Tramontana v. SA Empresa de Viacao Aerea Rio Grandense, No. 18277.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtFAHY, DANAHER and McGOWAN, Circuit
Citation350 F.2d 468
PartiesBeatrice Antonette TRAMONTANA, Appellant, v. S. A. EMPRESA DE VIACAO AEREA RIO GRANDENSE, a Brazilian Corporation, t/a Varig Airlines, Appellee.
Docket NumberNo. 18277.
Decision Date10 June 1965

350 F.2d 468 (1965)

Beatrice Antonette TRAMONTANA, Appellant,
v.
S. A. EMPRESA DE VIACAO AEREA RIO GRANDENSE, a Brazilian Corporation, t/a Varig Airlines, Appellee.

No. 18277.

United States Court of Appeals District of Columbia Circuit.

Argued October 7, 1964.

Decided June 10, 1965.

Petition for Rehearing Denied October 4, 1965.


Mr. Eugene Gressman, Washington, D. C., with whom Messrs. Hyman Smollar, Ronald Rosenberg and George Kaufmann Washington, D. C., were on the brief, for appellant.

Mr. John L. Laskey, Washington, D. C., with whom Mr. Harry A. Bowen, Washington, D. C., was on the brief, for appellee.

Before FAHY, DANAHER and McGOWAN, Circuit Judges.

Petition for Rehearing En Banc Denied October 4, 1965.

McGOWAN, Circuit Judge:

This appeal presents an international variant of a recurring domestic conflict of laws problem, namely, the applicability in the forum (the District of Columbia) of a monetary damage limitation contained in the wrongful death statute of the place of injury (Brazil). We have, thus, no concern with the Full Faith

350 F.2d 469
and Credit Clause of the Constitution, nor is it claimed that any international engagement of the United States compels recognition of the foreign law. On the record before us, however, we do not find that the District Court erred in according such recognition; and we affirm its judgment

I

Vincent Tramontana was killed on February 26, 1960, when the United States Navy airplane in which he was traveling on naval orders collided over Rio de Janeiro, Brazil, with an airplane owned and operated by a Brazilian airline.1 At the time of his death, Tramontant was a member of the United States Navy Band, which was on an official tour of Latin America. The record does not show his permanent duty station, but he resided with his wife, appellant here, in Hyattsville, Maryland. The Navy plane in which he was travelling when he was killed was en route from Buenos Aires in Argentina to Galeao, Brazil. Appellee Varig Airlines is a Brazilian corporation having its principal place of business in Brazil but carrying on its transportation activities in many parts of the world, including the United States. The Brazilian plane was on a regularly scheduled commercial flight from Campos, Brazil, to Rio de Janeiro when the accident occurred.

Almost two years after her husband's death, appellant instituted this action in the District Court against Varig and its predecessor, alleging that negligence in the operation of the Brazilian plane had caused her husband's death. She explicitly based her claim for recovery on certain provisions of the Brazilian Code of the Air which provide a cause of action for injury or death resulting from negligent operation of aircraft in Brazil. She claimed damages of $250,000. Service was made on Varig Airlines, which concededly is subject to suit in the District of Columbia.2 Varig filed an answer to appellant's amended complaint and the same day moved for summary judgment dismissing the complaint or, in the alternative, for summary judgment in respect of so much of appellant's claim as exceeded the U. S. dollar equivalent of 100,000 Brazilian cruzeiros. Varig relied on Article 102 of the Brazilian Code, which limits liability for injury or death in aviation accidents to that amount. The District Court, with Varig's consent, entered judgment in favor of appellant in the amount of $170.00, the current dollar value of 100,000 cruzeiros. It awarded judgment in favor of Varig "for all of the plaintiff's claim which exceeds the sum of One Hundred Seventy Dollars ($170.00)." From this latter judgment Mrs. Tramontana appealed.3

