimited liability as
the scheme of the Convention” is in direct conflict with the
opinion of ‘this same court in. this same case in the first
opinion when the three judges held:
“*. .-. the Warsaw Convention provides, inter alia,
that the carrier is, absolutely liable for all injuries
where the accident causing the damage so sustained
“ takes place on board the aireraft.’’ 317 F. 2d 699.
(Emphasis supplied.) “
___ The opinion of the Court of Appeals in this case ia in
direct conflict with the Court of Appeals for the 2nd Circuit,
which held: : es |
NO ni OA le en le te
Petition for a Writ of Certiorari Soe hl
“| + the scheme of the Warsaw Convention is prétty
plain on its face. .Chapter III is the one which concerns
us here. Article 17 imposes an absolute liability upon -
‘the carrier for all personal imjuries regardless. of
* fault . . .”’ Per Medina, J. in Grey v. The American
“Airlines, 297 F. 2d 282, 285 (C. A. 2, 1955) cert. denied
@ 200 U.S. 989 (1956). ( Emphasis supplied.) |
It is also in conflict with the Court of Appeals for the
Ninth Cireuit, which takes the same view of the Conven-
tion’s scheme. Warren v. The Flying Tiger, Inc., 352 F. 2d
494 (C. A. 9, 1965). See also Klar v. HG M Paréel Room,
_ Ine. 270 App. Div. 538, 61 N. ¥. S. 2d 285 aff’d 296 N.Y.
The Court of Appeals decision in this case is also in
conflict with Westminister Bank v. Imp. Airways, Ltd., 2.
All. E. RB. 890 (K. B. 1936). That case also holds that there
is absolute unlimited liability in a Warsaw case when the
provisions of the Warsaw Convention relating to the pro-
viding of an- adequate ticket are not met,
III. The Decision in the Instant Case Is in Conflict With
Cases Decided in the Second and Ninth Circuits and the
English Courts..
The opinion and conclusion of the Court in the instant
_, case, when it decides that the plaintiff must still prove negli-
gence even though an inadequate ticket not in compliance
with the requirements of the Convention has been delivered,
is in conflict with the opinion of the Court of Appeals for
the Second Cireuit in Mertens v. The Flying Tiger Line,
Inc., 341 F. 24-851 (1965). In that case a unanimous court,
per Marshal, J. decided that the carrier could not avail .
itself of the limitation of liability because there was an
inadequate delivery of the ticket and held that the case
would be sent back merely for a’ trial only on the issue of
damages. Thus that Court decided that the absolute lia-
bility of the defendant had béen established by the same |
Re a eT ENE = MES PII
PT MOIETY
I ONS WO Sea EE
. . \
ne ee a Ee ee
12. Petition for a Writ of Certiorari
'. kind of ticket as confronted the trial judge here. The cases
are therefore in stark conflict. .
*
Since the Court of Appeals below failed to give effect -
to the inadequacy of the ticket and made available to the
defendant the liability limitations of the Convention (Ar-
ticle 25), the decision in this case is directly contrary to
_ the decision of the Court of Appeals for the 2nd Circuit in
Lisi v.Alitalia-Linee Aeree Italiane, 370 F. 2d 508° (1966).
The case of Alitalia-Linee Aeree Italiane v, Lisi is now . :
pending in this court as Docket No. 1169. The decision in —
, ' the Court of Appeals.(Second) in that case is in direct con-
flict with the disposition by, the Court of Appeals (Third)
on the very same issue presented in this ease. For in
Lisi, supra, the holding was that the carrier was not per-
mitted to take advantage of the liability limitations of the
’ Convention where it failed to deliver. to a passenger a
legible ticket that properly advised: the passenger of the
limitations. In this case, the disposition is that the carrier
was allowed to take advantage of the limitations despite the
fact that it delivered a woefully inadequate ticket much less
legible and less informative than the Tsi ticket. - .
The dissenting opinion by Judge Kalodner on the Peti-
tion for Rehearing in the instant case joined in by Chief
Judge Staley forceably points out this very conflict and
concludes ‘‘the disposition made by this court at 369 F. 2d
_ 874 in the instant case, 4s in conflict with that‘made by the
2nd Circuit [Lisi] and for that reason alone requires the
granting of the Petition for Rehearing’’. The conclusion
of this sentence may be paraphrased by saying that that
‘reason alone requires the granting of the Petition for
Certiorari. In accord U. S. v. Minker, 350 U. S. 179, 180 -
* (1956). - |
The identical questions ‘raised in this “petition ‘are
. _ now being raised by thé carrier before the Supreme Court
of the United States in the case of. Alitalia-Linee Aeree
, Italiane v. Lisi, supra. That case was brought by the air-
line to the Supreme Court on an appeal from the decision ‘
of the Court of Appeals for the 2nd Circuit which appears
Se atl a viet inte OT
Petition for a Writ of Certiorari 2 — 13
at 370 F. 2d (1966). In Lisi on pre-trial motion the ruling
was as a matter of law that the carrier would not be ‘per-__-
mitted to take advantage of the liability limitations of the.
Warsaw Convention ($8300) because it had failed. to deliver
to the passenger a ticket that properly advised the pas-
senger of such limitations sometimes available under Chap-
ter III, Article 22(1) of that treaty, noted under the heading
‘Liability of the Carrier” because it had failed to comply _
with the requirements set forth under Chapter II, headed
“Transportation Documents’? which in Article 3(1) neces-
sitate that a passenger\ticket must contain certain specific
data which the ticket imdolved in the Lisi case did not con-
‘tain.*£Nor did it till 1964 put in use on its counters placards,
similar to App. A, p. 51, infra. In the instant case the ticket
is éven more violative than Lisi of the requirements of
_ Chapter II, Article 3(1).‘‘For the Transportation of Pas-
| Sengers the Carrier must deliver a Passenger Ticket which
~ Shall contain the following particulars’’. ‘Tn addition to the_
violations noted in the Lisi case becayse of which the ticket
was held inadequate in that it was virtually illegible
2." Chapter .1I—Transportation Documents ot.
Section I—Passenger Ticket—Article 3 . ;
(1) For the transportation of passengers the carrier must deliver
a passenger ticket which shall contain the following particulars:
| (a) The place and date of issue ee aha
(b) The place of departure and of destination ; ;
(c) The agreed stopping places, provided that the carrier
may reserve the right to alter the stopping places in case of
necessity, and that if he exercises that right, the alteration shall
‘not have the effect of depriving the. transportation of its inter-
national character ; . ;
‘(d) ‘The name and ‘address, of the carrier or Carriers ;
(e) A statement that the transportatjon is‘ subject -to the .
rules relating to liability established by this convention.
| (2) The absence, irregularity, or loss of the . ssenger ticket
. Shall not affect the pe og or the validity of the contract of -
transportation, which shall none the less ‘be subject to the rules
of this convention. Nevertheless, if the carrier a pas- |
senger without a Passenger ticket having been delivered he shall
not be entitled to avail himself of those Provisions of this conven-
tion which exclude or dimit his liability. . ;
14 Petition for a Writ of: Certiorari
as well as uninformative of the nature of the proposed
money limitation, the ticket here in Berguido failed
to mention Jacksonville, the city where the plane was
attempting to make a normal landing when it crashed,
as one of the ‘‘agreed stopping places.’’ This latter
violation is of serious import because - it substantially
and proportionately increases the risk so greatly to the
passenger. For it is’ a- well recognized fact. that most
- air crashes occur while a plane is taking off or landing
and in this case the crash occurred while attempting to
land on the runway. By making Jacksonville an addi-
tional stopping place, to which by contract the plaintiff’s
decedent had not agreed, the airline unilaterally increased
the risk of harm to him by 33%% because the ticket only
mentioned two stops on its way from Miami (Washington-
Philadelphia) though indeed a third at Facksonville was.
being made to which the plaintiff’s decedent had not agreed °
nor been informed of and during which attempt the plane
crashed. There was no’proof that this was an emergency
landing. — .
As stated, the form, context, size of print and the ob-
security and di ty in reading of the Lisi ticket and the
instant Berguido“ticket are identical with the exception of
the fact that in the instant ticket, one of the stopping places
(Jacksonville) was not mentioned. This ticket is even less
informative.* If anything, the instant ticket contained even
less about Warsaw’s effect in the event of the passenger’s
death than the Lisi ticket did. The Lisi ticket at least
warned the passenger, that ‘‘. . . in most cases—the Con-
vention limits the liability of carriers for death or personal
injury. . . .’’* 253 F. Supp. 242. Not even that legally
inadequate warning was on the instant ticket.
We quote in-full the Lisi opinion, 370 F. 2d 508 of
the Court of Appeals through Kaufman, J. At page 511
et seq., it reads: | .
3. See facsimile of instant tickets in Appendix B herewith at-
tached. The Lisi tickets are set forth in the appendix to its District
_ Court opinion at 253 F. S. 242. :
Petition for a Writ of Certiorari 15
of the Convention, these limitations on liability are not
applicable if the carrier fails to deliver to the passen-
ger a ticket or a check for baggage. These Articles,
_ Moreover, provide that the ticket and check shall con-
tain certain specified information, including. ‘a state-
Ment that the transportation is subject to-the rules re-
lating to liability established by this convention.’ Thus,
it would appear, that unless the carrier furnishes to the
passenger a ticket or baggage check containing the ap-
propriate statement, it may not restrict its lability as
circumscribed by the Convention Articles.
Alitalia responds,’ however, by arguing that
there is a crucial difference in the language between
Articles 3 and 4. While Article 4(4), it Says, denies the
. carrier limited liability ‘if * * * [it] ‘accepts baggage -
without a baggage check having been defivered, or if the
baggage check does not contain the particulars’ (Em-
phasis theirs) the only ground stated in Article 3(2)
for denying limited liability for the personal injuries or
death of passengers, is the carrier’s failure to deliver a
ticket. Thus, we.are asked to apply. the principle ex-
pressio unius est exclusio alterius and to hold that fail-
ure to give notice on the passenger ticket that the flight
is subject to the Convention’s rules, will not deprive
the carrier of the substantial delimitation of liability ~
for personal injuries or death. All that is required,
urges Alitalia, for this right to vest, is that a ticket be =
delivered to the passengers.
IL
It is apparent that Alitalia relies on a literal read-
ing of the Convention for its assertions. We reject the
interpretation it urges upon us. While it is true that
the language of the: Convention is relevant to our de-
cision, it must not become, as Justice Frankfurter
stated it, a ‘verbal prison.’ Sullivan v.. Behimer, 363
_ US. 335, 358,. 80 S. Ct. 1084, 4 L. Ed. 2d 1254 (1960)
“It is clear, however, that under other Articles |
Leahard SPORE RoE Ran ewe 4
errs . 3
<
16
Petition for a Writ of Certiorari
_ (Frankfurter, J., dissenting). The task of ascertain-
_ Ing the meaning of words is difficult, and one certain -
way of misinterpreting them is by a literal reading.
As Learned Hand put it, ‘words are such tempera-
mental beings that the surest way to lose their essence
is to take them at their face.’ 1942 Address by Judge
Hand to the Massachusetts Bar Association. Thus, the
language of Article’3 cannot be considered in isolation ;
rather, it must be viewed in light of the other Articles
- and the overall purposes of-the Convention. See Eck
v. United Arab Airlines, supra. P
This is not the first occasion on.which we have been
‘called upon to interpret the language of the Conven-
' tion’s delimiting provisions. For example, in Mertens
v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir.),
cert. denied, 382 U. S. 816, 86 S. Ct. 38, 15 L. Ed. 2d
64 (1965), we were asked to decide whether presenting -
a ticket to a passenger after he boarded the carrier’s
plane, constituted a ‘delivery’ within the meaning of
Article 3(2). We stated:
We read Article 3(2) to require that the ticket be
delivered to the passenger in such a manner as to afford
him a réasonable opportunity to take measyres to pro-
tect himself against the limitation of liability. Such
self-protective measures, could consist of,'for example,
deciding not to take the flight,.entering in a special
contract with the carrier, of taking out additional
insurance for the flight. The Convention specifically
provides that ‘the carrier and the passenger may. agree
. toa higher limit of liability’ (Article 22(1)) and there
oe
would: be little reason to make this provision, to re-
quire that the ticket state that the liability of the car-
‘Tier is limited (Article 3(1)(e)), and to require that
_ such a ticket be delivered to the passenger unless the
Convention also required that the ticket. be delivered in
such circumstances as to afford the passenger a reason-
able opportunity to take these self-protective meas-
ures.’ Id. at 856-857 (Emphasis added.)
_. Petition for a Writ of Certiorari -17
. We held, accordingly, that the delivery was in-
adequate, and the Convention’s fixed limits of liability
were not available. ; |
Later, a similar result was reached by the Ninth
Cireuit in Warren wv. Flying Tiger Inne, Inc., 352 F.
2d 494 (1965). There the passenger was given a
‘boarding ticket’ or ‘pass’ at the foot of the ramp .
leading to the aircraft. The Court decided that the
‘delivery’ miist be made sufficiently in advance so that
the passenger will have the opportunity to take self-
protective measures, such as purchasing additional in-
surance if he so chooses. The ‘delivery’ of a boarding
ticket at the foot of the ramp as the plane’was about -
to depart, did not suffice therefor. The carrier, accord-
ingly, was barred. by “Article 3(2) from availing itself
of the Convention’s liability limitation provisions.
We believe that the reasoning of the Mertens and
Warren decisions is apposite to the case now beforé us.
The Convention’s arbitrary limitations on liability—
which have been severely and repeatedly criticized—are
advantageous to the carrier. But the quid pro quo for
this one-sided advantage is delivery to the passenger of
a ticket and baggage check which give him notice that
on the air trip he is about to take, the amount of re-
covery to him or his family in the event of a crash,
is limited very substantially. Thus the passenger is |
given the opportunity to purchase additidhal flight in-
surance or to take other steps for his self-protection
as he sees fit. (Double emphasis ours. )
This notice to passengers is especially im-
portant in this country where the overwhelming num-
ber of people who travel by air do so on domestic
flights, for which the Convention’s restrictions on lia-
bility are inapplicable. It is too much to expect these
passengers to be sufficiently sophisticated to realize
that although they are traveling the same number of
miles on an international flight that they have fre-
18
Petition for a Writ of Certiorari
quent traveled domestically, the amount they may re-
cover in the event.of an accident is drastically reduced.
