*1 TRAMONTANA, Antonette Beatrice Appellant,
S. A. DE EMPRESA VIACAO AEREA GRANDENSE, Corpo- RIO a Brazilian ration, Varig Airlines, Appellee. t/a
No. 18277. Appeals
United States Court of
District of Columbia Circuit.
Argued Oct.
Decided June Rehearing
Petition for En Banc Denied Oct. Eugene Gressman, Washington,
Mr. D. C., Hyman Smollar, whom with Messrs. Rosenberg George Kaufmann Ronald Washington, brief, C., D. were appellant. Laskey, Washington, Mr. John L. D. Bowen, C., Harry with whom Mr. A. Washington, brief, C., D. was appellee. Before Fahy, Danaher McGow- Judges.
an, Circuit Judge: McGOWAN, Circuit appeal presents an international This recurring variant domestic conflict problem, namely, applicability laws Columbia) (the forum monetary damage limitation con- of a death statute of tained have, injury (Brazil). place We thus, concern the Full Faith no *2 Constitution, years her husband’s after and Credit Clause of the Almost two any death, in appellant international this action nor is it claimed that instituted Varig compels engagement against of the United the District Court States negligence foreign alleging recognition predecessor, On the law. its plane us, however, operation do not record we Brazilian before in the ac- erred in She find that the District Court her husband’s death. had caused explicitly cording recognition; affirm such and we for her claim based judgment. provisions Brazilian its of the on certain provide a cause Air which Code of the resulting I injury for or death action negligent in operation of aircraft from Feb Vincent Tramontana was killed on damages $250,- ruary 26, 1960, Brazil. She claimed when the United States Varig traveling Air on Navy was made airplane 000. Service lines, in he was which subject concededly is which Ja on naval orders collided over Rio de Varig neiro, Brazil, airplane suit in the District of Columbia.2 owned and with operated by appellant’s At amended a Brazilian airline.1 filed an answer to day death, complaint for time of Tramontant was moved his the same Band, dismissing Navy summary judgment the com member of the United States alternative, or, plaint for sum which was on an official tour of Latin in the mary judgment respect much not show his of so America. The record does in permanent duty station, he resided but appellant’s U. S. as exceeded the claim wife, here, Hyatts appellant 100,000 in equivalent with his Brazilian dollar ville, Maryland. Navy plane Varig in on Article cruzeiros. relied travelling he he which was Code, when was lia limits of the Brazilian Aires killed was en route from Buenos bility in aviation or death Argentina Galeao, Appellee in Brazil. The District accidents to that amount. Varig corporation Varig’s Court, consent, Airlines is a Brazilian entered having principal place its of business judgment appellant in the in favor of carrying transporta in Brazil on $170.00, dollar the current amount of world, many parts tion activities in including of the 100,000 awarded value of cruzeiros. Varig The Bra judgment States. “for all in favor of plane regularly zilian onwas scheduled plaintiff’s exceeds the claim flight Campos, commercial Seventy from Dollars Hundred sum of One judgment to Rio de Janeiro when accident ($170.00).” From this latter occurred. appealed.3 Mrs. Tramontana plane was, 1. The Brazilian at the doing time of Co- the District business within accident, operated by 334(a), Real owned and for- § lumbia. D.C.Code See 13 Transportes Aeros, S. E. a Brazilian merly § D.C.Code corporation, appellee’s assignor. Appel- Navy members of the Seventeen other lee, however, does not contest its status They perished in collision. Band represented in interest Real’s successor or other- in other actions two ground. liability wise disclaim on this plain- Court, involving eleven District tiffs, convenience, appellee Eor is sometimes other, Appellee had sum- six. referred to hereinafter as the owner and mary judgment on same terms operator plane at the time of the appealed. Only appellant has both suits. collision. been ordered cases have The other two Appellant jurisdiction any ap- disposition “stayed pending based on 11 D.C. final 306, now, version, peal Anto- § Code amended of Beatrice taken the case 521(a), Empresa De D.C.Code which conferred Tramontana v. A. nette S. Grandense, Varig the United States District for the Court Viacao Aerea Rio Airlines, t/a jurisdiction in this of “all No. Civil Action 637-62 equity parties, Court, having stipulated law and between counsel controlling ruling both or either of which shall be resident case will be final said plain- or be found within said other district.” Serv- Of the seventeen herein.” process upon quashed two, perhaps suits, ice of Real tiffs these two ground company three, Dis- was not were listed as residents of the
II
applicable
refuse to
the otherwise
contrary
law if it
is
to some
only question
now before
us
strong public policy
Ap
of the forum.
