Air Crash Disaster Near New Orleans, La. On July 9, 1982, In re

• Decision Date: 09 July 1982
• Citation: 789 F.2d 1092
• Parties: In re AIR CRASH DISASTER NEAR NEW ORLEANS, LOUISIANA ON
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1092

789 F.2d 1092

In re AIR CRASH DISASTER NEAR NEW ORLEANS, LOUISIANA ON JULY

9, 1982.

Louis Alberto TRIVELLONI-LORENZI, and Susana Electra

Trivelloni-Lorenzi, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., et al., Defendants-Appellants.

Ernesto Serio PAMPIN LOPEZ, Individually and As Administrator of the Estate of His Deceased Mother Sara E. Lopez De Pampin, Plaintiff-Appellee, v. PAN AMERICAN WORLD AIRWAYS, INC. and United States of

America, Defendants- Appellants.

Nos. 84-3832, 84-3833.

United States Court of Appeals, Fifth Circuit.

May 7, 1986.

Rehearing Granted July 8, 1986.

Deutsch, Kerrigan & Stiles, Francis G. Weller, Frederick R. Bott, Darrell K. Cherry, Robert E. Kerrigan, Jr., New Orleans, La., for defendants-appellants.

Patricia R. Murray, Stephen B. Murray, Romualdo Gonzalez, New Orleans, La., for plaintiffs-appellees.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before: GARZA, POLITZ and HILL, Circuit Judges.

OPINION

POLITZ, Circuit Judge:

This chapter in the continuing judicial terminus of the claims arising out of the crash of Pan American World Airways Flight 759 on takeoff from Moisant International Airport on July 9, 1982, presents several issues: (1) application of the rubric of forum non conveniens; (2) Warsaw Convention limitation of liability; and (3) as to the damage awards, questions of excessiveness, discounting, prejudgment interest, and allowance of preimpact and postimpact recovery. We affirm in part, reverse in part, and remand.

BACKGROUND

The plaintiffs in these consolidated cases are citizens and residents of Uruguay, and are heirs of passengers killed in that disastrous flight. Luis Alberto and Susana Electra Trivelloni-Lorenzi are the children of Luis Alberto and Electra Iris Trivelloni who were victims of the crash. Ernesto Serio Pampin-Lopez seeks damages for the deaths of his mother Sara Lopez de Pampin, his sister Maria Amparo Pampin-Lopez, and his aunt Irma Lopez de Alvarez. The decedents were on a vacation trip to the United States and were en route to Las Vegas prior to returning home.

In August 1982 suit was filed against Pan Am and other defendants. ¹ In April 1983 administrative claims under the Federal Tort Claims Act were commenced against the United States, which was, in due course, added as a defendant. Prior to the rejection of the administrative claim under the FTCA which allowed the joining of the United States as a defendant, Pan Am made known its intention to move for a dismissal on the grounds of forum non conveniens.

In connection with the motion, Pan Am made known its willingness to: (1) submit to the jurisdiction of the courts of Uruguay, (2) concede liability, (3) waive any statute of limitations defense, (4) waive the Warsaw Convention limitation of damages, and (5) guarantee satisfaction of any judgment entered against it in Uruguay. In response to Pan Am's declaration of intent, the district court, in an effort to expedite matters, made known its proposed ruling. Anticipating the government as a defendant the court advised counsel: "You have no right to that transfer.... We're going to trial here on damages, with the government as a defendant and with the crash happening here." Pan Am subsequently submitted its motion, which was denied. Thereafter, immediately upon completion of the administrative process, the United States was made a party-defendant in both suits.

Pan Am then sought the application of Uruguayan law to the claims, apparently submitting with its motion two memoranda, neither of which is before us. Finding that Pan Am had failed to show any significant difference between the law of Uruguay and that of Louisiana, the district court denied the motion. Notwithstanding the prior adverse choice-of-law ruling, Pan Am then moved to dismiss the claims for preimpact and postimpact pain and suffering on the grounds that such damages were not recoverable under Uruguayan law. Referring to its prior order, the court denied these motions.

On the eve of trial Pampin sought the application of Uruguayan law insofar as it recognized a nephew's claim for the wrongful death of an aunt, a claim not recognized under Louisiana law. In orally granting the motion the court stated:

The reason that we continue to [apply] Louisiana law is because the law of Louisiana in conflicts ... is that Louisiana will apply its own law unless the domiciliary state has some interest in applying its own law. The domiciliary state in none of these cases, save one, has ever had any interest that [Pan Am] could demonstrate that the domiciliary state would have an interest in applying its law. Now [the case of Alvarez] would be one.... Nobody has ever demonstrated that Uruguay would say, wait, Louisiana, we want you to hurt our citizen by applying the Uruguayan law and help Pan Am or the United States Government.

