# Petition for Writ of Certiorari — Payne v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1962
- **Citation:** 371 U.S. 895

## Text

ae ol aa

—=-+em * “FPrerto

Bprao: .' COURT. U 6, SEP 2V 1b)

JAMES R. BROWNING. Clerk
IN THE ——

Supreme Court of the Uuited States
OCTOBER TERM, 1961 |

No.4 a 6

2

-

KONINKLIDKE LVCHTVAART MAATSCH APPL NOV. KEM
Royar DercH AIRLINES TOLLAND and SocleETE
ANoxnyYME BeLok D’Exprorration Dr La NAVI-
GATION AERTENNE,

Petitioners,

—against—

Gerreepe Owen Tiber. individually and as Execu-
trix under the Will of William Gordon Tuller,
deceased, KaTHeryn L. TULLER, a ininor hy
GERTRUDE OwEN TULLER, her mother and next
friend, and Jean BE. Tver, a minor by: Ger
crUDE OWEN TULLER, her mother and next friend,

Ie spond uts.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT-OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT

WittraM J. JUNKERMAN,
Counsel for Petitioners,
SO Broad Street,
New York 4. N. ¥.

[
\\

Basis of Jurisdiction .................

Opinions Below
The Questions Presented
Treaties, Rules and Trish Order Luvelved

II.

III.

Conelusion

Oe Ae ir se CO a ae a ad lik. a a ea te,

The Court of Appeals has se far sanctioned
departures by the distriet court from the
accepted and usual course of judicial pro-
ceedings as to eall for an exercise of this
Court's power of supervision

The Court of Appeals has interpreted a
federal treaty in sueh a manner as to ren-
der the treaty nugatory and void 20.0.0...

The Court ef Appeals has decided a ques-
tion involving important rights asserted in
rehance upon federal treaty obligations
Which has not been, but should he. settled
by this Court

Appendix

Pertinent Provisions of the Warsaw Couven-

re ee tree ena ete se ee

Rhea ee ee ee

Trish Air Navigation (Operations) Order, 1953

Opinion of Court of Appeals

ae a oe ee a ae on oe ee er Or,

19

(asks

PAGE

Amiable Isabella, The, 6 Wheat. 1.19 U.S. 1
Ne et eal a wy hie ob was os ze

Baltimore & OLR. Co. v. Felgenhancr, WS F.2d
We A OD ick ewe eerebesvanes Ps

Graham Vv. Belfast and Northern Counties Rail-
wag Co., (9900) 21, TS... 6c. eee. 2)

Horabin Vv. British Overseas Airways Cor pora-
fiaw, (70921 2 A.B. WO ................. =F
Kelly v. Malott, 125 Fed. 74 (7th Cir. 1905) 2... 21
Kolovrat v. Oregon, 366 U.S. 187 (1961) 2.2... 4

Lewis Vv. Great Western Railway Co., [1877] 3
ics SRE OM ec ie ee r 20)

New-York, New Maven and Hartford R. Co. v.
Givay, 240 F.2d 460 (2d Cir, 1957) 2. .0.0.. 21

Shepard v. United States, 290 U.S. 96 (1933)... 19
Southern Ry. ve Gray, 241 U.S. 333 (1916) .... 18
TREATIES

The Chicago Convention (61 Stat. 1180, et seq.) 3.9

The Warsaw Convention (49 Stat. 3000, et seq.)

a. by 4, 1d, 19, 21, 22, 23, 24

Renres

Federal Rules of Civil Procedure
I Coie tcl Beirne sate 8 18
NT I ae ey tig et te ar cay Syn Soe 4

Wl gilt

Onhprens

, PAG.

Irish Air Navigation (Operations) Order, 1953,
WTene COEUR ONE os oo a pa es s

AUTHORITIES

A NO ie ne Sea iva ar Oanti 5. eis S 15
Wigmore on Evidence, Third Edition
Ee DG, hie eee mr art Pa 1S
UG RRR ail PoC et Catt kot ee eae ene 1s
I he ee 1s

Parl ve :
5 dg

© ~ ae
~~ Yu 4 i 7
a :
ome . : Ss 1.
ras : ir
=~ j P) « 7
« J «
: ‘ : ‘

IN THE
Supreme Court of the Wuitrd States
OCTOBER TERM, 1961
~ No. '

- =
——

KONINKLUIKE LUCHTVAART MaatscHarpins N.V. NEM
Royal Dercu AirRLINES HTHOoLLaANp and Sociere
ANoNYME Beck D'Exprorration Dr La Navi-
GATION AERIENNE, |

Petitioners,

—agraliist —

GERTRUDE OWEN TULLER, individually and as Exeen-
trix under the Will of William Gordon Tuller,
deceased, KaTHERYN LL. TULLer, a ominor by
GERTRUDE Owen TULLER, her mother and next
friend, and Jean EF. Tunirer, a minor by Gerr-
TRUDE OWEN TULien, her mother and next friend.

Respondents.

La
—_

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT

To the Honorable, the Chief Justice aud the Associate
Justices of the Supreme Court of the Uuited States:

The above-named petitioners respectfully pray for
issuance of a writ of certiorari to review the Judgment
of the United States Court of Appeals for the District
of Columbia Cirenit. entered herein June 25. 1961,

-

affirming the judgment of the United States District
Court for the Distriet of Columbia entered on Janu-
ary 12, 1960,

| Basis of Jurisdiction

The jurisdiction of tis Court is iuveked under 25
U.S.C. 91254 (1).

Opinions Relow

Following the rendition of the jury's verdict de-
fendants moved for judgment notwithsianding the
verdict and in the alternative for a new trial. This
motion was overruled without opinion by the district
court on February 8. 1960. The opinion of the Court
of Appeals affirming the judgment of the district court
is not vet officially reported but a copy thereof is
printed in the Appendix infra, pages a1 to a2.

Petitioners seek a revicw of the determination of
the United States Court of Appeals for the District
of Columbia Cireuit affirming a judgment of the
United States District Court for the District of Co-
luyibia awarding respondents the stm of $350.000 for
the death of respondents’ decedent as an aftermath of
an airplane accident in the estuary of the Shannon
River in Treland on September 5, 1954. The flight
was “international transportation’ within the terms
of the Warsaw Convention. an international treaty,
to which the United States has adhered, and) there-
fore the action was subject to the limitation provi-
sions comained in Article 220 thereof which Jimits
recovery to S800 inthe absence of wilful misconduet.

The Questions Presented

1 Whether the lower courts in the ease at) har
nave so Hacrantly disregarded the rules of law wovern-
ing limitation of Tiability. and wilful miseonduet as
detined by the Warsaw Convention as ty nullify and
destroy the Convention, thereby requiring this Court's
power of supervision,

2 Whether in-equating “wilfal iiiseonduct™ with:
“the negligence im question’, the Court. of Appeals
has totally disregarded the intent: of the drafters of
the Warsaw Convention, so as to render that treaty
ungatory and void and deprive petitioners of rights
under the treaty.

3. Whether the sanction by the Court of Appeals
of the misuse in the distriet court of an order or
regulation of the Trish government, found not to have
been violated. but forming a major basis of respoud-
ents’ claim of wilful misconduct, was such oa flagrant
departure from the accepted and usual course of

judicial proceedings as to require the exereise of this

Court's power of Supervision over both courts.

4. Whether the Court of Appeals. in order te sts-
tain the verdict of the lower court, (ay did net excced
its powers by pronounel ig a new rule of law requiring
airlines to instrnet passengers with respect to Tfe
vests before taking off from orunwavs in foreign
countries. and! (hb) did net by sie prenonneement
ignore the Chicago Convention. an ieternational
treaty, thereby requiring au exercise of this Court's

power of supervision. :

5. Whether in permitting respondents to iimpeaeh
one of their own witnesses by use of lis prior state:
ment, net partoef the res gestae but extremely prejue
dicial to petitioners beeatise of its iuttiumiatory tit
ture, the distriet court se far denarted frome the
aeeepted aud usual course of judietad proceedings is
tr require ap exercise of this Court's powers of SUper-
Vision.

6. Whether the distriet court's denial to peti-
tioners’ attorney of the right to object to its charge
to the jury. in contravention to Rule 51 of the Federal
Rules of Civil Procedure, was such a departure from
the accepted and usnal course of judicial proceedings
as to require an coxercise of this Court's power of
SU PervIsion, ;

7. Whether the district court’s charge on five oe-
easions that Sabena. the dispateh agent, was lable
for the misconduct of KILM. the principal, just as the
prine:pal was liable for the agent's misconduet, and
the Court of Appeals’ sanction of such a charge, has
established a rule of law in confliet with the basie laws
op principal and agent,

Treaties, Rules and Irish Order Involved
Treaties

Convention for the Unitieation of Certain Rules
Relating to International Transportation by Air [49
Siat, BOO, et seq.]. commonly Known as the Warsaw
Couvention.