whether Brazil’s limitation on the dam-
pellant
strong
asserts the existence of a
ages recoverable for death
sustained
policy of the District of Columbia in
airplane
occurring
accidents
there is to
wrong
favor of unlimited
in this suit in the District of
*3
death,
ful
which she claims is evidenced
Appellant appears
Columbia.
to con-
Congress’
by
repeal
$10,-
in 1948 of the
action,
any,
cede that her cause of
if
was
in
000 maximum until
then contained
by,
under,
provi-
created
and arises
a
wrongful
She
the local
death statute.4
sion of Brazilian law enacted coincident-
only
points also the fact
thirteen
ally
conjunction
damage
and in
with the
wrongful
recovery for
states still limit
argues, however,
limitation.
She
ceiling
death,
imposes
and that none
regarding damages
the forum law
Brazilian
as low as
in the
occurring
that contained
death
in the District
Columbia,
e.,
Con
recovery,
of
Air Code.
the Warsaw
i.
She cites
unlimited
govern
governs generally
aspect
vention,
should
acci
of her claim.
which
Initially,
accepts
applicability
involving
she
the
air car
dents
international
the traditional conflict of
rule in
permits
laws
now
riers and which
personal
injury cases that
the lex locus
constituting
up
$8,292,
in essence
delicti,
place
the law of
where the
the
an
of fairness
international
standard
injury occurred, generally governs
ain
finally,
And,
relies
such
she
matters.5
brought elsewhere,
suit
she asserts
but
Appeals de
on the
York Court
sitting
that a court
in the
Airlines,
District
cision in
v. Northeast
adopt
Columbia should
the familiar ex-
Inc.,
211 N.Y.S.2d
N.Y.2d
ception to the
the
effect that
forum will
prece-
(1961),
persuasive
N.E.2d 526
as a
Columbia, eight
trict of
hap-
as residents
When, by
or
done
Maryland, and the remainder as residents
pening
Dis-
within the limits
We,
course,
of other states.
decide
trict,
person is caused
the death of a
us,
the case before
which
by
wrongful act, neglect,
involves
or
the
de-
appellant suing
respect
a non-resident
person
corporation,
fault of a
or
of the death of a
act,
non-resident decedent.
neglect,
or
is such as
default
by
stipulate
A tactical decision
will,
counsel to
ensue,
if death
not
entitle
does
appeal
that the result of this
shall
person injured,
person
the
injured
or if the
appeal
enlarge
does not
woman,
is a
entitle
married
either
the record before us.
by
husband,
separately
her
or
appeal
heard,
After this
joining
wife,
was
the Court
to maintain an
States, pursuant
of Claims of the
damages,
person
United
action and recover
by Congress,
to a reference
recommended
corporation
or
if
who
is liable
$25,000
an award of
to the
families
ac-
death does
ensue is liable to an
eighteen
each of these
Ar
damages
death,
decedents.
tion for
withstanding
for the
not-
miger
States,
et al. Estates v.
per-
the death of the
(Ct.C1.1964).
