In re Air Crash in Bali, Indonesia, M.D.L. No. 215. No. CV 75-1364-DWW

• Decision Date: 27 October 1978
• Docket Number: CV 76-1120-DWW and CV 75-3293-DWW.,M.D.L. No. 215. No. CV 75-1364-DWW
• Citation: 462 F. Supp. 1114
• Court: U.S. District Court — Central District of California
• Parties: In re AIR CRASH in BALI, INDONESIA. John P. CAUSEY, Jr., Individually and as Executor of the Estate of John P. Causey, Sr. and as Administrator with Will Annexed of Estate of Virginia D. Midgett Causey, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., a New York Corp., Defendant. Margaret G. JOHNS as Guardian as Litem of John Treloar Ryder, Sarah Jane Ryder and Simon Bruce Ryder, minors, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., a New York Corp., Defendant. Simone RYDER, Individually and as heir of John Willson Ryder, Deceased, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.

462 F. Supp. 1114

In re AIR CRASH in BALI, INDONESIA.

John P. CAUSEY, Jr., Individually and as Executor of the Estate of John P. Causey, Sr. and as Administrator with Will Annexed of Estate of Virginia D. Midgett Causey, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., a New York Corp., Defendant.

Margaret G. JOHNS as Guardian as Litem of John Treloar Ryder, Sarah Jane Ryder and Simon Bruce Ryder, minors, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., a New York Corp., Defendant.

Simone RYDER, Individually and as heir of John Willson Ryder, Deceased, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.

M.D.L. No. 215. Nos. CV 75-1364-DWW, CV 76-1120-DWW and CV 75-3293-DWW.

United States District Court, C. D. California.

October 27, 1978.

COPYRIGHT MATERIAL OMITTED

A. George Glasco, Los Angeles, Cal., James G. Butler, Butler, Jefferson & Dan, Los Angeles, Cal., for plaintiffs on behalf of the heirs and next of kin of John Willson Ryder (deceased).

Mark D. Robinson, Horgan & Robinson, Los Angeles, Cal., for plaintiffs on behalf of the heirs and next of kin of John Paul Causey and Virginia D. Midgett Causey (deceased).

Daniel W. Winters, Philip L. Johnson, Tucker & Coddington, Los Angeles, Cal., for defendant Pan American World Airways, Inc.

MEMORANDUM

DAVID W. WILLIAMS, District Judge.

On April 22, 1974 a Boeing 707 aircraft operated by Pan American World Airways as Flight 812 was headed from Hong Kong to the island of Bali, Indonesia, intending to land at Den Passar Airport, located at the island's southern tip. In darkness it began its descent and landing approach, but became lost. Instead of retracing its path and climbing higher, the crew kept the craft at an inordinately low altitude for too long a period. The plane crashed into a mountain located 37 miles north of the airport, killing all 96 passengers and the 11 crew members.

Numerous lawsuits were filed in several federal districts of the United States, and the Multidistrict Litigation Panel ordered all the suits transferred to the Central District of California for pretrial supervision. At this writing, most of the suits have been settled.

Wrongful death actions on behalf of the survivors of three of the passengers, John and Virginia Causey and John W. Ryder, were tried to a jury. The trial was bifurcated so that claims of the applicability of the Warsaw Convention¹ and its progeny² and the defenses arising from a contract of carriage, all having the effect of a limitation of damages, would be deferred until after the jury's damage verdict. This court earlier decided that, under the choice of law rules that should prevail, this action was governed by the wrongful death law of California.³ The jury determined the accident was caused by the negligence, but not the wilful misconduct, of the defendant and that the Causey kin should receive total damages of $300,000 and the Ryder plaintiffs the sum of $651,500. A finding of wilful misconduct, under Article 25 of the Warsaw Convention,⁴ prevents an air carrier from availing itself of any other provisions of the Convention which exclude or limit liability. Because there was no such finding, an issue remained as to the applicability of any liability limitation found in the Warsaw Convention and its progeny.

Following the jury verdict, plaintiffs moved this court to exclude all evidence concerning the contest of the contract of carriage between the airline and the passengers, as well as evidence of the applicability of the Warsaw Convention on the grounds that such evidence was irrelevant and immaterial to the issues of these cases. Pan American opposed these motions. After a consideration of the moving and opposing papers and substantial oral argument, the court concludes:

1) The California wrongful death statute under which plaintiffs bring their case provides survivors with an independent cause of action arising upon the decedents' death and derived in no way from any cause of action belonging to the decedent.

2) Such cause of action is unaffected by any contract made by the decedents.

3) The Warsaw Convention, the Hague Protocol, and the Montreal Agreement provide air carriers with a basis contractually to limit liability. Air carriers may avail themselves of the limitation only if there is a contractual acceptance of the liability limitation, either actual or legal, by the party against whom the limitation is sought to be imposed.

