Dunn v. Trans World Airlines, Inc.

• Decision Date: 21 September 1978
• Docket Number: No. 77-1649,77-1649
• Citation: 589 F.2d 408
• Parties: Bennie Imogene DUNN, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 408

589 F.2d 408

Bennie Imogene DUNN, Plaintiff-Appellee, v. TRANS WORLD AIRLINES, INC., Defendant-Appellant.

No. 77-1649.

United States Court of Appeals Ninth Circuit.

Sept. 21, 1978.

Rehearing and Rehearing En Banc Denied Jan. 23, 1979.

Lawrence J. Teker (argued), of Trapp, Gayle, Teker, Hammer, Lacy & Moore, Agana, Guam, for defendant-appellant.

Norman Ashton (argued), of Ferenz, Bramhall, Paul, Nolan, Gruskin, Oakland, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the District of Guam.

Before CHAMBERS and ANDERSON, Circuit Judges, and KING, ^* District Judge.

SAMUEL P. KING, District Judge:

Defendant-appellant, Trans World Airlines, Inc. ("TWA"), appeals from a decision by the district court of Guam awarding plaintiff-appellee, Bennie Imogene Dunn ("Dunn"), $75,000 for injuries sustained when the flight on which Dunn was aboard experienced some air turbulence en route from Honolulu to India. ¹ Four issues are raised on appeal by TWA:

1. The district court erred in awarding Dunn judgment in the amount of $75,000 since the Treaty of Warsaw, ² otherwise known as the Warsaw Convention, limited recovery for such injuries to approximately $8300. ³ The Montreal Agreement, ⁴ which modified the Treaty of Warsaw's limitation and provided, instead, a limit of $75,000 on recoveries against signatory airlines, was inapplicable to the instant case because plaintiff failed to "allege, plead or prove that TWA was a signatory to such an agreement; plaintiff did not allege, plead or prove that she was entitled to the provisions of the Montreal Interim Agreement, and therefore her damages, if any, are limited to $8,300.00 under the Warsaw Treaty." Appellant: Opening Brief at 6.

2. The award of $75,000 in favor of Dunn was excessive in that there was insufficient evidence to support such a finding.

3. The district judge should have found Dunn contributorily negligent in not having her seatbelt fastened at the time of the turbulence.

4. The district judge erred in not dismissing the complaint or imposing other sanctions for Dunn's counsel's failure to produce her x-rays pursuant to TWA's Request to Produce.

I. TWA's first contention is that since plaintiff failed to either allege, plead or prove that the airline was a signatory to the Montreal Agreement or that she was entitled to the provisions of that Agreement, her damages, if any, are limited to $8300 under the Warsaw Convention. During oral argument on appeal, counsel for TWA admitted that the airline was in fact a signatory to the Agreement.

In response, plaintiff argues that the Montreal Agreement creates no new cause of action, but functions simply as an affirmative defense and, therefore, need be neither pleaded nor proved by the complainant. Further, since all parties, as well as the district judge, were aware of the applicability of the Agreement to the case at the time of trial, any objection to it was either implicitly waived by the airline or rejected by the trial judge.

The Warsaw Convention is officially entitled "Convention for the Unification of Certain Rules Relating to International Transportation by Air," declaration of adherence by the United States deposited at Warsaw, Poland, July 31, 1934, proclaimed October 29, 1934. In essence, the Convention creates both a presumption of liability on the part of the carrier for injury or death arising out of international transportation (subject to certain defenses), and a concomitant limitation of liability (subject to certain exceptions) to 125,000 Poincare francs per passenger. Husserl v. Swiss Air Transport Co.,351 F.Supp. 702, 703 n.1, (S.D.N.Y.1972), Aff'd 485 F.2d 1240 (2d Cir. 1973).