In short, it is clear from the ratio decidendi of the
Mertens and Warren cases, that the inquiry that must
be made if the Convention’s Articles are to be given
meaning, is ‘{[w]hether the ticket was delivered to the
passenger in such a manner as to afford him a reason- -
able opportunity to take self-protective measures
* * **. Mertens v. Flying Tiger Line, Inc.,supra, 341
F, 2d at 857.
: Ii.
We proceed to determine, therefore, whether
. the particular tickets and baggage checks involved in
the present case gave the appellees adequate notice. -
On the front of the ticket and baggage check, in exceed-
ingly small print, was*the following message: ‘Each
passenger should carefully examine this ticket, partic-
ularly the Conditions on page 4.’ And, at this point,
we note that one of our reasons in Mertens v. Flying
Tiger Line, Inc., supra, for precluding the carrier from
limiting its liability under the Convention was that the.
required statement on the ticket ‘was printed in such a
“manner as to virtually be unnoticeable and unreadable
eit .
Judge McMahon appropriately ‘characterized
' the ‘notice’ to the passengers in his pithy conclusion as
' “camouflaged in Lilliputian print in a thicket of ‘Condi-
tions of contract’ * * *, Indeed the exculpatory state-
ments on which defendant relies are virtually invisible.
They are, ineff ectively positioned, diminutively sized,
and unemphasized by bold face type, contrasting color,
or anything else. The simple truth is that they are so
artfully camouflaged that their presence is concealed.’
253 F. Supp. at 243. Accord, Warren v. Flying Tiger
Line, Inc., supra, 352 F. 2d at 497. But see Seth v.
British Overseas Airways Corp., 329 F. 2d 302 (1st
' Cir.), cert. denied, 379 U. 8. 858 85 S. Ct. 1-4, 13 L. Ed.
2d 61 (1964).
.s
Petition for a Writ of Certiorari 19-
We agree that a jury could not reasonably have
found that. the tickets and baggage checks -gave the - -
' passengers the required notice. The District Court
properly granted partial summary judgment’ striking
out these affirmative defenses of appellant.’? (Em-
phasis ours.)
. Affirmed. |
- And so the Court held as a matter of law.
To these views former’ Chief Judge Kalodner sub-
scribed in his dissent in the instant (Berguido) case (369
F. 2d 874, 885 et seq. 1966) and repeated same in his dis-
senting opinion filed in response to petitioner’s petition for
-rehearing in the Court of Appeals, decided 377 C. A. 3, —
F. 2d —, decided June 9, 1967, in which he was joined by
Chief Judge.Staley. | “os
_ The exact opposite view was expressed by Forman, J.
for the majority below in the instant case. 369 F’. 2d 874,
878 (1966) : .
"|| Appellant urges a theory of unlimited
absolute liability in the face of the appellee’s alleged *
failure to comply with Article 3(1) of the Convention.
It is argued that Article 17 provides for unlimited ab-
solute liability unless a carrier proves that ‘it has-
complied with Article 3(1). Appellee, urges appellant,
having failed: to carry its burden: of proof is, as a
matter of law, liable without fault for the total amount
of appellant’s damages, under Article 17 of the Con-
‘vention. Specifically, appellant contends that appellee
has failed to prove both actual delivery of the ticket to
the decedent and actual delivery of.an adequate ticket
showing (1) all agreed stopping places and (2) the
provisions of the Convention which limit a. carrier’s . -
liability. Although appéllant’s contention is that the
burden of proof is on the carrier, an attempt ‘is-also-
made by appellant to affirmatively show the inadequacy
of the ticket, although not the failure to actually de-
liver that ticket. However, failing acceptance of this -
er?
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Petition for a Writ of Certiorari
approach, appellant ‘urges that the District -Court’s
finding of no wilful misconduct by the appellee was
-. Clearly erroneous:
"Appellee contends that the issue of compliance
with Article 8(1) of the Convention was eliminated.
from the case at pre-trial and that, nevertheless, a
plaintiff, and not a carrier-defendant, has the burden
of proving non-compliance with Article 3(1). Actual
non-delivery of the ticket under Article 3(2) is: also
urged as the only Article 3(1) conduct of a carrier |
which will defeat the Convention as a defense. As to
the question of wilful ‘misconduct, appellee urges that
there was substantial basis for the District Court’s
exonerating it therefrom. Appellee furthermore cross-
assigns as error the District Court’s grant of the mo-.
tion for a new trial subsequent to the jury verdict in
its favor at the fourth trial, which resulted in the fifth
trial from which this appeal has been taken.
The contentions thus having been outlined, we now
turn to their disposition.
[5] Appellant has urged that both Grey v. Ameri-
can Airlines and Westminster Bank v. Imp. Airways,
Ltd. stand for the proposition that liability under
Article 17 of the Warsaw Convention, as an initial
_ Matter, is absolute and unlimited. To avoid such
liability, a carrier must demonstrate compliance with
Article 3(1) of the Convention, argues appellant.
_ Neither case supports the proposition, for the question
of whether Article 17 provides such unlimited absolute
liability for the death of a passenger was not an issue
therein. . : . Article 17 itself gives no indication of
the extent of a carrier’s liability. It must be read:
with Article 22(1) for the question concerning the
. _ extent of the liability to be answered, and an analysis
of the question doess not support absolute unlimited
liability as the scheme of the Convention.’’
Petition for a Writ of Certiorari 21
We respectfully submit that the decision in the 2nd Circuit
is absolutely correct—that the decision of the majority in
the instant case is without doubt in error. It is our con-
tention that Warsaw does in fact impose absolute and un-
limited liability.
At page 879 of the opinion in the instant case the ma- ~~
. jority states: ;
~ *. . . an analysis of the question [of the extent
of a carrier’s liability under Warsaw] does not sup-
port absolute unlimited liability as the scheme of the
Convention.”’
This is error. That is precisely what the scheme of
' the Convention is. The defendant itself conceded at the
‘trial of this case that liability under Warsaw is automatic.
Its counsel told the trial court:
brats carriers are automatically liable for injury
_ or death’ occurring in a crash.’’: (118a)
In its first opinion herein, the Court of Appeals, 317
F’. 2d 628, 629 held: |
‘‘The Warsaw Convention provides, inter alia,
that the carrier is absolutely liable for all injuries
where the accident causing the damage so sustained
» takes place on board the aircraft.’ (Emphasis sup-
plied.) ,
“he Court of Appeals for the Second Circuit has held
that ‘hat is the seheme.
‘‘The scheme of the Warsaw Conven’
plain on its face. Chapter HII is the one which con-
cerns us here. Article 17 imposes an absolute liability
upon the carrier for all personal imjuries regardless
of fault:. . .”? per Medina, J. in Grey v. American
Airlines, 227 F, 2d 282,'285 (C. A. 2, 1955) ;-cert. denied,
350 U. S. 989 (1956). (Emphasis supplied.)
The Court of Appeals for the Ninth Circuit takes the
same view of the Convention ’s scheme. Warren v. Flying
Tiger Line, Inc., 352 F. 2d 494 (C. A. 9, 1965). See also:
tion is pretty |
ee ee ee an is .
bo 3 " - .
4 elas rabtngnionanaline ee ico path Bia
_ %
. form international Convention exactly the same way:
22 Petition fora Writ of Certiorari
Block v. Compagnie Nationale Air France, 229. F. Supp.
801, 805 (D. C. N. D. Ga., 1964). . | Ee ae
English decisional law reads the scheme of this uni-
°
‘“The effect of the articles above-mentioned [deal- ~
‘ing with earriage of goods under,the Convention] is,
in my opinion, prima facie, to render the carrier. . .
liable for any |gss of goods caused or occasioned dur-
ing carriage by air.’? Per Lewis, J. in. Westminster
Bank v. Imp. Airways, Ltd., 2 All. EL R. 890, 895
(K. B. 1936). ,
Thus, the Court of Appeals’ initial opinion states that
the carrier is absolutely liable for all injuries. ° Grey holds
it absolutely liable for all personal injuries regardless of
fault. Westminster holds it prima facie liable for any loss.
There should be no question that the scheme of Warsaw
is one of absolute, unlimited liability. The language in
these decided cases could not be clearer. Yet the Court of
Appeals (C. A. 3) has held the reverse here.
Westminster and Grey are completely consistent in
their understanding of the scheme of Warsaw. The major-
ity’s attempted distinction of Westminster on grounds that
it was not a passenger ‘case is indefensible. Grey was a
passenger case. The scheme of the Convention—initially
absolute and unlimited liability—applies uniformly to goods
and passengers,
. The reasons of policy which support such an accurate
construction is perfectly clear. To staté it is to underscore
the first error of the majority in its opinion. The drafters
of the Convention intended to encourage the growth of
what more than three decades ago was an infant industry.
They did so by designing a scheme which created absolute,
unlimited liability from which the carriers got the econoin-
ically extraordinary opportunity to exclude or limit their
exposure to damages. They could realize such exclusion or
limitation if, but only if, they first properly delivered ade-
-quate notice to shippers and passengers that such exclusion
en RT A Ta ile ee —
Petition for a Writ of Certiorari * =
or limitation existed, so that shippers and passengers would
have a fair chance to take steps to protect themselves eco-
nomically against the Convention’s potentially radical limi-
_ tation or exclusion of damages. Flying Tiger Line, Inc. v.
United States, 170 F. Supp. 422, 424 (Ct. Cl., 1959) and’
isi, supra, at 253'F. Supp. 239. The opinion of the Court
of Appeals of the 2nd Circuit in Lisi, supra, makes this -
expressly clear.
’ Warsaw itself provides that if a carrier does not de-
liver a ticket to.a passenger, it may not avail itself of any
exclusions or limitations of the treaty. Article 3(2). De-
cisional law has held that there must be ‘a proper delivery ©
of the ticket. Mertens v. Flying Tiger Lines, Inc:, 341 F.
2d 851 (C. A. 2, 1965); cert. denied, 86 S. Ct. 38 (1965),
rehearing denied; 86 S. Ct< 306 ( 1965), Warren v. Flying |
‘Tiger Line, Inc., supra, and that there must be an adequate
ticket, Lisi v. Alitalia-Linee Aeree Italiane, 253 F- Supp.
237. (.D. C. S. D. N. Y. 1966).
What are the legal consequences if the carrier does not
properly deliver an adequate ticket? Both decisional law
and the commentators answer that question very clearly.
In Westminster, supra, Lewis, J. held at 2 All. EK. R.
“*. . . in order to enable the carrier to so exclude
or limit his liability he must comply with art. 8(a) to
(i) inclusive and (q)... .” (which specifies every
item which must be declared on the waybill). :
The Westminster waybill did not contain such partic-
ulars, and by operation of Article 9 the carrier was denied
the right either to exclude or limit its liability. The court
gave judgment for the full amount of goods in question. Let
it be noted that while plaintiff there pressed three theories _
—the deficiency of the waybill, the carrier’s negligence,
and the carrier’s wilful misconduct—the last two were
never reached by the court. Its judgment rested squarely
and solely on the fact that Warsaw’s initially absolute,
4
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_— » ~ _ ‘
eI Sains aati ae Bi sai REN a SES NaS R Meenas bere
os
24 « Petition for a Writ of Certiorari
_ unlimited liability was never removed because the carrier
never did what was necessary to exclude or limit ‘its’ lia-
bility—deliver a proper waybill.
What happened under the goods situation: in West-
minster has*an exact parallel in the Convention’s provi-
sions for the passenger situation. That is this case. It is
Mertens. It is Lisi. ati is Warren. They are all passenger
cases.
Having found an 1 inadequate ticket under Article 3,
, isi ruled at pages 239-240:
‘“*, . . defendant cannot exclude or limit its liability
‘under the. Convention in the case at bar. "9
and at page 243:
‘«. . , the challenged affirmative defenses are unavail-
abyety defendant in these actions.’’
Having found inadequate delivery of a passenger ticket
under Article 3,-Mertens held unanimously at page 856:
‘*, . . asa matter of law the delivery of the ticket was
not adequate and that the limitation on damages of
the Convention is inapplicable. si
The case was remanded for trial solely on the issue of
damages.
In the history of Warren, supra, is the clinching demon-
stration of what must be done here. At the first trial of
Warren, the District Court found that Warsaw applied;
there was an effective delivery of the ticket, and that,
therefore, the plaintiffs were limited to recovery of
. $8,300.00, 234 F. Supp.-223 (D. C. S. D. Cal., 1964). The
-Court of Appeals for the Ninth Circuit reversed, holding
that Article 3(1) had not been satisfied, and remanded for
further proceedings. 352 F. 2d 498.
Following the remand, the United States District Court
for the Northern District of California very recently re-
tried Warren under-the title of-Glassman et al v. Flying
Tiger Line, 9 Avi. 18, 295 (1966), as it was one of the actions
—_
Petition for a Writ of Certiorari | 25
included in the group of cases decided eo nomine Warren,
supra. It applied Warsaw and held:
‘«The scheme of the Convention is plain on its face.
Grey v. American Airlines, 227 F. 2d 282 (2d Cir.
1955), cert. denied 350 U. S. 989. Article 17 imposes
absolute liability irrespective of fault and because car-
rier accepted decedents as passengers without tickets
having been delivered in the manner coxtemplated by
Article 3(1), Article 3(2) deprives it of the right to lime.
itation granted by Article 22(1), Warren'v. FlyingAi- ,
ger Line, Inc. [9 Avi. 17,848] 352 F. 2d 494 (9th Cir.
1965), and the right exculpation allowed by Article
20(1). Even if it be assumed that carrier is entitled to
claim the benefit of Article 20(1) the court finds that it
has not met the almost insurmountable burden required
of it. Grey v. American Airlines, supra. ”? (Entphasis
supplied.) —
Thereafter the carriers did no longer appeal.
Be it noted that Lisi granted partial summary judg-
ment denying the carrier its Warsaw defenses and was
affirmed at 370 F. 2d 508 (1966). By like token, the War- -
saw defenses removed in Lisi, Mertens and Warren must
be removed here. The remand in Mertens points the way.
The retrial in. Warren proves-it. The remand here should
decree entry of judgment for damages of $375,000 already
found by. the trial judge plus costs and interest’ especially
since the carrier admitted (118a) it could not prove that it
_ took all necessary measures to avoid the damage or that it
was impossible for it todo so. Art. 20(1).
The majority recognizes that Mertens, Grey and Lisi-
discuss the legal ramifications of the failure to comply
with Article 3(1) (p..10, fn. 17). But the majority shied
- away from a discussion of. what those ramifications: are.