Convention on Tnternational Civil Aviation [61
Stat. T1S0, et seq.}. commonly known as the Chicago
(Convention,

Rules

Rule 20. subselivision ¢f). and Rude oD of the Joel.
eral Rules of Civil Procedure.

Order

Seetion 23. subdivision (6) Gii). of the Trish Ai
Navigation (Operations) Order, 1995,

Pertinent provisions of the foregoing treaties, rules
and order are printed ja the Appendix infra, pages

o> Te 0,
Statement of the Case

Petitioner, KLM. is a Dutelesuirline engaged in
International transportation age)
organized aud existing Wider the laws of the Neth-
erlands. Petitioner, Sabena, is a Beleiaa airline
engaged in iaternational trauspertation wud is a cor:
poration organized and existing under the laws of
Seloium. = The deeedent, Willian: Giorden “Puller.
Was a passenger ona flight of KLM from Aisterdain
to New York whieh erashed not more than 42 seconds
after becoming airborne on its takeoff from its hiter-
mediate stop at Shannon. Preland. Phe pliaue erastied
ino the Shannon Estuary ata peint tpproxiniutels

“Is oa vorborat len

a> he

7.325 feet from the end of the airport runway. \-
the wheels of the plane left the ground. the control
tower radioed its precise takeoff time but one ae-
knowledgmient was received frome the plate. Iie
ceiving noe response. the tower tiade repeated at:
tomnpts te make radio contact, without ~teeess,

t)

After the plane became airborne, the pilots theaght
that the plane was ehiabing ino the darkuess when
it suddenly made contact with the water and the
erash resulted. Tmmediately after the erash and
in order to prevent fire the maim switell was ent,
thereby throwing the plane inte complete darkness
but the erew evacuated passengers inte two rubber
dinghies which were ejected from the deft) wing
by a mechanical release handle located in the cock-
pit. Tuller and another passenger made their escape
through a rear escape window and swam to the tail
of the plane which had, in the meantime, settled) suth-
ciently to enable them to clinb up upon the tail.
At the time they evacuated the plane they did not
know that it had come down on the water but thought
that it had come down on land (JA 111Ja).* Some-
time later, pursuant to the command of the plane's
captain, the first dinghy. in charge of. first officer
Parfitt, attempted to work its way to shore. Shortly
thereafter shouts from the tail of the plane were
heard by members of the crew in the second dinghy
and the crew in that dinghy then attempted to maneu-
ver the dinghy around the wing to the tail but their
efforts were unsuccessful due te the tide and wind
and the size of the paddles.

For over four hours Tuller and his companion re-
mained on the tail in a rising tide. Near dawn, after
a member of the crew from one of the dinghies finally
reached shore, information of the erash and its loca-
tion reached the tower, and a launch was dispatched to
the crash scene. Just as the launch approached, with
the water by then chest high, Tuller sliook hands with

¥ A references are to the Joint Appendix ino the Court) of
Appeals.

his companion, Waved te the lately lest tis foetus
and slipped into the water (PA T1Gass bis bods wir
later reeovered. Els. the other patssenwer oon the

tall was resened,

The jury was instructed that under the Wiursiaw
Convention. Whieh the court riled covered the dabiliny
of the airline and Sabena. its dispateh agent. the dam-
ages were te be Hiited te SS 000 untess defendants.
or either of them. was guilty of stwilftll miseenduer
In Whieh ease the S8500 limit did net eontrol The
jury returned ao verdiet for the plaintiffs imo the
amount of S250,000,

At the close of the entire ease the trial judge demied
defendants’ motion that it direct the jury ‘that in the
event that they find wilful miusconduet that they spee-
ifv in a special verdiet what the acef of wilful iis-
econduet is that they found OLA S72a). Consequently,
What act or acts the jury may have considered to be
Wilful misconduct is unkuewn. The Court of Appeals
determined that the alleged wilful mioseonduet of the
appellants fu this case resolved itself inte: four ele.
ments, to wit: (1) failure te properly distruet pias-
sengers of the location of Hfe vests and in their use:
(2) failure to broadeast an emergency messages 05)
failure to take steps to provide for the safety of
Tuller after his pert] was kiewn: end ¢4) failure of
Sabena to be aware of the loss of radio commanieation
with the plane and to dmitiate prompt searel and res-
ene operations (App. 37 ).*

®FNppo references are to paves of the aprendix te this petitien

REASONS FOR GRANTING THE WRIT
I

The Court of Appeals has so far sanctioned de-
partures by the district court from the accepted and
usual course of judicial proceedings as to call for an
exercise of this Court’s power of supervision.

A. The Alleged Wilful Misconduct in Failing to Instruct
Passengers of the Location of Life Vests and Their
Use is Based Upon a Total Disregard of the Control-
ling Effect of Irish Law and the Chicago Convention.

Respondents’ proof concerning this item was the
testimony of passenger Ellis that no announcement
or instructions concerning life vests was made to the
passengers before the takeoffs or during the flight
from Amsterdam to Shannon and that he did not
know where the life vests were located. Respondents
also introduced into evidence an order or regulation
of the Irish government. This regulation did not: re-
quire life vest instructions unless and until a flight
was more than 30 minutes travel frem land (the Trish
coastline). This fight, of course, crashed less than a
minute's distance from the airport and had not even
reached the Trish coastline. The Court of Appeals
recognized that the regulation was not violated (App.
37) but then it made the remarkable statement that
“We are not bound by the limits of the Irish Govern-
ment's regulations as to when life vest: instructions
should be given to fulfill the duty of care owed to
passengers," (App. 38)

The foregoing statement by the Court of Appeals
was in direct disregard of Artiele Tl oof the Chieae
Convention CApp. 28). an international treaty and
therefore part oof the supreme law. of othe latid.
Pursuaiit te that treaty provision. the Prish laws and
regulations relating to the operation of alreraf! on
gaved im international air navigation while within
Irish territory were the laws and regulations to be
applied to the tlight involved in this litigation. —

The Court of Appeals also stated that ‘tthe jury
could reasonably have inferred that if Puller had
heen wearing a TY¥e vest his life could) tave been
This econmietely ignored the fact that plain-
tiffs’ counsel, out of the hearing of the jury, adimit-
ted that decedent died ‘* from shock and exposure and
not from drowning’ G)A So8a) while arguing for
the introduetion into evidence of a death certificate
of the Trish governinent.

saved.

In his closing statement, plaintiffs’ counsel he-
labored the point that KIM had vielated the Trish
regulation (JA S74a-9760a, 997a) and. over defendants’
objections, the court permitted Hine te continue with
such argument GPA 6300). And in his final coneliud-
ing remarks he again charged that WIM had violated
this Irish regulation (JA 633a). Nevertheless, despite
the distriet court's ruling during the trial that what
had transpired with relation to the trip from: Amster-
dam to Shannon was immaterial and should be ex-
eluded GJA 18a, 286a). and despite the Court) of
Appeals finding that the Prish regulation Was not vie-
lated, the latter made the incomprehensible statement
(App. 43) that ‘tthe applicability. of the [Trish]
order was a fair subject of comment in argument and
there is no substantial basis for disturbing the verdict
on this eround.’

q
pts

B. The Second Alleged Item of Wilful Misconduct, to-wit,
the Failure of the Crew to Broadcast an Emergency
Message, Is Based Upon the Erroneous Admission
Into Evidence of Irrelevant Documents, and the Fail-
ure of the Court to Properly Charge the Jury or
Afford Defendants an Opportunity to Except to Such
Failure.

In its opinion the court speculates as fallaciously
as did plaintiffs’ counsel in his stummation as to what
effect a distress message with the words **May Day”
night have produced if such a message had been
sent by a member of the crew. Phe court: asserts
that if such a message had been sent, the authori-
ties would have’ immediately been aware of the
erash and that rescue equipment would have been
dispatched) promptly rather than four hours later.
However, nobody so testified at the trial. As a prae-
tieal matter, if sneha message had been sent it would
not have alerted or advised anyone that the plane had
erashed ; it would merely have indicated that the plane
was in trouble but not whether it was in the air, on
the ground, or in the water.

