DORIS CRISTINA PIAMBA CORTES, Individually and as Personal Representative of the Estate of Maria Constanza Piamba Cortes, deceased, Plaintiff-Appellee-Cross-Appellant, versus AMERICAN AIRLINES, INC., a Delaware Corporation, Defendant-Appellant-Cross-Appellee.
No. 98-4739
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
June 15, 1999
D. C. Docket No. 96-727-CIV-SH. Appeals from the United States District Court for the Southern District of Florida. PUBLISH.
Before BIRCH and DUBINA, Circuit Judges, and MORAN*, Senior District Judge.
BIRCH, Circuit Judge:
In this appeal, we hold as a matter of first impression that Article 25 of the Warsaw Convention, as clarified by Montreal Protocol No. 4, requires a passenger to prove that an air carrier subjectively knew its conduct likely would result in harm to its passengers in order to escape the Convention‘s limitations on liability. On summary judgment, the district court held that Article 25 measures an air carrier‘s conduct objectively and concluded as a matter of law that, under either an objective or subjective standard, the passengers’ claims for damages were not limited by Article 25‘s liability cap. For the reasons that follow, we conclude that the district court incorrectly entered summary judgment against the air carrier on this issue and remand for a determination by the finder of fact whether the air carrier‘s conduct precludes the application of the Convention‘s liability cap to this case.
In addition, we hold that the district court: (1) properly applied Florida compensatory damages law to this case; (2) properly refused to apply Florida‘s apportionment of liability statute; and (3) did not abuse its discretion during the damages trial by excluding evidence relating to the facts of the underlying plane crash and prohibiting reference to the legal finding of willful misconduct. We therefore affirm the judgment of the district court with respect to these issues.
I. BACKGROUND
A. Facts
The facts leading up to the crash are largely undisputed and have been detailed comprehensively by the district court. See In re Air Crash Near Cali, Colombia on December 20, 1995, 985 F. Supp. 1106, 1109-22 (S.D. Fla. 1997). We need not duplicate the district court‘s detailed factual recitation; for purposes of our discussion, we set forth an abbreviated statement of facts that are relevant in resolving this appeal.
Flight 965 left Miami International Airport on the afternoon of December 20, 1995, bound for Cali. Captain Nicholas Tafuri and First Officer Donnie Ray Williams piloted the Boeing 757, which the parties agree was airworthy and in good mechanical and structural condition. At all material times during the flight, Williams flew the aircraft while Tafuri primarily handled radio communications. The Cali airport is located in a valley approximately forty-three miles long and twelve miles wide. The
American provides special training to its pilots who fly into Central and South America in order to acquaint them with the unusual features of these regions. Among other things, pilots are instructed, in no uncertain terms, not to rely on local air traffic controllers (“ATCs“) for information about their location or position in the sky. According to American‘s training materials, Latin American ATCs will assume when providing clearance that the pilot is on course, the plane is located where the pilot says it is, the pilot knows where the mountains are, and the pilot will refuse a clearance that will take the plane into a mountain. Because these assumptions may be incorrect, the ATCs will clear pilots to descend below minimum safe altitudes in mountainous areas.
American also instructs its pilots that they must continually verify their exact location by every means available; if they are unable to locate and cross-check their position or are otherwise unsure of where they are, they must suspend any descent of the airplane until their position is verified and the safe minimum altitude is determined. Furthermore, American teaches its pilots to insist on the complete published or assigned flight plan for the plane‘s approach to the airport unless the pilot
The flight plan assigned to Flight 965 called for the plane to follow a specified route during its arrival and approach to Cali. The arrival phase typically is conducted in accordance with a specified route that consists of a series of waypoints that define the path to the landing strip. In this case, the waypoints were marked by radio beacons known as “navaids,” which emit radio waves that can be tuned in from the cockpit and allow the pilot to determine the compass direction to, and in some instances the distance to, the waypoint. The waypoints also may help a pilot establish the plane‘s position in the sky, as well as its distance to a certain point.
Flight 965 approached Cali at night. Originally, Flight 965 was assigned a published arrival path to Cali that called for the plane to fly over the “Tulua” waypoint, located approximately thirty-four miles northeast of the airport, proceed to the “D21 CLO” waypoint, and then fly over the “Rozo” waypoint, which is located approximately three miles north of the airport. From there, the arrival path called for the plane to continue south to the “Cali” waypoint, located nine miles south of the airport, and, after executing a 180-degree turn, return north to the airport and land.