We submit Mertens, Lisi and Grey cannot be read any way
other than that the failure to deliver an adequate ticket
dispositively fixes the absolute, unlimited liability which
the Convention initially creates. Warren and Lisi both —
‘now prove that. , . %
— WS TH ewer
1966) :
~~ ) ~
t
26 Petition for a Writ of-Certiorari
The commentators confirm the operation of Warsaw
so clearly announced by Grey, Westminster, Lisi Mertens.
and Warren.’ | am
[The Conyention], renders the “Carrier liable:
without limitgtion if it fails to issue the proper ‘War-
saw’ passenger ticket (Article 3, paragraph 2)...”
(Emphasis supplied.) ior, eas saat
Sand, “Air Carriers’ Limitation of Liability and Air
Passengers’ Accident Compensation under the Warsaw -
Conyention’’, 28 J. Air L. & Com. 260, 262-263 (1962). So
too, we find the following statement ‘by Sincoff, ‘‘ Absolute
Liability and Inicreased Damages in International Aviation
Accidents”’, 52 A. B. A. Journal, 1122, 1123 (December,
‘Article 3 states that the carrier must deliver a’
ticket to the passenger. ‘Absent delivery, the carrier’
is deprived of the benefits of Articles 20, 21 and 22,
which exclude or limit liability. In addition, Article 3
- requires that: the ticket contain a specific statement
_ that the transportation. is subject to the liability pre-
_ Visions of the treaty. The obvious purpose of such a.
_ statement is to give the passenger notice of the limita:
-» tion and afford him the opportunity of protecting him-
self by obtaining accident insurance. Courts have
‘therefore held that a carrier is liable as a matter of
_.law for the actual damages sustained if the ticket is
delivered when the passenger is aboard [citing
Mertens] or about to board the aircraft, [citing War-
ren} or if the ticket is unreadable due to Lilliputian-
size print. [citing Lisi].”’ ao | sa)
.. Despite the clear design of ‘the Convention, and despite:
Westminster, Lisi, Mertens and Warren, and the writers
on the subject, the majority below in our. case held:
\. ae District Court : .-. as well as finding that
appellee was not guilty of wilful misconduct, found that
.. appellee was not even negligent. If this conclusion
Petition for a Writ of Certiorari a
is supportable, it is final and there is no need for us to _
examine appellant’s legal. contentions concerning Ar-
ticle 3(1) of the Convention, which we have set forth in
the foregoing paragraph, for even if those contentions
are determined in favor of appellant, they would not
dictate a reversal.”” (at 10) (Emphasis supplied.)
This is putting the cart before the horse. We respect-
fully submit that here lies the manifest error of the ma-
_ jority’s opinion. It is error on which the entire result
. pivots, for if our contentions are accurate—and all’ of the
authorities we have just discussed demonstrate they are—
then reversal is exactly what is dictated and the questions _
of negligence and wilful misconduct are no more involved
and can no more be reached here than they could in _
Westminster, Insi, Mertens and Warren. _ahey are utterly
irrelevant.
The. striking fact and law of this matter ‘is that the ©
very contentions which we have urged.here were the bases.
- upon which Westminster, Lisi, Mertens and Warren were.
decided, and yet the majority here has oe stated
that:
<a . . contentions ... .’’
We stated at the outset of this petition that the ma-
jority has either failed to apply the authority which rules
this case,or has so applied it as to throw it into conflict
-with decisional law. We respectfully submit that the fore-
going discussion amply documents that statement. .
IV. An International Flight Ticket Is a Matter Governed
, by a Contract Subject to the Regulations of the Several
Articles of the Convention.
- We submit that an airline transports a passenger by
virtue of the contract that it makes with him—whether the
flight is domestic or international. All that the ‘Warsaw_
Convention allows the airline to do is limit its liability if
> eet is no need for-us to examine [those]
TNA ety
>
Gar R
cee ee ene eS FS SE a ante TS rire Vs. MATT RR
28 Petition for a Writ of Certiorari
it does. so in full accordance with the principles of law
applicable to the limitation of liability in any contract. In -
the instant case the defendant never proved that it abided
by the conditions necessary to limit’ its liability under
contract principles. . : |
Contract principles make clear that limitations of dam-
ages of the Warsaw Convention did not bind the plaintiff’s
decedent since the amount:of the limitations were not
printed on the ticket and because whatever mention there
was of reference to the Warsaw Convention was in ex-
tremely tiny print at the bottom of the ticket. See M ertens,
Admr. v. Flying Tiger Lines, Inc., 341 F’, 2d 851, 857.
Plaintiff *s decedent was safely transported from Phila-
delphia to San Salvador and then from San Salvador.to
Miami by Pan American. Hours later he took this purely
domestic fatal Eastern Air Lines flight to Washington.
He got no discount for buying the tickets all at one time.
He could have bought his ticket for Washington in Miami
_and avoided the cloud of Warsaw. That he did not jus-
tifies the conviction that these meaningless words at the ‘
bottom of the ticket communicated nothing to him. Defend- ;
ant did not prove decedent’s awareness of the clause. Even
if readable, the words on the ticket make no explanation
of the limitation, do not state the amount of the limitation
and indeed are misleading for they refer to the rules of
international flight: To any reader this flight from Miami
to Philadelphia on a local plane was not international in.
character. We submit under simple contract principles
this. attempted limitation was void and a nullity as a mat-
ter of law. ets | 4 .
In a landmark decision, Henningsen v. Bloomfield
Motors, Inc., 32 N. J. 358, 161 A. 2469, 75 ALR 2d 1 (1960),
the Chrysler Corporation had printed in similar fine print
a limitation of liability relative te warranties pertaining to
an automobile soid to the plaintiff theré. ‘In similar fine
print there was the phrase ‘‘I have read the matter printed
on the back hereof and agree to it-as part of this order, as
if it were printed above my signature. I certify that I am
Petition for a Writ of Certiorari 29
21 years ‘of age, or older, and hereby acknowledge receipt
of a copy of this order.’ In the instant case, as in Hen- |
ningsen, the phrases in question were the least legible but
the most important in evaluating the rights set forth in the
instrument. The court held the claimed limitation of lia-
bility ineffective. ¢ veg
. In Henningsen Justice Francis found that the gross
inequality of bargaining position occupied by the consumer
in the automobile industry is quite apparent. How much
truer is this in the case of a public transportation system
such as an airline. . Perhaps the most telling .sentence in |
. Henningsen is this (32 N. J. 396) :
“It is not enough merely to show the form of a con-
tract; it must appear also that the agreement was
understandingly made.’ (Emphasis supplied.)
Recent law review articles have subscribed whole- ~
heartedly to this view. See -K essler, Contracts of Adhesion
_ —Some Thought About Freedom of Contract, 43 Col. L.
Rev. 629, 632 (1943). See also Vold, Lew of Sales (2d Ed.
1959, 447),.which recognizes the unequal positions of buyer
and seller, particularly of public services such as ‘“‘trans-
portation.’’ 3 ‘
_ In Lachs v: Fidelity & Casualty Co. of New York, 306
N. Y. 357 (1954) similar finely. printed, uninformative
legends were to be found on the policy. The Court held the
fine print describing the kind of airline to which it was
limited could not deprive the insurance purchaser of cover-
age on this non-scheduled airline flight. ‘This was not a
suprising decision. No affirmative assent to the fine print
was proven. As was noted in that opinion, average people
who buy tickets or insurance “are not expected to carry
the Civil Aeronautics Act or the Code of the Federal. Regu-
lations when taking a plane.’’ (Emphasis supplied.)
To admit that older cases interpreted the treaty strictly
and against the passenger is no more than to say that such
strictness existed only because the airlines. were ‘in their
infancy. The Convention’s principle ‘‘was one of allowing
Far FR yi Aa Alt
z
: wae Petition for a Writ of Certiorari
only a regulated burden to be the responsibility of the then
struggling carriers.’’ Eck v. United Arab Airlines, 15 N. Y.
2d 53, 59 (1964). Now, as this Court well knows, the whole
picture has changed profoundly. And with this change the
courts should limit the application of this harsh law and
require carriers to make the paying public meaningfully
aware of the situation as a precondition to limiting their
liability.
The New York Court of” Appeals i in Eck 1 v. United pom
Airlines, supra, after stating in footnote 2 (p. 59) ;
‘*2. When the Convention was originally drafted in
1926, Charles Lindbergh had not flown to Paris. When
it was first adopted Air France had two overseas
flights, one from Paris to London and the other from
Marseilles to Tunis. Pan American flew from Key
West to Havana. The China. Clipper flight on Pan
American did not take. place until 1935, after the
United States-had become a signatory to the Warsaw
Convention in 1934.’
adepted the philosophy that the treaty must be interpreted :
in the light of the present circumstances of the airline in-
dustry. If this Court follows this sound philosophy, the
limitations of Article 25 of the Warsaw Convention clearly.
should not be permitted to attach to the present case.
This principle in respect to the necessity for printing
a ticket properly in adequate size so that it can be easily
read and understood “is not novel in the Jaw. In Penn-
_ sylvania this principle was adopted as far back as Lenox
- v. Greenwich Ins. Co. of N. Y., 165 Pa. 575, 577 (1894),
in an insurance policy case where the court said:
“It is well known that the evil aimed at in this
legislation was the custom of insurance companies to
put in their blank forms of application long and in-
tricate questions or statements to be answered or made
by the applicant, printed usually i im very small type,
and the relevancy « or materiality not always apparent
Petition for a Writ of Certiorari 31
to the inexperienced, and therefore liable to become
traps to catch even the innocent unwary. The general
intent was to keep these statements before the eyes of’
the insured, so that he might know his contract, and af
it contained errors, have them rectified before ut
became too late.’ This has since been quoted with
approval. See, e.g., Muhlenberg v. Mutual Fire Insur-
_ ance Company of Sinking Springs, 21] Pa. 432, 433-
434, 60 A. 995. As the statute was passed in the
\ . interest of fair dealing, its provisions must be strictly
i complied with in all respects: Ellis v. Metropolitan
Life Insurance Company, 228 Pa. 230, 231, 77 A. 460.’
(Emphasis supplied.)
This was restated in Ostrov v. M etropolitan Life Insurance
Company, decided C. A. 3; June 27, 1967, as an accurate
controlling guide in these cases. :
' We respectfully submit that a’ perusal of the tickets
which appeared as Exhibit 12 in the trial before Judge
Boldt Appendix B here demonstrates beyond question that
they are deficient in that they are comparatively illegible
and fail to set forth adequately the proposed claim for
limitation of liability allowed under the Convention if there
is to be compliance with Chapter II, Article 3(1). We re-
spectfully submit that the cases and the authorities men-
tioned in this brief; supra, establish that the ticket here and
in Lisi were deficient and that therefore the decision in the
2nd -Cireuit in the Court of Appeals in Lisi, supra, is cor-
- rect and the decision in the instant_case in the 3rd Circuit
is erroneous.
V. The View of the Solicitor General as to the Lisi Litiga.
tion and the Effect of Non-compliance With Article
3(1) of the Convention. -
This court made inquiry of the view of the Solicitor
General as to the significance of the tickets. in the Lisi
litigation. It received from the Solicitor General an ex-
pression of approval of the decision of the Court of Ap-
peals for the 2nd Circuit in that case. He Saw no necessity —
oO
VOT tee
EPP Rr ty ee ee
PE OT Pere? °
32 Petition for a Writ of Certiorari
for a hearing before this court and therefore made a
recommendation of denial of certiorari.
The Solicitor General considers the requirement that
tickets be printed in proper size, form and degree of
legibility to make them easy to read and comprehend’ as
well as to contain in them adequate explicit information, in
respect to limitations claimed as set forth in Mertens and
Warren and Lisi to be the exercise by those courts of ‘‘a
proper performance of the judicial duties of the courts of
contracting states .to implement the broad visions of the
Convention’’ (P. 7, Solicitor General’s brief). _The Solic-
itor General also ‘approves of the view of the courts in
these cases rejecting strict literalism and interpreting —
Articles 3 and 4 of the Convention to require full and re-
vealing notice in readable form. Otherwise Article 3(1)
would be purposeless and meaningless. This discussion
arose when the airlines contended that since Article 4.
which relates to baggage expressly required that the-ticket
must contain certain particulars, in the absence of which
the carrier could not claim the limitation of damages and
that sinee Article 3 which relates to personal injuries did
“not contain such a requirement that, under the doctrine of
expressio unius. est exclusio alterius, the Convention does
not require the express printing of the particulars of the
limitations on ‘passenger tickets at all. The Solicitor
General agrees with the Lisi and understandably so.*
Certainly human life should be held on a par with baggage
‘and certainly the loss of human life is equally as great and’
as important as the loss of baggage.
The Solicitor General further notes that:
‘*Petitioner’s contention that the Civil Aeronautics
Board ‘expressly approved the form and ‘content’ of —
the airline passenger ticket which it used is ‘mislead-
ing’. The Board did not-purport to pass*n, much less
decide, the size of type, type face, or other typographic
4. Compare the early view as set out in Grey v. American
Airline, supra, on the application of this rule of construction.
Petition for a Writ of Certiorari 3
details the airlines should, employ in printing the re-
quired warning regarding limited liability. Rather, the
Board merely approved an intercarrier agreement on °*
* the form of the ticket as not adverse to the public
; interest, since the agreed-upon form constituted a ‘sub-
stantial improvement’ over the one previously in use.
Moreover, the Board has not merely criticized the in-
adequacy of the print size used by the airlines; it has
taken affirmative steps and made mandatory that car-
riers give international passengers additional notice— —
larger type—regarding limits of liability under the
Warsaw Convention. See the Board’s ruling at 28 F.
‘R. 11775-11777 (Nov. 5, 1963 ,) and 14 C. F. R. 221.175.” |
(Op. p. 8, 9).”’
Certainly if certiorari is denied in-Lisi the same legal posi-
tion as to this petitioner-widow, who is similarly situated
but in whose case unfortunately the Court of Appeals
_ for the 3rd Circuit took the opposite point of view as
to the law in respect to precisely similar if not more obscure
and less informative tickets should be taken. Should this
court deny certiorari in Lisi it should not foreclose the con-.
sideration of this same legal question presented at the same
time in this case. Equal justice. must be achieved for Mrs.
Berguido and her five children in this ease. too since the
same point of law is involved. We respectfully submit
therefore that the court should now grant certiorari in the
instant case, reverse on the authority of Lisi et al: and
direct the entry. of judgment for the petitioner i in the sum.
of $375,000 plus interest and costs especially since ad-
mittedly the carrier could not prove it did all it should have
done to avoid the accident (118a). See Art. 20.
