Warren v. Flying Tiger Line, Inc.
| Decision Date | 21 September 1964 |
| Docket Number | 64-318,63-1530,No. 63-301,64-336.,63-301 |
| Citation | 234 F. Supp. 223 |
| Parties | John S. WARREN, as Special Administrator of the Estate of James D. Bowen, Deceased, Libelant, v. The FLYING TIGER LINE, INC., a corporation, Respondent. Kara GLYNN, Administratrix of the Estate of Walter Glynn, Deceased, Libelant, v. The FLYING TIGER LINE, INC., a corporation, Lockheed Aircraft Corporation, Respondents. Thelma Jean KISSEE, as Administratrix of the Estate of Charles Edward Kissee, Deceased, Libelant, v. The FLYING TIGER LINE, INC., a corporation, Respondent. Sue PRATHER, Administratrix of the Estate of Douglas Arnold Haaf, Deceased, Libelant, v. The FLYING TIGER LINE, INC., a corporation, Respondent. |
| Court | U.S. District Court — Southern District of California |
Loeb and Loeb, Alfred I. Rothman and Jerome L. Goldberg, Los Angeles, Cal., for John S. Warren.
Mathews and Cloud, Rialto, Cal., for Kara Glynn.
Charles A. Zeller, Stockton, Cal., for Thelma Jean Kissee; Jerome L. Goldberg, Los Angeles, Cal., Local Associated Counsel.
Magana, Olney, Levy, Cathcart and Gelfand, Los Angeles, for Sue Prather.
Kirtland and Packard, Los Angeles, Cal., for respondent.
These 4 cases in admiralty seek damages under Section 761 of Title 46, U.S. C., for the wrongful death of certain military passengers who were aboard a Flying Tiger Line plane traveling from Travis Air Force Base in California to Saigon, Vietnam. These cases were consolidated for trial on the issue of the applicability of the Warsaw Convention.1
On March 14, 1962, Flying Tiger Line, hereinafter referred to as "FTL," flight No. 7815/13 departed Travis Air Force Base, California, at approximately 5:45 a. m., carrying 96 passengers—92 members of the armed services of the United States, 3 Vietnamese soldiers, and one person in civilian clothes. The status of this passenger is not entirely clear. The 92 United States soldiers were destined for the Tan Son Nhut Air Base, Saigon, Vietnam, by way of Honolulu, Wake Island, Guam, and Manila. The Military Air Transportation Service of the United States, hereinafter referred to as "MATS," had entered into a service order and call agreement with FTL for the transportation of the 96 passengers. Pursuant to the service call and agreement, the airship, a Constellation, was ferried from San Francisco to Travis by FTL and the servicemen were there assembled for boarding for the trip.
On March 14, 1962, the servicemen appeared at the MATS window with their orders and were processed and they were given a MATS boarding pass and a MATS claim check. They went to the boarding gate where they were checked through by military personnel. They then proceeded to the ramp of the plane at which point a stewardess passed to each a ticket which is sometimes in the record referred to as a boarding ticket. The passengers then entered the plane and chose their seats since no prearrangement for seats was made. Very shortly thereafter a stewardess went through the emergency procedures and at that time told the passengers that they should write their ticket number on their claim check.
The tickets which had been prepared by FTL did not contain the names of the passengers and were given to the stewardess who distributed them at the ramp of the plane as the passengers approached to board the plane. The evidence indicated that the stewardesses were under instructions that no passenger was to board the plane without a boarding ticket. In fact, these instructions were in writing which stated: "Under no circumstances will any passenger be permitted aboard an FTL aircraft without a Boarding Ticket." Emphasis original.
Stewardess Hernandez testified that she distributed boarding tickets to all of the passengers at the foot of the ramp to the plane. She and 3 other stewardesses were relieved at Wake Island and thereby escaped the catastrophe.