Additional serious error was committed by the
introdnetion into evidence of pages of a KLM manual
relating to planned ditching procedures. Parfitt. the
copilot, pointed out that these ditching procedures re-
ferred to ‘a planned emergency landing on water”.
whereas “an involuntary contact with the water * **
ix more in the nature of a crash’’ and that he would
hot call the latter a ditching (JA 21a-212a). Plain-
tiffs’ counsel then read from a prior deposition in
which the witness had testified GUA 21a):

"Q. What instructions do vou have in case of

i]

an involuntary Landing om water! AL Phe only
thing one ean do in ease of an inveluntary laned-
ime on Water is te try te earry out as many of
the instructions for ao planned: bhuidinge on water
ascare possible. Some of these iigtructions re-
quire) foreknowledge anda certain amount of
time to organize the ditehing.”

Jased on this wholly improper foundation and despite
the fact that the witness had stated that a) planned
ditehing and oa erash were two entirely different
things, the court admitted the pages. relating to what
should be done before a planned ditching, inte evi-
dence. Thereafter, plaintiffs’ counsel read to the
jury such provisions about notifying surface stations
and ships of an emergeney as soon as it arises (JA
4370-4380). and in his summation. plaintiffs’ counsel
Was permitted to make improper accusations agaist
the crew for not performing duties described in these
pages, although they were wholly inapplicable to the
NWhanticipated crash,

In overruling defendants’ objection te the iitrodiue-
tion of the pages of this imanial inte evidence, the
trial court said (2A 49a): When DT charge. TP owill
try to give the jury the situation.”

However, the court never did) charge or instruct
the jury on this matter and defendants” counsel was
deprived of the right to except to the court's failure
to do so. This was a partienlarly serious error in
view of the charges of plaintiffs’ couse! ti sumima-
tion concerning the failire of the radio operator te
perform duties referred to in this irrelevant exhibit
(JA S7S8a, oS4ai,

4

The Court of Appeats not only condoned these prrcy-
udicial errors but actually quoted one of these irrele-
vant paragraphs from the KIM manual in its opin
ion, ax support for its affirmancee of the judgment
(footnote App. os).

C. The Third Alleged Item of Wilful Misconduct, to wit,
the Failure to Take Steps to Provide For the Safety
of Tuller After His Peril Was Known, is Based on the
Sheerest Speculation on the Part of the Court.

The Court of Appeals found, as it had to, that the
erewnien in the second dinghy had attempted to mia-
“neuver the dinghy around the wing of the plane to
the tail to rescue Tuller as soon as they heard shouts
from the tail. The court also found that ‘tthe round
rubber vessel would not respond to their paddles and
instead drifted with the tide towards the shore.”
The court then speculated on various methods which
it assumed that the crew might have followed in
efforts to rescue Tuller from the tail of the plane
(App. 40). However, each such suggested course of
action was not only impractical but there was not one
word of testimony that any such suggestion could
have been followed on that fatal night—considering
the condition of the plane, the darkness, the tide, and
the wind in effect at that time. As a matter of fact,
to suggest that Tuller could have been saved by he-
ing led along the slippery curved top of the outside
surface of the fuselage of the plane, as the Court of
Appeals did, is ridiculous, A) rescue over such a
surface on dry land in the daytime would have been
an extremely hazardous feat but it) was totally im-
possible under the conditions that existed on the
hight in question. Yet it is upon the failure to take

ls

just such “rescue actions” that the Court of Appeals
attempts to spell out wilful misconduct on the part
of the defendants.

D. The Fourth Alleged Item of Wilful Misconduct, to wit,
the Failure of Sabena to be Aware of the Loss of
Radio Communication With the Aircraft and to Ini-
tiate Prompt Search and Rescue Operations, is Bascd
Upon an Improper Charge to the Jury to Which De-
fendants Were Denied Opportunity to Except.

Everything that was possible to be done was being
done by the governmental authorities to make contact
with the plane from the time it departed from the
Shannon Airport up to the time the first) survivor
reached shore. Tlad Sabena known that the plane
Was out of radio contact immediately following the
takeoff, the only thing it could have done was to urge
the Trish government control services to make every
effort to make contact with the plane. However, that
is exactly what these air traffie control services were
doing from the time of takeoff until the time the
plane was discovered (JA 525a-568a). The testimony
In the case was undisputed that all of the air traffic
control services were provided by the Lrish goverii-
ment; that the search and rescue facilities were also
provided by the [Trish government for all users of
the airport; and that the government officer in charge
of the air traffic control was responsible for alerting
the search and rescue organization if it) should be
required, |

It was also the uncontradicted testimony that the
government traffic control was responsible for seeing
that the position reports which the aircraft should
send were received within a specified time and that

14

if the position reports were not received, that traffie
control would ea!l the Ballygireen radio station and
ask that steps be taken to get such reports.

Near the close of the trial, plaintiffs’ attorneys
brought out on cross-examination of the witness Mell-
ing, that Aer Lingus, an Irish airline, was the opera-
tional representative of KLM at Shannon and that
Sabena under its contract with KLM was supposed
to keep the operational representative informed of
all movements of KLM aircraft and of any retarded
progress or interruptions of these flights (JA 519a-
520a). There was also read into evidence by plain-
tiffs’ attorneys, one of Sabena’s answers to an inter-
rogatory which pointed out that the operational rep-
resentative was “‘responsible for ground handling
of Carrier’s [IKXLM’s] aireraft’? (JA 61a). How-
ever, there was no other testimony as to what was
required of this operational representative. Never-
theless, in the absence of any proof on the subject,
the Court of Appeals gave its opinion that Sabena
was guilty of wilful misconduct because it failed to
‘initiate through Aer Lingus emergency surface
eraft investigation in the area of the known takeoff
pattern.”

The Court of Appeals also made the unsupported
and incorrect finding, based solely upon the gratui-
tous statements of plaintiffs’ counsel during summa-
tion, that ‘Aer Lingus was the local facility capable
of instituting a search.”") The inferenee on the court's
part was that if Aer Lingus had been alerted by
Sabena, Tuller’s death might have been prevented.
This was the rankest and sheerest speculation by the
court aud was based upon no evidence at all.

inf

The triel court had charged that KILM and Sabena
were covered by the provisions of the Warsaw Con-
vention and that Sabena was the agent of KIM
(JA 659a). With this part of the clyrge, the Court
of Appeals apparently agreed (App. 34, 45). However,
tive times during the charge to the jury. the court
indicated that the jury might bring in a verdict in
exeess of $8300 against both defendants if they found
an act of wilful misconduct on the part of “either”
of them.* Under this ehorge the agent was held to
be liable for the aet of the principal; a concept of
liability utterly foreign to the laws of principal and
agent, 2C. J. 824.

At the conelusion of the court's charge to the jury,
counsel approached the bench to note their objections
or exceptions to the charge. After two of plaintiffs’
counsel had noted their objections and requests, de-
fendants’ counsel attempted to note his objections
and the following transpired (JA 648a) :

“Mr. Junkerman: Does Your Honor wish us
at this time to express our exceptions ? 3

The Court: I took this charge up with both
counsel, and in the circumstances, there is no
exception to the charge. Now, don’t tell mie
that there is.”’

Despite the foregoing and despite the fact that
appellants raised this point on appeal, the Court of
Appeals ignored the record and said (App. 51):

“We have examined the portions of the reeord

* This statement appears in the Joint Appendix on the last

two lines of page 640a; on lines 15 and 16 and on lines 517 and 52

of pave 64a; on lines 3 and 4 of page 642a; and on lines 22 and
23 of page b4ba.

16

relied on by appellants to show that the District
Judge in some way impeded or prevented the
recording of a timely objection. We are satis-
fied that appellants had full and uninhibited
opportunity to object to the charge concerning
the liability of Sabena if they desired but failed
to co so.”’

E. The Court Permitted Gross Abuses in the Misuse of
the Radio Operator’s Deposition, in Allowing Plain-
tiffs to Impeach Their Own Witness, and in Making
Rulings Highly Prejudicial to Defendants.

Plaintiffs took the deposition of Henri E. Oud-
shoorn, as a witness, in the United States Court-
house, Foley Square, New York, on March 16, 1959,
pursuant to a subpoena that they had previously
served upon him. At that time, Oudshoorn was em-
ployed as a dispatcher for Swissair, a Swiss airline,
at Idlewild Airport, New York. Although he was the
KLM radio operator on September 5, 1954, he had
not been employed by or connected with KLM in any
way since July 1958 (JA 274a-275a).