The Convention was drafted during a period when international air travel was in its infancy. The problem facing most international air carriers at that time was the securing of capital in the face of what appeared to be enormous hazards and risks. 1 L. Kreindler, Aviation Accident Law, § 11.01(2). "In the absence of a limitation on liability one disaster might (have swept) away a large capital investment." Id. Hence, in order to provide a more favorable environment for the industry's growth, various sovereignties agreed to create a uniform body of law governing the rights and liabilities of passengers and air carriers in international air transportation. See Lowenfeld & Mendelsohn, 80 Harv.L.Rev. 497, 499-500 (1967); Block v. Compagnie Nationale Air France, 386 F.2d 323, 326-51 (5th Cir. 1967), Cert. denied 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968). The drafters of the treaty proposed to limit liability for injuries caused by air accidents and, as an offset, proposed a presumption of liability on the part of the air carrier. As originally drawn, the Convention established a presumption of liability limitation of ($8300) per passenger for injuries comprehended by Article 17 of the Convention. Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256 (9th Cir. 1977), Cert. denied 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977).

Nevertheless, on November 15, 1965, the United States filed a formal Notice of Denunciation of the Convention with the Polish Government, to become effective May 15, 1966. The reason for the denunciation was what the United States considered the unconscionably low limits on liability for death and injury under the Convention. The press release announcing the denunciation provided:

The United States would be prepared to withdraw the notice of denunciation deposited today if prior to its effective date of May 15, 1966, there is a reasonable prospect of an international agreement on limits of liability in international air transportation in the area of $100,000 per passenger or on uniform rules but without any limit of liability, and if, pending the effectiveness of such international agreement, there is a provisional arrangement among the principal international airlines waiving the limits of liability up to $75,000 per passenger. Dep't of State Press Release No. 268, 50 Dep't State Bull. 923, 924 (1965).

The United States withdrew its denunciation of May 14, 1966, and, instead, approved, through the Civil Aeronautics Board, an interim agreement submitted by the International Air Transportation Association (IATA). Dep't of State Press Release Nos. 110, 111; 54 Dep't State Bull. 955 (1966). This interim arrangement, known as Agreement CAB 18900, provided that the parties thereto would agree to include in their tariffs to be filed with the CAB a "special contract" by which the carrier would waive its defenses provided by Article 20(1) of the Warsaw Convention and also its limitation of liability under the Convention up to $75,000. Husserl v. Swiss Air Transport Co., 351 F.Supp. at 703 n.1.

Together, the Agreement, signed by each airline, the tariff, filed pursuant to the Agreement on May 16, 1966, the Notice to Passengers included within the ticket informing the passenger of the change in the regime of the Warsaw Convention, and the CAB order, constitute what has popularly been known as the "Montreal Agreement". Id.

With respect to the Warsaw Convention itself, the majority of courts have in the past adhered to the proposition that no cause of action is created by the Convention. Instead, the Convention was regarded as creating a presumption of liability if the otherwise applicable substantive law provided a claim for relief based on the injury alleged. Maugnie v. Compagnie Nationale Air France, 549 F.2d at 1258 n.2; Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir. 1957), Cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N.Y.1952), Rev'd on other grounds, 209 F.2d 436 (2d Cir. 1953), Cert. denied 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Husserl v. Swiss Air Transport Co., 351 F.Supp. 702.

It might be noted that this proposition is consistent with this court's conclusion that the Convention does not extinguish any cause of action either. In other words, the Convention is neutral with respect to the existence of a cause of action and merely conditions and limits any action which exist under otherwise applicable law. Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1252 (S.D.N.Y.1975).

Since the Montreal Agreement, in large part, merely modified certain terms of the Convention, then arguably the Agreement itself would not independently support a cause of action, as Dunn contends here.

Despite this, TWA asserts that "in pleading a cause of action based upon the Montreal Agreement, one must allege that agreement and prove that the defendant was a party thereto." Appellant's Opening Brief at 7. According to TWA, the Agreement "is merely a contractual provision between certain airlines and the U. S. Government. And because it is a contract, under the basic law of contracts it must be pleaded. In the case at bar, the existence of the contract (the Montreal Agreement) was neither mentioned, pleaded, alleged or proved." Id. at 6. In support of its position, TWA cites Husserl v. Swiss Air Transport Co., 351 F.Supp. 702. Reliance on that case, however, is misplaced as the fact that the parties there did not dispute that the defendant carrier had signed the Montreal Agreement did not imply that the Agreement had to be pleaded in order to have it apply. Nevertheless, the law in the Second Circuit has recently undergone some important changes which may support appellant's position.

In Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), the Second Circuit has reversed its prior stand as posited in Noel and Komlos and has held that the Warsaw Convention does create an independent cause of action.

It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer.

We recognize that the holdings in Komlos and Noel...