That recently some 11 years after this crash the C. A.
B. has directed that the airlines issue tickets which conform
to the opinion of Lisi and otherwise now post signs and
warnings on its couriters in respect to the dollar limitations
($8,300) allowed under the Warsaw Convention should not
in any way have any effect i in the decision of this case. If
Pt’ See ee
ASL NS Bak et Hrs nets sk
34 Petition for a Writ of Certiorari
anything, the action of the C. A. B. now serves only to con-
firm the validity of the Lisi holding and the inaccuracy and
error of the Beruguido holding below as it underwrites what
the airline should have had on its tickets in the first place.
_ The failure of the C. A. B. to police the ticket issuance up
to now does not and cannot legalize what- were improper
tickets ab initio. - :
This has been 4 long and bitter battle by this widow and
her five children for fair compensation due to the loss of
her husband. Petitioners have borne the back breaking
burden and éxpense of two mistrials, two jury trials and
one without a jury, two appeals to the Court of Appeals and
two petitions for certiorari. Before this court today ap-
pears a record that has thoroughly explored every aspect
of the case. We respectfully submit that her rights should
not be ignored; that she is in pari materia with Insi; that
the two matters should now be heard together and disposed
of at the same time and apply the same halding of laws _
to both.
VI. Wilful Misconduct.
Assuming Pro Arguendo Only That the Court Reject
Our Contentions Relative to Article 3(1), (2) of
the Convention, Petitioner Contends That the
Trial Judge Rendered “Clearly Erroneous” Find-.
ings of Fact, Based in Part on Erroneous Legal
Rules.and Found in Error That Petitioner Did
Not Prove That the Carrier Was Guilty of Wilful
Misconduct as Required by Article 25:
_ Pacts of the Accident.
The plaintiff’s case was simple on-its facts. Plaintiff
proved that defendant airline’s pilot in order to beat the
steadily deteriorating: weather into Imeson Airport in.
Jacksonville, Florida intentionally descended below the per-
missible weather minimums hoping that he might make
visual contact with the ground at some point, but while try-
ing to execute this dangerous maneuver, got snagged in a
Petition for a Writ of Certiorari 35
fifty foot pine tree and crashed causing the death of all
aboard including plaintiff’s decedent. Simply stated he
_ tried an illegal sneak-in landing and failed. .
Plaintiff’s case was based on a background of a ‘iia
in good operating condition with satisfactory instruments
‘on the panel and a properly operating instrument landing
system on the ground. Plaintiff overwhelmingly. proved
that because of poor weather conditions the crew did not
and indeed could not make the required visual contact with ©
the runway when they reached the lowest possible minimum fs;
permitted by law at that airport under conditions present ~
at that time.
Plaintiff first proved the Civil Air Regulations and
rules laid down by Eastern Air Lines’ own flight manual
which established the absolute prohibition against depart-
ing from a glideslope, going below the weather minimums,
failing to execute a missed approach and failing to ask
authority to leave the glideslope until the pilot had first
established actual visual contact with the ground or run-
' way. Intentional violation of any one of these is wilful
misconduct. At this juncture we must remember that the
official plate required that once a pilot leaves the slope,
his weather minimum for visual contact is automatically
raised to 400’.
In support of the conclusion that the pilot of this air-
line did intentionally violate these Civil Air Regulations,
‘plaintiff produced three highly qualified aeronautical ex-
perts in different phases of aeronautical science.
First—plaintiff produced Major Joseph Glickstein.
Major Glickstein is a graduate of the United States Air
Force Pilot. Training School, a graduate of the United
States Air Force Jet Fighter Gunnery Court, a member
' of the United States Air Force: Defense Command and ;
Weather Interceptor Course and a member of the Florida ‘
| Air National Guard. He has taught in the field of aviation,
being an instructoy-pilot in France, and is currently flying
jets in regular up-to-date active service in the Air Force
a ational Guard at J acksonville, Florida (134a, 135a, ve
a
a
RORER TR earls
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36 Petition for a Writ of Certiorari
' his home field. Thts witness categorically “expressed an
opinion based upon the facts produced by the plaintiff that
the pilot of this airplane did intentionally and wilfully -
‘violate the Civil Air Regulations (583a-598a). He asserted
most positively that the pilot was at the time of the crash
’ executing a familiar: though illegal approach and landing
pattern known as a ‘‘sneak-in”’ or ‘‘take a look’? maneuver
in an effort to make contact by improperly descending be-
low the authorized weather minimums (606a-609a).
Second—Captain Jerry Kepner. Captain Kepner is a °
senior National Air. Lines Pilot who is presently flying jet .
aircraft between Miami and New York and Los Angeles. .
He has had twenty-five years’ flying experience and had
been based at Jacksonville airport for fifteen years. He
has made thousands of ILS landings, many of them at
Jacksonville (657a, 658a). This capable and experienced
pilot testified that in his opinion based on the hypothetical
facts as given to him, the pilot of this airplane was il-
legally using the ‘‘sneak-in’’ pattern® and that in doing so
- did intentionally depart from the glideslope and violated
the authorized minimum prescribed by the Civil Air Regu-
lation (plaintiff’s Exhibit D' in the Court below) to see if
he could possibly make visual contact with the ground even
though he had to go below the legal minimums to do so
(666a-671a).
Third—John Prescott Cann is presently a Flight Navi- _
gator and Certified Pilot: with United. Airlines and is the
Chief Pilot in charge of Instrument Training for Hortman
‘Aviation Co., He is presently a designated F. A. A. Ex-
aminer and formerly was employed by T. W. A. as a flight
navigator for a period of fifteen years. He regularly has
flown all over the world on recognized top level American
commercial airlines (716a-719a). On the basis of the same
hypothetical question, he also testified without equivocation
that the pilot of this airplane intentionally went below the
5. This pattern, though illegal was familiar and known to Eastern
Airlines (1100a).
\
i
Petition for a Writ of Certiorari 37
minimums sehinl visual contact with the runway (722a-
727a).
Thus, the plaintiff presented a i solid mass of opinion
and conclusions from an experienced military pilot, a com-
mercial pilot of vast experience. and .a flight navigator
presently an F. A. A. Examiner, that on the stated hypo-
thetical facts Eastern’s pilot on Flight 642 did intentionally
violate the Civil Air Regulations.
Before asking the hypothetical — a
proved:
1. Flight 642 Eastern Air ies on‘ the morning of
December 21, 1955 had left Miami in. perfectly good op-
erating condition i in.all of its parts, including its engines
and all flight navigational instruments and that it had been
-earefully checked in Miami and that all of its components
were found to be in er order (425a-429a, 445a-446a,
749a-754a).
2. That at no time from the time that Flight 642 left
Miami until the crash occurred did the, crew: which was in
vocal radio communication with thé tower until a minute
or so before the crash, send any message from the plane
that would in any way indicate that the plane or any part
of it, its instruments, its power plant, its radio and elec-
tronic equipment were working improperly or that’ they
were failing to operate in a normal routine usual manner.
3. The Instrument Landing System instruments on
the plane which advised the.pilot with respect to the glide-
_slope and the localizer course to follow as well as his
_altimeter which tells him how high he is above the ground
and all other instrumentation that serve a pilot were in
good operating condition and functioning properly (366a-
367a, 448a).
4. That this flight had been in aie periodic com-
munication with both Eastern radio and the airport con-
_ trollers at Jacksonville airport almost immediately up to
the moment of the crash and no complaints or-any ob-
servation of improper functioning of tie plane or any of its
~~ .
>.
ore
we
Sates fgets tee
i
38 Petition for a Writ of Certiorari
“eomponents or instruments were reported by the crew
ol, iP +
(247a-260a, 280a-295a,'771a-773a).
5. That the’ instrument landing system on the ground lie
was in proper operating condition and was emitting the
‘proper beam both insofar as the marker beacon trans-
mitters at the: outer marker :and the inner marker were
‘concerned ; that the localizer course radio beam was-func-
tioning accurately; the.glideslope radio beam and localizer
.. beam had functioned properly fifteen minutes before the
accident and at 6:20 A.M. when tested again after. the.
, accident (Plaintiff’s. Exhibits 37a through 37w at trial and
deposition of Mack R. Wood;_1062a-1086a, 340a-348a, 294a,
246a, 427a, 428a) it worked properly,
oe 56 6. That-in-the last 200 feet of the flight path the air-
-eraft:.was being flown at a Speed \approximately 140
knots and had been descending at an angle of 214 degrees
and at a rate of descent of approximately ten feet per
~ second (509a, 510a, 912a-918a), proving a sound plane un-
der complete pilot. control right to crash impact. °..
oo» ae That as that: plane approached the area immedi-
ately surrounding the airport there was heavy. fog from
. the ground up (240a-241a, 298a, 34a, 1047a, 334a-335a).
‘8. That’ the weather was reported _at the airport
Officially as being 300 feet indefinite, half mile visibility,
10/10ths obscuration (10/10ths means one hundred per-
cent), and ground-fog, and that the wind was north eight
(368a-369a). | Coho
9. That’ at’ the impact. scene the fog was reported to
have eovered the tops of trees 60 high -(334a-335a). }
10.°That just prior te impact the plane was.in a slight
turn to the right and banked approximately 1114 degrees
(510a). srs ce See
_ 11. That the plane descended below the glideslope and
struck some pine. trees at a point about 3500’ before
’ reaching the touchdown point of runway 5 and ‘was about
260 to'the left of the localizer center line extending from
Petition for a Writ of Certiorari : 39. |
the runway and about 200’ below the glideslope, and then
’ having struck the pine tree, proceeded sevéral hundred feet
more where it struck an oak tree approximately oY in
height and sheared it away at about 20 from its top, after
which it then crashed’ to the ground. The farthest piece
of wreckage was 801’ from the’ first tree it had hit
thus establishing that the plane even through all this was
still under tight control and that this crash was not that °
of a plane suddenly losing its power causing it to plummet
nose down into the ground; that the impact area was ap-
proximately 212’ northwest of the middle marker and 3486’
from the end of runway 5 (476a, 477a, 439a, 441a).
12. That after the crash, the left landing light was
found to be in a retracted position and operating normally .
(444a), which we show, infra, corroborates the dense fog
present and utter lack of visual contact with the runway.
All of these facts spelled out a clear picture of what
oe happened—the underlying scenario scheme. In sum, plain-
tiff by virtue of her marshalling of the factual material
with respect to this case and by then submitting it to three
qualified experts, produced an irrefutable case of wilful
misconduct. This was a clear case, accurately, convincingly
‘and thoroughly proven in every minute detail, particularly.
by physical facts which simply could not be ignored. It
would be expected that Eastern with its vast reservoir
of experts would call men who would contradict plaintiff’s
evidence and theory if there were any who would so testify.
This it did not do. The inferences that flow from such.
silence need not here be spelled out. |
Defendant ereéted its main defense around unidentified
jets, which it claimed were present near the scene of the
accident. For ‘this defense it relied upon the testimony’
of two housewives who did not see jets but claimed they
heard them (Mrs. Farish and Mrs. Lubin, 940a, 943a, 956a,
. 961a) and.one Wheeler—a relative of an Eastern Air Lines
Supervisor—who claimed that he was passing through the
area in a truck and claimed he saw the silhouettes of two
jets (972a) in the dense fog. The depositions of all three
ee PR REY Ne —
.
.
.
Pe ea eS arr eeg? ©
40 Petition for a Writ of Certiorari
of these witnesses read into the record are a blob of vague-
ness, self-contradiction and seemingly deliberate misstate-
ments. ; |
In rebuttal to this testimony, which was entirely by
deposition,.plaintiff produced by deposition the testimony
of Charles R. Young and Thaddeus Taylor who heard the
plane and said it was not a jet (334a, 1049a-1050a, 1043a,
1045a). Plaintiff also produced as a live witness, Franklin
Cardwell, a National Airlines Flight Engineer with twenty
years professional experience,.who previously had testi-
fied at the C. A, B. hearing and also unequivocally stated
at this trial that he had been affirmatively listening and did.
not hear jets (744a-745a) but only the distinctive sound of
-a propeller driven Constellation. All lived, and were within
yards of the crash when it happened.
_ Most importantly, Admiral Greenslade and Major
Tobin at the request of the C. A. B. checked the official
records of all military installations within an area of five
hundred miles of Jacksonville and. found that no military ~
jets were aloft in that area at the time. ( 1052a-1053a, 1059a-
1061a).° All jets at that-time were military jets (945a).
In addition, William T. McKinney, the United States
radar operator at the Jacksonville tower whose job it was
to check the radar scope to watch the instrument landing
approach of Flight 642 said there were no planes ‘except
Eastern Flight 642 on the scope in a ten-mile range up
to an altitude of 10,000 feet (256a-257a). In addition, both
he and Lawrence R. Robinson, the other F. A. A./men in |
the tower affirmatively listened and heard onl
aloft—the Constellation (propeller plane).
there was no jet over the airport (247a,
283a). : , |
_ Against this background, Judge Boldt found that there
was a ‘‘substantial and reasonable probability’’ that jets
caused the accident and that therefore the defendant was -
not guilty of wilful misconduct. This finding was clearly
erroneous requiring at least a new trial. There have now
a, 259a, 282a,
been five trials. The evidence on this point was by way « °
a
Petition for a Writ of Certiorari - 41
of deposition. Hence this Court has the power to ‘make ~
its own independent finding regarding jets. In so doing,
_ after making ‘its own analysis of these depositions, it has
the complete power to reject the finding of jets and may
conclude factually that the carrier was guilty of wilful mis-
conduct. Indeed since the proof was by deposition peti-
‘ tioner does not have the burden of proving that the judge’s
findings are ‘‘clearly erroneous’’ in order to have them set
aside and-need only prove that her own evidence is
‘ weightier. Surgical Supply Service Inc. v. Adler, 321 F. 2d
936, 539 (C. A. 3, 1963). Actually the finding a jets is
simply and pininly ‘‘clearly erroneous”’.
. The trial judge (Boldt, J.) who heard the facts without
a jury predicated his conclusions of no negligence or wilful
misconduct solely and exclusively upon a fact finding that
_ there were military jets which cut across the path of the
‘Constellation in which the pleintiff’s decedent was a
passenger, causing it to crash. Thus at the end of the trial
he rendered an oral opinion (1255a) in which he said:
62. Tt is my opinion, and i now so find, there is not a
preponderance of credible evidence showing a sub-
stantial or reasonable probability that the Flight 642 .
crew, or any of them, under éther than emergency
conditions knowingly and intentionally brought the
plane to a position below the minimums prescribed for
an ILS approach, or knowingly and_ intentionally
violated any other regulation for or requirement of a
proper ILS approach. (Emphasis supplied.)