350 F.2d 470

II

The only question now before us is whether Brazil's limitation on the damages recoverable for death sustained in airplane accidents occurring there is to be applied in this suit in the District of Columbia. Appellant appears to concede that her cause of action, if any, was created by, and arises under, a provision of Brazilian law enacted coincidentally and in conjunction with the damage limitation. She argues, however, that the forum law regarding damages for wrongful death occurring in the District of Columbia, i. e., unlimited recovery, should govern that aspect of her claim. Initially, she accepts the applicability of the traditional conflict of laws rule in personal injury cases that the lex locus delicti, the law of the place where the injury occurred, generally governs in a suit brought elsewhere, but she asserts that a court sitting in the District of Columbia should adopt the familiar exception to the effect that the forum will refuse to apply the otherwise applicable foreign law if it is contrary to some strong public policy of the forum. Appellant asserts the existence of a strong policy of the District of Columbia in favor of unlimited recovery for wrongful death, which she claims is evidenced by Congress' repeal in 1948 of the $10,000 maximum until then contained in the local wrongful death statute.4 She points also the fact that only thirteen states still limit recovery for wrongful death, and that none imposes a ceiling as low as that contained in the Brazilian Air Code. She cites the Warsaw Convention, which governs generally accidents involving international air carriers and which now permits recovery up to $8,292, as constituting in essence an international standard of fairness in such matters.5 And, finally, she relies on the New York Court of Appeals decision in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), as a persuasive precedent

350 F.2d 471
for the position she urges us to adopt. Another contention, which we treat separately hereinafter, is that the Brazilian limitation should be disregarded because of the striking decline which has taken place in the value of the cruzeiro in terms of the dollar

Appellant's essential effort throughout is to urge us to follow the "newer and more realistic judicial approach" to conflict of laws problems exemplified by Kilberg and Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1 (1963), and more recent decisions of the Supreme Court, and to reject the assertedly outmoded and discredited teaching of Slater v. Mexican Nat'l R. R., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900 (1904), and kindred decisions. Under the test we are asked to employ, the choice of law to be applied to each legal issue presented is to be made in light of the jurisdiction which has the strongest interest in the resolution of that issue." Appellant's Brief, p. 10. "Emphasis is to be placed * * * upon the law of the place which has the most significant contacts with the matter in dispute." Id. at 26. A cornerstone of this newer thinking, appellant contends, is the forum's reluctance to subordinate its policies to those of another state when its own interest in the case is real and substantial.

The Supreme Court, in its decisions in Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), and many earlier cases,6 has recognized the inadequacies of the theoretical underpinnings of Slater and its progeny. The latter cases have a highly attenuated precedential weight, both in authority and reason.7 Thus we are free to explore the question presented by this appeal in the light of the newer concepts of conflict of laws. Our conclusion that the District Court properly applied the Brazilian limitation rests upon an examination of the respective relationships of Brazil and the District of Columbia with the accident, and with the parties here involved; and a consideration of their respective interests in the resolution of this issue.

The interest underlying the application of Brazilian law seems to us to outweigh any interest of the District of Columbia. Not only is Brazil the scene of the fatal collision, but Varig is a Brazilian corporation which, as a national airline, is an object of concern in terms of national policy. To Brazil, the success of this enterprise is a matter not only of pride and commercial well-being, but perhaps even of national security. The limitation on recovery against airlines operating in Brazil was enacted in the early days of commercial aviation,8 no doubt with a view toward protecting what was then, and still is, an infant industry of extraordinary public and national importance. The Brazilian limitation in terms applies only to airplane accidents, unlike the Massachusetts provision rejected in Kilberg, which was an across-the-board ceiling on recovery for wrongful death in that state. The focus of Brazilian concern could hardly be clearer.