The evidence relating to the control of the plane and the flight established that Max Oldford, the station manager for FTL at Travis, prepared the flight plan and prepared boarding tickets without the names of passengers on them. The boarding tickets were prepared on a duplicating machine. Usually approximately 10% more tickets were prepared than the estimate supplied by MATS of the number of passengers. Approximately 20 minutes prior to boarding time, Oldford delivered the manifest to an FTL employee aboard the plane. MATS determines the destination, the official stopping points, the time of departure, and also designates the passengers.
FTL staffs and maintains its planes. FTL pilots operate the planes, and FTL employees attend to all phases of service on the plane while en route.
The flight in question is generally referred to as a chartered flight arranged between MATS and FTL. The service and call agreement does not mention the Warsaw Convention. It does provide that FTL is to be paid by MATS on a per passenger basis.
The plane proceeded to Honolulu, Wake Island, and arrived at Guam at 15/1114 and departed there at 15/1257, supposedly traveling to Clark Air Force Base, Manila. The last word heard from the plane was at 1422 GMT, approximately one hour and a half after it had departed from Guam. Thereafter the plane disappeared and has not been heard from since.
The boarding pass issued by MATS did not contain a reference to the Warsaw Convention. The boarding ticket passed out to the servicemen at the foot of the ramp to the plane made reference to the Warsaw Convention both on the front of the ticket and in the conditions on the back of the ticket, which is set out as follows: Front:
Issued by
THE FLYING TIGER LINE INC
Lockheed Air Terminal
Burbnk, California BOARDING TICKET B 13646
-------------------------------------------------------------------------------
| Charter |
| Group |
|-----------|
Issued at | Name of |
_______________________________________________________ | Passenger |
_______________________________________________________ |-------------------------------------------------------------------------------
| FLIGHT INFORMATION
DATE: _________________________________________________ |-------------------------------------------------------------------------------
| FROM | TO | DATE | TIME | FLIGHT No
This Boarding Ticket is subject to all of the |------------------------|-----------------|---------|---------|----------------
terms and conditions of the contract between | | | | |
the Carrier and the Charter Group named hereon, |------------------------|-----------------|---------|---------|----------------
which terms and considerations are incorporated | | | | |
by reference, and to the conditions on reverse |------------------------|-----------------|---------|---------|----------------
side hereof. | | | | |
Transportation under this Boarding Ticket, hereinafter |------------------------|-----------------|---------|---------|----------------
called "ticket," is subject to the rules | | | | |
relating to liability established by the Convention |------------------------|-----------------|---------|---------|----------------
for the Unification of Certain Rules Relating
to Intenational Transportation by Air signed
at Warsaw, October 12, 1929, if such transportation
Is "International transportation" as defined
by said Convention
Always keep in possession as this is your only ticket. Show to Passenger Agent when checking in and to Stewardess when boarding plane, and elsewhere as required
1. As used herein, "ticket" means "Boarding Ticket," "carriage" is equivalent to "transportation," and "Carrier" includes the air carrier issuing this "Boarding Ticket" and all air carriers that carry the passenger or his baggage hereunder or perform any other service related to such air carriage. For the purposes of the exemption from and limitation of liability provisions set forth or referred to herein, "Carrier" includes agents, servants, or representatives of any such air carrier. Carriage to be performed hereunder by several successive carriers is regarded as a single operation.
2. (a) Carriage hereunder is subject to the rules relating to liability established by the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw, October 12, 1929 (hereinafter called "the Convention") unless such carriage is not "international carriage" as defined by the Convention.
(b) To the extent not in conflict with the foregoing, carriage hereunder and other services performed by each carrier are subject to (i) applicable laws (including national laws implementing the Convention), government regulations, orders and requirements; (ii) provisions herein set forth.
3. Insofar as any provision contained or referred to in this "Boarding Ticket" may be contrary to mandatory law, government regulations, orders or requirements, such provision shall remain applicable to the extent that it is not over-ridden thereby. The invalidity of...
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...to propose that the Hague Protocol exclude military charter flights. The Second Circuit cited with approval Warren v. The Flying Tiger Line, Inc., S.D.Cal.1964, 234 F.Supp. 223, rev'd on other grounds 1965, 9 Cir., 352 F.2d 494. That case also involved a military charter. The aircraft was o......
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