3. In my opinion there is substantial and reasonable
probability shown by a preponderance of the evidence
that the presence of jet aircraft in or near the ILS glide
slope for Runway 5 and in or near the immediate path- _
way of the landing approach of Flight 642 threatened z
or interfered with the approach of Flight 642, bringing
about emergency conditions and accident resulting in
the crash without wilful misconduct, negligence or fault
42 -. Petition for a Writ of Certiorari
on the part of defendant or any member of the crew
of Flight 642. ( Emphasis supplied.)
4. The actual cause of the crash of Flight 642 cannot
be determined on the record before me, and I find
wilful misconduct as a cause of the accident to be no
more than one possibility, among others.
In any event, wilful misconduct, in my judgment, is
far less probable as a cause of the crash than the
highly probable presence and actions of jet aircraft in
or near the ILS approach path of Flight 642.
‘As just stated, I believe there is. substantial prob-
ability that one or more jet aircraft were in or near
the immediate vicinity of the ILS glide slope leading
to Runway 5 during the landing approach of Flight
642 within a very short period of time prior to the
plane crash.’’ (Emphasis supplied.)
Defendant’s brief below sought to avoid the tenuous
jet finding issue and rely upon other findings by the trial :
judge. ; It stated ‘‘His [Judge Boldt ’s] evaluation of the
testimony concerning jets (Fn.) was necessarily affected
by his judgment concerning the credibility of plaintiff’s ex-
_ pert witnesses’? (p. 19).- But the opinion of the court
. Shows that the converse is true: the finding of the presence
of jets compelled him to disbelieve the plaintiff’s experts.
At 1258a the trial judge quoted from the’ case of Smith v.
Bell Telephone Company, 397 Pa. 134, and he stated that .
the burden on the plaintiff was to produce evidence: to-
prove the conclusion sought so. . . “as to outweigh in
the mind of the fact-finder any other evidence and, reason-
able inferences therefrom which are inconsistent’ there-
with’’, ) : . :
After ‘Stating this law the judge then made the fol-
lowing finding (1255a):
| “*2. It is my opinion, and I now:so find, there is
- not a preponderance of credible evidence showing a
substantial or reasonable probability that the Flight
Some waned Litliitenine arin alicia Ot baie a aa
°
Petition for a Writ of Certiorari _ 48
_ 642. crew, or any of them under other than emergency
conditions knowingly and intentionally brought the
plane to a position below the minimums prescribed for.
an ILS approach, or knowingly and intentionally vio-
"lated any other regulation for or requirement of a.
proper ILS approach.’’ (Emphasis supplied.)
He then described what those emergency conditions were,
viz: the presence of jets (Finding #3) (1255a), and then
concludes (1255a) : : or
QS
‘*In the event, wilful misconduet, in my judgment,
is far less probable as a cause of the crash than the
highly probable presence and actions of jet atreraft
in or near the ILS approach path of Flight 642.” (Em-
phasis supplied.) .
Thus, contrary to the base upon which defendant builds
its argument, it is clear that Judge Boldt’s rejection of the
testimony of plaintiff’s experts was a result of his finding
of jets. We submit that no one can read the opinion of the
court below without agreeing that the finding of jets is its
pivotal point. —
The defendant tried to make light of the jet issue and
discussed it only in a footnote (p. 19, footnote 13) in its”
brief below.. Plaintiff reviewed the testimony in detail
there and now here. The reason for earrier’s avoidance of
the jet issue is obvious. It has never been able to combat
plaintiff’s overwhelming proof that there were no jets pres-
ent. Jt is most significant that carrier did not even mention
in-its footnote treatment in its brief below the most com-
pelling testimony in the record, i.e., that of Admiral Green-
slade and Major Tobin that they had no record of any jets in
the area at the time, and the only jets in existence were -
military jets. In simple fairness how could such testimony ~
be ignored? °The thrust of all the official proof was irre-
sistible: There were no jets. SA
ya,
Fe |
a
~~,
Oey
44 Petition for a Writ of Certiorari
4. explanation of how he réached this conclusion that
jets weve, present which affected the descent of Flight +642
Judge Boldt applied the rule of positive v. negative testi-
mony. He misunderstood the rule and applied it incor-
rectly. Thus he said (p. 1256a) : eo:
“To me, affirmative testimony as to seeing objects
_and hearing seunds, when unequivocal, reasonable and
ringing-true to the trier of fact is far more persuasive
and convincing than. testimony that said sights or
sounds were not seen or heard by other witnesses hav-
ing opportunity and occasion to see and hear. On this
subject, the negative testimony in this case whether :
taken singly or as a whole, in my mind does not bal-
“ance or outweigh the affirmative testimony. The tes-
timony of Greenslade and others to the effect that no
‘military jets were reported or recorded as operating
in the Jacksonville area at the time, while given full
consideration, does not convince Ie that jet aircraft
were not or could not have seen and heard at the time .
and place indicated in the testimony of Wheeler, Lubin
and cma (Emphasis supplied.) ,
. The Judge obviously labelled all the petitioner’s evidence
on ‘jets as negative proof. A pparently to the judge’s mind.
if one paying. attention by looking or listening for. -a
sight or sound says that despite such attention; he neither
saw nor heard such occurrence, such testimony is negative
and must be disregarded in the face. of oral testimony in
which another says he saw or heard the occurrence. This
is not the law. Such denial of an: occurrence or sight: is
just as much positive proof ‘as testimony by another that
he saw or heard it. But misconception of the law com-
pelled his finding of jets. At least it is the only respectable
explanation for so -gross a misconclusion. One does not
have to say ‘‘yes’’ to make his testimony positive. A “no”
”
Petition for a Writ of Certiorari 45
may under proper factual circumstances be positive proof |
as well.
Summary of Wilful Misconduct Argument.
This accident occurred ‘in the middle of the night at
approximately 3:45 A. M. Two employees of the United
States worked as air traffic controllers at the federal air
control center at the tower at Jacksonville that. night.
. They. were totally experienced in aircraft, their sounds,
movement and action. They testified without hesitancy or
_ doubt that they were listening and heard only one plane
overhead the airport and that that plane was a propeller
driven Constellation which travelled the natural flight path
that the fatal flight of #642 (a Constellation) would nor-—
mally follow as it circled the airport prior-to making its
approach to runway 5. Moreover these men had the benefit
of scanning the radar scope which would reveal all planes
within a range of ten miles in all directions of the airport.
They insisted that they saw only one plane on the scope
and that that plane flew right on line with the path that
_ the fatal Constellation would be flying in making an ap-
proach to runway 5. Superimposed on all of this testi-
mony was official documentary evidence given by each and |
every branch of the military service which alone flew jets -
in that area. There were a number of others called by peti-
tioner, both trained in aviation work and laymen who ‘lived
' for many years in the vicinity who positively stated there
was only one plane in the area and that that plane was a
propeller driven. vehicle. - This array of proof completely
’ and totally proved that there were no jets aloft at that time
within a distance of 500 miles in all directions of the
airport. - ‘
In the face of such compelling evidence, the trial judge
nonetheless stated that he believed three witnesses called °
eg AOE rep OND 1A per
_ ee eee
46 Petition for a Writ of Certiorari
by defendant who gave testimony about jets which ad-
mittedly they did not see, which was so self-contradictory —
and so palpably untrue as to lead even the majority to say
that ‘‘the evidence supporting it (jets) is exceedingly thin.’’
In the light of this admission; common justice requires
' that this Court overrule the trial judge’s finding in this
respect as so vigorously urged by the minority below since
it falls completely within the rule of Surgical Supply Co. v.
Adler, 321 F. 2d 536, 539 (C. A. 3, 1963) ; Mobile Tankers
Co. 8S. A. & Sacony Oil Co., Inc. v. Mene Grande Oil Co.,
363 .F. 2d 611 (C. A. 3, 1966) and is not covered by the
‘‘clearly erroneous’? rule. Under this rule this court -is
completely free to make its own findings of fact because the
_ testimony was given by deposition and therefore it may
reject the trial judge’s findings when it finds other conclu-
sions more logical and credible. Even were this Court to
apply the ‘‘clearly erroneous”’ rule, it would be compelled
in simple justice to hold that that finding of jets was
“clearly erroneous” because anyone reviewing the “entire
testimony must be left with a definite and firm conviction
that a mistake has been committed’’. United States v_U. S.
Gypsum Co., 333 U.S. 364.
The trial judge made a hodge-podge of inconsistent fact
findings on the score of the defendant ’s negligence. ‘Hav-
ing found that the defendant was free of all fault he still
strangely awarded $8,300 in damages to the plaintiff, which
under Art. 20 he had no power to do if the defendant was
totally free of fault. His finding that there were jets was _
clearly speculative and mere speculation cannot be allowed
to do duty for probative facts. Galloway v. United States,
319 U.,S. 372, 395 (1943) ; Noel v. United Aircraft Corp., 342.
F. 2d 232, 239 (3rd Cir. 1964). He confused the rule rela-
tive to affirmative testimony and held that though a number
of witnesses had positively stated that there were no jets in
- the air, that that testimony amounted to negative testimony
and applied the rule that negative proof has no probative
value even though they had affirmatively stated that there ©
La
Petition for a Writ of Certiorari 47
were not jets present, and even though those witnesses were
actively looking and listening for aircraft movement. This ~
was in complete disagreement with the law of. the Third
Circuit stated by our own J udge Biggs in Eiseman v. P. R.
R., 151 F. 2d 222 (8rd Cir. 1945), and the Supreme Court of
Pennsylvania in Enfield v. Stout, 400 Pa. 6 (1960) and this
- Misconception of the positive v. negative rule led him via
legal error into.gross mistake in his finding of jets.
The trial judge found that ‘‘the actual cause of the
. crash of Flight #642 cannot be determined on the record
before me ‘‘but then ignored the fact that. where a crash of
this kind occurs and a plane falls short of the runway while
on the direct path to the runway, it creates a ‘clear res
ipsa loquitour situation which requires submission of the
_ case to the jury and that on failure of the carrier to offer
proof to the contrary, a verdict for the plaintiff should
have been rendered. And this is especially true-when the
carrier admits that it had no exculpatory evidence to offer
for itself (118, 119[a]). Thus in Citrolla v. Eastern Air-
. lines, Inc., 264 F. 2d 815 (C. A. 3, 1959), a case arising out
of this very same crash, that plaintiff prevailed on simple
negligence predicated on res ipsa loquitur, under these pre- |
cise facts since her passenger was not engaged in.an inter- .
national flight. Moreover since admittedly #642 violated
the Civil Air Regulations by going below the minimum per-
missible in that weather, the carrier was guilty of wilful
misconduct. Tuller v. K. L«M. Royal Dutch Lines, 292 F.
2d°775 (C. A. D. C. 1961). °
The attempt by the trial judge to stifle the appellate
courts in their review of his exceptional actions and rulings,
by stating that he did not consider any evidence to which
' . the plaintiff objected and accepted all the evidence which
the plaintiff offered, although objected to by the defendant
is an old and weary ploy to prevent a reversal by the appel-
late courts on rulings on evidence and is part and parcel of
the trial judge’s conduct in this case to which all fair men:
must react with a fierce sense of justice gone awry. If ever
vet ahora
PRE EI Vs
a FF NE EE 7
ee
fra) st
So eee
48 Petition for a Writ of Certiorari :
a plaintiff proved a case of wilful misconduct it was here.
The plaintiff called as experts an extraordinary array of ex-
pert aviation talent including a 20-year man in piloting Na-
tional Airlines planes of all descriptions including the latest
jets—a Navy-pilot of 15 years experience, a TWA Navi-.
gator and flight engineer and pilot of many years experi-
ence, a world famous heart specialist and Professor Emeri-
tus at the University of Pennsylvania Medical School * and
_ a leading meteorologist, Dr. Francis Davis of Philadelphia
weather fame, all of whom the judge blasted—utterly with-
out basis as untrustworthy of belief. Instead he accepted
the testimony of a truck driver related to an Eastern Air-
lines employee. _Even after this witness’s testimony had
. been doctored by an Eastern Claims Agent: to get him into
the crash area on time so as to be able to have seen or heard
_ anything which was impossible under his first story, at best
he still only claimed to have allegedly seen (but not heard)
the silhouettes of jets in the pea soup clouded sky. The
judge also relied on a confused housewife who, awakened
from her sleep by the noise of the crash; said contradictory
things about what she heard but did not see, and.another
lady who had at the C. A. B. hearing very insistently said
she heard only one (1) plane but changed her testimony at
the trial to meet the carrier’s story of two (2) planes on
' the scene. In checking the trial record of the first trial
though the carrier already had the depositions of these two
ladies, it evidently cgnsidered them of such low probative
value that it did not offer those selfsame depositions 7"
evidence at that trial. ,
6. Petitioner proved from respondent’s. own records. that one of
its pilots on this plane had forged his medical certification required
by the C. A. B. and that both pilots had high blood pressure and heart
conditions of which they were each aware. If petitioner’s proof of
_ attempted sneak-in be rejected, at least the judge should have found - -
that the accident was caused by heart failure or stroke of the pilot
who in clear wilful misconduct had knowingly been permitted to fly
a commercial passenger plane despite his serious heart and blood
_ pressure ailments of which the airline was aware-rather thari accept
. the dubious defense of jets which even the majority characterized as.
“exceedingly thin”.
"
~~
ee piece of judicial mockery.
Petition for a Writ of Certiorari - 49
This resumé must shock all who read this record and
4 render them compelled vigorously to attack these findings
as they represent a manifest miscarriage of justice. The
pages of this record blare out in unison one of the most
shocking pages of wanton misconduct and gross negligence
in the history of American aviation. The findings of no
wilful misconduct is simply a stubborn, confused and un-
” Respectfully submitted,
B. NarHantre Ricutan,
ee Seymour I. Tot, 3
Counsel for Petitioners.
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Appendix C. 57
UNITED STATES COURT OF APPEALS
For tHE Turrp Crrcuir .
No. 15156
MARION J.. BERGUIDO, Inpivinvatty; MARION J.
BERGUIDO, ROBERT G. ROWE anp WARREN H.