When Flight 965 was approximately fifty-four miles north of the airport, the ATC stationed in Cali cleared the plane to the Cali waypoint and instructed the pilots to descend and maintain 15,000 feet and to “report uh, Tulua.” Id. at 1117. Moments later, however, the Cali ATC offered the pilots the option of landing straight onto the runway without having to turn the plane around at the Cali waypoint. The pilots
After accepting the offer, the cockpit voice recorder suggests that Williams erroneously believed the flight route began at the Rozo waypoint instead of the Tulua waypoint. Tafuri told Williams that the flight route began at the Tulua waypoint, but then asked the ATC for permission to go “direct to Rozo and then do the Rozo arrival,” a request that set in motion a chain of events that culminated in the crash. Id. at 1118. The ATC responded by saying, “Affirmative,” but added instructions to “take the Rozo One” approach and to “report Tulua at twenty-one miles and five thousand feet.” Id. at 1119.2
After this exchange, one of the pilots sought to program the flight management computer (“FMC“) to fly automatically to the Rozo waypoint by typing the letter “R” into the FMC‘s keypad. A total of twelve waypoints appeared on the FMC screen, the first of which was for the “Romeo” waypoint, located approximately 132 miles to the
At the time the plane began turning, it was descending past an altitude of 16,880 feet and was flying adjacent to, or slightly to the southwest of, the Tulua waypoint. During the turn east, Tafuri told Williams that he wished the plane to fly to the Tulua waypoint, but instead of dialing the proper frequency for the Tulua waypoint (117.7) into his electronic horizon situation indicator (“EHSI“), Tafuri unwittingly dialed 116.7, the frequency for a different waypoint located 160 miles to the east of the valley. Consequently, the course deviation indicator (“D-bar“) function of his EHSI indicated that the Tulua waypoint was located to the left of the plane. Tafuri, however, instructed Williams to turn back toward the right, which sent the plane in a westerly direction and back toward the valley. At that time, the plane was south of the Tulua waypoint, well to the east of the valley, and east of the radials that define the flight route to the Rozo waypoint. The plane also had continued its descent, dropping more than 5,000 feet since the “R” had been entered into the FMC.
At that time, the plane had descended to 10,000 feet and was still heading west. When the plane dropped to 8,480 feet, the plane‘s ground proximity warning system sounded, directing the pilot to pull up. Williams attempted to climb, but the plane‘s ability to climb rapidly was hampered by the fact that Tafuri and Williams failed to pull back the speed brakes, which had been deployed several minutes earlier. Approximately thirty seconds later the plane crashed near the summit of El Deluvio, a peak located approximately twenty-four miles northeast of the airport and approximately ten miles east of the airway.
B. Procedural History
After Piamba Cortes filed suit in Florida state court, American removed the case to federal court where it was consolidated for multidistrict pretrial proceedings with
In a 118-page order granting the plaintiffs’ motions for summary judgment, the district court concluded that all the passengers’ suits against American fell under the terms of the Warsaw Convention. According to the language in effect at the time the district court entered its order, the Convention limited an air carrier‘s liability except in cases of “willful misconduct.” The district court concluded that Eleventh Circuit law allows a passenger to establish willful misconduct in three ways, one of which is defined as “reckless disregard of the consequences.” In re Crash Near Cali, 985 F. Supp. at 1127. Noting that all the passengers’ representatives proceeded under a reckless disregard theory, the district court further concluded that reckless disregard contemplates a “rigorous objective inquiry” that is satisfied “by showing that the defendant‘s conduct amounted to an extreme deviation from the standard of care under circumstances where the danger of likely harm was plain and obvious,” even if the defendant did not subjectively realize that its conduct placed its passengers at significant risk of harm. Id. at 1128, 29. Upon reviewing the evidence, the district court held that no reasonable jury could find that Tafuri and Williams’ conduct--in particular, the decision to continue descending at night in mountainous terrain when
After entering summary judgment in Piamba Cortes’ favor on the issue of liability, the district court conducted a trial on the issue of damages. Although Piamba Cortes’ sister was a domiciliary of Colombia, the district court‘s conflict-of-laws analysis concluded that Florida compensatory damages law determined the elements of compensatory damages awarded to Piamba Cortes. In addition, the district court held that, under the Convention, American is liable for all compensatory damages and thus Florida law requiring the apportionment of liability did not apply. Finally, the district court ruled that, during the damages trial, Piamba Cortes could not introduce the factual circumstances of the crash and could not mention the court‘s finding that the conduct of Flight 965‘s pilots constituted willful misconduct.