lines economic appel- In the case before us neither difficulty. may unwilling- represent lant, children, her nor her were husband inflationary ness contribute to the Dis- or are or domiciled in the resident spiral adjusting “prices” fixed stat- trict Columbia. Vincent Tramontana government ute, which the control. can plane, passenger appellee’s was not a may part Or attributable in to both “relationship” appellee com- and his any event, per- In motives. we are menced in Brazil in one shat- and ended suaded that the fact of inflation itself— tering injury, -place un- moment. 100,000 with the result cruzeiros are clearly circumstances, der these considerably worth now than when less fortuitous, although the accident was something of a freak. Vincent Tramon- the limitation was enacted—should be legiti- deemed to render obsolete Brazil’s Varig's tana could not killed limiting mate interest recoveries flight Campos-to-Rio except Brazil. *5 against her airlines. suggest might To that he have been Mary- District, Appellant primarily killed here in the or in relies on the New land, by Varig's Appeals York Court of berg of international in Kil- decision flights ignore Inc., Airlines, supra, v. Northeast is to the facts of case.9 this precedent thing say as a for the she asks is one to should course us that airlines analysis beneficiaries, to follow. A reasoning passen- close that be the nor of court’s their gers victims, relationships vagaries reveals that the the of of the interests, thought compelled faulty equipment which it weather and cause that reached, jurisdiction parallel to the result do not those aircraft crash in one quite rather The in was both than another. It is another here. decedent domiciliary say traveler, a to injured who is resident and a New that American of through negligence paying passenger He in Brazil was a the York. operator airline, relationship the defendant of a local airline on which originated passenger he had in York. As the was not a and with out, Appeals previous connection, pointed of he once on had no Court is entitled plane the to the of board benefit of a forum which law merely home, was is “fortuitous.” New York’s not his because its successor long-standing policy happens in unlimited do favor of to business there.10 possible wrong- Varig’s pear. Concededly, predictability 9. The de locations of is a doing, was, preciated law, if such it irrelevant to coin in tort see Babcock Jackson, 473, 478, the determination of should N. which law N.Y.2d appellant’s except 746-747, measure in- Y.S.2d 191 N.E.2d connection, they sofar as other but it still some retains some value. parties accident, Varig’s ability predict some or the and obtain independent insurance, example, may resolution of de interest cost of for ability possibility, pend issue. If this how- some extent on its mere remote, liability. potential Compare ever might Tramontana its Vincent estimate neg- through Ehrenzweig, Laws, have been killed some Conflict ligence appellee the District Co- at 555 thought give lumbia were District presentation appeal application some interest law, The to us this parties predictability depressingly whatever remains both devoted disap- entirely conflict to a laws of torts would almost discussion of Maryland The of Columbia’s connection District that we should the law of parties, with the and with the occurrence to determine But the issue us.12 before itself, possibility inevitably suggests and its in the resolution of the interest this us, are, wholly remote, say why issue if not before and we therefore are inclined to certainly ap- that, less than Brazil’s. Neither we think law even between the (cid:127) pellant Maryland nor her decedent are or were resi- and the we law Varig dents of the District of Columbia. are without warrant to look to the for subject only striking balance, weight Airlines is to suit here be- mer. In this operations cause the international to be accorded the interests of Brazil engaged. negli- unchanged. question which it is Whatever remains is gence may guilty Maryland significantly it have been of as- whether has a suredly greater nor, did not here, application occur manifest- claim to the of its ly, appellant did decedent’s death. If than' of Columbia. Maryland’s pub- relationship and her children should ever become parties charges, or the transaction is that is lic the burden will rest not on appellant’s residence, the District of and was but the citi- decedent, Maryland, appellant zens of where re- its interest the matter appellant’s sides.11 insignifi is not cant, Maryland for it is on the citizens of Although Maryland, the state of the support, the burden of her if she is appellant’s residence, decedent’s likely support herself, might unable to thought to fall to have a substantial appears interest in the amount first instance13 Yet recoverable death, suggestion his no likely has been made court Kilberg. Actually, merits of the resem [airline] disasters.” 