In re Air Crash at Mannheim, Germany, MDL 555.

• Decision Date: 25 October 1983
• Docket Number: No. MDL 555.,MDL 555.
• Citation: 575 F. Supp. 521
• Parties: In re AIR CRASH DISASTER AT MANNHEIM, GERMANY: ON SEPTEMBER 11, 1982.
• Court: U.S. District Court — Eastern District of Pennsylvania

575 F. Supp. 521

In re AIR CRASH DISASTER AT MANNHEIM, GERMANY: ON SEPTEMBER 11, 1982.

No. MDL 555.

United States District Court, E.D. Pennsylvania.

October 25, 1983.

Jim McCarthy, Los Angeles, Cal., Robert Silverman, Washington, D.C., Mark Corchin, Philadelphia, Pa., for plaintiff.

Hastings Griffin, E. David Chanin, Philadelphia, Pa., Barry Reingold, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

WEINER, District Judge.

Presently before the court is a motion by the plaintiffs to consolidate all related cases and to determine applicable law in this air disaster case. This action arises out of a helicopter crash near Mannheim, West Germany on September 11, 1982. The helicopter, a United States Army CH-47 "Chinook", was designed, manufactured and assembled by the Boeing Vertol, a division of defendant Boeing, in Pennsylvania. As a result of the accident, all 46 crew and passengers on board were killed. Numerous actions have been brought against Boeing by foreign and American personal representatives and next-of-kin.¹ The asserted theories of liability include breach of warranty, negligence and strict liability, all bearing on the airworthiness of the helicopter. It is plaintiffs' argument that the cases should be consolidated because the liability issues are identical in each action. The plaintiffs further seek to have this court determine that Pennsylvania law should be applied to all plaintiffs for both the liability and damages issues.

Boeing does not contest consolidation of those cases brought by the surviving relatives of active duty United States Servicemen who were killed in the crash. Nor does it contest the application of Pennsylvania liability law to those same cases "in the absence of a showing that some other jurisdiction has a greater interest in the application of its law to a specific issue." ("Boeing's Memorandum in Opposition to Plaintiff's Motion to Consolidate All Related Cases and to Determine Applicable Law," p. 2).² Defendant strongly objects, however, to the application of Pennsylvania law to the "foreign cases" and urges the court to apply the law of West Germany. This court denied the defendant's motion to dismiss the "foreign cases" on the ground of forum non conveniens in a Memorandum Opinion and Order dated July 14, 1983.

Federal subject matter jurisdiction arises from the parties' diversity of citizenship. Therefore, this court is required to follow the choice of law rules of the states where the various actions were originally filed. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Other than the two transferred cases,³ all cases were filed in Pennsylvania. Although the parties state that Pennsylvania has generally adopted the Restatement (Second) Conflicts of Laws (1971),⁴ analysis of the Pennsylvania choice-of-law cases reveals that the Commonwealth actually uses a hybrid conflict of laws approach, requiring that a court look to which state, of the potentially interested states,⁵ "has the greater interest in the application of its law...." Cipolla v. Shaposka, 439 Pa. 563, 566, 267 A.2d 854 (1970). This approach requires "an analysis of the policies behind the competing laws...." Id. at 565, 267 A.2d 854.

In analyzing the methodology used by Pennsylvania choice-of-law cases pertaining to tort actions, the Court of Appeals for the Third Circuit has determined that Pennsylvania has "adopted a flexible methodology entailing analysis of the policies and contacts of the various concerned jurisdictions." Melville v. American Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir. 1978). The circuit court recognized that:

. . . . .

This methodology combines the approaches of both Restatement II (contacts establishing significant relationships) and `interest analysis' (qualitative appraisal of the relevant States' policies with respect to the controversy). It takes into account both the grouping of contacts with the various concerned jurisdictions and the interests and policies that may be validly asserted by each jurisdiction. Fairly read, Griffith, in drawing upon Restatement II's analysis and `interest analysis' may be said to have combined both in the Griffith `flexible rule.' It is that rule which the Griffith court claims `permits analysis of the policies and interests underlying the particular issue before the court.' 203 A.2d at 805. See Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). Under Pennsylvania law, it is firmly established that this approach is applicable in tort actions. Id.

The principles established in the Restatement (Second) pertaining to this case are:

§ 145. The General Principle

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

§ 6. Choice-of-Law Principles

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws (1971).

The approach set out by Professor David F. Cavers in Cavers, The Choice-of-Law Process (1965) plays a part in Pennsylvania's flexible methodology. See Cipolla, supra, 439 Pa. at 561, 267 A.2d 854. In Broome v. Antlers' Hunting Club, 595 F.2d 921 (3d Cir.1979) a tort action decided after the Third Circuit's opinion in Melville, supra, the circuit court recognized that the Pennsylvania Supreme Court looks to the Cavers approach in applying choice-of-law principles.

The jurisdictions to be considered on the liability issue in the cases sub judice are Pennsylvania (the place of design, manufacture and assembly of the helicopter, also known as the "place of defendant's conduct"), West Germany (the situs of the crash and resulting death, i.e. "place of injury") as well as the domicile of some of the foreign decedents), Great Britain and France (the domiciles of the other foreign decedents).⁶

Although the liability allegations in these cases are based essentially on negligence and products liability, it is the products liability allegation that appears to be at issue in the conflicts of law dispute. In Pennsylvania § 402A of the Restatement (Second) of Torts (1965) was adopted in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1965). The thrust behind strict liability is to effectively make the manufacturer "the guarantor of his products' safety." Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903, 907 (1974). The Pennsylvania Supreme Court has stated the Commonwealth's interest behind § 402A liability as follows:

Our courts have determined that a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use. We have decided that no current societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect.

Id.

The court has further articulated the following economic considerations in Section 402A cases:

The realities of our economic society as it exists today forces the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business. ... Courts have increasingly adopted the position that the risk of loss must be placed upon the supplier of the defective product....

Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020, 1023-1024 (1978). Pennsylvania obviously has an interest in applying its liability law to a resident manufacturer acting within its home borders.

Regarding the laws of West Germany, Great Britain and France, the defendant appends the citations of those laws to its memorandum but fails to argue that the laws of either France or Great Britain apply. Instead, using a thinly disguised "center of gravity" conflict-of-laws approach, the defendant argues that all the foreign cases should be determined under the law of West Germany,⁷ both with regard to liability and damages. Boeing argues that the NATO Status of Forces Agreement, 4 U.S.T. 17972, T.I.A.S. 2846 ("NATO-SOFA Treaty") is the law to be applied. In relevant part, Article VIII provides:

5. Claims ... arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, ... shall be dealt with by the receiving State in accordance with the following provisions:

(a) Claims shall be filed, considered and settled or adjudicated

...