932 F.2d 972 (9th Cir. 1991), 90-55868, Bogazici Hava Tasimaciligi A.S. v. McDonnell Douglas Corp.

• Citation: 932 F.2d 972
• Docket Number: 90-55868.
• Date: 09 May 1991
• Parties: BOGAZICI HAVA TASIMACILIGI A.S., Turk Hava Yollari A.O., London and Hull Maritime Insurance Company Ltd., La Paternelle Risques Divers, English and American Underwriting Agency Ltd., Insurance Company of North America (U.K.) Ltd., The Insurance Company of North America, Plaintiffs-Appellants, v. MCDONNELL DOUGLAS CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 972

932 F.2d 972 (9th Cir. 1991)

BOGAZICI HAVA TASIMACILIGI A.S., Turk Hava Yollari A.O., London and Hull Maritime Insurance Company Ltd., La Paternelle Risques Divers, English and American Underwriting Agency Ltd., Insurance Company of North America (U.K.) Ltd., The Insurance Company of North America, Plaintiffs-Appellants,

v.

MCDONNELL DOUGLAS CORPORATION, Defendant-Appellee.

No. 90-55868.

United States Court of Appeals, Ninth Circuit

May 9, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted April 3, 1991.

Appeal from the United States District Court For the Central District of California, No. CV-89-0067 JMI; James M. Ideman, District Judge, Presiding.

C.D.Cal.

REVERSED AND REMANDED.

Before SCHROEDER and REINHARDT, Circuit Judges, and KING, District Judge. ^[*]

MEMORANDUM ^[**]

Plaintiffs-appellants Bogazici Hava Tasimaciligi A.S., et al., appeal the district court's grant of summary judgment to defendant-appellee McDonnell Douglas Corporation, alleging that the district court erred in granting McDonnell Douglas Corporation's motion for summary judgment on a ground it did not urge. We agree and therefore reverse the district court's decision.

I. FACTS

In September 1972, plaintiffs-appellants Bogazici Hava Tasimaciligi A.S., et al., (hereinafter "Turkish Airlines"), purchased three DC-10 Series 10 aircraft from defendant-appellee McDonnell Douglas Corporation (hereinafter "MDC"). Article 12 of the purchase agreement for the three planes provided:

THE WARRANTY AND SERVICE LIFE POLICY PROVIDED IN THIS ARTICLE AND THE OBLIGATIONS AND LIABILITIES OF THE SELLER UNDER SAID WARRANTY AND SERVICE LIFE POLICY ARE EXCLUSIVE AND IN LIEU OF, AND BUYER WAIVES, ALL OTHER REMEDIES, WARRANTIES, GUARANTEES OR LIABILITIES, EXPRESS OR IMPLIED, WITH RESPECT TO EACH AIRCRAFT, PRODUCT OR ARTICLE DELIVERED HEREUNDER, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY OBLIGATION OR LIABILITY OF SELLER ARISING FROM NEGLIGENCE OR WITH RESPECT TO FITNESS, MERCHANTABILITY, LOSS OF USE, REVENUE OR PROFIT OR CONSEQUENTIAL DAMAGES.) THIS WARRANTY OR SERVICE LIFE POLICY SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY SELLER AND BUYER.

Approximately 14 years later, on September 26, 1986, MDC issued Service Bulletin 71-142. SB 71-142 was one in a series of bulletins detailing 19 reported instances of the doors surrounding the engine of DC-10 Series 10 aircraft becoming unlatched and being blown off in-flight. Whereas prior bulletins had suggested improved maintenance procedures and other precautions to alleviate the problem, SB 71-142 recommended that all DC-10 Series 10s be retrofitted with a secondary engine core cowl door latch system within 18 months. MDC informed all DC-10 Series 10 operators that it had "service kits" available for purchase to complete the recommended changes to the latch system. Turkish Airlines had ordered and received three of these kits by late 1987.

On January 5, 1988, one of the three Turkish Airlines DC-10 Series 10 aircraft which was the subject of the purchase agreement departed Istanbul, Turkey, on a routine charter flight to Milan, Italy. During the flight the left-hand engine core cowl door of the No. 1 (port) engine separated from the aircraft causing structural damage to the No. 1 engine and other sections of the plane. The pilot returned the plane to Istanbul without further incident and the engine core cowl door separation did not result in any injuries or loss of life among the passengers or crew.

Turkish Airlines filed suit against MDC in the United States District Court, Central District of California, on January 5, 1989, seeking damages for the in-flight separation. After a first round of discovery was fired, the parties agreed to discuss settlement. MDC maintained that the exculpatory clause contained in Article 12 of the purchase agreement barred all of Turkish Airlines' claims....