9 N.Y.2d at begins KiVberg blance of this case to N.Y.S.2d at at 527-528. N.E. ends with objects the circumstance that death The immediate of that concern flight. in each were, course, case occurred while De and their victims great cision dependents. implicit assumption, case involves deal measuring respect more than however, one’s protection was that if were not memory provided them, support Professor Beale means their cost of *6 Kilberg. of one’s might attitude by towards The have to be borne the state and case before us is much the same as if a citizens of New York. The District of Maryland, resident of the may State of while have an interest Columbia altruistic trip Europe on a summer seeing vacation to and that the survivors of residents crossing Amsterdam, while nearby go uncompensat- street of ed, states do not by were run over making and killed a beer truck if but it faces no additional burden delivery. compensation local provided. If Holland had is not wrongful death act with a limitation onl damages, 12. Neither in her brief nor at the oral brewing company if and had! argument appellant urge con- did us to a sales officein the District of Columbia,] ap- any sider other alternative than the then a suit the District the Mary-; plication of of law. present land widow prob-j would us with a rely, virtually Her failure to native, at least in the alter- lem identical with that we now! Maryland, on the law of the state increasing have. The bility international mo residence, as well that of her ordinary her as of both citizens and busi may part enterprises husband’s be at least in attrib- suggests ness issue, utable to the fact important already that at least some likely ¡ is and is eighteen plaintiffs appear to reside to become more so. There are obvious damage implications - in states which have limitations respect to be considered in wrongful in their It more degree death acts. is comity of the which should ob likely due to counsel’s awareness of what sovereign tain between unre nations appears respect hereinafter with to the strained a full faith and credit clause Maryland state of law in this area. in a world constitution. Appeals’ 11. The New York above, has, by Court of domi- 13. As noted this burden nating concern in Congress was to ensure reason of the action and “protection people for our own Claims, State’s Court of been assumed to some against degree unfair and anchronistic by, treatment the citizens of the entire Unit- of the lawsuits which result from these ed States. 474 accept locus delicti ignored traditional lex limitation on to the Brazilian brought injury personal The new rule in cases. had if this action allegi- changing section, this originally. far from there statutory ance, author- invested it with Maryland’s 2 of Section Maryland ity.15 opened to courts that, provides in suits based death statute regardless foreign law, on a suits based
n onacts committed
state,
outside the
content,
the courts
and
instructed
shall
courts
this State
every
give
substan-
to
to each and
effect
state, District
the-
other
law such
The result was
tive
of that law.
element
territory of the
of Columbia
Maryland
expose
suit at
residents to
States,
of the
to the facts
home for
committed outside
acts
case,
though
particular
such
as
for-
Maryland
state,
survivors
State,
eign
law were the law depend-
away
killed
from home
residents
however,
provided,
the rules of
rights
any
upon foreign
ent
law
pleading
procedure effective in
and
recovery.
in which the
the court of this State
govern
pending
Appeals
so
Maryland
action is
Court of
The
rights
give
that,
effect to
held
where both accident
has
state,
obligations
the de
death occurred in another
and exist-
created
plain
liability
ju-
ing
thus the
fendant’s
under the laws
—and
right
depends’
wrongful act,
on the
tiff’s
risdiction which
recover—
* *
neglect
not had
*.
law of that state.16 It has
occurred
or default
opportunity
whether
to consider
(Em-
67,
(1957).
2
art.
Md.Ann.Code,
damages
an ele
is
amount of
recoverable
added.)
provision
phasis
en-
This
speculative
right, but
ment of that
specifically to
acted in
overrule
1937
in the extreme for us to infer
refusing
Maryland
enter-
several
The
hold it
to be otherwise.
wrongful death
tain
based
suits
damages
for a tort
recoverable
amount
foreign wrongful death acts that were
theory,
is,
a matter of sub
in traditional
Maryland
“dissimilar” to the
statute.14
York Court
previously appeared
stantive law.
courts
supra,
See, e.g.,
Ruzicka,
note 14
was that
the law
Md.
v.