WOODRING, Executors or Tue Estate or CARLOS
BERGUIDO, JR.; ayn JUNE BERGUIDO, JOY
BERGUIDO, JILL BERGUIDO anp CARLOS—
BERGUIDO, 3v, By Tueirm Guarpian MARION J.
BERGUIDO, . | :
Appellants
v. : .
EASTERN AIR LINES, INCORPORATED
re , way .
On Petition ror REHEARING By Marton J. Bercuipo, ET ALS.
Before: Statey, Chief Judge, Biecs, McLaucuHuin,
Katopner, Hastiz, Forman, Smitu, FREEDMAN
and Se!tz,, Circuit Judges
OPINION OF THE COURT
(Filed June 9, 1967)
PER Curmum:
‘The petition for rehearing is denied.
Appendix C 58
Katopner, Circuit Judge, dissenting
‘I would grant the petition for rehearing for these
reasons:
(1) The trial court’s $8300 award to io plaintiffs
after it had found that they had suffered damages of
$375,000 was based on fact- findings which were ‘‘clearly
erroneous”? and, against the overwhelming weight of the
evidence; the trial court applied erroneous legal standards
in.its categorization of evidence as ‘“‘negative’’ and re-
_ jected it for that reason; the fact-findings were based on
rank speculation as evidenced by the trial court’s state-
ment that ‘‘the actual cause of the crash of — 642
cannot be determined on the record before me. . ; (em-
phasis supplied) and the trial court’s fact-findings were
inconsistent, and its cee was inéonsistent with its
fact-findings ; 5
(2) the trial court 7 this Court ais failed-to give _
effect to epeclion peecinnr ot Oe Warsaw Convention . .
part of a carrier where one is killed- or injured aboard a
plane and (b) make unavailable to the.carrier the liability
limitations of the Convention where there has been a
failure to deliver a passenger ticket which advises the
passenger of such limitations.
In my dissent reported at 369 F.2d 874, 880-886 (3 Cir.
1966), I spelled out in detail the respects in which the trial
court and this Court failed to give effect to the provisions
of the Warsaw Convention.
It would serve no useful purpose to here restate siti
I said in my-dissent on the score stated.
Attention, however, must be called to the fact that
the United States Court of Appeals for the Second Circuit,
subsequent to the filing of my dissent, has, at 370 F.2d 508
(1966), affirmed Lisi v. Alitalia-Linee Aeree Italiane, 253
F. Supp. 237 (S.D.N.Y. — where it was held that. a
‘Appendix C 59
passenger ticket similar to that here involved failed to
comply with the requirement of the notice provisions of
Article 3(1)(e) of the Warsaw Convention and that the
liability limitations of the Convention were for that reason
not available to the carrier.
In affirming, the Second Circuit, afier a the
relevant liability-limiting Articles of the Convention, said
at 370 F.2d 511-514:
‘‘These Articles, moreover, provide that the ticket
and check shall contain certain specified information,
including ‘ a statement that the transportation is sub-
ject to the rules relating to liability established by this
convention.’ Thus, it would appear, that unless the
‘carrier furnishes to the passenger a ticket or baggage”
check containirig the appropriate statement, it may
-not restrict its liability as circumscribed by. the Con-
vention Articles.
* | * *
‘“The Coltvention* s arbitrary limitations on liability
which have been severely and repeatedly criticized—
are advantageous to the carrier. But the quid pro quo
_ for this one-sided advantage is delivery to the passen-
ger of.a ticket and baggage check which give him notice
that on the air trip he is about to take, the amount of
recovery to him or his family in the event of a crash,
is limited very substantially. Thus the passenger is
give n the opportunity to purchase additional flight.
insurance or to take such other steps for his self-
protéction as he ‘sees fit.
“This notice to passengers is especially important in
this country where the overwhelming number of people -
who travel by air do so on domestic flights, for which
the Convention’s restrictions on liability are inappli-
cable. It is too much to expect these passengers to be
sufficiently sophisticated to realize that although they
are traveling the same number of miles on an inter-
national flight that they have frequently traveled
Appendix C - 60°
domestically, the amount they may. recover in the | .
event of an acéident is drastically reduced... . . |
“We proceed to determine, therefore, whether the
particular tickets and baggage checks’ involved in the
present case gave the appellees adequate notice. On
the’ front of th® ticket’ and baggage check, in exceed-°
ingly small print, was the following message: ‘Each !
passenger should garefully examine this ticket, par- )
ticularly the Conditions on page 4’ .:. . ; 7
‘“‘Judge MacMahon appropriately characterized the
‘notice’ to the passengers’ in his pithy conclusion as i
‘camonflaged in Lilliputian print in a thicket of ‘‘Con- |
. ditions of, Contract’. * * * Indeed the exculpatory .
statements on which defendant relies are virtually ~. .
invisible. They are ineffectively positioned, .diminu-
tively sized, and unemphasiz®d by bold face type, con-
trasting color, or anything else. The simple truth is
that they are so artfully camouflaged that their pres- <
ence is concealed.’ 253:°F. Supp. at 243.. Accord, -
Warren v. Flying Tiger Line, Inc., supra, 352 F.2d at .
497. But see Seth v. British Overseas Airways Corp.,
820 F.2d 302’ (1st Cirj, eert. denied, 379 U.S. 858, 85
S.Ct. 114, 13 L.Ed.2d 61 (1964). —
‘We agree that a jury could not reasonably have
found that the tickets and baggage checks gave the
“passengers the required notice. The District ‘Court
_ properly granted partial summary judgment striking
out these affirmative defenses of appellant.”?
- To Mee Tee
ear ae E
The disposition made by this Court at 369 F.2d 874 in
' the instant case is in conflict with that made by the Second
Circuit and for that reason alone requires the granting of
the petition for rehearing. ap .
Chief Judge Staley joins in this dissent. -
- A True Copy:
~- Teste: ;
| Clerk of the United States Court of A
. for the Thad Ciceg: Com? of Appeots
¢
Appendix Ds
e
ae _ APPENDIX D
S comsenmemememaal
JUDGMENT OF THE UNITED STATES COURT .OF-
APPEALS FOR THE THIRD CIRCUIT.
t
Present: Biaas, Katopner and Forman, Circuit Judges.
This cause came on to be heard-on ‘the record from
the United States District Court ‘for the Eastern District
of Pennsylvania and was argued by counsel. ati
On consideration whereof, it is now here ordered and
; adjudged by this ‘Court that the judgment of the said
. District Court, filed September 30, caries the same
is hereby affirmed, with: costs. :
>
_—
ATTEsT: es .
, _°Ipa O. Cresxorr,
oaae at | Clerk.
November 23, 1966. pas
6
Appendix E
u , @
¢
APPENDIX E
a enaninenenedl
ORDER OF THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT.
SUR PETITION FOR REHEARING.
Present: Stary, Chief Judge, Biecs, McLaveuuin, Hastie,
Forman, Smitu, FreepMan and Seitz, Circuit Judges. |
The petition for rehearing filed by Appellants in the ~
above entitled case havirig been submitted to the judges who
participated in the decision of this court and to all the other
available circuit judges of the circuit in-regular active serv- °
ice, and no judge who concurred in the decision having asked
for rehearing, and a majority of the circuit judges of the
circuit in regular active service not having voted for re-
hearing by the court in banc, the petition for rehearing
is denied. ’ | .
ATTEST:
THomas F, Quinn,
Clerk.
Dated: June 9, 1967.
Srarey, Chief Judge, and-Katopner, Circuit Judge, dissent .
_ from the denial of the petition for rehearing.
62
f
fp
@
tS
Appendix F_
UNITED STATES COURT OF APPEALS ©
For tHe Turrp Circuit
No, 15156
MARION J. BERGUIDO, Inprvinvatty, MARION J.
BERGUIDO, ROBERT G. ROWE ann WARREN H.
WOODRING, Executors or THE Estate or CARLOS
BERGUIDO,.. JR., axp JUNE. BERGUIDO, JOY
BERGUIDO, JILL BERGUIDO ann CARLOS BER-
GUIDO, 3p, sy Toem Guarpun MARION J. BER-
GUIDO, an a
| | Appellants
v.
EASTERN AIR LINES, INCORPORATED
Appeal From THE Unitep States District Court ror THE
Eastern District or PENNSYLVANIA
Argued. September 16, 1965
Before Bices, Chief Judge, and Katopnér and Foray,
Circuit Judges. 2
OPINION: OF THE COURT
(Filed November 23, 1966).
By Forman, Circuit Judge.
This is the second appeal ‘to reach us in the wrongful
death action brought in the United States District Court
for the Eastern District of Pennsylvania, individually, as
guardian and as executors of the estate of the deceased,
Appendix F.
Carlos Berguido, Jr. [hereinafter referred to as plaintiff,
plaintiff-appellant, and appellant], against Eastern Air
Lines [hereinafter referred to as defendant, defendant-
appellee, and appéllee]. Decedent was a passenger for
hire on a constellation that crashed near Imeson Airport,
Jacksonville, Florida in the early morning of December.
21, 1955. : |
Following two mistrials,-a third trial, before a jury,
resulted in a verdict for plaintiff. ‘The jury found that
the crash was the result of one or more acts of wilful mis-
conduct on the part of the defendant. Defendant’s attempt
to limit its liability to $8300 under the Warsaw Conven-
tion* governing international airplane flights was thus
defeated.’ We reversed on evidentiary grounds.
A fourth trial, before a jury, produced a verdict for
plaintiff, but only for the limited Warsaw Convention lia-
bility of $8300, this jury resolving the issue of wilful mis-
‘conduct adversely to the plaintiff. However, upon plain- ©
tiff’s motion, the District Court vacated its judgment and
granted a new trial. Defendant applied to this court for
a writ of mandamus and prohibition, arguing that the Dis-
trict Court had exceeded its power in granting the new
trial. We denied the writ® as well as a petition for re-
argument.® .
1 Article 22(1) of the Convention for the Unification of Certain Rules
Relating to International Tranportation by Air (Warsaw Convention), 49 Stat.
3014, 3019 (1936) states: ;
“In the transportation of passengers the liability of the carrier for each
passenger shall be limited to the sum of 125,000 francs. . ™
2 Article 25(1) of the Warsaw Convention, 49 Stat. 3014, 3020 ( 1936)
provides: e
“The carrier shall not be entitled to avail himself of the provisions
of this convention which exclude or limit his liability, if the damage is
caused by his wilful misconduct or by. such default on his part as, in
accordance with the law of the court to which: the case is submitted,
is considered to be equivalent to wilful misconduct.”
3 Berguido v. Eastern Air Lines, 317 F.2d 628, rehearing denied, 317 F.2d
633 (3 Cir.), cert. denied, 375 U.S. 895 (1963). sae,
4 Berguido v. Eastern Air Lines, Inc., 35 F.R.D. 200 (E.D. Pa. 1964).
5 Eastern Air Lines Inc. v. Clary, No. 14940, 3 Cir., June 18, 1964.
6 Eastern Air Lines, Inc. v. Clary, No. 14940, 3 Cir., July 10, 1964.
64
S
eke —
ee ee ee nee
Appendix F
. The case was then scheduled for its fifth trial. The
posture of the case was as it was at the previous trials.
Defendant, having pleaded the Warsaw Convention, was
attempting to limit its liability to $8300,7 while plaintiff’s
main efforts were directed at proving either that the
decedent’s flight was not international, or that defendant
was guilty of wilful misconduct so as to otherwise eliminate
the Warsaw Convention defense. The plaintiff had pre-
sented alternate theories of defendant’s wilful misconduct.
It was urged by plaintiff that the pilot of the Eastern
constellation had attempted a ‘‘sneak-in”’ landing—drop-:
ping down through a low cloud ceiling into a position below
the authorized Instrument Landing System (ILS) approach
minimum elevation. This theory was developed by plain-
tiff through the presentation of hypothetical questions to
experts, Glickstein, Kepner and Cann. Plaintiff's -alterna-
tive theory was that both the pilot and the co-pilot operat-.
ing the aircraft had submarginal heart conditions... Medical
_records were introduced in support of this theory.
Plaintiff alleges that it also urged that defendant had:
not met its obligations under Article 3(1) of the conven-
tion ® and, thus, the Convention did not apply. Plaintiff
7 Defendant conceded that it could not sustain its burden of proof under
_Article 20(1) of the Warsaw Convention which States :
“The carrier shall not be liable if he Proves that he and his agents
. have taken all necessary measures to avoid the damage or ‘that it was
aa for him or them to take such measures.” 49 Stat. 3014, 3019
( ‘
8 Plaintiff contends that Artic’ 3(1} of the Convention, 49 Stat. 3014,
3015 (1936) enumerates the condi’ as precedent to the applicability of the
Convention and that the failure c the defendant carrier to so comply both
‘removes the Convention as a defense and places the burden on plaintiff merely
of proving negligence. Article 3(1) provides: hs
“(1) For the transportation of passengers the carrier must deliver a
passenger ticket which shall contain the following particulars :
' “(a) The place and date of issue;
“(b) The place of departure and of destination ;
“(c) The agreed stopping places, provided that the carrier may re-
. Serve the right to alter the stopping places in case of necessity, and that if
"he exercises. that right, the alteration shall not have the effect of depriving
the transportation of its international character ;
_ “(d) The name and address of the carrier or carriers;
“(e) A statement that the transportation is subject to the rules relat-
ing to liability established by this convention.”
65
ps)
~The WERE ea om, nal at tensa inane! Beebe
Appendix F
appears to indicate that the District Court was thus urged
in the alternative to try the case on the theory of simple
negligence. | Ne , }
The parties waived trial by jury. They also. agreed
that the District Court need not enter findings of fact and
conclusions of law, which are required by Federal Rule
of Civil Procedure 52(1) in non-jury‘cases. The parties .
further specified that the District Court might limit its
decision to a general finding either for or against liability
and in a single total sum fixing damages, just as a jury
would do. Despite the acquiescence by the parties to a
- short form of disposition, not authorized by the Federal
Rules, the District Court did file an opinion® in which it
_ set forth findings of fact on certain aspects of its ruling.
