Compagnie Nationale Air France v. Port of New York Auth.

• Decision Date: 12 June 1970
• Docket Number: No. 667,Docket 33723.,667
• Parties: COMPAGNIE NATIONALE AIR FRANCE, Appellant, v. The PORT OF NEW YORK AUTHORITY, The Lummus Company, The United States of America, and M. Parisi & Son, Inc., Appellees.
• Court: U.S. Court of Appeals — Second Circuit

427 F.2d 951 (1970)

COMPAGNIE NATIONALE AIR FRANCE, Appellant, v. The PORT OF NEW YORK AUTHORITY, The Lummus Company, The United States of America, and M. Parisi & Son, Inc., Appellees.

No. 667, Docket 33723.

United States Court of Appeals, Second Circuit.

Argued May 12, 1970.

Decided June 12, 1970.

William J. Junkerman, New York City (Carroll E. Dubuc, Randal R. Craft, Jr., Haight, Gardner, Poor & Havens, New York City, on the brief), for appellant.

Edward A. Sullivan, Garden City, N. Y. (Bill, Sullivan, Fleck & Fleck, Garden City, N. Y., on the brief), for appellee Port of New York Authority.

Steven E. Pegalis, Jamaica, N. Y. (Jeremiah A. O'Leary, Stephen W. O'Leary, Thomas J. Mason, W. Robert Devine, O'Leary & O'Leary, Jamaica, N. Y., on the brief), for appellee Lummus Co.

Michael C. Farrar, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Edward R. Neaher, U. S. Atty., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee the United States.

Bennett H. Pollard, New York City (Katz & Gantman, New York City, on the brief), for appellee M. Parisi & Son, Inc.

Before FRIENDLY and KAUFMAN, Circuit Judges, and BRYAN,^* District Judge.

IRVING R. KAUFMAN, Circuit Judge.

Shortly before 9 P.M. on the evening of August 13, 1964, a Boeing 707 owned by Compagnie Nationale Air France landed at John F. Kennedy International Airport in New York, after a trip from Paris. It taxied north on the outer perimeter runway until it reached Taxiway Juliet (also called Taxiway J), which permitted a left turn towards gate 21 at the International Arrivals Building, where the passengers were to disembark.

Taxiway J is divided into two parts, separated by a small island. Taxiway J North was unobstructed and led directly to gate 21; the Air France jet however, departed from the yellow line leading though J North, turned left into Taxiway J South, proceeded through a barricade marked by flags and lights, and nosed gently over into a construction ditch. Damage was considerable, and Air France instituted the instant action against the Port Authority (which maintains the airport), the United States (which employs the traffic controllers), the Lummus Company (general contractor for the construction involved) and M. Parisi & Son, Inc. (who dug the ditch). Employing considerable ingenuity as well as diligence, Air France sued all defendants for negligence in constructing and marking the ditch, the Port Authority for maintaining a nuisance, and the Authority, Lummus, and Parisi for breach of contract on the theory that Air France was a third party beneficiary to the construction contracts.

After plaintiff had presented its case, Judge Travia dismissed plaintiff's claims based on breach of contract and nuisance.¹ After all the evidence, he submitted to the jury the negligence claims against the Authority, Parisi, and Lummus, while retaining the action against the government for his own decision, as provided in the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2402 (1964). The jury deliberated for two days; during that period it requested certain exhibits including a tape recording of transmissions between the control tower and the various aircraft. It also asked that portions of the Captain's testimony be reread, along with a recharge on contributory negligence.

Following these interchanges, after the midday recess on March 6, 1969 the jury informed the court by note that it was "hopelessly deadlocked," and the foreman responded to the judge's query by saying, "based on a statement by one of the Jurors, sir, I am positive that further consideration would be hopeless." Rather than declaring a mistrial at this point, the judge indicated to the jurors that the trial had been a long and costly one, and that there was no reason to believe that it would be better tried the second time around. The jury retired for a second time, and again returned with a question: "Must the award of damages in amount be by a unanimous vote?" The answer, of course, was "yes." Shortly thereafter, that same afternoon, the jury returned special verdicts, finding Parisi not negligent, Air France not contributorily negligent, and the Port Authority and Lummus negligent. It awarded $15,000 damages against the Authority, and $5,000 against Lummus. On March 11 the court heard argument on the case against the government, determined that Air France was contributorily negligent, and dismissed its claim against the United States.

