Domangue v. Eastern Air Lines, Inc., Civ. A. No. 75-3006.

• Decision Date: 24 November 1981
• Docket Number: Civ. A. No. 75-3006.
• Citation: 531 F. Supp. 334
• Parties: Mrs. Evelyn H. DOMANGUE, Etc. v. EASTERN AIR LINES, INC., et al.
• Court: U.S. District Court — Eastern District of Louisiana

531 F. Supp. 334

Mrs. Evelyn H. DOMANGUE, Etc. v. EASTERN AIR LINES, INC., et al.

Civ. A. No. 75-3006.

United States District Court, E. D. Louisiana.

November 24, 1981.

Michael X. St. Martin, St. Martin & St. Martin, Houma, La., Tony B. Jobe, New Orleans, La., for plaintiff.

Francis G. Weller, Marc J. Yellin, Deutsch, Kerrigan & Stiles, New Orleans, La., for Eastern Airlines, Inc.

John P. Volz, U.S. Atty., Roy Blondeau, Asst. U.S. Atty., New Orleans, La., H. Richmond Fisher, Atty., U.S. Dept. of Justice, Washington, D.C., for United States of America.

MEMORANDUM OPINION AND ORDER

EDWARD J. BOYLE, Sr., District Judge:

The instant suit arises out of the June 24, 1975 crash of Eastern Airlines' Flight No. 66 as it approached Kennedy International Airport in route from New Orleans, Louisiana. Mrs. Evelyn H. Domangue, the widow of Barry Joseph Domangue, who was killed in the crash, filed an action individually and on behalf of her minor children in the Eastern District of Louisiana on September 25, 1975.¹ By decision of the Multidistrict Litigation Panel on February 4, 1976, Mrs. Domangue's suit, together with all other actions arising from the crash, was transferred to the Eastern District of New York for handling of all pre-trial procedures.² Judge Bramwell of that Court then ordered the actions transferred to the Eastern District of New York pursuant to 28 U.S.C. § 1404(a) and consolidated for purposes of trial on the issue of liability.³ Following rendition of a final judgment on liability, the parties would be allowed to move for an order returning the action to the originating district court for trial on the quantum issues.

On the date trial of the matter commenced,⁴ September 18, 1978, plaintiffs in five of the actions, one of which was Mrs. Domangue, moved orally to sever their claims from the impending liability trial and for entry of judgments of liability against Eastern on the basis of the Warsaw Convention⁵ and Montreal Agreement.⁶ Eastern opposed the motions claiming several of its affirmative defenses raised issues of fact and requested the court allow it the time provided in the Federal Rules of Civil Procedure to submit memoranda in opposition. Judge Bramwell granted the motions from the bench over Eastern's objections.⁷ Final judgments were entered in favor of Mrs. Domangue and the plaintiffs in the other four actions on September 28, 1978, from which Eastern appealed.⁸

While the appeal was pending in the Second Circuit, the district court ordered the judgments be amended to delete the Rule 54(b) language and ordered the transfer of this case and four others back to the Eastern District of Louisiana.⁹ On January 16, 1979, the Second Circuit granted a stay of these transferals, but, determining it was without jurisdiction to review the disputed judgments, remanded the case suggesting Judge Bramwell consider certification pursuant to 28 U.S.C. § 1292(b).¹⁰ Thereafter, the district court granted Eastern's motion to certify the Warsaw/Montreal judgments and, at the same time, granted the motions of Mrs. Domangue and the plaintiffs in the other four cases to reaffirm the earlier judgments and to amend them to allow Eastern to interpose its affirmative defenses at the damage trials.¹¹ On Appeal, the Second Circuit reversed the judgments of liability based on Warsaw/Montreal entered by the district court, thereby returning Mrs. Domangue's and the other four plaintiffs' cases to their pre-trial posture "where all issues ... liability as well as damages, have yet to be resolved."¹²