Summarily determining the international nature of the
flight, a finding which the plaintiff does not now contest, the
bulk of the District. Court’s opinion is devoted to a dis-
cussion of whether the defendant was guilty of wilful mis-
conduct. A discussion of whether defendant complied with
Article 3(1) of the Warsaw Convention is absent, although
the Convention was determined to be applicable. The Dis-
trict Court observed that this was a ca8e where the evidence
of wilful misconduct was meager and incomplete, making
the search for truth a most difficult task. It stated that a
considerable number and variety of causes of the accident
were within the realm of possibility. The District Court
observed further that in a case such as this, where the
search is for the cause of the accident, the judgment of a
court must be determined upon the probabilities insofar as’
they can be determined from the evidence, and not on a
8 (continited)
Article 3(2) provides further, however, that:
“The absence, irregularity, or loss of the passenger ticket shall not
affect the existence of the validity of the contract of transportation, which
shall none the less be subject to the rules of his’ convention. . Neverthe-
less, if the carrier accepts a passenger without a passenger ticket having
been delivered he shall not be entitled to avail himself of those provisions
of this. convention which exclude or limit his liability.” p
ont Berguido v. Eastern Air Lines, Inc., Civil No. 21836, E.D. Pa., Sept. 30,
@
A
66
ge
Appendix F
mere possibility; even if such possibility be disclosed by the
evidence. |
The above preliminary observations were followed by
& statement of ‘‘firm findings” which the District Court .
apparently considered facts found ““specially’’ conforming
to the requirement’ of Federal Rule of Civil Procedure
52(1). The District Court found that there was not a pre-
ponderance of credible evidence that a health: condition
constituted wilful misconduct causing or contributing to the
the crash of the constellation. As to the ‘‘sneak-in’’ theory,
the District Court stated that it could not find as proven by -
the preponderance of the evidence all of the assumed facts
stated in the hypothetical ‘questions put to plaintiff’s ex-
perts. But, even if all the assumed facts were taken to be —
proven, said the District Court; the conclusions reached by
plaintiff’s experts were not believable. Rather, the District
Court chose to find that there was a@ substantial and reason-
able probability that the presence of jet aircraft in or near if
the ILS glide slope for the Eastern constellation interfered
with the aircraft, bringing about emergency conditions re-
sulting in the accident, the theory of the defendant. The
Court then concluded that defendant was guilty neither of
wilful misconduct nor of negligence. - Having previously
found the Warsaw Convention applicable, judgment was °
entered against the defendant for $8300. Though finding
against defendant’s liability above $8300, the District Court
indicated, albeit quite unnecessarily, that plaintiff had suf-
fered $375,000 in damages.
a
Prior to examining plaintiff-appellant’s position on
this appeal, a question of some moment is whether the Dis-
trict Court complied with Federal Rule of Civil Procedure
52(1). The agreement between the. parties, that the Dis-
trict Court need not enter findings of fact, -is not effective.
The requirement of Rule 52(1) is mandatory, the findings in
°
VA
Appendix F
part serving as a necessary aid to the appellate courts.”
If a full understanding of the factual issues cannot be
gleaned from the District Court’s opinion, we would be
obliged to remand for compliance with Rule 52( 1).
‘Were the findings, “as prepared, sufficient compliance
with Rule 52(1)?_ Concerning plaintiff’s theory of the sub-
marginal heart conditions of the: pilot and co-pilot, the
single finding that there was no probable causa] relation-
ship shown between their heart conditions and the accident
is ample to meet the requirement of Rule 52(1). The basis
of the Court’s ruling is clear and an examination of the
record will reveal whether there is substantial support
_ for it: a cictat é
The District Court did-not, however, comply with Rule
52(1) when it found, without further elaboration, that sonie
of the assumed facts stated in the hypotheticals were riot
proven. But for the Court’s further assuming the validity
of all the facts in the hypotheticals for purposes of testing
whether the defendant, even “under those circumstances,
was guilty of wilful misconduct, the failure to elaborate on
the inadequacy of the hypotheticals would have been.a fatal
defect requiring a femand.. The Court did find, however,
that assuming the accuracy of the facts in the hypotheticals,
* plaintiff’s expert witnesses, Glickstein, Kepner and-Cann,
drew a conclusion therefrom as to the probable cause of the
accident that was not believable. Considerable effort was
exercised by the Court in analyzing the basis for the refusal
to accept their conclusion.’ Such elaboration qualifies the .
finding’ as sufficient under Rule 52(1), if indeed a specific
finding by the trier of fact is needed when the issue is one
of credibility.” 3 cock ;
_As to the District Court’s finding that. jet aircraft in
or near the ILS glide slope interfered with the Eastern ©
Constellation and, therefore, defendant was not guilty of
wilful misconduct, this states‘a fact susceptible of examina-
10 5. Moore, Federal: Practice § 52.06[1], at 2653 (2d ed. 1951). |
6€
-Appendix F
Rule 52(1). |
As an initial matter we conclude, therefore, that the re-
tion by an appellate court and thus is in compliance with
quirements of Rule 52(1) have been sufficiently met." The .
findings of fact and conclusions of law may now be con-
sidered in the light of plaintiff-appellant’s appeal con-
tentions. | se : | s
_ 1
Appellant now concedes. the international nature of the
flight and to this extent the applicability of the Warsaw
Convention. It is contended for the first time, however,
that the litigants to this suit, as well as most courts which
have previously déalt with the question of liability under
the Warsaw Convention, have labored under a misconcep-
tion concerning the scheme of the Convention. Appellant
urges a theory of unlimited absolute liability in the face of
the appellee’s alleged failure to comply with Article 3(1)
of the Convention. It is argued that Article 17 provides —
« for unlimited absolute liability unless a carrier proves that’
it has complied with Article 3(1). Appellee, urges appel-
lant, having failed to carry its burden of proof is, as a
matter of law, liable without fault for the total amount of
appellant’s damages, under Article 17 of the Convention.
| _ Specifically, appellant contends that: appellee has failed to
prove ‘both actual delivery of the ticket to the decedent and
actual delivery of an adequate ticket showing (1) all agreed
stopping places and (2) the provisions of the: Convention
“The carrier. shall be liable for damage sustained in the event of ee
. death or wounding of a passenger or any other bodily injury suffered bya .
passenger, if the accident which caused the damage so sustained took
place on board the aircraft or in the course of any of the ‘operations of
embarking or disembarking.” , ;
ae
Ba A SS ee ad
ELI WRN
weowi
LOMO BENE REI NEI 8 2
Appendix F
which limit a carrier’s liability. Although appellant’s con- |
tention is that the burden of proof is on the carrier, an
attempt is also made by appellant to affirmatively show the
inadequacy of the ticket, although not the failure to actually
deliver that ticket. However, failing acceptance of this ap-
proach, appellant urges that the District Court’s finding of
no wilful misconduct by the appellee was clearly erroneous.
Appellee contends that the issue of compliance with
Article 3(1) of the Convention was eliminated from the
case at pre-trial and that, nevertheless, a plaintiff, and not
a carrier-defendant, has the: burden of proving: non-com-
pliance with Article 3(1). Actual non-delivery of the ticket
under Article 3(2) is also urged as the only Article 3(1)
conduct of a carrier which will defeat the Convention as
a defense. As-to the question of wilful misconduct, appel-
lee urges that there was substantial basis for the District
Court’s exonerating it therefrom. Appellee furthermore
cross-assigns as error the District Court’s grant of the
motion for a new trial subsequent to the jury verdict in its
favor at the fourth trial, which resulted in the fifth trial
from which this appeal has been taken.
The contentions thus having been outlined, we now
turn to their disposition. |
_—-I— s :
Appellant has urged that both Grey v. American Air-
lines® and Westminster Bank v: Imp. Airways, Ltd."
stand for the proposition that liability under Article 17
of the Warsaw Convention, as an initial matter, is absolute
and unlimited. To avoid. such liability a carrier must
demonstrate compliance with Article 3(1) of the Conven-
tion, argues appellant. Neither case supports the proposi-
tion, for the question of whether Article 17 provides such
unlimited absolute liability for the death of a. passenger
was not an issue therein. Furthermore, in the first appeal
before this court, Judge McLaughlin, though not faced
“13 227 F.2d 282 (2 Cir. 1955).
14 2 All E. R. 890 (K.B. 1936).
70 |
RATE TIN
PORT PA OR
FEET PEE LN ERE GE IIL APR HORN I, 8
SFE ome ere ggere:
RANEY SEY FO” sil SETI et tat NI 0 ie LPT
Appendix F
squarely with the issue as here raised, in effect disposed -
of it by appropriately reading Articles 17 and 22(1)** in
pari materia. It was thus stated: :
‘‘. . . The Warsaw Convention provides, inter
alia, that the carrier is absolutely liable for all injuries
where the accident causing the damage so sustained
took place on board the aircraft. Article 17. In such ©
circumstances the liability of the carrier for each pas-
Senger is limited to 125,000 francs (approximately
$8300). Article 22(1) . . . 728 aC:
Article 17 itself gives no indication of the extent of a car- =
rter’s liability. It must be read with Article 22(1) for the
absolute unlimited liability as the scheme of the Convention,
Having thus disposed of this contention, appellant .
must sustain either (1) its argument that the District
Court ‘erroneously found that the appellee was free from
wilful misconduct or (2) its argument that there had not
been compliance with Article 3(1) of the Convention: Suc-
cess of the latter argument would have removed the Con-
vention defense of limited liability and allowed the suit to
proceed to trial, with the plaintiff’s burden being merely
to prove the negligence of the defendant, rather than wilful
misconduct, this approach being the appropriate substitute
for appellant’s urged absolute and unlimited liability with-
out fault theory. | aie
Such contention, revolving around a construction of
- Article 3(1), raises the more Specific issues of (a) which
question concerning the extent of. the liability to be an-
swered, and an analysis of the question does not support
oO
.
party has the burden of proof to show compliance or a
failure thereof, (b) whether the issue as framed by appel-
lant was eliminated at. pre-trial, (c) whether the record
gs ) 15. Supra note 1.
diet) Berguido v. Eastern Air Lines, supra note 3 at 629. (Emphasis
added.) .
71
DCRR. O8-*
Sadie BIAS
MI SPLAT SANE TS as. De
Appendix F
10 ; ae as
before us is sufficient to allow us to dispose of the merits
of the mixed questions, and (d) if the record is ample,
whether appellee has complied with Article 3(1) and what
are. the legal ramifications if it has not. done so.!7
_ . Appellant submits that its position relative to Article
3(1) must be sustained, that it proved negligence, and
‘that, therefore, this court should remand for entry of
judgment in the amount of $375,000 as found by the Dis-
trict Court. The District Court, however, as well as find-
ing that appellee was not guilty of wilful misconduct, found
that appellee was not even negligent. If this conclusion
is supportable, it is final and there is no need for us to
examine appellant’s legal contentions concerning Article
3(1) of the Convention, which we have set forth in the
foregoing paragraph, for even if those contentions are de-
termined in favor of appellant, they would not dictate a
reversal. ;
The issues of appeliee’s wilful misconduct ‘and negli-
gence are bound together in this case, for appellant’s
theories of the cause of the accident would have been the
basis for provirig both, and the burden of such proof as to
. both remained with appellant as plaintiff.’®
As to appellee’s theory that jets entered the ILS glide
: slope of the Eastern constellation, and the District Court’s
_ acceptance of it as the probable cause of the accident, it
appears that, the evidence supporting it is exceedingly
thin. It.is unnecessary in this instance to finally resolve
whether such a finding is supported by substantial evi-
dence in the record for, even absent such a finding, we are
17 For discussions of the legal consequences of a failure to comply: see
Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2 Cir.-1965); Grey vy.
- American Airlines, supra note 13 at 284, affirming 95 F. Supp. 756 (S.D.N.Y.
ond Lisi v. Alitalia-Linee Aeree Italiane, 253 F. Supp. 237 (S.D.N.Y.
1966).
It is in passing noteworthy that in Mertens the plaintiff had assumed that
¢ burden was upon him to prove defendant’s failure to comply with Ar-
ticle 3(1). |
18 Grey v. American Airlines, supra note 13 at 285-86. |
_—
7
PLO PEO ONE he
i ee eee ee
|
OS Ort a OC TIN RIEL Yi ALF AE RMEB EL AR He
.
Orr
. STL OT ESLER S ol OE
*
Appendix F
satisfied that: the record supports. the District Court's
conclusion that appellant failed to- prove conduct of the |
appellee that was either wilful or negligent, and the proxi- —
ts
have been essential to appellant's recovery. |
Though medical deficiencies of the: pilot and co-pilot
‘were demonstrated, the District Court chose not to draw
an inference from this fact that a triggering of known
mate cause of the accident. Such independent proof would
' physical disabilities was the cause of the air mishap. It |
had the tight as the trier of fact to refuse to draw such
an inference. As there was no other evidence introduced
to show either a physical malfunction of the pilot or co-
pilot or that such a malfunction’ was ‘the probable cause ~
of the accident, the District Court’s finding that this theory
could not be sustained as the probable cause of the acci-
dent is not clearly erroneous. ye rah
Appellant’s alternative theory that the pilot knowingly
attempted an illegal ‘‘sneak-in”’ below the cloud ceiling in
violation of minimal altitude requirements rested solely on
the answers to hypothetical questions put to three expert
witnesses by appellant. Appellant’s experts’ answers to
the hypotheticals all concluded that the pilot must have
been attempting the theorized illegal ‘‘sneak-in’’. Ap-
_pellee’s experts testified that it was not possible to draw
such a conclusion from the hypothetical facts. The District
Court chose not to believe appellant’s experts. Its impres-
sion of appéllant’s experts as Stating overly partisan,
highly speculative, and unqualified opinions was a per-
missible determination of credibility by the fact finder.
Thus, as the testimony of the expert witnesses was the only
basis for appellant’s ‘‘sneak-in”? theory, the District Court’s
refusal to ‘believe it, particularly in the light of contrary
expertise, was well within its province as fact finder.
The initial ‘observation of the District Court that the
evidence as to causation was meager and incomplete would
appear to have substantial support in the record. Its con-
73
Appendix F
Res
>
lant, as plaintiff, to have sustained the requisite burden of
‘proof on the question of appellee’s wilful misconduct or
negligence was not clearly erroneous. The resolution of
this issue which is fundamental to the litigation, against
appellant, precludes the necessity for our determining
the numerous subsidiary issues it has raised, as noted
heretofore ———_~' | é .
The District Court entered judgment in favor of ap-
a = set % a nee oa © * pellant, but for the limited Convention liability of $8300.
ae Appellee did not contest this entry of judgment. Indeed,
a . it tendered the $8300 prior to judgment and has taken no
oF | err cross-appeal. The judgment of the United States District
eee a ; a Toe, eee es rae Court for the Eastern District of Pennsylvania of Septem-
7 ee ee Ne ber 30, 1964 will, therefore, be affirmed. —
|
».