4) The Warsaw Convention and its progeny do not limit an air carrier's liability with respect to the survivors' California wrongful death action.

5) Any evidence concerning the actual and legal delivery of a passenger ticket to the decedents, including physical delivery, timeliness of delivery, type size, and contents, is therefore irrelevant and immaterial to any issue before either the jury or the Court.

6) The plaintiffs' motions to exclude evidence on the Warsaw Convention and its progeny is granted.

I. THE CALIFORNIA WRONGFUL DEATH ACTION

It is a settled California rule that its wrongful death statute creates an original cause of action not derived from any rights the decedent may have had. Earley v. Pacific Electric Ry. Co., 176 Cal. 79 at 81, 167 P. 513 (1917); Burk v. Arcata & Mad River R.R. Co., 125 Cal. 364 at 367, 57 P. 1065 (1899); Munro v. Pacific Coast Dredging Co., 84 Cal. 515 at 524, 24 P. 303 (1890); Marks v. Reissinger, 35 Cal.App. 44 at 53, 169 P. 243 (1917). It vests in certain heirs upon the decedent's death. Earley, 176 Cal. at 81, 167 P. 513; Burk, 125 Cal. at 367, 57 P. 1065; Marks, 35 Cal.App. at 51, 169 P. 243. It has its own measure of damages. Earley, 176 Cal. at 81, 167 P. 513; Burk, 125 Cal. at 368, 57 P. 1065; Marks, 35 Cal.App. at 51, 169 P. 243; see Blackwell v. American Film Co., 189 Cal. 689 at 694, 209 P. 999 (1922). Because of the separate and original nature of this wrongful death action, a decedent, while he is alive, cannot contract away or compromise the wrongful death cause of action, nor effectively release from wrongful death liability a potential defendant. Earley, 176 Cal. at 79, 167 P. 513; Marks, 35 Cal.App. at 54, 169 P. 243. See Blackwell, 189 Cal. at 693, 209 P. 999. In Marks, the court squarely held that heirs seeking to recover in a wrongful death action cannot be defeated or affected by anything that the deceased could have said or done. In oral argument, defendant's counsel conceded the correctness of this interpretation of California law. Because, then, the cause is a new right of action independent of any right the decedent may have, and because it cannot be waived by the decedent or otherwise affected by decedent's contracting during life, any contract of carriage pursuant to which a decedent purports to limit the right to recover for his death therefore cannot affect this cause of action. If the issue before this court were simply a liability limitation in a contract of carriage entered into by a decedent, then it is clear that such limitation would have no effect in a California wrongful death action. The question remains whether in the instant case the Warsaw Convention, 49 Stat. 3000 (1934) dictates a different result.

II. THE WARSAW CONVENTION

A. History⁵

The Warsaw Convention was the result of two international conferences held in Paris in 1925 and Warsaw in 1929. The purpose of the conference was twofold. First, since aviation was obviously going to link many lands with different languages, customs and legal systems, it would be desirable to establish a certain degree of uniformity. The convention achieved this almost completely as to documentation—tickets, waybills and the like. The second goal was to limit the potential liability of the carrier in case of accidents. The convention provided that carriers were liable for damages sustained by a passenger in the course of a flight or while embarking or disembarking, but limited this liability to 120,000 Poincairé francs—approximately 8300 U.S. dollars.⁶ One of the bargains contained in the convention was that while retaining a limitation of liability, the convention shifted the burden of proof so that the carrier was presumed liable unless it could show that it had taken all necessary measures to avoid damages or that it was impossible for it to take such measures.⁷

The United States was not a party to the two international conferences in 1925 and 1929 which led to the Warsaw Convention, and only sent an observer. Five High Contracting parties deposited their ratifications to the original convention, and by the end of 1933 twelve countries were members. This did not include the United States. In November of 1933 the Commerce Department and the State Department realized the utility of the United States becoming a party to the convention and the Secretary of State recommended to President Roosevelt its approval of the treaty.

Article 38 of the Convention provides:

"(1) This convention shall, after it has come into force, remain open for adherence by any state.

(2) The adherence shall be effected by a notification addressed to the Government of the Republic of Poland, which shall inform the Government of each of the High Contracting Parties thereof.

(3) The adherence shall take effect as from the 90th day after the notification made to the Government of the Republic of Poland."

President Roosevelt submitted the Treaty to the Senate and on June 15, 1934, the Senate gave its advice and consent by voice vote.⁸ The United States deposited its instrument of adherence on July 31, 1934 and the President proclaimed the Treaty 90 days later.⁹ Thus, the United States had nothing to do with formulation of the convention and did not ratify it but adhered to it shortly after it went into effect, pursuant to Article 38.

A diplomatic conference was convened at the Hague in September, 1955 to consider, (a) the problem of raising the limits of liability over the prevailing $8300 ceiling, and (b) the clarification or modification of the convention's ...