Domangue v. Eastern Air Lines, Inc., 82-3515

• Decision Date: 13 January 1984
• Docket Number: No. 82-3515,82-3515
• Citation: 722 F.2d 256
• Parties: Mrs. Evelyn H. DOMANGUE, Individually and On Behalf of the Minors, Barry Joseph Domangue, Jr. and Michelle Marie Domangue, Plaintiffs-Appellants, v. EASTERN AIR LINES, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 256

722 F.2d 256

Mrs. Evelyn H. DOMANGUE, Individually and On Behalf of the Minors, Barry Joseph Domangue, Jr. and Michelle Marie Domangue, Plaintiffs-Appellants, v. EASTERN AIR LINES, INC., et al., Defendants-Appellees.

No. 82-3515.

United States Court of Appeals Fifth Circuit.

Jan. 13, 1984.

St. Martin & St. Martin, Michael X. St. Martin, Julia Taylor, Houma, La., for plaintiffs-appellants.

Deutsch, Kerrigan & Stiles, Francis G. Weller, Marc J. Yellin, New Orleans, La., for defendants-appellees.

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

Before INGRAHAM, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

Mrs. Evelyn Domangue, individually and on behalf of her two minor children, appeals from a judgment holding that the Warsaw Convention and Montreal Agreement limit her recovery from Eastern Airlines for the death of her husband to a total of $75,000.00, including any post-judgment or pre-judgment interest. Domangue v. Eastern Airlines, Inc., 542 F.Supp. 643 (E.D.La.1982). We affirm the judgment that the Warsaw Convention and Montreal Agreement are applicable to this case, but uphold the right to award post-judgment and pre-judgment interest in addition to the $75,000.00 maximum designated by the Montreal Agreement. We remand in accordance with our opinion.

I. FACTS

On June 24, 1975, Eastern Airlines Flight 66 crashed near John F. Kennedy International Airport en route from New Orleans. Passenger Barry Domangue, traveling under an international ticket to a foreign destination, was killed in the crash. His widow, Evelyn Domangue, on her own and her children's behalf, sued both Eastern Airlines and the United States. ¹ Mrs. Domangue sued the United States of America under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., and the United States stipulated its liability while this action was still pending in the Eastern District of New York. The actual amount of damages was not determined until the case was transferred to the Eastern District of Louisiana, however. Defendant Eastern Airlines moved for partial summary judgment once the case was transferred on the ground that there was no genuine issue of material fact as to whether the Warsaw Convention, as modified by the Montreal Agreement, ² limited its liability in this case. ³ The district court held that Warsaw/Montreal was applicable, and limited Eastern's liability to $75,000.00. Domangue v. Eastern Airlines, Inc., 531 F.Supp. 334, 337 (E.D.La.1981). Approximately seven years after the crash, a trial by jury was finally held and damages in the amount of $639,446.50 were found. Eastern's liability was limited to $75,000.00, and the United States paid the remaining $564,446.50. Post-judgment interest on the $564,446.50, and costs as provided by law, were assessed against the United States. 542 F.Supp. at 654. The court ruled that no pre-judgment or post-judgment interest could be assessed against Eastern, however, since the amount of interest would raise the airline's liability above the $75,000.00 ceiling set by the Montreal Agreement. Ibid.

II. Applicability of Warsaw/Montreal

In 1934, the United States agreed to adhere to the Warsaw Convention. The treaty, according to Article 1, was to govern the rights and responsibilities of carriers with respect to the international transportation, for hire or gratis, of persons, baggage or goods. In the event of death or bodily injury to a passenger, the carrier would be presumed liable "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." ⁴ A carrier's liability, however, would be limited to a maximum damage recovery of 125,000 Poincare francs, ⁵ or $8,300, unless the passenger could prove willful misconduct on the part of the airline. In such a case liability would be unlimited. ⁶ Liability would not lie if the carrier could show it had "taken all necessary measures to avoid the damage or that it was impossible ... to take such measures" ⁷ or show "the damage was caused by or contributed to by the negligence of the injured person...." ⁸

In 1965 the United States announced its denunciation of the Convention, to take effect in six months, because of its low damage recovery limitation. See 49 U.S.C. Sec. 1502, at 437. To prevent the impending denunciation, in 1966 the principal international air carriers, ⁹ in the Montreal Agreement, modified the effects of the Warsaw Convention as it applied to flights involving a location in the United States. The signatory carriers agreed by special contract to waive the defenses available to them under Article 20(1) and to increase the maximum recoverable damage award. ¹⁰ Thus, under the Agreement, "liability for injuries described by Article 17 of the Warsaw Convention became absolute and the maximum damages were increased to $75,000.00." ¹¹

