Koninklijke Luchtvaart Maatschappij NV KLM v. Tuller

• Decision Date: 23 June 1961
• Docket Number: No. 15716.,15716.
• Citation: 292 F.2d 775
• Parties: KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V. KLM ROYAL DUTCH AIRLINES HOLLAND, et al., Appellants, v. Gertrude Owen TULLER, individually and as Executrix under the will of William Gordon Tuller, deceased, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

292 F.2d 775 (1961)

KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N.V. KLM ROYAL DUTCH AIRLINES HOLLAND, et al., Appellants, v. Gertrude Owen TULLER, individually and as Executrix under the will of William Gordon Tuller, deceased, et al., Appellees.

No. 15716.

United States Court of Appeals District of Columbia Circuit.

Argued October 21, 1960.

Decided June 23, 1961.

Mr. William J. Junkerman, New York City, for appellants.

Mr. Murdaugh Stuart Madden, Washington, D. C., for appellees.

Messrs. Theodore E. Wolcott and John S. Chapman, Jr., New York City, both of the Bar of the Supreme Court of the State of New York, were allowed to argue pro hac vice for appellees, but did not argue.

Before Mr. Justice REED, retired,^* and WILBUR K. MILLER, Chief Judge, and BURGER, Circuit Judge.

BURGER, Circuit Judge.

This is an appeal from a $350,000 judgment for the appellees in an action for wrongful death. The decedent, William Gordon Tuller, was a passenger on a flight of Koninkijke Luchtvaart Maatschappij N. V. KLM Royal Dutch Airline Holland, (KLM), from Amsterdam to New York which crashed approximately one minute after take-off from its intermediate stop at Shannon, Ireland. The plane crashed in the tidewaters of the Shannon River some 7000 feet from the end of the airport runway. As the wheels of the plane left the ground, the control tower radioed its precise take-off time but the acknowledgement required to complete the take-off procedure was not forthcoming from the plane. Receiving no response, the tower made repeated attempts to make radio contact, without success. SABENA (Societe Anonyme Belge d'Exploitation De La Navigation Aerienne), KLM's agent and flight representative at Shannon, had a radio capable of monitoring such messages. On this occasion the monitor was turned off immediately after the tower sent its part of the take-off message without awaiting the plane's response. As a consequence SABENA officials were not aware for some time of the failure of the KLM flight to answer. When the tower eventually notified SABENA of the loss of radio contact, SABENA did not advise Aer Lingus, KLM's operational representative, although it was SABENA's duty under its contract to inform Aer Lingus of probable interruptions of service or retarded progress of the flight "as soon as possible." In the KLM plane three radio microphones were available to the flight crew, the pilot, co-pilot and radio officer, and each microphone was tuned to the tower frequency. Notwithstanding this, no distress message was transmitted either when the plane began to descend or after the crash. When the plane "shuddered" in a stall the radio officer primarily charged with radio communications was thrown from his seat because he had failed to fasten his seat belt as required by operating regulations.

After the crash in shallow water, the crew evacuated most of the passengers to two rubber dinghies, which were moved along the side of the plane by means of ropes fastened to the fuselage. Tuller and another passenger made their escape through a rear window and stood on the tail of the airplane without life preservers. When their shouts were heard by the members of the crew in the second dinghy, the crew attempted to maneuver the dinghy around the wing. Finding the tow line too short, they cast off the line and attempted to paddle the dinghy to the tail, but their efforts were unsuccessful due to tide and wind and the inadequate size of the paddles. Additional ropes were available in the cockpit but were not used. The ship's officers made no effort to determine the condition of the passengers on the tail of the plane or to ascertain whether they had life vests.

For over four hours Tuller and his companion remained on the tail in a rising tide. Near dawn, information of the crash and its location finally reached the tower, and a launch was dispatched to the crash scene. Just as the launch approached, with the water by then chest high, Tuller lost his footing and slipped into the water; his body was later recovered. His companion was rescued.

A booklet inserted in the back of each seat of the plane stated that life vests could be found in one of three locations in KLM planes, but at no time was the matter of life vests brought to the attention of the passengers nor had they been told the specific location of the vests in this airplane or how they should be fastened or inflated.