The Second Circuit suggested the plaintiffs reurge their original motions for a finding of liability on the part of Eastern.¹³ Instead, Mrs. Domangue, misconceiving the Second Circuit decision as favorable to her, moved to transfer the case back to Louisiana for a damage trial.¹⁴ Eastern opposed the transfer and moved to dismiss the action on grounds of lack of capacity to sue.¹⁵ Eastern argued correctly the Second Circuit decision reversed the earlier determinations of liability, leaving the issue undecided. Prior to ruling on the motions of Mrs. Domangue and Eastern, Judge Bramwell granted the motions of plaintiffs in six other cases¹⁶ to transfer their suits back to the forums where originally commenced. In an unpublished opinion, supporting that ruling, Judge Bramwell stated that entry of a judgment of liability on the part of Eastern would be but a "mere formality," as "Eastern's liability ... now has been established under Warsaw/Montreal, see 479 F.Supp. at 1141, and by virtue of the doctrine of collateral estoppel since in the non-Warsaw/Montreal cases, Eastern has been found liable for the June 24, 1975 air crash after a trial by jury."¹⁷ He did not enter such judgments, however, as the district courts in Louisiana had to determine the merit of Eastern's affirmative defenses, such as lack of capacity to sue, before liability judgments could be rendered.¹⁸ Following this ruling by Judge Bramwell, Mrs. Domangue and Eastern entered into a stipulation whereby the case was transferred back to the Eastern District of Louisiana and Mrs. Domangue's capacity to sue was accepted.¹⁹ Thus the issue of liability on the part of Eastern under Warsaw/Montreal was not decided by either the district court in the Eastern District of New York or the Second Circuit and remained for the originating courts to determine.

Once back in the Eastern District of Louisiana, Eastern moved for partial summary judgment on the ground there was no genuine issue of material fact concerning the applicability of the Warsaw Convention and the Montreal Agreement to the liability of Eastern to plaintiff.²⁰ Plaintiff, contrary to the position she had asserted since the commencement of the case, opposed the motion arguing Warsaw/Montreal did not apply or, at the least, its application was an issue to be resolved by the jury.²¹ Eastern's motion was taken under submission following oral argument. We grant the motion.

I.

In 1934, the United States agreed to adhere to the Warsaw Convention, which treaty was confected to protect the then infant aviation industry and to establish uniformity in the laws of the several nations affecting international aviation. 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."²² A carrier's liability, however, would be limited to a maximum damage recovery of 125,000 Poincare francs,²³ unless the passenger could prove willful misconduct, in which case liability would be unlimited.²⁴ Liability would not lie if the carrier could show it had "taken all necessary measures to avoid the damage or ... it was impossible ... to take such measures"²⁵ or show "the damage was caused by or contributed to by the negligence of the injured person."²⁶

The Warsaw Convention was modified in 1966 for flights involving a location in the United States by agreement between "the principal international air carriers,"²⁷ including Eastern Airlines, Inc.²⁸ Confronted with the United States' formal denunciation of the Convention because of its low damage recovery limitation, the signatory carriers agreed to waive the defenses available to them under Article 20(1) and by special contract to increase the maximum recoverable damage award. Thus, under the 1966 Montreal Agreement, "liability for injuries described by Article 17 of the Warsaw Convention became absolute and the maximum damages were increased to $75,000."²⁹

The Warsaw/Montreal system of absolute liability for the carrier up to $75,000 per passenger regardless of any fault or negligence, will apply in a given case if: (1) the passenger's travel is "international transportation" within the meaning of Article 1(1), (2); (2) the passenger ticket, containing "a statement that the transportation is subject to the rules relating to liability established by the Convention" and Montreal Agreement in 10 point type, is delivered within the meaning of Article 3(1), (2); (3) the accident which is said to have caused the damage took place on board the aircraft or in the course of any of the operations of embarking or disembarking;³⁰ (4) the passenger did not contribute to the accident;³¹ and (5) the damage was not caused by the willful misconduct of the carrier.³² The parties do not dispute that the deceased, an Eastern Flight 66 passenger whose final destination was Aberdeen, Scotland, was in "international transportation," that the accident occurred aboard the aircraft and that the deceased in no way contributed to the accident. At issue is whether Mr. Domangue, the deceased, was delivered a ticket with the requisite notice and whether Eastern is culpable of willful misconduct.

Frequently, resolution of the question of delivery of a proper passenger ticket poses issues of considerable complexity. Here, however, resolution of the issue is much simpler. The evidence is uncontroverted that the deceased physically received his pre-paid ticket from the Eastern Airlines ticket counter in the New Orleans Airport on June 24, 1975, the day of the flight, prior to his proceeding to Eastern's flight checkin counter and boarding the plane.³³ The instant case is, therefore, distinguishable from the cases cited to the court by plaintiff wherein "delivery" within the meaning of Article 2 was held not to have been perfected when the passenger was handed a ticket as he was mounting the stairs to board the aircraft, in one case,³⁴ and already seated on the airplane, in the second.³⁵ Neither passenger had the opportunity to purchase additional flight insurance prior to boarding the airplane, which opportunity to take steps to...