American appeals three issues, arguing that: (1) “willful misconduct” requires a subjective rather than an objective test, and the evidence creates a question of fact for the jury under this test; (2) conflict-of-laws principles warrant the application of
II. WARSAW CONVENTION
American raises two distinct arguments related to the Warsaw Convention. First, American argues that the district court erroneously construed “willful misconduct” under the Convention to create an objective rather than a subjective test. Second, American argues that, if the subjective test is applied, a question of fact exists whether the conduct of Flight 965‘s pilots constitutes willful misconduct, and therefore the entry of summary judgment on the issue of liability was inappropriate.
The first issue requires us to determine whether the district court properly construed the terms of a treaty, which is a question of law that we review de novo. See Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994).
A. Background of the Warsaw Convention
Under Article 17 of the Convention, air carriers are “liable for damage sustained in the event of the death or wounding of a passenger . . . if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” Warsaw Convention art. 17. The Convention thus “established a presumption that air carriers are liable for damage sustained by passengers as a result of the carrier‘s negligent conduct.” Floyd, 872 F.2d at 1467. In exchange for this presumption of liability, the drafters included a
As a companion provision to the liability cap contained in Article 22, the drafters adopted a safety valve by which passengers could escape the liability cap if they established that the air carrier‘s conduct that caused their injuries constituted “wilful misconduct.”2 Warsaw Convention art. 25(1). Specifically, Article 25(1) provided that:
The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be the equivalent to wilful misconduct.
Id. Consequently, in order to obtain any compensatory damages over $8,300 under the original version of the Convention, a passenger had to establish that his or her damages were the result of the air carrier‘s willful misconduct.
The $8,300 liability cap created by Article 22 proved to be a source of great dissatisfaction, particularly in the United States. See Floyd, 872 F.2d at 1468-69. In 1955, a conference similar to the 1929 conference in Warsaw convened at the Hague,
The rejection of the Hague Protocol by the United States prompted the execution of the Montreal Agreement of 1966, in which air carriers agreed to enter into private contractual agreements with all passengers (created by the purchase of a ticket) to raise the liability limit to $75,000 for all international flights originating,
The execution of the Montreal Agreement set the stage for a concerted effort to update the terms of the Convention to reflect modern legal and technological standards. At another conference in Guatemala City in 1971, delegates proposed raising the liability cap to approximately $136,000. See Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at the Hague on 28 September 1955 (“the Guatemala City Protocol“), reprinted in Goldhirsch at 319-29. In 1975, delegates met once again in Montreal, Canada, and adopted a series of four protocols, known collectively as the Montreal Protocols. See Goldhirsch at 331-62 (reprinting the four Montreal Protocols). During the twenty years following the 1975 Montreal conference, the United States declined to ratify either the Guatemala City Protocol or the Montreal Protocols.
[t]he limits of liability specified in . . . Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result.
Additional Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at the Hague on 28 September 1955 (“Montreal Protocol No. 4“) art. IX, reprinted in Goldhirsch at 358.4
During the district court proceedings, Piamba Cortes’ ability to recover more than $75,000 hinged upon establishing that the pilots of Flight 965 engaged in willful misconduct under Article 25, thus allowing Piamba Cortes to avoid the limitations on liability contained in Article 22. While this case was on appeal, however, the United States’ adherence to Montreal Protocol No. 4 changed the language used in Article 25 to measure such conduct. Montreal Protocol No. 4 specifies that it will enter into force in a ratifying jurisdiction ninety days after the instrument of ratification is deposited with the Polish government. See S. Exec. Rep. 105-20, at 4 (1998). As a result, the Protocol entered into force in the United States on March 4, 1999. See Tsui Yuan Tseng, 119 S. Ct. at 674 n.14. We therefore must determine whether the new language contained in Montreal Protocol No. 4 applies to this case.
