684 F.2d 1301 (9th Cir. 1982), 79-3341, In re Aircrash in Bali

Docket Nº:79-3341, 78-3761-78-3763.
Citation:684 F.2d 1301
Party Name:In re AIRCRASH IN BALI, INDONESIA ON APRIL 22, 1974 John P. CAUSEY, Jr., etc., et al., Plaintiffs-Designated Appellants, v. PAN AMERICAN WORLD AIRWAYS, INC., etc., Defendants-Designated Appellees. Simone RYDER, etc., et al., Plaintiffs-Designated Appellants, v. PAN AMERICAN WORLD AIRWAYS, INC., etc., Defendants-Designated Appellees. Margaret G. JOH
Case Date:August 24, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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684 F.2d 1301 (9th Cir. 1982)


John P. CAUSEY, Jr., etc., et al., Plaintiffs-Designated Appellants,



Defendants-Designated Appellees.

Simone RYDER, etc., et al., Plaintiffs-Designated Appellants,



Defendants-Designated Appellees.

Margaret G. JOHNS, etc., et al., Plaintiffs-Designated Appellants,



Defendants-Designated Appellees.

Nos. 79-3341, 78-3761-78-3763.

United States Court of Appeals, Ninth Circuit

August 24, 1982

Argued and Submitted Oct. 6, 1980.

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Clinton H. Coddington, Tucker & Coddington, Los Angeles, Cal., Mark H. Gallant, Washington, D. C., for Pan American World Airways.

James G. Butler, Los Angeles, Cal., for Ryder.

Mark P. Robinson, Los Angeles, Cal., for Causey.

Nicholas R. Allis, Geneva, Switzerland, for amicus.

Appeal from the United States District Court for the Central District of California.

Withdrawn and resubmitted-January 29, 1982.

Before FLETCHER and PREGERSON, Circuit Judges, and SOLOMON, [*] District Judge.

FLETCHER, Circuit Judge:

These suits arise out of an aircrash in Bali, Indonesia, on April 22, 1974, in which plaintiffs' decedents and 104 other persons were killed. A jury found defendant Pan American World Airways, Inc. (Pan Am) negligent, and awarded damages in the amount of $300,000 to the Causey plaintiffs and $651,500 to the Ryder plaintiffs. The district court declined to reduce the verdicts to the limits imposed by the Warsaw Convention, October 12, 1929, 49 Stat. 3000 (1934), 137 L.N.T.S. (1929) (arts. 17 & 22).

Defendant-designated appellee Pan Am appeals from the trial court's ruling that the Warsaw Convention is not applicable, and plaintiffs-designated appellants cross-appeal to attack evidentiary rulings made by the court in the course of trial.



  1. The Warsaw Convention

    The Warsaw Convention is a multilateral treaty. The Convention was drafted in 1929 and adhered to by most countries whose airlines have international routes. The United States adhered to the treaty in 1934. 49 Stat. 3000 (1934). The Convention standardizes, among the contracting countries, the documentation required for passengers and cargo on international 1 flights,

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    id. at arts. 3, 4, 5-16, and makes uniform various procedural rules relating to claims for loss and damage, id. at arts. 26-31. It also limits the liability of air carriers in the event of accident or loss, id. at art. 22.

    The Convention creates an express presumption that any accident is the result of carrier negligence unless the carrier can prove that all necessary measures were taken to avoid damages, or that it was impossible to take such measures. Id. at arts. 17, 20. The Convention excepts from the limit on the carrier's liability, injury or death caused by the carrier's "willful misconduct." Id. at art. 25. The Convention permits the passenger and the carrier to contract for a higher limit on liability, id. at art. 22, but invalidates any contract that purports to lower or remove the carrier's liability, id. at art. 23. Other provisions require the application of forum law to certain questions of procedure, id. at art. 28(2), contributory negligence, id. at art. 21, and to the determination of who has the right to bring suit and what their respective rights are, id. at art. 24(2). Article 28 regulates venue, and article 29 sets the statute of limitations for actions brought under the Convention. Other technical provisions are not relevant here.