Although he was plaintiffs’ witness as to mumerous
matters upon which there was no contradictory testi-
inouy, plaintiffs* counsel, who introduced parts of his
deposition into evidence, repeatedly asked the jury
to disbelieve Oudshoorn’s testimony on practically
every important item on which he had testified (JA
978a-979a, S80a-581a, 59Ta, 638a-034a ).

- Over defendant's objection, a statement made by
Oudshoorn to an Irish government inspector on the
afternoon of September 5, 1954, at Shannon Airport,

Was received in evidence during the reading of his
deposition GEA S13a-315a). The statement referred
to reads as follows (JA 316a-317a) :

“Q. This may sound a stupid .question, but I
want to ask it in order to clear up a point here
that would be in other evidence. Did you at any
time use 121.52 AL After this happened ?

Q. At any time. A. No. sir. We were tuned
at frequency of 118.7, the tower frequeney. and
I honestly must; say [To did uot) think when it
happened to take the microphone and tell people
there was something wrong on the plane. I
eould tell you that would never happen. You
first think of your skin, and then of the miiere-
phone, That was my feeling, because it) hap-
pened so fast.” |

The foregoing statement, made some twelve hours
after the accident had no probative value other than
to stir up passion, bias and prejudice on the part of
the jury and that is exactly the way plaintiffs’ counsel
used it. He used the statement in summation as fol-
lows (JA 580a):

‘He thought of his skin, and the reason he was
placed in that dilemma of choosing his own skin
or Tuller’s skin or the other passengers’ skin
was because he had been thrown out of his seat
by the force of that shudder, * * *"

Once plaintiffs introdueed into evidence Oud-
shoorn’s deposition they made him their own witness.
Thereafter they had no right to impeach and dis-
credit him nor any right to attack his credibility by
asking the jurv to disbelieve his uncontradicted state-

18

nents. Fed. R. Civ. P. 26 (f); Wigmore on Evi-
dence, Third Edition, §¢912-913.

In commenting upon the Oudshoorn statement, the
Court of Appeals said (App. 45-46): **The challenged
statement must be viewed as an important piece of
substantive evidence on the issue of wilful miscon-
duct."". The court cited no authority supporting such
a holding—-undoubtedly due to the fact that. the
authorities are to the contrary. As is pointed out in
Wigmore on Evidence, Third Edition, $1018:

“It is universally maintained by the Courts
that Prior Self-Contradictions are not to be
treated as having any substantive or independent
testimonial value.” (Emphasis Wigmore’s. )

Similarly, in Soythern Ry. v. Gray, 241 U.S. 333
(1916), Mr. Justice Reynolds, in speaking for a unani-
mous Supreme Court, said (p. 337):

“In an effort to discredit the passenger engi-
neer, only witness to sonie circumstances, he wes
asked on eross-examination concerning prior con-
tradictory statements; but the exclusion of all or
any part of his evidence would not change the
result. Of course the contradictory statements
can have no legal tendency to establish the trath
of their subject-matter, [eiting eases)” (Empha-
six supplied. )

The Court of Appeals, after conceding that the
statement did ‘not meet the standards of res gestae,
in relation to the accident” (App. 46), cited some
totally unrelated decisions and concluded with the
following ruling (App. 50):

“We hold that the statement made by Oud-

19

shorn, the KLM radio operator, as part of. the
authorized inquiry into the causes of the erash
and relating to lis duties and aets within the
scope of his employment was properly admitted

t

in evidence.’ i

However, the statement had nothing to do with the
cause of the erash. The record is clear that the
statement was offered GPA 313a) and received by the
trial judge (PA 315a) with the plain understanding
that it was contradictory of Oudshoorn’s deposition
testimony as to why he had not sent an emergeney
ge As Mr. Jiistiee Cardozo stated in Shepard

. United States, 290 US. 96, 103° (1983). eA trial
bare unfair if testimony thus aecepted HAM
used In an appellate court as though admitted for a
different purpose, unavewed and unsuspected."

The Court of Appeals has interpreted a federal
treaty in such a manner as to render the treaty nuga-
tory and void.

The opinion of the Court of Appeals notes that the
phrase “wilful misconduct’? occasioned considerable
discussion in the drafting of the Warsaw Convention
in 1929 and that the United States was not a partici-
pant in such diseussious (App. 36). The court
further points out that in the discussions at the con-
ferences which finally drafted the Warsaw Conven-
tion, the English delegate said as to the meaning of
the word ‘dol appearing in the French original,
“(We translate these words as ‘wilful misconduct’,
a well-understood expression in our law’? ( App. 36).
It additionally points out that when the Convention

4)

was before the United States Senate for considera-
tion in 1934 the word ‘dol’ was translated*® as “wil-
ful misconduct’ (footnote App. 36). Having thus
briefly reviewed the conference discussions whieh led
to the translation of ‘dol’? in this country as “wilful
misconduct’, the Court of Appeals totally ignored the
“well-understood expression’? in English law, and
equated wilful misconduet with ‘the negligence in
question’’; an interpretation expressly rejeeted) both
in England and this country.

In Lewis v. Great Western Railway Co., [1877] 3
Q.B.D. 195, Bramwell, L. J. stated as follows (p.
206) :

“es * * SWilful misconduet’ means misconduet. to
Which the will is a party, something opposed to
accident or negligence; the miseonduct. not the
conduet, must be wilful. * * *"

And in the same case, Cotton, L. J.. stated (p. 213):

“** * Now, I do not think there ean be any doubt
ct all that wilful miseonduet is something entirely
different) from negligence. and far bevond it,
whether the negligence be culpable, or gross, or
howsoever denominated. * * *"

In Graham vy. Belfast and Northern Counties Rail-
way Co, [1901] 2 LR. 13, defined this well-understood
expression as follows (p. 19):

“CWo)ilful miseonduet in sueh a special eoudi-
tion means misconduet to which the will is a party
* The French text. as proclaimed. is) the official text. The
original translation given by the Department of State for ‘‘dol"’
Was “deception”. Builetin of Treaty Information. No. 7. Supple-
ment dated October 12. 1929. In the Trish translation ‘del is
transiated as malice’. Air Navigation and Transport Act. 1936.
First Schedule. Artiele 25.

=

as contradistinguished from: accident. and. is far
beyond. any negligence, even £ross or culpable
negligence, * * *"

More recently. in Horabin v. British Orerseas Alr-
ways Corporation, [1952] 2 AER. 1016. this well-
understood expression in English law has again been
distinguished from necligence inva cease Involving the
Warsaw Convention, as follows (p. 1019):

vee * Wilful misconduct, to put it most shortly,
as it has often been put in the past. is musconduet
to whieh the will is a party. and it is something
Whieh is wholly ditferent in kind from mere neeli-
Fence or earelessness, however gross that negli-

Fence or carelessness may be * * #7

The incompatibility between the well-understood ex-
pression, wilful misconduct. and neghgenee is not
limited to English law. but is recognized in this eoun-
try as well, as the following illustrative cases clearly
indicate:

Kelly v. Malott, W35 Fed. 74. 76 (7th Cir, 1905):

oe * * Negligence and willfulness are as UMIMNINX-
able as oii and water. ‘Willful negligence’ is as
self-contradictory as “euulty inmocence..

Baltimore d& O. BR. Co. ¥. Felgenhaucr, WS 2d
12, 16 (sth Cir. 1948):

ees * And negligenee and wilful Iisconduet are

hot svuonvinous, * * **
Vew York, New Haven and Hartford BR. Co. y.
Gray, 240 F.2d AGO, AG4 (2d Cir, 1957):

“* * * Negligence, whether or not “gross.” but for
Which the aceident would not have occurred, will

not serve as a defense to such a poliey. Only
‘wilful misconduct,’ measuring up to ‘knavery’ or
‘design,’ will suffiee; and neither the evidence nor
the judge’s findings of faet show such conduct.
True, the judge, in the last paragraph of his
opinion, referred to the gross negligenee as if. it
constituted wilful misconduct. There we think
he erred. * * *’’

From the foregoing it is abundantly clear that the
Court of Appeals erroneously interpreted the expres-
sion ‘wilful misconduct”? as it appears in Article 25 of
the Warsaw Convention, when it stated that ‘the
negligence in question contributed proximately to
Tuller’s death’ (App. 43). If this interpretation of
Article 25 is accepted, one of the basic purposes of the
Convention, the establishment of uniform rules with
respect to the liabiltty of air carriers, will become
wholly illusory. The right to limit liability, unless the
damage is caused by the wilful miseonduet—not the
negligence—of the carrier is a right expressly con-
ferred by the international treaty. This Court has
many times set its face against treaty interpretations
that unduly restrict rights a treaty is adopted to pro-
tect, Kolovrat v. Oregon, 366 U.S. 187, 193 (1961)
“As was said by Mr. Justice Story in The Amiable
Isadella, 6 Wheat. 1, 72, 19 U.S. 1, 32-33 (1821):

ws * * (TJhis court is bound to give effect to the
stipulations of the treaty, in the manner and to
the extent which the parties have declared, and
not otherwise. We are not at liberty to dispense
With any of the conditions or requirements of the
treaty, or to take away any qualification or in-
tegral part of any stipulation, upon any notion
of equity or general convenience, or substantial
joie, * * ="

us

The Court of Appeals has decided a question in-
volving important rights asserted in reliance upon
federal treaty obligations which has not been, but
should be, settled by this Court.