At first, it seems intuitively appealing to conclude that, because the new language significantly alters the text of the original Convention, the original Convention‘s language may be presumed to have meant the opposite. For example, Montreal Protocol No. 4‘s language includes an express requirement that the air carrier must know that damage probably will result from its conduct, so one might conclude that such a requirement was omitted from the original Convention. This intuition runs contrary to our precedent, however, which holds that an amendment containing new language may be intended “to clarify existing law, to correct a misinterpretation, or to overrule wrongly decided cases. Thus, an amendment . . . does not necessarily indicate that the unamended statute meant the opposite” of the language contained in the amendment. United States v. Sepulveda, 115 F.3d 882, 885 n.5 (11th Cir. 1997).
Moreover, concerns about retroactive application are not implicated when an amendment that takes effect after the initiation of a lawsuit is deemed to clarify
Several factors are relevant when determining if an amendment clarifies, rather than effects a substantive change to, prior law. A significant factor is whether a conflict or ambiguity existed with respect to the interpretation of the relevant provision when the amendment was enacted. If such an ambiguity existed, courts view this as an indication that a subsequent amendment is intended to clarify, rather than change, the existing law. See Liquilux, 979 F.2d at 890. Second, courts may rely upon a declaration by the enacting body that its intent is to clarify the prior enactment. See id. Courts should examine such declarations carefully, however, especially if the declarations are found in the amendment‘s legislative history rather than the text of
the amendment itself. See Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13, 100 S. Ct. 2051, 2061 n.13, 64 L.Ed.2d 766 (1980). As a general rule, “[a] mere statement in a conference report of [subsequent] legislation as to what the Committee believes an earlier statute meant is obviously less weighty” than a statement in the amendment itself. Id.; see also Pennsylvania Med. Soc‘y v. Snider, 29 F.3d 886, 900 (3d Cir. 1994) (attributing no value to a House committee report stating that an amendment clarifies prior law when the statement is inconsistent with a logical reading of the earlier version of the statute and with the legislative history of the earlier statute). Declarations in the subsequent legislative history nonetheless may be relevant to this analysis, especially if the legislative history is consistent with a reasonable interpretation of the prior enactment and its legislative history. See Sykes v. Columbus & Greenville Ry., 117 F.3d 287, 293-94 (5th Cir. 1997) (“Although a committee report written with regard to a subsequent enactment is not legislative history with regard to a previously enacted statute, it is entitled to some consideration as a secondarily authoritative expression of expert opinion.“) (quoting Bobsee Corp. v. United States, 411 F.2d 231, 237 n.18 (5th Cir. 1969)); SEC v. Clark, 915 F.2d 439, 451-52 (9th Cir. 1990) (“While a statement concerning an earlier statute by members of a subsequent legislature is of course not conclusive evidence of the meaning of the earlier statute, the later interpretation may be accorded
1. Ambiguities and Conflicting Interpretations of Article 25
We first examine whether a conflict or ambiguity existed with respect to the application of Article 25 as originally enacted. The English translation of Article 25 allowed a passenger to avoid the liability cap if he could establish that the injury resulted from willful misconduct by the air carrier. We announced the Eleventh Circuit‘s test for willful misconduct in Butler. 774 F.2d at 430. Adopting a test used by the District of Columbia Circuit, we held that willful misconduct “mean[s] ‘the intentional performance of an act with knowledge that the . . . act will probably result in injury or damage’ or ‘reckless disregard of the consequences’ or ‘a deliberate purpose not to discharge some duty necessary to safety.‘” Id. (quoting Koninklijke Luchtvaart Maatschappij N.V. v. Tuller, 292 F.2d 775, 778-79 (D.C. Cir. 1961)).