The Warsaw/Montreal system of absolute liability for the carrier up to $75,000.00 per passenger, regardless of any fault or negligence, applies in a given case if: (a) the passenger's travel was "international transportation" within the meaning of Article 1(1), (2); (b) the passenger ticket was "delivered" within the meaning of Article 3(1), (2) and contained a statement in 10 point type that the transportation was subject to the rules relating to liability established by Warsaw/Montreal; (c) the accident which caused the damage took place on board the aircraft or in the course of any of the operations of embarking or disembarking; ¹² (d) the passenger did not contribute to the accident; ¹³ and (e) the damage was not caused by the willful misconduct of the carrier. ¹⁴

In the district court it was not disputed that Barry Domangue, the deceased, was a passenger in "international transportation," that the accident occurred aboard the aircraft, and that Mr. Domangue in no way contributed to the accident. What was disputed by Mrs. Domangue was whether her husband's airline ticket had contained the required notice of the Warsaw/Montreal limitations of liability, and whether Eastern was guilty of willful misconduct. Mrs. Domangue does not argue on appeal the issue of Eastern's alleged willful misconduct. The only question concerning the application of Warsaw/Montreal is whether it was proper for the district court to take from the jury the fact question of whether Mr. Domangue's ticket had the requisite notice.

It is proper to grant a motion for summary judgment only when there is no genuine issue of material fact, McKee v. McDonnell Douglas Technical Services Co., 700 F.2d 260, 262 (5th Cir.1983). We find that there is no genuine fact issue here and that the district court was correct in granting Eastern Airline's motion for partial summary judgment holding the Warsaw Convention and Montreal Agreement applicable. Eastern did not have to prove that Mr. Domangue had actual knowledge of the limitations of liability imposed by Warsaw/Montreal. ¹⁵ All that Eastern needed to prove was that a ticket was delivered to Mr. Domangue which gave him a reasonable opportunity to learn of the limitations and take steps to obtain additional protection if he wished to do so. Warren v. Flying Tiger Line, Inc., 352 F.2d 494, 497-98 (9th Cir.1965); Mertens v. Flying Tiger Line, Inc., 341 F.2d 851, 856-57 (2d Cir.1965).

Mr. Domangue's airline ticket was never recovered from the crash, so the district court was not able to examine the ticket. Eastern Airlines was able, however, to produce the coupon the airline had detached from Mr. Domangue's ticket when he boarded. The serial numbers on that coupon indicated during which print run the ticket had been printed. Eastern was able to produce a complete ticket from the same print run as Mr. Domangue's ticket, 531 F.Supp. at 339, which contained the notice concerning the limits to liability imposed by Warsaw/Montreal. Since the notice on that ticket was adequate to invoke the limitations of liability provided by Warsaw/Montreal, the only reasonable inference was that the notice on Mr. Domangue's ticket was also adequate to warn Mr. Domangue.

Mrs. Domangue argues that Eastern failed to prove that the warning had actually been attached to her husband's ticket, and not accidentally detached by the ticket agent when her husband had picked up his ticket before going to the gate. Mrs. Domangue provided no reason for believing that to have been the case, and Eastern Airlines pointed out that the page on which the Warsaw/Montreal notice was printed was not perforated, and could not have been easily detached. In the face of this argument as well, the only reasonable inference is that the warning was an integral part of Mr. Domangue's ticket.

In light of the fact that Mrs. Domangue could counter with nothing but speculation the evidence indicating Mr. Domangue received a ticket with a valid Warsaw/Montreal notice, we affirm the district court's finding that there was no genuine fact question as to whether Mr. Domangue received proper notice of the Warsaw/Montreal limitations. Since it was not contested that the other conditions for invoking the limitations of Warsaw/Montreal were met, it was proper for the district court to hold that the Warsaw Convention and Montreal Agreement were applicable to this case.

III. Interest in Addition to the $75,000.00 Award

The district court held that pre-judgment and post-judgment interest could not be awarded in addition to the $75,000.00 maximum prescribed by the Montreal Agreement. It found that "[p]rejudgment and post-judgment interest are a measure of damages, and the clear intent of Article 22 is to limit recoverable damages to $75,000.00." 542 F.Supp. at 653. In attempting to ascertain the intent of the parties to the Warsaw Convention, the court relied on Secretary of State Cordell Hull's statement in transmitting the Warsaw Convention to the Senate in 1934 that the purpose of the...