350 F.2d 472

We have seen nothing that would suggest that Brazil's concern for the financial integrity of her local airlines should be deemed to be less genuine now than when Article 102 was enacted, simply because of the depreciation of the cruzeiro. The failure to amend that provision may reflect a conscious desire to avoid enlarging the potential liability of local airlines during a period of general economic difficulty. It may represent an unwillingness to contribute to the inflationary spiral by adjusting "prices" fixed by statute, which the government can control. Or it may be attributable in part to both motives. In any event, we are not persuaded that the fact of inflation itself — with the result that 100,000 cruzeiros are worth now considerably less than when the limitation was enacted — should be deemed to render obsolete Brazil's legitimate interest in limiting recoveries against her airlines.

Appellant relies primarily on the New York Court of Appeals decision in Kilberg v. Northeast Airlines, Inc., supra, as a precedent for the course she asks us to follow. A close analysis of that court's reasoning reveals that the relationships and interests, which it thought compelled the result reached, do not parallel those here. The decedent in Kilberg was both a resident and a domiciliary of New York. He was a paying...

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65 practice notes
  • Pearce v. EF Hutton Group, Inc., Civ. A. No. 86-0008.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 14, 1987
    ...Laws § 17.2, at 552 (1984). The District of Columbia abandoned that approach in Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense, 350 F.2d 468 (D.C.Cir. 1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966).5 In its place, a "governmental interest analysis" approac......
  • Biscoe v. Arlington County, Nos. 83-1965
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 6, 1984
    ...interest of Virginia in application of its law to the facts of this case. See Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense, 350 F.2d 468, 473-75 (D.C.Cir.1965) (looking to choice of law rules of Maryland, an interested state, to determine which state's substantive law it would a......
  • Rong Yao Zhou v. Jennifer Mall Rest., No. 86-809.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 4, 1987
    ...131 U.S.App.D.C. 216, 222, 404 F.2d 216, 222 (1968); Tramontana v. S.A. Empresa de Viacao Area Rio Grandense, 121 U.S.App.D.C. 338, 341, 350 F.2d 468, 471 (1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966). Therefore, it is not the place of the injury that necessarily ......
  • Miller v. Miller
    • United States
    • New York Court of Appeals
    • April 18, 1968
    ...19] Northeast Airlines, 373 F.2d 717, 720 (2d Cir., 1967); Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense, 121 U.S.App.D.C. 338, 350 F.2d 468, 473 (1965). Page 740 Our inquiry as to the choice of an appropriate law cannot, however, stop merely in defining a New York interest--albe......
  • Request a trial to view additional results
65 cases
  • Pearce v. EF Hutton Group, Inc., Civ. A. No. 86-0008.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 14, 1987
    ...Laws § 17.2, at 552 (1984). The District of Columbia abandoned that approach in Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense, 350 F.2d 468 (D.C.Cir. 1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966).5 In its place, a "governmental interest analysis" approac......
  • Biscoe v. Arlington County, Nos. 83-1965
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 6, 1984
    ...interest of Virginia in application of its law to the facts of this case. See Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense, 350 F.2d 468, 473-75 (D.C.Cir.1965) (looking to choice of law rules of Maryland, an interested state, to determine which state's substantive law it would a......
  • Rong Yao Zhou v. Jennifer Mall Rest., No. 86-809.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 4, 1987
    ...131 U.S.App.D.C. 216, 222, 404 F.2d 216, 222 (1968); Tramontana v. S.A. Empresa de Viacao Area Rio Grandense, 121 U.S.App.D.C. 338, 341, 350 F.2d 468, 471 (1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966). Therefore, it is not the place of the injury that necessarily ......
  • Miller v. Miller
    • United States
    • New York Court of Appeals
    • April 18, 1968
    ...19] Northeast Airlines, 373 F.2d 717, 720 (2d Cir., 1967); Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense, 121 U.S.App.D.C. 338, 350 F.2d 468, 473 (1965). Page 740 Our inquiry as to the choice of an appropriate law cannot, however, stop merely in defining a New York interest--albe......
  • Request a trial to view additional results

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