Butler thus identifies three alternative ways to prove willful misconduct: (1) intentional performance of an act knowing that the act likely would result in injury or
In other Eleventh Circuit precedent, the term of art “reckless disregard” has different meanings depending on the context in which it is used. For example, when examining whether an individual willfully failed to pay withholding taxes, reckless disregard requires “something less than actual knowledge” of a risk. Malloy v. United States, 17 F.3d 329, 332 (11th Cir. 1994). In libel law, on the other hand, reckless
A similar lack of clarity exists in our sister circuits when applying the term “willful misconduct” in Warsaw Convention cases. Despite the fact that all circuits to address the issue have used the term “reckless disregard” when applying Article 25, see, e.g., Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 93 (2d Cir. 1998) (carrier must have acted either (1) with knowledge that its actions would result in injury or death, or (2) in conscious or reckless disregard of the fact that death or injury would be the probable consequences of its actions), cert. denied, 525 U.S. 1142, 119 S. Ct. 1033 (1999); Koirala v. Thai Airways Int‘l, Ltd., 126 F.3d 1205, 1209-10 (9th Cir. 1997) (air carrier must intentionally perform an act, or fail to perform an act, with knowledge that it probably will result in injury or harm, or intentionally performed an act in some manner as to imply a reckless disregard of the consequences of its performance); Saba v. Compagnie Nationale Air France, 78 F.3d 664, 666 (D.C. Cir.1996) (same); In re Air Crash Disaster, 86 F.3d 498, 544 (6th Cir. 1996) (same), the courts have employed a “know-it-when-we-see-it” approach rather than articulating precisely what is meant by reckless disregard. See, e.g., Saba, 78 F.3d at 667 (stating that, although the D.C. Circuit clearly has equated willful misconduct with reckless disregard, the court “never ha[s] been very clear as to what we meant by reckless disregard“); see also Perry S. Bechky, Mismanagement and Misinterpretation: U.S. Judicial Implementation of the Warsaw Convention in Air Disaster Litigation, 60 J. Air L. & Com. 455, 501-02 (1995) (U.S. courts have “grappled” with question whether reckless disregard envisions a subjective or objective test, but have “generally regarded ‘willful misconduct’ as equivalent to recklessness or gross negligence“).
Notwithstanding the fact that courts have avoided precise definitions of reckless disregard in Warsaw Convention cases, it is possible to make inferences regarding the analysis the courts employed in their decisions. For example, in 1961 the District of Columbia Circuit upheld multiple findings of willful misconduct based on a theory of reckless disregard without finding that the air carrier or its pilots subjectively knew that their conduct likely would harm passengers. See Tuller, 292 F.2d at 779-80.6 The Second Circuit, on the other hand, admonished a district court for “concluding
The Berner court further observed that “[t]here must be a realization of the probability of injury from the conduct, and a disregard of the probable consequences of such conduct.” Id. at 537 (quoting Grey v. American Airlines, Inc., 227 F.2d 282, 285 (2d Cir. 1955)). Later Second Circuit opinions continue to require a showing that the carrier knew that its actions placed its passengers at risk. See, e.g., Republic Nat. Bank v. Eastern Airlines, Inc., 815 F.2d 232, 239 (2d Cir. 1987) (“factors must be established indicating that such a loss is likely to occur and that defendant was aware of the probability“).
The opinion that has attracted the most recent attention in this area is Saba, in which the District of Columbia Circuit endeavored to clarify the ambiguity surrounding that circuit‘s definitions of reckless disregard and willful misconduct. Saba adopts a definition of willful misconduct that is the same in all practical respects as the definitions adopted in Tuller and Butler: “[w]illful misconduct is the intentional performance of an act with knowledge that the act will probably result in an injury or damage, or in some manner as to imply reckless disregard of the consequences of its performance.” 78 F.3d at 666. The district court in Saba concluded that the carrier
The District of Columbia Circuit labeled this analysis a subjective test because it “requires a showing of a subjective state of mind.” Id. at 668. The court acknowledged that the carrier‘s subjective state of mind may be established solely by inferences taken from circumstantial evidence; the inferences thus act as “a legitimate substitution for intent to do the proscribed act because, if shown, it is a proxy for that forbidden intent.” Id. Saba‘s test thus is satisfied if evidence allows an inference that the carrier “must have been aware” of a risk created by its conduct. Id. at 669. The court observed that its test is more stringent than an objective test that inquires only if the carrier “should have known” about the danger, because the test cannot be satisfied by showing merely “an extreme departure from standards of ordinary care.” Id.
This brief discussion addresses only a handful of the published cases that have construed willful misconduct under Article 25. Even this limited review, however, reveals a body of law that frequently is inconsistent and that provides a vague and nebulous definition of willful misconduct, rendering it difficult to apply. Under these
2. Declarations of Intent Concerning Montreal Protocol No. 4
Montreal Protocol No. 4 contains no statements concerning an intent to clarify or change prior law. We therefore will examine the drafting and legislative history of the amended language to discern the intentions behind enacting the amendment. As we have explained, Montreal Protocol No. 4 adopts the Hague Protocol‘s substituted language for Article 25; we therefore will look first to the drafting history of the Hague Protocol, where the negotiations surrounding the adoption of this language occurred.