The Warsaw Convention clearly declares as one
of its hasie purposes*® “the advantage of regulating in
a uniform manner the conditions of international
transportation by air in respect of * * * the liability
of the carrier’. Article 17 of the Convention imposes
an absolute Hability apon the carrier in the event of
the death or wounding of a passenger, regardless of
fault, “if the accident whieh caused the damage so
sustained took place on board the aireraft or in the
course of any of the operations of embarking or dis-
embarking.” This liability is exeluded by Article
20(1) if the carrier proves that it has ‘ttaken all ne.
cessary measures to avold the damage or that it was
Impossible’? for it to take sueh measures. Hlowever,
Article 25(1) provides that the carrier shall not be
entitled to avail itself ‘tof the provisions of this con-
vention which exclude or limit’? its liability. if the
damage is caused by its ‘twilful misconduct or by
such default on its part as ‘tin accordance with the
law of the court to whieh the case is submitted’? is
eqaivalent to wilful miseonduet. The exclusion refers
to Article 2001) and the limitation to Artiele 221)
Which provides that ‘tthe liability of the carrier for
each passenger shall be limited’* to $8,300,

The rights conferred by the Convention to exelude
or limit Hability would fall far short of the goal of

* Preamble. 4 Stat. SOT,

24

uniformity if the courts of each of the fifty states and
the District of Columbia are free to equate “the
negligence in question’’ with wilful miseonduet.
Although the Convention provides that the right
to limit Hability is lost if the damage is caused by
such default on the part of the carrier as, in aecord-
ance with the law of the court to which the cease. is
submitted, is considered to be equivalent) to) wilful
misconduet, this Court has the right, indeed the duty,
to exercise its power.of supervision to the end that
there is uniformity of interpretation of this inter-
national treaty by the courts of this nation, both state
and federal, Without such uniformity there is ue
“supreme law of the land’; rather there are fifty-one
possible divergert and hopelessly incompatible laws.
The objective of uniformity is not achieved where. as
here, the Court of Appeals pays mere lip service to
the definition of wilful misconduct contained in the
charge of the lower court to which the case was sub-
mitted, and then proceeds to equate wilful misconduct
With ‘the negligence in question’ (App. 43).

CONCLUSION

For the foregoing reasons, this petition for a writ of
certiorari should be granted.

Respectfully submitted,

WiLtiam J. JUNKERMAN,
Counsel for Petitioncrs.

Dated September 20, 1961

James B. McQvui.an,
OF Counsel.

~
, *
Pital
APE fe
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ran

Pertinent Provisions of the
Warsaw Convention ~

Cuaprer TIT. Lrapinrry OF THE Carnien

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 which eaused the damage so sustained
took place on board the wreraft or in the course of
any of the operations of embarking or diseinbarking.

Article 20

(1) The carrier shall not be liable if he proves that
he and his agents have taken all Heeessary measures
to avoid the damage or that it: was lupossible for
him or them to take such measures,

(2) In the transportation of goods and baggage the
carrier shall not be liable if he proves that the dam-
age Was occasioned by an error in piloting, in the
handling of the areraft. or in Navigation and that.
in all other respects, he and his agents have taken all
necessary measures to avoid the damage,

Article 22

(1) In the transportation of passengers the liability
of the carrier for each passenger shall he limited to the
sum of 125,000 franes. Where. in accordance with the
law of the court to whieh the case is submitted. dam-

"6

ages may be awarded in the form of periodical pay-
ments, the equivalent capital value of the said) pay-
ments shall not exceed 125,000 frances. Nevertheless,
by special contract, the carrier and the passenger may
agree to a higher limit of Hability.

(2) In the transportation of checked baggage and
of goods, the lability of the carrier shall be limited to
a sum of 250 franes per kilogram, unless the consiguor
has made, at the time when the package was handed
over to the carrier, a special declaration of the value
at delivery and has paid a supplementary sum if the
case so requires, In that case the carrier will be Hable
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 to 5.000 francs per passenger,

(4) The sums mentioned above shall be deemed to
refer to the French frane consisting of 6514 milli-
grams of gold at the standard of fineness of nine
hundred thousandths. These sums may be converted

into anv national curreney in reund figures,

Article 25

(1) The carrier shali net be entitled to avail him-
self of the provisions of this convention which ex-
elude or limit his lability, if the damage is caused by
his wilful misconduet or by such default on his part
as, in accordance with the law of the court te which
the case is submitted, is considered to be equivalent
to wilful misconduct.

3
(2) Similarly the carrier shall not be entitled to
avail himself of the said provisions, if the damage is
‘aused under the same cireumstances by any agent of
the carrier acting within the scope of his employment,

Pertinent Provisions of the
Chicago Convention

PART’I. AIR KAVIGATION
CHAPTER I
GENERAL PRINCIPLES AND APPLICATION OF
THE CONVENTION
Article 7 .

The contracting States recognize that every State
has complete and exclusive sovereignty over the air-
space above its territory,

Article 2

For the purposes of this Convention the territory
of a State shall be deemed to be the land areas and
territorial waters adjacent thereto under the sover-
elenty, suzerainty, protection or mandate of sueh
State.

A

CHAPTER IT

Rrhicgar Over Terrirory of CONTRACTING STATES

* * * *
Article 71

Subject to the provisions of this Convention. the
laws and regulations of a contracting State relating
to the admission to or departure from its territory of
areraft engaged in international air navigation, or to
the operation and navigation of such aireraft while
Within its territory, shall be applied to the aircraft
of all contracting States without distinction as. to
nationality, and shall be complied with by such air-
craft upon entering or departing from or whiie within
the territory of that State.

Federal Rules of Civil Procedure

Rule 26. Depositious Pending Action,
* * * *

(dl) Use of Depositions. At the trial or upon the
hearing of a motion or an Interlocutory proceeding,
any partoor all of a deposition, se far as admissible
wnider the rules of evidence, may be used against any
party whe was present or represented at the taking of
the deposition or who had due notice thereof, in ac-
cordanee with any one of the following provisions :

(1) Any deposition may be used by any party
for the purpose of contradicting or impeaching
the testimony of deponent as a witness.

(2) The deposition of a party or of any one

=

Who at the time of taking the deposition was an
officer, director, or managing agent of a public
or private corporation, partnershipsor association
Which is a party may be used by an adverse party
for any purpose,

* * * *

(f) Effect of Taking or Using Depositions. A
party shall not be deemed to make a person his own
Withess for any purpose by taking his deposition. The
Introduction in evidence of the deposition or any part
thereof for any purpose other than that of contradict-
ing or impeaching the deponent makes the deponent
the witness of the party Introducing the deposition,
but this shall not apply to the nse by an adverse party
of a deposition as described: in paragraph (2) of sub-
division (da) of this rule. At the trial or hearing any
party may rebut any relevant evidence coutained in a
deposition whether introduced by himoor by any other
party.

* * * *

Rule 51. Tnustruetions to Jurv: Objection. At the
close of the evidence or at such earlier time during the
trial as the court reasonably direets, any party may
file written requests that the court instruct the jury on
the law as set forth in the requests. The court shall
Inform counsel of its proposed getion Upon the requests
prior to their arguments to the Jury, but the court shall
instruct the jury after the arguments are completed,
No party may assign as error the giving or the failure
to give an instruction unless he objects thereto before
the jury retires to consider its verdict. stating: «is-
tinetly the matter to which he objects and the grounds
of his objection. Opportunity shall be given to make
the objection out of the hearing of the Jury.