Biaes, Chief Judge, concurring.
, I concur in the result reached by Judge Forman and
se ae 7 in all that he has said save for one statement, His opinion
. states: ‘‘As to appellee’s theory that jets entered the ILS
glide slope of the Eastern constellation, and the District
_ Court’s acceptance of it as the probable cause of the acci- :
See : Cem dent, it appears that the evidence supporting it is exceed-
ee ete a ingly thin:’’ I shall not discuss the evidence that formed
the basis for the District-Court’s atceptance of the theory
that jets entered. the ILS glide slope of the Eastern con-
“stellation since it is not relevant to the decision of this case,
but I cannot agree with Judge Forman’s statement that the.
evidence supporting such a theory is “fexceedingly thin’’,
19 This disposition also makes it unnecessary to consider appellee’s cross-
_assignment of error concerning the District Court’s grant of appellant’s new
om motion subsequent to the fourth trial and the jury verdict in appellee’s
favor. :
clusion that thé evidence was not sufficient for the appel- -
74
VEO AOE, OE OEE BE
Appendix F a 75
Kauopner, Circuit Judge, dissenting.
A I would reverse the Judgment of the trial court and
- remand with directions to grant a new trial for these
reasons :
1. Inconsistent fact-findings were made by the trial
court on the score of the defendant’s negligence; it ex-
pressly found that the plane crash was due to a sudden
emergency created by ‘‘the highly probable presence and
actions of jet aircraft’’ and that as a consequence the
defendant was free of all fault or negligence, and then, in
awarding $8300 damages to the plaintiffs, it implicitly
found that the defendant was negligent since such an award
could only have’been made under the Warsaw Convention
oa a finding of negligence. It is settled that where fact- — oo UG
findings are inconsistent either with one another, or with |
the verdict, that a new trial must be granted. Freight-
ways, Inc. v. Stafford, 217 F.2d 831, 835 (8 Cir. 1955) ; Rule
49(b) Federal Rules of Civil Procedure.
2. The trial court’s fact-finding that the crashing of the
‘plane was due to a sudden emergency created by ‘‘the
highly probable presence and actions of jet aircraft’’ was
against the overwhelming weight of the evidence; it could
not have been reasonably made under the evidence.
a 3. The stated fact-finding as to the ‘‘probable’’ pres-
“ence of jets was clearly on its face speculative. It is settled
that ‘‘mere speculation’’ cannot ‘be. allowed to do duty
for probative facts.’’ Galloway v. United States, 319 U.S.
372, 395 (1943); Noel v. United Aircraft Corporation, 342
F.2d 232, 239 (3 Cir. 1965). | or
“ 4..The trial court erred as a matter ‘of law in ruling
that the explicit testimony of plaintiffs’ witnesses—airport
contro] tower operators and naval and air force officers—
| -that jets were not present. at the time of the crash, was
negative proof which “‘did not balance or outweigh the
‘
;
¢
f
LENCE GO LO AMEN ET, AN Ee
Appendix F
”
affirmative testimony’’ of the defendant’s witnesses that
they saw and heard jets. It is settled that where a witness
is so circumstanced that he is able to testify as te non- °
‘presence of a thing, his testimony is affirmative: Eiseman v.
Pennsylvania R. o., 151 F.2d 222 (3 Cir, 1945); Enfield v:
~ Stout, 400 Pa. 6 (1960) ; Wigmore on Evidence, (3rd ed.)
777 § 664.
5. The trial court’s expressed admission that ‘The
actual cause of the crash of Flight 642 cannot be deter-
_ mined on the record befére me’’ evidenced a ‘‘hung-jury”’
situation which required it to abstain from reaching a
verdict and to direct a new trial. Where a jury cannot
_Teach.a verdict as to how an accident happened it is a
“‘hung-jury’’. The trial court, to which the case was tried
without a jury, was a ‘“‘jury’’. Allen v. St. Louis Bank,
120 US. 20,:30 (1887).
_.The majority has not adverted to any of the stated
points nor does its opinion indicate an awareness of their
existence. | .
It has confined its consideration to the single point as
to whether the record supports. the trial court’s finding —
that the defendant “‘was not even negligent’’, and has found
on that score that “‘the record supports the District Court’s
conclusion that appellant [plaintiffs] failed to prove con-
duct of the appellee [defendant] that was either wilful or
_ negligent, and the proximate cause of the accident’’, -and
““Such independent proof would have been essential to ap-
pellant’s recovery’’. (emphasis supplied) eg
The majority has by-passed resolution of the critical
question as to -whether the’ evidence supports the trial
court’s finding that the ‘accident was caused by a sudden
_ emergency due to the ‘‘probable presence and actions of
jet aircraft’, even though it concedes that the evidence as
to the presence of jets ‘‘is exceedingly thin’’, for the as-
. Signed reasou that the plaifitiffs failed to meet their burden _
_to prove even negligence.
nd
Soo
76
a
FCN (Pane IO OE BO Wh 2
ATMS
T Diciiaie
Appendix F
The majority errs in its view that the plaintiffs ‘bore
the burden to prove negligence.
The Warsaw Convention, 49 Stat. 3,000 et seq., :pro-
vides in Article 17’ that where a passenger is killed or
injured aboard a plane ‘‘the carrier shall be liable for
damage sustained”’, and Article 20(1) 2 imposes the burden
of the carrier to prove that it has ‘taken all necessary
measures to avoid the damage or that it was impossible’’
for it to take them. We specifically noted these provisions
when the instant -case was before us on a prior appeal.
Berguido v. Eastern Air Lines, Incorporated, 317 F.2d
628, 629 (1963)." It is undisputed that Article 17 ‘‘creates
a presumption of liability from the happening of the acci-
dent.’’* The late Secretary of State Hull, in a letter dated
1 Article 17 of the Warsaw Convention provides as follows:
“The carrier shall -be liable for damage sustained in the event of the
death or wounding of a passenger or any other bodily injury suffered by a
passenger, it the accident causing the: damage so: sustained took place on
rd ,the aircraft or in the course of any of the operations of embarking
or disembarking.” ;
2 Article 20(1) of the Corivention provides:
“The carrier shall not be liable if he proves that he and his agents have
taken al! necessary measures to avoid the damage or that it was impos-
sible.for him or them to take such measures.”
3 In. Berguido v. Eastern Air Lines, Incorporated, 317 F.2d 628 (3 Cir.
1963), Judge McLaughlin, speaking for this Court, said at page 629: -
“The Warsaw Convention provides, inter alia, that the carrier is abso-
lutely liable for all injuries where the accident causing the damage so sus-
tained takes place on-board the aircraft. Article 17. In such circumstances
the liability of the carrier for each passenger is limited to 125,000 francs
(approximately $8,300). Article 22( 1). In order to escape that liability,
the carrier has the burden of proving that it has taken all necessary ‘meas-
ures to ‘avuid the damage or that it was impossible for it to take them. *
Article 20(1). On the other hand, if the plaintiff sustains his burden. of
proving that:the damage is caused by the ‘wilful misconduct’ of the carrier,
‘[t]he carrier shall not he entitled to avail himself of the provisions of this
convention which exclude [Art.. 20(1)] or limit [22(1)] his liability.’
Article 25(1).” sd ;
- 4 In Komolos v. Compagnie National Air France, 111 F. Supp. 393, 401
(S.D.N.Y. 1952), rev'd on other grounds, 200 F.2d 436 (2 Cir. 1953), cert.
* den. 348 U.S. 820 (1954), the court stated: “The Convention creates a presump-
tion of liability from the happening of the accident. Art. 17. It gives the °
carrier complete exoneration from liability if the carrier can prove that it took
all necessary ‘measures to avoid the damage.” See also Wyman v. Pan Amer-
ican Airways, Inc.,°43.N.Y.S.2d 420, 422 (1943); Ritts v. American Overseas
Airlines, Inc., 1949 U.S. Av. 65 (S.D.N.Y. 1949).
LENS TLE LENNIE LS, LATE AL
Me SO Grave
ee Sa
Appendix F bed 78
16°
ee
March 31, 1934, addressed to the President, recommending
adherence to the Convention, pointed out that Article 17 of |
_. the Convention creates a presumption of negligence against
the carrier.® z .
The majority errs in the further respect that in hold- :
ing that ‘‘the record supports the District Court’s conclu-. f
sion that appellant failed to prove conduct of the appellee :
that was either wilful or negligent’’, it disregards the hard ~
fact that the trial court did -find the defendant negligent
when it. returned a verdict of $8300 against the defendant.
’ As earlier stated, such an award could only be made under
the Warsaw Convention when a carrier is negligent. .
The fact of the matter is that the defendant has not 7
on this appeal challenged the finding of negligence implicit "
‘in the $8300 award; to the contrary, it seeks affrmance of
that award. , | ase
Moreover, the defendant ‘stresses in its brief that the
issue of negligence was not even at issue at the trial; that |
‘the only issues were the defendant’s wilful misconduct.and oe |
the applicability of the liability limitations of the Warsaw .
Convention. , | | .
What has been said brings us to the consideration of ti
the trial court’s fact-findings that the ‘presence and action - Hh.
of jet aircraft’’ during the plane’s landing maneuvers 4
‘‘threatened or interfered with the approach of Flight 642, i
bringing bout emergency conditions and accident resulting >
in the cragh without willful misconduct, negligence or fault
om the part of the defendant or any member of the crew of
Flight 642’; and that the plane’s crew had not ‘‘under :
other than emergency conditions knowingly and inten-
tionally brought the plane to a position below the minimums.
prescribed for an ILS approach.”’
Discussion of the evidence relating to the presence or
- action of jets. must be prefaced by a brief statement of the
5 Secrétary Hull said: “The effect of Article 17 (ch. III) of the Con-
vention is to create a presumption of liability against the aerial carrier on the
mere happening of an accident occasioning injury or death of a passénger
subject to certain defenses allowed under the Convention to the aerial carrier,
1934 U.S. Av. 240, 243.” (emphasis supplied) ,
Appendix F.
7
plaintiffs’ contentions with respect to the crashing of the
plane, and>the scope of our review of the trial court’s fact-
finding that jets created a sudden emergency. ;
_ First. as tothe plaintiffs’ contentions: ;
One of the twa’ alternative theories presented below
by the plaintiffs as to-the issue of defendant’s wilful mis-
conduct, was that the plane crashed while it was attempting
a “‘sneak-in’’ landing, viz., dropping down’ through a low
cloud ceiling into a position below the authorized Instru-
-ment Landing System (ILS) approach minimum in viola- —
tion of Civil Air Regulations. The majority concedes
that such a ‘‘sneak-in’’ maneuver would constitute not
only negligence but wilful misconduct as well and I agrée.
Second, as to the scope of our review as to the trial
court’s fact-findings with respect to jets:
The defendant’s evidence as to, the presence of jets
was presented below on depesitions. The defendant’s evi-
dence as to the nonpresence of jets was also presented on
depositions, with but one exception. It is settled that under
such circumstances this Court ‘can review and evaluate a
finding based on deposition testimony free of the impact
of the ‘‘clearly erroneous” rule. Mobil Tankers-Company,
S. A. and Socony Oil Company, Inc. v. Mene Grande Oil
Company, 363 F.2d 611, 613 (3 Cir. 1966)* and the cases
therein cited. oa
Coming now to the testimony as to thé presence or
nonpresence of jets which must be considered in 2e light
of the undisputed fact that the only jets in existence at
6 The other alternative theory was that both the pilot and co-pilot had -
_ submarginz! heart conditions which caused or contributed ta the plane’s crash-
ing. I agree-with the majority's view that the trial court's rejection of: this
theory cannot be said to be “clearly erroneous”. >
7 We there said “Meneg argues that the lower court’s findings of Set
are presumptively correct and our right to review them is circumscribed y
_ the ‘clearly erroneoys’ rule. This rule is inapplicable in the instant case. Since —
the matter was presented to the lower court on affidavits without oral testi-.
mony the findings of fact are reviewable free of the impact of the rule... .
We are in as good a position as was the trial court to evaluate the evidence,
draw: the inferences of which the evidence is reasonably susceptible, and decide
the critical questions raised on this appeal”. 363 F.2d 613. ;
a
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18). ¥
the time. of the plane crash here involved were naval and:
military jets: © Se ee | ‘
The defendant’s testimony as to the presence of jets _
was adduced in the depositions of three witnesses.
Donald Wheeler said in his deposition. that he saw ‘‘a
silhouette of. what looked to be two jets’’ and heard the
sound of jets‘while he was driving his truck near the Air-
_ port at the time of the crash; he walked over to the burning
plane but did not report his ‘‘observation to anyone at the
‘Beene ofsthe aceident’’; he, however, told his father-in-law,
- an employee of the defendant, about it the next day. |
©. Mrs. Marian A. Farrish said in her deposition that she
lived a 20-minute drive from the crash; she heard but did |
not see a commercial aircraft and jets; she could not ex-
plain why in her earlier testimony before the Civil Aero-
nautics Board she had testified that she heard only jets
and not any other type plane. _ A eee
Mrs. Fred Lubin said in her, deposition that she lived’
two.miles:from the Airport; she heard but did not.see both
& passenger plane and a ‘‘jet or jets’’ just before the
accident. cn re ony: —
The plaintiffs’ testimony as to the jet issue was as
follows: | gO ! ’ | a.
-. Rear Admiral John Francis Greenslade testified in his
deposition that.in January 1956 he was a Captain of the
United States Navy, and Director of Flight. Service Divi-
sion in the Office of Chief of Naval Operations; at the re-
quest of the Chief of the Investigation Division of the Civil —
Aeronautics Board he made a check to: ascertain whether
_ there were any Navy jets aloft in the vicinty of Jackson- -
ville, Florida between 12 A.M: and 6 A.M. December 21,
1956-(the crash occurred at 3:41 A.M. December 21, 1955) ;
the made the check requested and found that at the specified
period no naval jets were in operation in the area of
Jacksonville. ) % )
Major Robert J. Tobin of the United States Air Force
testified in his deposition that in January 1956 he made
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Pee eam dee ait ea ANG oi
Appendix F . ca at a ee we
a check at.the request of the Inspector General and the
Civil Aeronautics Board as to whether there were any
military jets aloft in the vicinity of Jacksonville at the
_ time of the crash and ascertained that there were neither
military nor_naval jets. | i
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tics Board as airways operations specialist (tower opera- :
tor) jn the control tower of the Jacksonville Airport, testi- 4
* fied in his deposition that he was on duty between midnight
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