Rehearing and Rehearing En Banc Denied January 23, 1979.
SAMUEL P. KING, District Judge:
Defendant-appellant, Trans World Airlines, Inc. ("TWA"), appeals from a decision by the district court of Guam awarding plaintiff-appellee, Bennie Imogene Dunn ("Dunn"), $75,000 for injuries sustained when the flight on which Dunn was aboard experienced some air turbulence en route
1. The district court erred in awarding Dunn judgment in the amount of $75,000 since the Treaty of Warsaw,
2. The award of $75,000 in favor of Dunn was excessive in that there was insufficient evidence to support such a finding.
3. The district judge should have found Dunn contributorily negligent in not having her seatbelt fastened at the time of the turbulence.
4. The district judge erred in not dismissing the complaint or imposing other sanctions for Dunn's counsel's failure to produce her x-rays pursuant to TWA's Request to Produce.
I. TWA's first contention is that since plaintiff failed to either allege, plead or prove that the airline was a signatory to the Montreal Agreement or that she was entitled to the provisions of that Agreement, her damages, if any, are limited to $8300 under the Warsaw Convention. During oral argument on appeal, counsel for TWA admitted that the airline was in fact a signatory to the Agreement.
In response, plaintiff argues that the Montreal Agreement creates no new cause of action, but functions simply as an affirmative defense and, therefore, need be neither pleaded nor proved by the complainant. Further, since all parties, as well as the district judge, were aware of the applicability of the Agreement to the case at the time of trial, any objection to it was either implicitly waived by the airline or rejected by the trial judge.
The Warsaw Convention is officially entitled "Convention for the Unification of Certain Rules Relating to International Transportation by Air," declaration of adherence by the United States deposited at Warsaw, Poland, July 31, 1934, proclaimed October 29, 1934. In essence, the Convention creates both a presumption of liability on the part of the carrier for injury or death arising out of international transportation (subject to certain defenses), and a concomitant limitation of liability (subject to certain exceptions) to 125,000 Poincare francs per passenger. Husserl v. Swiss Air Transport Co., 351 F.Supp. 702, 703 n.1, (S.D.N.Y.1972), aff'd 485 F.2d 1240 (2d Cir.1973).
The Convention was drafted during a period when international air travel was in its infancy. The problem facing most international air carriers at that time was the securing of capital in the face of what appeared to be enormous hazards and risks. 1 L. Kreindler, Aviation Accident Law, § 11.01(2). "In the absence of a limitation on liability one disaster might [have swept] away a large capital investment." Id. Hence, in order to provide a more favorable
Nevertheless, on November 15, 1965, the United States filed a formal Notice of Denunciation of the Convention with the Polish Government, to become effective May 15, 1966. The reason for the denunciation was what the United States considered the unconscionably low limits on liability for death and injury under the Convention. The press release announcing the denunciation provided:
The United States withdrew its denunciation of May 14, 1966, and, instead, approved, through the Civil Aeronautics Board, an interim agreement submitted by the International Air Transportation Association (IATA). Dep't of State Press Release Nos. 110, 111; 54 Dep't State Bull. 955 (1966). This interim arrangement, known as Agreement CAB 18900, provided that the parties thereto would agree to include in their tariffs to be filed with the CAB a "special contract" by which the carrier would waive its defenses provided by Article 20(1) of the Warsaw Convention and also its limitation of liability under the Convention up to $75,000. Husserl v. Swiss Air Transport Co., 351 F.Supp. at 703 n.1.
Together, the Agreement, signed by each airline, the tariff, filed pursuant to the Agreement on May 16, 1966, the Notice to Passengers included within the ticket informing the passenger of the change in the regime of the Warsaw Convention, and the CAB order, constitute what has popularly been known as the "Montreal Agreement". Id.
With respect to the Warsaw Convention itself, the majority of courts have in the past adhered to the proposition that no cause of action is created by the Convention. Instead, the Convention was regarded as creating a presumption of liability if the otherwise applicable substantive law provided a claim for relief based on the injury alleged. Maugnie v. Compagnie Nationale Air France, 549 F.2d at 1258 n.2; Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir. 1957), cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N.Y.1952), rev'd on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Husserl v. Swiss Air Transport Co., 351 F.Supp. 702.
Despite this, TWA asserts that "in pleading a cause of action based upon the Montreal Agreement, one must allege that agreement and prove that the defendant was a party thereto." Appellant's Opening Brief at 7. According to TWA, the Agreement "is merely a contractual provision between certain airlines and the U. S. Government. And because it is a contract, under the basic law of contracts it must be pleaded. In the case at bar, the existence of the contract (the Montreal Agreement) was neither mentioned, pleaded, alleged or proved." Id. at 6. In support of its position, TWA cites Husserl v. Swiss Air Transport Co., 351 F.Supp. 702. Reliance on that case, however, is misplaced as the fact that the parties there did not dispute that the defendant carrier had signed the Montreal Agreement did not imply that the Agreement had to be pleaded in order to have it apply. Nevertheless, the law in the Second Circuit has recently undergone some important changes which may support appellant's position.
In Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978), the Second Circuit has reversed its prior stand as posited in Noel and Komlos and has held that the Warsaw Convention does create an independent cause of action.