30

Irish Air Navigation (Operations)
Order, 1953

PART V

AIRCRAFT INSTRUMENTS, EQUIPMENT AND SAFETY
DEVICES.

o3,***

(6) The operator of the aircraft shall take steps
to the satisfaction of the Minister to ensure—

* * * *

(iii) that, if a Jandplane is to be flown over water
hevend thirty minutes flying distance from the
nearest shore, the passengers are shown before
the takeoff, or before reaching thirty minutes
flying distance from the nearest shore, the
position of the life belts, or equivalents, and
the method of their operation ;

* * * *

Opinion of Court of Appeals

CNITED STATES COURT OF* APPEALS
For tHE District oF CoLUMBIA CIRCUIT
'No. 159716

KONINKLIJKE LUCHTVAART MAATSCH APPL N.V. KLM
Roya DutcH Atixes HoLianp, et al.,
Appellants,

e.

GERTRUDE OweN Tuten, individually aud as Exeeu-
trix under the will of William Gordon Tuller,
deceased, et al...

Appellees.

APPEAL FROM THE UNITED States Districr Courr
For THE District or CoLUuMBIA
r

Decided June 23, 1961
Mr. William J. Junkerman for appellants.
Mr. Mardaugh Stuart Madden for appellees.

Before: Mr. Justice Reep, retired,* and Wiper
K. Minter. Chief Judge. and Brrcer, Circuit Judge.

Beurcer, Cireait Judge: This is an appeal from a
$350,000 judgment for the appellees in an action for

* Sitting by designation pursuant to 28 UIS.C. § 294 (a),

2.
-~

te

wrongful death. The decedent, Wiliam Gordon Tul-
ler, Was a passenger ona flight of NKoninkijke Lueht-
Vaart Maatschappij N.V. ELM Royal Duteh Airlines
Holland, (KLM), from Amsterdam to New York
Which crashed approximately one minute after take-
off from its intermediate stop at Shannon, Treland.
The plane crashed in the tidewaters of the Shannon
River some T7000 feet from the end of the airport
runway. As the wheels of the plane left the ground,
the control tower radioed its precise take-off time but
the acknowledgment required to complete the take-
off procedure was not forthcoming from the plane.
Receiving no response, the tower made repeated at-
tempts to make radio contact, without success, SuA-
BENA (Societe Anonyme Belge d’Exploitation De
La Navigation Aeriennc), KLM‘s agent and fight
representative at Shannon, had a radio capable of
monitoring such messages. On this occasion the moni-
tor was turned off immediately after the tower sent
its part of the take-off message without awaiting the
plane's response. As a consequence SABENA offi-
ais were not aware for some time of the failure ‘of
the KLM flight to answer, When the tower eventually
notified SABENA of the loss of radio contact, S.A-
BENA did not advise Aer Lingus, NLM‘s operational
representative, although it was SABENA‘s duty un-
der its contract to inform Aer Lingus of probable
Interruptions of service or retarded progress of the
flight ‘tas soon as possible.” In the XILM plane three
‘adio microphones were available to the flight crew,
the pilot, co-pilot and radio officer, and each micro-
phone was tuned to the tower frequency. Notwith-
standing this, no distress message was transmitted
either when the plane began to descend or after the
crash. When the plane ‘shuddered’* in a stall the

radio officer primarily charged with radio COMMEUML-
cations was thrown from his seat because he had
failed to fasten his seat belt as required by operating
regulations,

After the crash in shallow water, the erew evacu-
ated most of the passengers to two rubber dinghies,
Which were moved along the side of the plane by
means of ropes fastened to the fuselage. Tuller and
another passenger made their exe ape through a rear
window and stood on the tail of the airplane without
life preservers. When their shouts were heard by
the members of the erew in the second dinghy. the
crew attempted to maneuver the dingliv around the
Wing. Finding the tow line too short. the Vecast off the
line and attempted to paddle the dinghy to the tail,
but their efforts were unsuccessful due te tide and
wind and the inadequate size of the paddles. Addi-
tional ropes were available in the eorkpit but were
not used. The ship's officers made no effort to de-
termine the condition of the passengers on the tail of
the plane or to ascertain whether the Vo ohad life vests.

For over four hours Tuller and his COMMON ree
mained on the tail in a rising tide. Near dawn. in-
formation of the erash and its location finally reached
the tower, and a launch was dis spatcehed to the erash
scene. Just as the launch approached. with the water
by then chest high, Tuller lost his footing and slipped
Into the water; his body was later recovered. His
companion was rescued,

A booklet inserted 1m the back of each seat of the
plane stated that life vests could be found in one of
three locations in KLM planes. but at no time Was the
matter of life vests brought to the attention of the
passengers nor had they been told the specitie location

of the vests in this airplane or how they should be
fastened or inflated.

The jury owas instructed that under the Warsaw
Convention, Whieh the court ruled governed the lia-
bility of the airlines, the damages were to be Timited
to S300 unless the defendants were @uilty of “wilful
tisconduet.” In whieh case the s8500) hint did not
control! ‘Phe jury returned a verdiet for the plaimtitf
In the aniount of F000,

The appeal presents these issties :

(1) Was there suffierent evidenee of ‘twilfurl miis-
eonduet” te go to the jury?

(2) Was there error in the reception in evidence of

(ad oan trish order pertaining te instruetion on
use and jecation of life: vests,

(bh) pages of a AIM manual relatiag to diteh-
Ing procedures,

(¢) the contract between KLM and SABENA,

(al) a statement made by the radio operator at
a hearing before Trish authorities some
twelve hours after the erash?

(3) Was there reversible error in the failure of
the trial judge, absent request or objection. to clarify

The Warsaw Convention provides :

"CL: The carrier shalt net be entitled te avail liimself of the
provisions of this convention witteh exciude or hinit) his la:
bility. if the damage is cated by his wilful misconduct or by
such default on his part as. in aecerdanee with the law of the
court to Whiel the case is sabiitted. is considered to be
equivalent to wilful misconduer "Warsaw Convention, Art.
25. 49 Stat. FOZ 154.

the impact of KEM. negheenee on SABENA‘. die
bility ?

(4) Was there suffielent eviddenee Te oS The
damage aware?

Bieids Mee of Woi/ ta! Misconduct

At the close of the ease appellants moved te disimas-
The complaint for all aniounts iy exenss Ob SN OO cnt
for a direeted verdiet in faver of appellee. for ssion
for want of evidence of wilful ldseondtietl Utreder thre:
Tertus of the Warsaw Convention. li copstderine
Whether the appellants were. as thes elastin. entitled. te.
the relref they seuedit by their tuetion We gre. af
course, obliged te take that view of the evideree past
favorable to appellees and give then: the benefit of ali
inferences whieh might reasonably be drawn from: the
evidence, (running \. Cools eo UM. Be, 94 1d).

Qua motion for a directed wii, " * *
ix Well settled that the evidenee tiaast be eolst ried
Inost faverably te the plaintiff: te this ened be is
entitled te the full effeer of every lewitiniate iy
ference therefrom. Tf Won the evidemen. se eon
sidered. reasonable men might differ. the ease
should goote the jury: if en the other hand. ne
reasonable ian could revel a overdiet in faver of
the plaimtiff. the qetion should be eranted.
Jackson \. Capita! Trausit Co... 69 App die ‘a a
5, 3 Fl AM, ST (PR eet. dd Te
(LS. Onb 6 19395, quoted in Neadall vy. Chore Prop
ertics, Luc 98 US App Ihe. 37s, 884. 2G Bet

605. O79 Ws 61996),

*o,*
ool

The jury was instructed that ‘twilful misconduct is
the intentional performance of an act with knowledge
that the 20.0. aet will probably result) ino injury or
damage, or... In some manner as to imply reekless
disregard of the consequences of its performance: and
likewise, it also means . 2. failure to aet’’ im such
circumstances, This was substantially the charge ap-
proved by this court in chaweertcan Atrlines, Tne. v.
Uden, ST USAppne. 307, 186 F.2d 520 (1949),
where we also suggested that wilful miseonduet means
‘a deliberate purpose not te discharge some duty
hecessary to safety.” 7doat Sil, 1s6 Bid at 535.

The phrase “twilftil misconduct’? occasioned comsid-
erable discussion in the dratting of the Warsaw Con-
vention in W929. Liability. was limited to 125,000
French franes (then approximately §12.500—and now
approximately F300) for i single passenger unless
Article 25 of the Convention applied. See note 1,
supra. The United States was nota participant but
In the discussions relating to the meaning of the
French word ‘dol’ used in the text of Article 25 the
English delegate said ‘tL wish it to be noted on the
record that as a result of the explanations we trans-
late these words as ‘wilful misconduct.” a well-under-

>

stood expression in our law."