The delegates at the 1955 Hague Conference began their deliberations with a draft proposal that narrowed Article 25 to allow unlimited liability only where the carrier committed a “deliberate act or omission . . . done with intent to cause damage.” ICAO Doc. 7686 LC/140, Vol. II, Documents 99 (1956). The Norwegian delegation proposed an amendment to Article 25 that would force the carrier to bear unlimited liability if “the act or omission was committed either with the intention to cause damage or recklessly by not caring whether or not damage was likely to result.”
The Dutch delegation observed that, if the delegates intended to include a requirement that the carrier subjectively realize that damage likely would result from its actions, the Norwegian proposal‘s failure to specify the requirement expressly left the proposal open to the same interpretive problems encountered with the language used in the original Convention. See
We next turn to the legislative history surrounding the United States’ adherence to Montreal Protocol No. 4, which supports this interpretation. According to a report prepared by the Senate Committee on Foreign Relations, the language that replaces willful misconduct in Article 25 “does not modify the scope of the standard . . . [but rather serves as] a clarifying response to the difficulties that arose from differing translations of the text” of the original Convention. S. Exec. Rep. No. 105-20, at 15
The State Department, in response to questions from members of the Senate Committee, explained further that the language contained in Montreal Protocol No. 4 “is merely an alternative interpretation of the original French text [of the Convention], developed to harmonize the various legal interpretations that had developed from the original.”
discrepancy between common and civil law concerning the nature of conduct required to remove limits on liability. Because the concept of willful misconduct came to have different connotations in the civil and common law systems, the drafters [of the amended language] . . . replaced the legal standards with a description of the conduct itself.
The Senate Committee and State Department premised their views upon the express requirement in Montreal Protocol No. 4 that a passenger must prove that the carrier knew its conduct would likely result in damage. Among other things, the Senate report quotes two Second Circuit opinions that require passengers seeking to
In sum, the Senate Committee and the State Department concluded that Article 25 always has required a passenger to prove knowledge on the part of the air carrier that its conduct would likely result in damage, and that Montreal Protocol No. 4 clarifies the existing law to codify expressly this requirement. We pay close attention to this conclusion, as “[r]espect is ordinarily due the reasonable views of the
The delegates to the 1929 Warsaw conference drafted the Convention in French, and used the word “dol” to describe the level of misconduct that allows a passenger to bypass Article 22‘s liability cap.10 Although the term “dol” has “no precise analogue in the English language,” Second International Conference on Private Aeronautical Law, Oct. 4-12, 1929, Warsaw, Minutes at v. (Robert C. Horner & Didier Legrez trans. 1975) (hereinafter “Warsaw Minutes“), “[i]t implies an act or
Ultimately, the delegates rejected the inclusion of “faute lorde” and retained the French word “dol,” adding that a court may apply the legal equivalent of “dol” as defined by the law of the forum jurisdiction. Warsaw Convention art. 25(1). As noted by British delegate Sir Alfred Dennis, the adopted language reflects the delegates’ agreement that “dol” was to be translated into English as willful misconduct, see
The drafting history thus reveals that conferees rejected an effort to define willful misconduct to encompass gross negligence. Although Sir Dennis’ characterization of willful misconduct suggests that the standard may be satisfied without establishing that the carrier knew its actions placed its passengers at risk, the language adopted by the conference does not expressly embody this characterization. We therefore find the 1929 drafting history to be ambiguous in this respect.
In sum, the recent legislative history surrounding Montreal Protocol No. 4 is consistent with a reasonable interpretation of the original text, and the drafting history for the original Convention does not suggest otherwise. Given the uniform and clear statements of those who enacted and adopted the amended language contained in Montreal Protocol No. 4, we find these statements to be persuasive indicators that the Protocol clarifies, rather than effects a substantive change to, existing law.
