Ramsay v. Boeing Company

• Decision Date: 29 October 1970
• Docket Number: No. 28266.,28266.
• Citation: 432 F.2d 592
• Parties: Alexander RAMSAY, Jr., et al., Plaintiffs-Appellants, v. The BOEING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.2d 592 (1970)

Alexander RAMSAY, Jr., et al., Plaintiffs-Appellants, v. The BOEING COMPANY, Defendant-Appellee.

No. 28266.

United States Court of Appeals, Fifth Circuit.

August 26, 1970.

Rehearing Denied and Rehearing Denied October 29, 1970.

Lee S. Kreindler, New York City, Jack A. Travis, Jr., Jackson, Miss., for plaintiffs-appellants; Kreindler & Kreindler, New York City, and Richard M. Zaroff, New York City, of counsel.

Junior O'Mara, Jackson, Miss., Benjamin E. Haller, New York City, for defendant-appellee; Mendes & Mount, New York City, of counsel.

Tom H. Davis, Austin, Tex., Byrd, Davis, Eisenberg & Clark, Don L. Davis, Austin, Tex., amicus curiae.

Before COLEMAN, GOLDBERG and MORGAN, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied October 29, 1970.

LEWIS R. MORGAN, Circuit Judge:

This is a wrongful death action arising out of the crash of a commercial jet airliner near Brussels, Belgium, on February 15, 1961. Liability is predicated on Belgium law.¹ The airliner, a Boeing 707-329, was operated by Sabena Belgium World Airlines, and was manufactured by the defendant Boeing. At the time of the fatal crash, the airliner, serving as Sabena Flight 548, which originated in New York, was making its final approach to the Brussels airport, when it apparently experienced one or more serious mechanical malfunctions and crashed to the ground. This action was commenced in the United States District Court for the Southern District of Mississippi on February 2, 1967,² some thirteen days before the six-year Mississippi statute of limitations would have expired.³

None of the plaintiffs, nor their decedents, are or were residents of the State of Mississippi. Alexander Ramsay, Jr., and Jean B. Ramsay, suing for the death of their son, are resident citizens of the State of Michigan. Genevieve Swallender, whose husband was killed in the crash, was appointed the administratrix of his estate in Michigan and is a resident citizen of Minnesota. Martha Sauren Offergelt, suing for the death of her husband, is a resident citizen of West Germany. Helene Marie Balteau, also suing for the death of her husband, is a resident citizen of Belgium. The Boeing Company is a Delaware corporation with its principal place of business in the State of Washington. Each of the plaintiffs was precluded from bringing suit under the laws of their resident jurisdictions, the laws of New York, where the ill-fated flight originated, as well as Boeing's place of incorporation and principal place of business.⁴ Furthermore, the plaintiffs concede that "the sole reason that this action was started in the Mississippi sic was to take advantage of Mississippi's six-year statute of limitations for wrongful death. Other than that, and the fact that the defendant does business in Mississippi, Mississippi has no contacts with this litigation".⁵

The plaintiffs brought an identical action in the Eastern District of New York shortly before they commenced this suit in the Southern District of Mississippi and then moved that the Mississippi action be transferred to the New York District Court under Section 1404(a) of Title 28, United States Code. This motion was denied.

The case went to trial before a jury on January 7, 1969. At the close of all the evidence, Boeing moved for a directed verdict under Rule 50(b), Federal Rules of Civil Procedure, on the grounds: (1) that the plaintiffs failed to prove a prima facie case; (2) that their claim was barred by prescription under Belgium law; and (3) that they lacked capacity to sue as personal representatives under Mississippi law. The district court denied the motion on all grounds and submitted the case to the jury. The jury returned a general verdict for Boeing. Plaintiffs made timely motion for a new trial, which was denied.

The plaintiffs contend that it was error for the district court to deny the motion for a new trial and that the judgment of the district court ought to be reversed and the matter remanded for a new trial. In support of this position, the plaintiffs contend (1) that the presence in the jury room of the Belgian Government Accident Report, which had not been admitted into evidence and which concluded that it was impossible to determine the cause of the accident and specifically rejected the plaintiffs' theory, was error; (2) that the district court's refusal to admit reports and other documents issued by Boeing containing conclusions and admissions concerning the accident and evidence of post-accident design changes made by Boeing in the 707, which resulted from the accident and confirmed plaintiffs' theory of the cause of the accident, was error; (3) that it was error for the district court to dismiss plaintiffs' claims based on breach of warranty on statute of limitations grounds; and (4) that it was error to deny the transfer of this case to New York.

