617 F.2d 936 (2nd Cir. 1980), 17, Tokio Marine and Fire Ins. Co., Ltd. v. McDonnell Douglas Corp.
|Docket Nº:||17, 22, Dockets 79-7045, 79-7065.|
|Citation:||617 F.2d 936|
|Party Name:||The TOKIO MARINE AND FIRE INSURANCE COMPANY, LIMITED, et al., Plaintiffs- Appellants-Cross-Appellees, v. McDONNELL DOUGLAS CORPORATION, Defendant-Appellee-Cross-Appellant. McDONNELL DOUGLAS CORPORATION, Defendant and Third-Party Plaintiff- Appellee-Cross-Appellant, v. JAPAN AIR LINES CO., LTD., Third-Party Defendant-Cross-Appellee.|
|Case Date:||March 06, 1980|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Oct. 26, 1979.
[Copyrighted Material Omitted]
George N. Tompkins, Jr., (Condon & Forsyth, Lawrence Mentz and Desmond T. Barry, Jr., New York City, on the brief), for plaintiffs-appellants-cross-appellees Tokio Marine and Fire Insurance Co., Ltd., et al., and third-party defendant-cross-appellee Japan Air Lines Co., Ltd.
Harold U. McCoy, Mineola, N. Y. (Scott Fairgrieve and Crowe, McCoy, Agoglia, Fogarty & Zweibel, Mineola, N. Y., on the brief) for defendant and third-party plaintiff-appellee-cross-appellant McDonnell Douglas Corp.
Before MOORE, TIMBERS, and VAN GRAAFEILAND, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
On November 28, 1972, a DC-8 plane, manufactured by McDonnell Douglas Corporation (McDonnell) and owned and operated by Japan Air Lines (JAL), crashed during take-off in Moscow, U.S.S.R., killing fifty-two passengers and seriously injuring ten others. Numerous lawsuits were brought against McDonnell and JAL on behalf of injured and deceased passengers, and all were settled. McDonnell, JAL, and JAL's subrogated insurance carriers, (hereinafter collectively referred to as Tokio Marine) are now litigating their own differences. Tokio Marine seeks recovery from McDonnell for loss of JAL's plane and contribution or indemnity for payments made in settlement of the passenger claims. McDonnell, in turn, seeks contribution or indemnity from Tokio Marine and JAL for payments it made on passenger claims.
The district court, Motley, J., granted summary judgment in favor of McDonnell on Tokio Marine's claims and in favor of Tokio Marine and JAL on McDonnell's counterclaim and crossclaim. We affirm.
The Property Damage Claim
Between 1956 and 1970, JAL, one of the largest airlines in the world, purchased forty-one DC-8 planes from McDonnell. The plane that crashed was the twenty-seventh in this series and was delivered to JAL on July 18, 1969. The contracts of purchase were lengthy and detailed, with hundreds of specifications, terms, and conditions, all of which were reviewed and approved by JAL's technical and legal departments. In addition, representatives of JAL were permitted to be present at the McDonnell plant throughout the manufacturing process.
The terms of McDonnell's sales warranties were negotiable and depended to some extent upon what its purchasers were willing to pay; the broader warranties commanded a higher price. See, e. g., Delta Air Lines, Inc. v. Douglas Aircraft Co., 238 Cal.App.2d 95, 103 & n.5, 47 Cal.Rptr. 518, 523 & n.5 (1965). In the warranty article of the contract for the plane that crashed, McDonnell agreed to repair or replace any defective equipment that became apparent to
JAL within one year or 2,500 flying hours, whichever expired first after delivery of the aircraft, provided that the defect was reported to McDonnell in writing within sixty days after it became apparent. The article also provided:
"THE WARRANTY PROVIDED IN THIS ARTICLE AND THE OBLIGATIONS AND LIABILITIES OF SELLER THEREUNDER ARE EXCLUSIVE AND IN LIEU OF AND BUYER HEREBY WAIVES ALL OTHER REMEDIES, WARRANTIES, GUARANTIES OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY OBLIGATIONS OF THE SELLER WITH RESPECT TO FITNESS, MERCHANTABILITY AND CONSEQUENTIAL DAMAGES) OR WHETHER OR NOT OCCASIONED BY SELLER'S NEGLIGENCE. THIS WARRANTY SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY SELLER AND BUYER."
Among the equipment covered by the one year or 2,500 hour repair or replacement warranty was the plane's spoiler system, which consisted of five rectangular panels on each wing that could be raised when the plane was landing to assist in bringing it to a halt. Because the spoilers interfered with the air flow over the wings, they were not to be used when the plane was in flight. To guard against...
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