“We have in our eountry the expression “wilftl miiseconcditet
ioeovers not only acts accomplished with deliberation. but alse
WeoTS OT CUrebessness. Winner t regard ot The eonsecuences. " Proces-
Verbausx PE Conferenee Pnternatvonaie de Drom Prive Nerien, 4-12
Octobre D290. Varsovie. po 40-42. published by the Ministry of
borcstoa Akarrs of Potand. 000 The declaration of adherenee to
the Convention as advise by the Senate was accompanied by an
iuviish transiation whieh used the words ‘owilftl maseenditet te
trausiate “doh EM Stat Sea CT9sd This was the Enelish
translation before the Serate for consileration. 7S Cong. Ree

Those ogy

The alleged wilftul miisconduer of the appediants an
this case resolves itself inte four elements: ob) failure
fo properly dustruct passengers of the loeatien of life
Vests and dn their use: (2) failire te broadeast an
emergeney nessage; Co) fadlire te take steps te pre
Vide for the safety of Tuller atter his peril wes
known: (4) failare of SABENA te be aware of the
loss of radio commtunecation with the plane ated te
IITate protipt searel anid resene operations,

(1) “The evidence showed that Taller was alive within
seconds before the resene lamnel reached the airplane,
but that he lost his footing. fell inte the water. ane
Was dost. Since the parties stipulated that Tuller was
hot injured in the erash. the Jury could: reasonably
have inferred that if Tuller dad heen wearing a lite
vest his life could have been saved. Significantly. the
erew mentbers, who knew tite location of life vests.
realized the need and promptly put them on,

There was testimony that ue arnoiteements or in
structions concerning life vests were ide te pas-
sengers before take-olfs or during tlieht. ane the Pit
senger Who stood with Tuller on the teil testified that
he did) not) krew Where the life: vests were located,
The descriptive booklets Inserted di the baek oof eaeely
seat stated that the life vests could be found in one
of three places. but at ne time were the passengers
Informed where they could be found in this pactientar
areraft. Regulations of tie Trish Government de tet
require life vest dastructions unless a flight is more
than SO tumintes travel from: land. Phis flight was
always within SO naiuites flight trom dane provided ji
miuintained nortial flying speed— and remained air
howrne, Whiel of course ait did bet.

lh view of the gravity of the hart: whieh: would fol

Be

low an emergency landing on water on a night fligh:
Which contemplated landings and take-offs at at least
two airports near the sea, the jury could reasonably
find that the failure of WLM to establish and execute
procedures to instruct passengers as to the location
and use of life vests was a conseious and wilful otais-
sion to perform a positive duty and coustituted reck-
less disregard of the consequences, We are not bound
by the limits of the Irish Government's regulations as
to when life vest Instruetious should be given to fulfill
the duty of care owed to passengers. Cf. Hlorobin vy.
British Airways Corp. (1952) 2 ALELR. 1016, 1019
(Q.B.).

(2) A distress message could have heen sent merely
by uttering the universal distress signal in the words
“King Yoke Mayday" or even **Mavday."" | Immedi-
ately before take-off the radio officer was at his desk
In the plane with a microphone before him tuned to
the tower frequency. But during the descent he was
thrown to the floor beeause he had failed to take his
seat and fasten his seat belt. The KLM operations
manual required all personnel to have a ‘tcouscious
anticipation prior to take off of possible failure.” and
to send a distress message as soon as an emergeney
% Regulations of the Trish Government alse
required publie transport aireraft to notify appro-
priate authorities “by the quickest means available’
of any aceident involving the aireraft. The plane was
equipped with radio microphones at three positions ;
the pilot's, the co-pilot’s and the radio operator's.

AVvOSe,

3 The KLM operating manual, pave 36. states:
“Surface stations and ships should be tiformed of the exist-
eee OF an emergeney as soon as it arises. This should be
done even ii odtoas met certain thet the airplane will have to be
ditehed. Tt ois easy enotgh to eaneel the call after the emer:

ore*nneeN Is GOVeET., is

i

Here there was a brief period. even if OMT Sereneds,
as to Whieh a jury could reasonably tind that the
behavior of the plane gave noties of a possthle eraséi
and time suffieient to utter the distress signal. Pur-
thermore, there was ne a temipt Too send a message.
after the crash: there was evidence that the elect rien!
SVateni Was so organized that the plane's radio world
operate from independent power after the main igni-
Hon switch was thrown te aveid eNXplosion and tire.
lic addition there was a portable emergeney radio
operable by hand erauk in the rear of the plane.

Had a message been sent the control tower by any
of the available means. the authorities would have beer
Immediately aware of the erash and resene equipment
coud have been dispatehed promptly rather than some
four hours later, Accordingly, the Jury Was warranted
In concluding that KIM ‘s agents. in failing te senda
distress message, conunitted wilful Hilseconeliet,

(oO) After the first dinghy was tilled with Putsseq-
gers, the captain iustrueted the erewneen in clare te
take if to shore, The captain and radio offieer mare a
final cheek for passengers in the eahin and then
hoarded the secore dinghy. Shouts were heard from
the passengers on the tail and the erewmen atteniptes
foomaneuver the dinghy around the wine with the
ropes attached to the fuselaewe. Finding the a
short, and fearing to take the dinghy over the sharp
edge of the wing. they released. the rope and tried te
paddle the dinghy. But the round rubber vesse|
Would not respond te their smi! paddles ane instead
drifted with the tide toward the shore. ‘The ChOWIEN
had no experience in the uss of the dinghies except in
a large swimming pool,

40

The crew owas aware that it) was possible te
maneuver the dinghy by ropes attached to the fuselage
because they had) previously maneuvered it to. the
main door in’ that) fashion. Moreover, additional
lengths of rope sufficient to reach the tail were avail-
able in the cockpit. Various alternatives were plainly
available: one of the erew could have swum to the
tail of the plane with the rope and pulled the dinghy
to the men or vice versa, as had been done with respect
to moving the dinghy in earlier maneuvering. No
effort was made to put a erew member on top of the
cabin by use of ropes thrown, or carried by a swimmer,
to the opposite wing engines. Had this been done the
tail passengers might well have been guided over the
top of the cabin to the dinghy. The jury could reasou-
ably find that under these cirenmstances the failure
to take available steps to provide for Tuller's safety
Was a conscious omission made with reckless disregard
of the consequences when it was known he was in a
position of peril, There is no suggestion that the de-
parture of the second dinghy without making some
effort to provide for Tuller’s safety was necessary to
protect the lives of the occupants of that dinghy.

(4) As agent for KLM. SABENA was charged by
contract? with cheeking the progress of the flight and

TSABENS contracted to render... services to the Carrier's

KLM's| flight operating within the area of responsibility lat
Shannon] as described in’ Paragraph 30 of this Annex thereby
maintaining close tiaison with the operational representative | Ner
Lingus} designated by the Carrier so as to coordinate his require
ments.

* ? > *

Maintain contact with all flights within bis area of respousi-
bility Metin advanced or retarded progress as compared with
Hizht plan and inform the operational representative iNer Lingus!
designated by the Carrier"

* * ° ~

“Tn the event oof an emergeney. take action Necessary tor the

1]

notifying Aer Lingus, the operations! representative
Of KLM. in the ease of retarded procress of the thelr,
However, as ao result of the ~Witelmygg off of the
SABENA monitor radio without waiting for comale
Hon of the take-off message and before it was kiows
Whether the airplane had failed te respond tovet tier
With the absence of SABENA eliplovers trom tl.
office at subsequent periods, Aer Lingus was net oe
fied of the loss of commuiieation for several diowurs,
nor was the NLM station manager so notitied.>
While the control tower personnel had broad cuties
With respect to contaet with the plane anid didl in taet
remain aware oof the plane's failure te respon,
SABENA as KMS agent had -‘routreet duties as
hoted in the margin, But SABENA was SCOTMINLLLY
satisfied with the loss of contact with the KIM plirtie
at the critical moments of take-off. landings and take-
offs being the most hazardous of their operations. Ti
View of this it is less surprising that the tower per.
sonnel did not pursue the matter averessively, ‘The
Vital importance of commiiiieation between Pitot ane
control tower is suggested by the severe wovernmental
savetions for failure to perform: required aets of come

safety of the flight being euided by the instraetions in the pele.
Vant Operations Manuatl. 2
* * * s
“Report the complete facts of any aneilent of a Mieht Oberation.
nature Whieh eattses delay oroaterrantion of a fiehit te the ae
Tons departivent of the Carrier

z * = . *

“Ensure that probable or known interruptions to scheditbes fe:
Nicht operationai reasons . 0.0. are eiven as seon as possible te the
operational representatives despenated by the Carrier