In urging that the district court be affirmed, Boeing reasserts the grounds upon which it based its motion for a directed verdict as a basis for affirmance, as well as meeting the main contentions of the plaintiffs.

After carefully considering the applicable Mississippi and Belgian law, as well as other authorities, we hold that a Mississippi court would apply the substantive law of Belgium in this situation and that Belgium's five-year prescription statute applicable to actions to recover for wrongful death, as construed by the courts of that nation, is substantive. Consequently, the present action is barred by prescription and it is unnecessary to reach the other issues raised by this appeal. See generally Judge Goldberg's decision in Gaston v. B. F. Walker, Inc., 5 Cir., 1968, 400 F.2d 671.

I.

Since this is a diversity action, this court is bound by the substantive law of Mississippi, which includes Mississippi's conflict of laws rules. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

In a wrongful death action, the Supreme Court of Mississippi has recently adopted the "center of gravity" or the "most substantial contracts" rule as articulated by the Restatement (Second) of Conflict of Laws (Proposed Official Draft, Adopted May 24, 1968).⁶ Mitchell v. Craft, Miss.1968, 211 So.2d 509. See also Craig v. Columbus Compress & Warehouse Company, Miss.1968, 210 So. 2d 645. It is clear under this approach that the law of Belgium would determine the rights and liabilities of the parties. As the plaintiffs concede, the only contact that Mississippi has with the litigation is the presence of Boeing in the state for the service of process and the hoped-for availability of a six-year statute of limitation on actions for wrongful death. The injuries occurred in Belgium and the conduct causing the injury allegedly took place at the Boeing plant in Washington. None of the plaintiffs are residents of Mississippi and there is nothing to indicate that Boeing's activities within the state were in any way related to the crash. The relationship between the parties, it would seem, was most centered in the State of New York where plaintiffs' decedents boarded the airplane. Furthermore, in analyzing the relevant policies of interested states and nations, it seems that Belgium's would predominate since the airplane was owned and operated by its national airlines and since the crash occurred on its soil. Cf. Tramontana v. S. A. Empresa De Viacao Aerea Rio Grandense, 121 U.S.App.D.C. 338, 350 F.2d 468, 471, cert. den. 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1965).

In most instances, Mississippi follows the traditional rule that a statute of limitation is procedural for the purposes of choice of law and that the applicable statute of limitation of the forum state generally applies to a cause of action arising under the laws of another jurisdiction. Guthrie v. Merchants National Bank of Mobile, 254 Miss. 532, 180 So. 2d 309 (1965). However, Mississippi has long recognized exceptions to this rule. As early as 1832, the Supreme Court of Mississippi held in Hamilton v. Cooper, 1 Miss. 542, an action in detinue to recover the possession of certain Negro slaves, that an action commenced in Mississippi but arising under the laws of another state is barred by the applicable statute of limitations of the other state where that statute not only bars the remedy but also extinguishes the legal right of action. The court further held that it was bound by the construction placed on the foreign statute of limitation by the courts of that jurisdiction. In Perkins v. Guy, 55 Miss. 153, 177-178 (1877), an action in assumpsit arising under the laws of Tennessee, the court said that it would give effect to the statute of another state extinguishing the right of action, but held, after examining Tennessee law, that the Tennessee statute of limitation operated on the remedy and did not extinguish the right. In Louisiana & Mississippi R. Transfer Co. v. Long, 159 Miss. 654, 131 So. 84, 88 (1930), the court refused to apply the applicable Louisiana statute of limitation in an action arising under Louisiana law because it "merely bars the remedy and not the right of action".

More recently, the Mississippi Supreme Court in Bethlehem Steel Company v. Payne, Miss.1966, 183 So.2d 912, held that a claim under the Louisiana Compensation Act was barred by the limitations provision contained within the Act itself. In doing so, the court said:

There are a number of well recognized exceptions to the general rule that statutory limitations upon the time within which suit must be brought are procedural. The following exception to the rule is noted in Stumberg, Conflict of Laws, p. 148 (3rd ed., 1963):

Another exception which is frequently made in the decisions exists where a statute which creates the right, in the same enactment provides for the time within which suit is to be brought. In such cases a majority of the courts

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