C. Summary of Law
For the reasons that we have explained, we conclude that Montreal Protocol No. 4 clarifies the definition of willful misconduct under Article 25, rather than effecting a substantive change in the law. The amended language provides a more precise articulation of the standard, requiring a passenger to prove that the carrier, or its
Before applying the Protocol‘s clarified definition of the standard to this case, we believe it is necessary to comment upon the type of evidence that may be used to satisfy the standard. For this task, we refer to Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 811 (1994), where the Court announced its standard for “deliberate indifference” in Eighth Amendment cases. 511 U.S. at 837, 114 S. Ct. at 1979. The Farmer Court‘s discussion is helpful here because the Court explained in great detail how a plaintiff may prove that a defendant subjectively knew that his or her actions would likely result in harm to the plaintiff. See id. at 836-44, 114 S. Ct. at 1978-82; see also Saba, 78 F.3d at 669 (analogizing the Farmer Court‘s discussion to a plaintiff‘s claim that air carrier engaged in willful misconduct under Article 25).
Under Farmer, establishing knowledge on the part of the actor need not be accomplished solely by direct evidence; a factfinder is permitted to infer from circumstantial evidence that the actor actually drew the inference that the circumstances posed a substantial risk of harm. Id. at 842, 114 S. Ct. at 1981. Indeed, it is possible to premise this inference on “the very fact that the risk was obvious.” Id.
D. Entry of Summary Judgment Against American
Having determined the proper test to be applied, we now turn to American‘s argument that the district court improperly entered summary judgment in favor of the passengers on the issue of willful misconduct. Without having the benefit of Montreal Protocol No. 4‘s more precise language, the district court applied a test for willful misconduct that is at odds with the conclusions contained in our opinion. Acting perhaps out of an abundance of caution, however, the district court held in the alternative that, because the pilots of Flight 965 decided to continue descending even
though they knew they were off course in a dangerously mountainous region, Piamba Cortes was entitled to summary judgment on the issue of willful misconduct even under a subjective test. If correct, the district court‘s decision may be affirmed on this ground without requiring a remand.
We review a district court‘s entry of summary judgment de novo. See City of Tuscaloosa v. Harcros Chems, Inc., 158 F.3d 548, 556 (11th Cir. 1998). Summary judgment is appropriate only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See
The second and third issues are easily resolved in Piamba Cortes’ favor. The record is replete with convincing circumstantial evidence that both Tafuri and Williams knew that continuing a descent in a mountainous region when the aircraft was significantly off course would create a risk of danger to the passengers. Most compelling, however, is the fact that American did not argue to the contrary in the district court and does not argue to the contrary on appeal. Tafuri and Williams’
The same is true with respect to the pilots’ knowledge that the plane was descending. Statements by the pilots recorded by the cockpit voice recorder reveal that the pilots were actively monitoring the plane‘s altitude during the descent. Furthermore, American once again poses no argument to the contrary on appeal.
The final, and most difficult, question is whether the pilots in fact knew that the aircraft was off course while it was descending. We narrow this inquiry to reflect the fact that, in order to enter summary judgment in favor of the passengers, the pilots must have known that the aircraft was “significantly” off course14—in other words, at risk of leaving the valley while the pilots continued their descent. If the pilots believed that the plane was slightly off course, yet well within the safety of the valley, a factfinder reasonably might infer that the pilots were not actually aware that their actions probably would result in injury to the passengers.15 On the other hand, the
The district court concluded that the only plausible inference to be taken from the evidence was that the pilots knew that they had strayed significantly away from the published arrival path. We agree with the district court that a reasonable factfinder must conclude that the pilots knew they were off course. We disagree, however, that the only reasonable inference was that the pilots knew they were significantly off course; to the contrary, even though more plausible interpretations suggest otherwise, a factfinder reasonably might conclude that the pilots believed they were near enough to the published arrival path that they did not realize they had placed the passengers at risk of harm.