> Tiere was evidence that it was the established prac bee that at
radio Wessave Was Hot rewarded as complete ait ache edie Ih.
the recipient. ‘The tower corti? to Peerttest gehrowbe depen t oo

Its tkeeotl pessace

a

muwMeation The seareh and reseue organization of
the Shannon airport did not have its own planes. As
KLM's operational representative, Aer Lingus was
the local facility capable of instituting a search. In
recognition of this, the contract between KILM and
SABENA. as we have noted, required SABENA to
advise Aer Lingus Mnmediately of any facts related
to an interruption of service, and to keep Aer Lingus
informed of the movements of the aircraft. Some
forty-cight minutes after take-off, a SABENA agent
learned from the control tower that radio contact
With the plane had ceased shortly after take-off,
Nevertheless, Aer Lingus was not notified of this fact
for another hour and thirty minutes, Finally aware
of Joss of contact and the plane's failure to report a
safe and completed take-off SABENA as KLM'‘s
representative had a duty to “take action hneessary for
the safety of the flight’’ and press every available
Inquiry and to initiate through Aer Lingus emergency
surtace craft investigation in the area of the known
take-off pattern.

Mere no real effort was made to check on the ‘miss-
Ing’ plane until nearly two bours after take-off when
the tower sighted flares in the take-off pattern of the -
KEM plane. Even then no surface craft were dis-
patched. Later another plane in routine flight sighted
the erashed ship in the growing light of dawn and
finally surface craft: were dispatehed. SABENA‘
failure to inform Aer Lingus of the loss of COMMU
cation with the plane it was responsible for, plainly
delayed emergeney search and resene action Which,
had it been initiated in these eireumstanees even as
tiveh as five minutes carlier, could have prevented
Tuiler’s death. The defaults of SABENA as K ILM‘

ground agent were couseious omissions of perfornianee

{)

Of positive duties relatine directly te the safety of
PMISSCH@erS,

We hold that as to each of the categories of allege!
Wilf) misconduct of KEM there Was sulietent evi-
dence from whieh a Jury eould rewsonably find thet
KLM was enilty of wilful Iscomduet as that terin his
heen Interpreted DS this court under the Warsaw Con-
Vention; we hold also that) tiere Was suffelent evi-
dence from which a Jury could reasonably find that
SABENA was guilty of wilful Insconduet as that
term has been interpreted by this court under the
Warsaw Convention. There js also evidenee from
Which a jury could reasonably tind that as to eneh
category of wilful Miusconduet the negligence in qlles-
Hom coutributed proximately to Tuller’s death,

Wleged Errors in the Reception of Bride nce

(1) fetsh order us to hifi rests. Appellants’ objec.
fons go solely to the Iterpretation put upon this
order by appellees’ counsel in argument te the jury,
The applicability of the order was a fair subjeet of
comment Hb argument and there is ye substantial basis
for disturbing the verdiet on this round,

(2) ALM manual, Pages of a KIM bnathitiaal relat-
Ing to the duties of the radio operator when there is a
“ditehing of the airplane Were Getnitted over oly joe.
tion, The ground of the objection was that the tania]
applied only te planned aid controlled CHET HEN
landing on water amd not te an InVeluntary erash
landing, As a result of questions by the appellees’
eounsel, anid questions hy the trial Jinlee after im
pedehment of the witness by a Prior deposition. a
suMeiont foundation was laid foe the adinission of this

$4

manual in evidence. The radio operator finally ad-
mitted that if a erash occurred it was the duty of the
crew to carry out as mmuy as pessible of the plamned
ditching procedures,

(3) ALM-SABENA contract. [tis urged as error
that the contract between NLM and SABENA was
not construed by the trial court and was the subject of
argument in appellees’ saimation. Appellants did
hot request specific instructions on the meaning of the
contract and made no objection after the charge; they
are precluded from raising this objection now. FrEp.
KR. (wv. 7. ot.

(4) Radio operator's statement. Appellees took the
deposition of the NLM radio operator, Oudshorn,
after his employment with NLM was terminated. Tn
the deposition, which was received as part of the ap-
pellees’ case in chief. the radio operator stated that
he did not send a distress message before the plane
crashed because there was not sufficient time to do se.
He was then asked if he had made a statement to the
Inspector of Accidents at the Shannon airport some
hours after the erash. The witness admitted making
statements at the hearing in question, which he said
was attended by ‘tone of our chief flight engineers of
KLM... one of the people of the Duteh CAA’ and
others. At this point appellees offered and the court
received over objection a transcript of the radio op-
erator’s statement at the hearing before the Tispector
of Necidents. Appellants objected to the proffered
transeript of Oudshern’s statement on the ground that
“itis not partof the res gestae,” thus indicating thet
the statement was challenged as hearsay. After argu-
ment the Distriet Court after first indicating that he

45

regarded it ats peau of the res vestine, then reconsidered
aid ruled that

The statement refers to the accident. otherwise
there would be ue purpose in having the statement
made. Tt was made oo. 0 at Shatmen on the same
(488) day of the accident and in response te the
particnlar question as te why he didua’t send the
Hiessaeve,

TL thank it is aeanissible and TP owill let it in.

The pertinent: part oof the statement made by
Oudshorn at that time was

We were tried at frequenes of TIS.7. the tower
frequeney, and TP honestly minst sav that TP did net
think when it happened. to take the imierophone
and tell people there was something wrong on the
plane. To eould tell vou that would never happen.
You first think ef your shin, and then of the
microphone, That was my feeling, because it hap-
pened so fast. ¢Rmiphasis added.)

The trial judge did not trv te limit the effeer of this
statement inany wav. Realistieatly it could net have
heen admitted merely for purpeses of impeachment iy
the caretuustanees shown here.® The eho dlenwed) WG;
(1957 5,

Of course, Hf the triad eourt im foet prevented the
Objection From: being made. ai ivirine ease for the
application of the tpl error’? rile world be pre
sented. We have examined the portions of the record
reed on by appellants to show that the District Judge
IN Somme Way inipeded or prevented the recording of
a timely objection. We are satistied that appellants
had full and uninhibited opportunity to objeet to the
charge concerning the liability of SABENA if thes
desired but failed to do oso. The triat of this enise
Was Jong and expensive and the contentions iunder-
seore the need) for stret commlianes with the rude
Which treats as waived that to whieh we timely objer
Then is tacde,

The claimed error in the seape of appellees aren.
Ment to the jury does not merit eormrent,

Dit inieuepe N

The jury returned a verdiet of Sa50.0000 for the
appellees, Phe evidenee on the damnee issue showed
aolife expeetanes of Solo vears. Thiller esrned a
salary of approxtmeteds S27.000 Gr SYOOO a vere

after taxes as viees president tn eharge of eneieerine

ato Melpar. a division of Woestinghouse Airbrake.?
Besides his widow, Tuller was survived by two «fil
dren then aged four and eight respectively: |

The award of $350,000 is attacked as so excessive
that it shonld have been set asides by the District
Court. We pointed out in Malett ve Brinsou, 97 ULS.,
Apple’. Te, 14. 229 Fed 2a. Sy (it), evel.
denied, 300 US. 10714 61956). ‘that the rule in the
Federal courts is that an appellate court may reverse,
if at all. for excessiveness of verdict only where the
verdict is so grossly excessive or monstrous as to dem-
onstrate clearly that the trial court chas abused its
discretion in permitting it to stand.’ See ctffelder
ve New York, Cod StL. B., 339 U.S. 96, 101 (1950).
On the whole record we cannot say that the aetion
of the District Judge who tried* the ease and) heard
the post-trial motions constitutes an abuse of dis-
eretion or that appellate action with respect to dani
ages is required,

Affirmed.

The appellees tendered: bet othe Duastrirer Court re pected pred.
Verve! evieleadice purport as tuo shea that Tattler s Dhieronnne wottied
Ierease over the fail span of fife expectamey. Steh eviderer was
revevant amd showutd have heen reeemed Ge Commor vo Urirted

“ates, 368 FS acs «2a Cir. Hot.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1254%3A2. Public record. Not legal advice.