170
Davis
governed,
in-
in each
(1936); London Guaran
A. 569
183
Mary-
Balgowan
Co.,
it was that
stance
161
tee & Acc. Co. v.
S.S.
Appeals
to enforce.
refused
land Court
Md.
155 A.
A.L.R. 1302
77
Jjal-
Harris,
(1931); Dronenburg
& Acc.
v.
London Guarantee
Co.
See
108 Md.
v.
supra,
Co.,
gowan
note
S.S.
v. Baltimore
475
Appeals, shortly
Kilberg, aban-
Kilberg,
after
New York rule
enunciated
position
plaintiff
doned its
that case that the
in Truath
amend
moved to
damages
governed by
complaint
allege damages
measure of
her
in excess
York,
Massachusetts,
New
law of
the Massachusetts limitation. Her
damage
procedur-
ground
because
limitations are
motion was denied on the
that
nature,
al in
Jersey
and not substantive.17
there was no indication
New
that
language
Maryland statute,
broad
any
of the
except
would have followed
enjoining
give
injury. Although
courts to
effect
“the
of the
rights
obligations
ruling
appealed
created
was never
because Mrs.
existing
foreign
under the
prior
trial,
laws
Truath’s claim was settled
jursidiction,”
suggests
strongly
represent
seems to us to
un-
a correct
Maryland
derstanding
would enforce a
policies
limita-
that were
damages
thought
tion on the
Kilberg.
recoverable for
to control in
New
Though
York,
death.
2 is
Section
whose conflict of laws rule the Dis-
applicable only
obliged
terms
follow,19
to suits based trict Court was
no
had
state,
on the laws of
enforcing
another
protective policy
District
interest in
Columbia,
territory
or a
depend-
of the United where both the deceased and his
States,
sup-
non-residents, especially
there is no reason for
ents were
us to
when
pose
Maryland
the state
of their
residence would not
courts would
have asserted its
approach
own interest
if the
repre-
refuse to follow the
brought
suit had
proper
there. The
sents when the cause of
arises
action
Massachusetts,
law to
was that of
foreign country.18
under the law of a
having
“the
state
interest
Maryland
And if a
court would not dis-
20
matter.”
regard Brazilian law for the benefit of
brought
itsof
own
residents
a suit
Airlines, Inc.,
In Gore v. Northeast
there, why
sitting
should a court
F.Supp.
222
(S.D.N.Y.1963),
which
crash,
District of
also
so
arose
do
the ex-
out of
the Nantucket
pense
Judge
legitimate
the same
pre-
substantial and
who
inter-
had
sided in Pearson
ests of
and Truath denied the
Brazil?
plaintiff’s motion to strike Northeast’s
support
Two recent cases
the decision
affirmative defense based on the Massa-
here,
we reach
Truath
Air
Northeast
v.
damage
plain-
chusetts
limitation. The
lines, Inc.,
149-256, S.D.N.Y.,
Civil No.
tiff, suing as executor of the deceased
grew
Kilberg,
out of the same accident as
who had himself been a
York
domi-
initially
and it was
consolidated for trial
ciliary,
Maryland
was a citizen of
and a
Airlines, Inc.,
Pearson v. Northeast
resident
District of Columbia.
F.Supp.
(S.D.N.Y.1961), aff’d,
deceased,
like
and Pearson
(2d
309 F.2d
of the authors
ond),
612a, (Tent.
for the
forum law
Gowan
court that the
Laws §
Conflict of
regarding damages
11, 1965),
death
in accord
No.
and is
Draft
occurring in
Supreme
the District
recent
with the
Court’s most
govern
case,
point,
does not
and that the
Bank
on the
Die Deutsche
decision
Nurnberg Humphrey,
Brazilian
ages applies. However,
of recoverable dam-
limitation
Filiale
272 U.S.
v.
(1926).
were it not for
47