* * *

* * *

You've got a dead person [Alvarez]. Louisiana law says under [La.Civ.Code Art.] 2315 nobody can recover ... for [Alvarez's] death. There's no 2315 survivor. Uruguay says, for this deceased person [Alvarez], here's who recovers [i.e., Pampin]. Louisiana says, oh, Uruguay, you're the domicile nation. Do you have an interest ... in applying your own law? To which [Uruguay] says, bet your fanny we do. We have a law that says [nephews] recover.

Louisiana says, fine, we'll apply that. Now, we have another dead person ..., another Pampin.... Louisiana's 2315 says child, mother, whoever recovers. Louisiana turns to Uruguay and says, do you have an interest in saying somebody else recovers besides these? And Uruguay says, no, we have no interest in that. So Louisiana says, fine, we'll apply our law then. That is the law of Louisiana.

The trial court also granted plaintiff's in limine motion to strike Pan Am's defense which sought to invoke the damage limitation for the death of international passengers imposed by the Warsaw Convention as modified by the Montreal Agreement. The Montreal Agreement requires that the notice of limited liability be furnished to the passengers in writing in ten-point type. The notice on the tickets of the five decedents was printed in nine-point type. Because of this failure of compliance with the Montreal Agreement, the district court declined to impose the $75,000 death-claim limit.

Upon completion of all pretrial matters the cases proceeded to trial and a jury was selected for each. The trials began physically consolidated, both juries simultaneously heard the testimony of two witnesses to the crash, Opal Bode and Evelyn Pourciau, and that of an anthropologist from Tulane University, who testified about South American mores and familial relations. The trials were then separated for the presentation of other evidence and further proceedings.

The Trivelloni jury awarded $25,000 each for the preimpact pain and suffering of Luis and Electra Trivelloni, $75,000 to each plaintiff for the death of both parents, and $3530 for loss of their parents' personal effects, a total of $203,530 for the two Trivelloni plaintiffs.

The Pampin jury awarded Ernesto Pampin $25,000 for the preimpact pain and suffering of each of the three victims, $12,000 for the postimpact pain and suffering of Irma Lopez de Alvarez, $250,000 for the death of his mother, $150,000 for the death of his sister, $13,000 for the death of his aunt, and $16,853.89 for loss of their personal possessions, for a total of $516,853.89.

The district court denied all posttrial motions and this appeal was timely noted.

ANALYSIS

1. Forum non conveniens and choice of law.

Pan Am maintains that the district court erred by failing to dismiss the suits on the grounds of forum non conveniens, by applying Louisiana law in resolution of the claims, and by applying Uruguayan law in recognizing Pampin's claim for the death of his aunt. Pan Am contends that since the district court did not give comprehensive consideration to the factors enunciated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), ² as refined in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), we should do so. Pan Am suggests that a proper application of these factors would result in a dismissal of these actions. ³

It is too well-settled to permit of argument that the first determination which must be made in deciding the forum non conveniens conundrum respects the choice-of-law. Which country's law is to be applied? The court must first determine whether American or foreign law governs the lawsuit. McClelland Engineers, Inc. v. Munusamy, 784 F.2d 1313 (5th Cir.1986); Cuevas v. Reading & Bates Corp., 770 F.2d 1371 (5th Cir.1985); In re McClelland Engineers, Inc., 742 F.2d 837 (5th Cir.1984), cert. denied sub nom. Munusamy v. McClelland Engineers, Inc., --- U.S. ----, 105 S.Ct. 1228, 84 L.Ed.2d 366 (1985); Koke v. Phillips Petroleum Co., 730 F.2d 211 (5th Cir.1984). If American law, either federal or state, applies to the action, the federal court should retain jurisdiction; if foreign law applies, dismissal may be appropriate if there exists a more convenient forum. Cuevas; Koke; DeOliveira v. Delta Marine Drilling Co., 707 F.2d 843 (5th Cir.1983); Fisher v. Agios Nicolaos V, 628 F.2d 308 (5th Cir.1980), cert. denied sub nom. Valmas Bros. Shipping, S.A. v. Fisher, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981); cf. Reyno. Our first inquiry is whether the district court erred in its decision to apply Louisiana law to the claims resulting from the deaths of four of the five decedents.

In these diversity cases we are Erie-bound to apply Louisiana's choice-of-law rules to the claims against Pan Am, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and against the United States, Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Louisiana utilizes a two-step process in resolving the choice-of-law issue. The court must first...