Thus, if the Convention is required to be pleaded and proved, then, perhaps, the Montreal Agreement must also be so treated. However, we find that we need not decide at this time whether the Benjamins rule should be followed in this circuit. Federal Rule of Civil Procedure 15(b) is dispositive of the controversy.
Under Rule 15(b), which permits amendments to be made to pleadings to conform to the evidence adduced at trial, an amendment may be made at any time on the motion of any party, even at the appellate level. 3 Moore's Federal Practice, ¶ 15.13 (1974) and cases cited therein. In any event, the lack of an amendment will
Here, despite TWA's contention that "there was no evidence introduced on the [Montreal Agreement]" at trial, we find the contrary to be true. Plaintiff's Trial Memorandum read as follows:
The airline itself raised the issue of the Montreal Agreement in its own Trial Memorandum when it stated, in reference to the $8300 limitation under the Warsaw Convention. "This liability limit may now be as much as $75,000.00 according to the `Interim Montreal Agreement.'" Id. at 381.
Plaintiff's counsel's opening statements at trial also referred to the $75,000 limitation. "And, Your Honor, under the Warsaw Convention, the damages are limited to $75,000.00, and we think after you hear the evidence you will feel justified in awarding the plaintiff the full amount of $75,000.00." Transcript at 12.
Finally, plaintiff's airline ticket, which was introduced into evidence at the trial, also contained a reference to the Montreal Agreement:
Hence, even if we were to require that the Agreement be separately pleaded in the complaint as an independent cause of action, Rule 15(b) would nevertheless cure any defect in this regard.
Defendant's argument would have this court return to the days when the failure by a plaintiff to formally plead a theory of liability against the defendant at the outset would forever foreclose him from asserting that theory later at trial. The Federal Rules of Civil Procedure were designed, and should be interpreted and applied, to do away with this kind of technicality. The parties were aware of the applicability of the Montreal Agreement, TWA admitted during arguments on appeal that it was a signatory to the Agreement, and the case was tried on the theory that the Montreal Agreement was applicable. Under the circumstances, the failure by Dunn to formally plead the existence of the Agreement does not foreclose her from recovery under that Agreement.
II. Paragraph 10 of the district judge's Conclusions of Law stated:
Defendant charges that the trial judge's findings concerning Dunn's injuries are unsupported by the evidence in the case. Further, defendant complains that the damages awarded plaintiff are "terribly excessive"
Under Rule 52(a) of the Federal Rules of Civil Procedure, "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
Upon a review of the record of this case, we do not find that the district judge was clearly erroneous in his assessment of the extent of plaintiff's injuries.
In his Findings of Fact, Judge Duenas found that besides suffering a number of physical ailments arising from the incident,
As an appellate court, we are "bound to view the evidence in the light most favorable to [Dunn] and to give [her] the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn." Continental Ore Co. v. Union Carbide, 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962). The original trier of fact is also in the best position to survey the evidence and to draw conclusions regarding the credibility of the witnesses. In evaluating such evidence, the trial court's appraisal of the credibility of the witness is to be accepted; no challenge to such appraisal is permitted at the appellate level. Nuelsen v. Sorensen, 293 F.2d 454, 460 (9th Cir. 1961).
III. TWA next argues that any injuries that plaintiff sustained were caused by her own negligence in not having her seatbelt fastened when she was not moving about the plane.
In his Findings of Fact, Judge Duenas found:
There was substantial evidence from the record to support the judge's findings. The evidence showed that the sign warning passengers to fasten their seatbelts was not on at the time of the turbulence. It had been on prior to takeoff, but had been shut off shortly afterwards. The only evidence the airline offered in support of its contention was that all passengers were asked to keep their seatbelts fastened during the flight if they remained in their seats. This announcement was given some five hours prior to the accident. Only after the turbulence started did the seatbelt sign come on again. Further, since it was a night flight and the plane was relatively empty, the passengers were encouraged to lie down across adjoining seats to rest.
The district judge was not clearly erroneous in his finding that plaintiff was not contributorily negligent in not having her seatbelt fastened at the time of the turbulence.
IV. Finally, TWA contends that the district judge erred in not dismissing the complaint or imposing other sanctions for plaintiff's failure to produce plaintiff's x-rays pursuant to defendant's Request to Produce.
On December 19, 1974, plaintiff requested, pursuant to Federal Rule of Civil Procedure 34, all medical records of plaintiff, including her x-rays, which were in the custody of the records librarian at Kaiser Hospital, Honolulu, Hawaii. By letter dated January 17, 1975, defendant was informed that the records at Kaiser were destroyed. On the first day of the trial, January 20, 1975, TWA requested that the trial judge take under advisement a motion to dismiss for plaintiff's alleged failure to respond to the Request to Produce. No attempt was made by the airline to continue the trial because of its alleged inability to examine the documents.
The question before us, then, is whether the trial judge abused his discretion in not dismissing the action. "The sanctions available to a trial judge under Fed.R.Civ.P. are discretionary and the imposition of such sanctions will not be reversed unless there has been an abuse of discretion." Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 993 (8th Cir. 1975). We find that the district judge did not abuse his discretion in not imposing any sanctions for plaintiff's failure to produce medical records which were no longer in existence. Where the failure to comply with a discovery order is due to inability, and not to willfulness, bad faith, or any fault of a party, the claim of that party should not be dismissed. Societe Internationale Pour Participations Industrielles Et Commerciales v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958).
For the reasons stated above, the judgment of the district judge is affirmed.