Post-trial motions were put over until March 24, at which time the court denied motions by Lummus and the Port Authority for judgment notwithstanding the verdict, or in the alternative for a new trial on all issues, and by Air France for entry of judgment in the amount of stipulated damages ($113,483.58) against both defendants, or in the alternative, for a new trial on the issue of damages only against both defendants. Air France also sought a new trial on all issues against all four defendants; the court granted the motion in part as to Lummus and the Authority; it reasoned that in the light of the jury's "deadlock," and damages considerably less than those stipulated in the pre-trial order, there must have been a compromise verdict on liability. It refused to certify the new trial order under 1292(b) for an interlocutory appeal.

I. The New Trial Order

Plaintiff Air France would have us overturn the district court's grant of a new trial as to defendants Lummus and the Port Authority. But, it has long been the rule in this circuit (and others), that an order granting a new trial is not ordinarily a "final" judgment from which an appeal may be taken. See Bigart v. Goodyear Tire & Rubber Co., 361 F.2d 317 (2d Cir 1966); Tsoleas v. Hege, 250 F.2d 127 (4th Cir. 1957); Barbarino v. Stanhope S.S. Co., 150 F.2d 54 (2d Cir. 1945); Dry Dock, E. B. & B. R. R. v. Petkunas, 261 F. 988 (2d Cir. 1919); 6A J. W. Moore, Federal Practice ¶ 5915 1 at 3896-98 (1966). The result can be no different because a party has been denied judgment notwithstanding the verdict or a retrial limited to damages when the judge considers a complete new trial more appropriate. Should plaintiff Air France lose on retrial, it may assert whatever errors it believes were committed during the first trial of the action. See Bigart v. Goodyear Tire & Rubber Co., 361 F.2d 317, 318 (2d Cir. 1966). Plaintiff's appeal from the grant of a new trial as to defendants Lummus and the Port Authority is dismissed.

II. Dismissal of the Contract Claims

As a second cause of action, Air France alleged that it was the beneficiary of the construction contracts between the Port Authority and Lummus, and between Lummus and Parisi. It argued that it occupied the position of a third party beneficiary, recognized in New York in the early cases of Lawrence v. Fox, 20 N.Y. 268 (1859) and Seaver v. Ransom, 224 N.Y. 233, 120 N.E. 639 (1918). The District Court dismissed these claims at the close of plaintiff's case. Air France, while assigning the dismissal as error, does not appear to contest the issue vigorously, and we can understand its judgment. A third party beneficiary may recover under New York law only where the parties to the contract intend to confer a benefit upon him; he may not sue on the contract when the benefit is purely incidental to the performance of the contract. See Associated Flour Haulers & Warehousemen, Inc. v. Hoffman, 282 N.Y. 173, 26 N.E.2d 7 (1940). Air France failed to show that any of the parties intended safety features in the contract to be for its benefit, and failed to suggest any similar instances in which the New York courts have found a third party beneficiary relationship. See Prescott v. Collins, 263 App.Div. 690, 35 N.Y.S.2d 135, appeal dismissed, 290 N.Y. 811, 50 N.E.2d 232 (1942) (provision in construction contract between state and contractor requiring precautions to prevent damage to persons or property by explosives held to give injured passerby no third party beneficiary rights). Since we hold there has been no final judgment for Lummus or the Authority, dismissal of the third party beneficiary claim is affirmed only as to defendant Parisi.

III. Alleged Errors During the Course of the Trial

Air France asks us to consider several allegedly improper rulings dealing with the admission of evidence, and some instances of supposedly inappropriate conduct by the trial judge. Air France sought, and succeeded in, introducing the construction contracts as evidence of a standard of care which would be relevant to the jury in determining whether the defendants' conduct was negligent. On appeal, it contends that because the trial judge instructed counsel to refer to the safety provisions of the contract as a possible "standard" rather than a "duty," reversal is required. We are at a loss to know what to make of this contention. Plaintiff sought introduction of the contract provisions to show the existence of a possible standard of care; the judge limited its discussion to that purpose. We can discern no basis for plaintiff's displeasure with the ruling, much less any error prejudicial to it.

Among the stipulations contained in the pre-trial order was one stating that the plane arrived at 8:46 P.M., received a taxi clearance from the ground controller at the same time, and that "the circumstances out of which this accident arises occurred at 8:52 P.M. * * *." The order also contained a stipulation permitting introduction of a tape recording and transcript of conversations between...