    Because of dissatisfaction with certain provisions of the Warsaw Convention, particularly the low limit set for personal injury or death, 2 an international conference convened at The Hague in September, 1955, for the purpose of amending the Convention. The agreement eventually raised the limit on carrier liability for injury from $8,300 to roughly $16,600, and amended the language of Article 25 relating to "willful misconduct." Hague Protocol, September 28, 1955, 478 U.N.T.S. 371; see Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 504-09 (1967) (hereinafter cited as Lowenfeld and Mendelsohn). The United States has not adhered to the Hague Protocol, at least in part because the limit on liability is still too low to satisfy critics of the Warsaw Convention. Lowenfeld and Mendelsohn, 80 Harv.L.Rev. at 509-16, 532-46; see Senate Comm. on Foreign Relations, Hague Protocol to Warsaw Convention, S. Exec. Rep. No. 3, 89th Cong., 1st Sess., and appendix (1965). Instead, in November, 1965, the United States denounced the Warsaw Convention, effective May, 1966 (the Convention requires six months' notice of withdrawal). 50 Dep't State Bull. 923 (1963). In an accompanying press release, the United States offered to withdraw its denunciation before it became effective if, prior to May, 1966, an international agreement could be reached that would substantially raise the limits on liability. Id. at 924.

    In response, in 1966, international air carriers reached a private agreement, with the participation of the Department of State, the Civil Aeronautics Board, and the International Air Transport Association. Montreal Agreement, CAB Order No. E-23680, 31 Fed.Reg. 7302 (1966). The Montreal Agreement provides that the signatory airlines accept absolute liability for injury to passengers, up to a limit of $75,000 per passenger. The Agreement has the status of a special contract under article 22 of the Warsaw Convention. It applies to international transportation as defined in the Warsaw Convention, on airlines signatory to the agreement, provided that the intended journey includes a point of departure or agreed stopping place in the United States. Montreal Agreement § 1, 31 Fed.Reg. 7302.

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  2. Proceedings Below

    The plaintiffs in the case at bar challenged the application, validity, and constitutionality of the Warsaw Convention, the Hague Protocol and the Montreal Agreement. They also attempted to avoid the liability limitations by showing "willful misconduct" on the part of Pan Am. The jury found no willful misconduct. The Causey plaintiffs, who would have been entitled to the benefit of the Montreal Agreement's provision of strict liability up to a maximum of $75,000, chose instead to attack the Agreement and go to trial on negligence theories.

    After the jury returned its verdict, the trial court ruled that under California law a decedent cannot by contract compromise his survivor's right to wrongful death recovery. Hence the contractual limitations imposed by the Warsaw Convention and subsequent agreements could have no operation. In re Air Crash in Bali, Indonesia, 462 F.Supp. 1114, 1126 (C.D.Cal.1978). The court thus never reached plaintiffs' challenge to the constitutionality of the Convention.



  3. The District Court's Decision

    The district court, in refusing to apply the limitations on liability imposed by the Warsaw Convention, relied on California law. It reasoned that the Warsaw limitation is based on a contract between the passenger and the carrier, because (1) the Convention requires delivery of the ticket and written notice to the passenger of the limitation on liability before the limitation can be invoked, 462 F.Supp. at 1119-20; see Warren v. Flying Tiger Line, 352 F.2d 494 (9th Cir. 1965); (2) the passenger and the carrier may, by contract, agree to a higher limit on liability, 462 F.Supp. at 1120; and (3) the applicability of the Convention depends on the place of departure and the destination stated in the contract of carriage between the parties, id. at 1119. California does not permit a decedent to compromise by contract his survivors' right to wrongful death recovery. Id. at 1117; see Robison v. Leigh, 153 Cal.App.2d 730, 315 P.2d 42 (1957); Earley v. Pacific Electric Ry. Co., 176 Cal. 79, 167 P. 513 (1917). Any limitation based on contract with the decedent, therefore, can have no application against survivors under California law. The court then examined the federal public policy behind the Warsaw Convention. Finding that federal policy does not require broad application of the Convention's limitations, 462 F.Supp. at 1124-26 (citing 1 L. Kreindler, Aviation Accident Law, § 11.01(2), (5) (1975)), the court entered judgment on the jury's verdict for plaintiffs. 3

  4. Application of California Law

    1. Choice of Law

    The district court's decision presents two threshold questions: (1) Was the proper choice of law made? (2) Does the Warsaw Convention preempt local law in respect to limitation of liability for wrongful death? The Warsaw Convention requires recourse to local law to determine certain issues. See page 3, supra. This is not disputed, but Pan Am challenges the court's choice of California law. The jurisdiction of the federal district court in California is not challenged. It is proper both for purposes of diversity jurisdiction and under the jurisdictional provisions of the Warsaw Convention. Pan Am contends, however, that either Virginia law or the law of New South Wales, Australia, should be applied. The Causey decedents were residents of Virginia, the Ryder decedent a resident of New South Wales. Either of these states' laws, apparently, would impose a low dollar limit on wrongful death recovery even in the absence of the Warsaw Convention.

    Pan Am first argues that Virginia law should govern the Causey case because the Causeys first filed in Virginia and then transferred the action to California. See Van Dusen v. Barrack...

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