The jury was instructed that under the Warsaw Convention, which the court ruled governed the liability of the airlines, the damages were to be limited to $8300 unless the defendants were guilty of "wilful misconduct," in which case the $8300 limit did not control.¹ The jury returned a verdict for the plaintiff in the amount of $350,000.

The appeal presents these issues:

(1) Was there sufficient evidence of "wilful misconduct" to go to the jury?

(2) Was there error in the reception in evidence of

(a) an Irish order pertaining to instruction on use and location of life vests,

(b) pages of a KLM manual relating to ditching procedures,

(c) the contract between KLM and SABENA,

(d) a statement made by the radio operator at a hearing before Irish authorities some twelve hours after the crash?

(3) Was there reversible error in the failure of the trial judge, absent request or objection, to clarify the impact of KLM's negligence on SABENA's liability?

(4) Was there sufficient evidence to support the damage award?

Evidence of Wilful Misconduct

At the close of the case appellants moved to dismiss the complaint for all amounts in excess of $8300 and for a directed verdict in favor of appellees for $8300 for want of evidence of wilful misconduct under the terms of the Warsaw Convention. In considering whether the appellants were, as they claim, entitled to the relief they sought by their motion we are, of course, obliged to take that view of the evidence most favorable to appellees and give them the benefit of all inferences which might reasonably be drawn from the evidence. Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720.

On a motion for a directed verdict, "* * * it is well settled that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom. If upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted." Jackson v. Capital Transit Co., 1938, 69 App.D.C. 147, 148, 99 F.2d 380, 381, certiorari denied, 1939, 306 U.S. 630, 59 S.Ct. 464, 83 L.Ed. 1032, quoted in Kendall v. Gore Properties, Inc., 1956, 98 U.S.App.D.C. 378, 384 note 3, 236 F.2d 673, 679 note 3.

The jury was instructed that "wilful misconduct is the intentional performance of an act with knowledge that the * * * act will probably result in injury or damage, or * * * in some manner as to imply reckless disregard of the consequences of its performance; and likewise, it also means * * * failure to act" in such circumstances. This was substantially the charge approved by this court in American Airlines, Inc. v. Ulen, 1949, 87 U.S.App.D.C. 307, 186 F.2d 529, where we also suggested that wilful misconduct means "a deliberate purpose not to discharge some duty necessary to safety." Id., 87 U.S.App.D.C. at page 311, 186 F.2d at page 533.

The phrase "wilful misconduct" occasioned considerable discussion in the drafting of the Warsaw Convention in 1929. Liability was limited to 125,000 French francs (then approximately $12,500 — and now approximately $8,300) for a single passenger unless Article 25 of the Convention applied. See note 1, supra. The United States was not a participant but in the discussions relating to the meaning of the French word "dol" used in the text of Article 25 the English delegate said "I wish it to be noted on the record that as a result of the explanations we translate these words as `wilful misconduct,' a well-understood expression in our law."²

The alleged wilful misconduct of the appellants in this case resolves itself into four elements: (1) failure to properly instruct passengers of the location of life vests and in their use; (2) failure to broadcast an emergency message; (3) failure to take steps to provide for the safety of Tuller after his peril was known; (4) failure of SABENA to be aware of the loss of radio communication with the plane and to initiate prompt search and rescue operations.

(1) The evidence showed that Tuller was alive within seconds before the rescue launch reached the airplane, but that he lost his footing, fell into the water, and was lost. Since the parties stipulated that Tuller was not injured in the crash, the jury could reasonably have inferred that if Tuller had been wearing a life vest his life could have been saved. Significantly, the crew members, who knew the location of life vests, realized the need and promptly put them on.

There was testimony that no announcements or instructions concerning life vests were made to passengers before take-offs or during flight, and the passenger who stood with Tuller on the tail testified that he did not know where the life vests were located. The descriptive booklets inserted in the back of each seat stated that the life vests could be found in one of three places, but at no time were the passengers informed where they could be found in this particular aircraft. Regulations of the Irish Government do not require life vest instructions unless a flight is more than 30 minutes travel from land. This flight was always within 30 minutes flight from land, provided it maintained normal flying speed — and remained airborne, which of course it did not.

In view of the gravity of the harm which would follow an emergency landing on water on a night flight which contemplated landings and take-offs at at least two airports near the sea, the jury could reasonably...