The district court set forth a detailed and thorough account of the circumstantial evidence supporting a finding that the pilots realized they were not on the published
The evidence is not equally compelling, however, with respect to the pilots’ knowledge of the extent that they had traveled off course. We agree with the district court that, given the pilots’ statements on the cockpit voice recorder, a highly
The district court considered this statement by Tafuri in the context of other circumstantial evidence. We do the same, and conclude that evidence relating to the plane‘s instrument readings permit a reasonable inference that Tafuri‘s statement actually reflects a belief that the plane was not at risk of leaving the valley. At the moment marked 21:39:24 on the cockpit voice recorder, Tafuri dialed the correct frequency for the Tulua waypoint into his EHSI, which prompted the plane‘s D-bar indicator to shift on the computer screen. Up until that moment, the EHSI had been programmed using the frequency for an incorrect waypoint located well to the east of the valley, thus causing the D-bar indicator to indicate that the Tulua waypoint was located to the left of the plane. American argues that the shift of the D-bar indicator allowed Tafuri to believe that they had passed the Tulua waypoint or a vector leading to the published arrival path, and thus supports a conclusion that Tafuri believed that
Piamba Cortes and the district court offer several reasons why this inference should be rejected as unreasonable.16 First, the compass heading during this portion of the flight was approximately 120 degrees compared to the proper compass heading (a radial heading south and slightly west at approximately 202 degrees) used in the published arrival path. The district court found that even a brief glance at the compass heading would have informed the pilots that they had veered dramatically off course. Second, once Tafuri dialed the proper frequency for the Tulua waypoint, the pilots necessarily realized that the Tulua waypoint was located to the left and behind the plane; thus, the district court found that the right-hand turn executed by the pilots was inconsistent with an attempt to fly over the Tulua waypoint or to intercept the flight path. Third, the pilots noted at one point that their distance to the airport was thirty-eight miles, but recognized that this distance remained thirty-eight miles even after the passage of one minute and fourteen seconds, which the district court found would
Considered together, this circumstantial evidence certainly permits a factfinder to infer that the pilots realized that the aircraft had veered significantly off course. This interpretation, however, is not the only reasonable inference that can be taken from this evidence, as the entry of summary judgment requires. No evidence conclusively demonstrates that the pilots actually monitored their compass heading, or that the pilots in fact recognized that, because they failed to reduce the distance between the aircraft and the airport, they had traveled a significant distance from the published flight path. If the pilots failed to put these connections together, a factfinder reasonably may infer that the shift in the D-bar indicator led the pilots to believe that they had just intersected the vector leading to the published flight path and thus were close to the flight path and within the valley. Combined with the plausible inference taken from Tafuri‘s comment that “[y]ou‘re okay, you‘re in good shape now,” it is not unreasonable to infer that the pilots believed they were close to the published flight path and thus did not recognize that their actions placed their passengers at risk of injury.
Piamba Cortes also places great reliance upon the fact that Tafuri and Williams’ actions violate FAA regulations and the principles of flying in Latin America that
The District of Columbia Circuit observed that when “no one knows exactly what happened” to cause a pilot to commit errors and crash and the plaintiff has no unequivocal direct evidence, “questions [of willful misconduct] depend upon inferences to be drawn from essentially circumstantial evidence . . . [and] [o]ne can hardly imagine a clearer case in which such questions should have been left to the jury.” In re Korean Air Lines Disaster of September 1, 1983, 932 F.2d 1475, 1481 (D.C. Cir. 1991) (first and third alterations in original). Of course, Korean Air did not include a recording of the pilots’ conversations in which they stated that they were off the published arrival path. Nonetheless, under the circumstances of this case, other
For these reasons, we conclude that the district court erred in entering summary judgment against American with respect to unlimited liability under the Warsaw Convention. We therefore vacate the district court‘s entry of summary judgment on the issue of American‘s liability in excess of the Convention‘s liability cap, and remand for a determination by the trier of fact whether Piamba Cortes may seek compensatory damages in excess of the limit created by the Convention.
III. CONFLICT OF LAWS CONCERNING COMPENSATORY DAMAGES
The district court concluded that, under the relevant conflict-of-laws rules,18 Florida‘s compensatory damages scheme governed all claims arising from the crash of Flight 965 that were filed in the Southern District of Florida, regardless of whether the claims were filed on behalf of domiciliaries of Florida or Colombia. The district
A district court‘s resolution of a conflict-of-laws issue is a legal question that we review de novo. See LaFarge Corp. v. Travelers Indem. Co., 118 F.3d 1511, 1514-15 (11th Cir. 1997).
Before turning to the merits of this issue, it is necessary to clarify the scope of this opinion as it relates to the many cases arising out of the crash of Flight 965. In its order on conflict-of-laws issues, the district court determined that, with certain limited exceptions, Florida compensatory damages law applies across the board to all cases filed in the Southern District of Florida. Here, we are presented with a much narrower inquiry, that is, determining which compensatory damages law must be applied to Piamba Cortes’ claims. Although the district court at times considered the conflict-of-laws problem in the context of all the passenger lawsuits aggregated together—in other words, regardless of the domiciles of the individual decedents—the district court tailored its final resolution of the conflict-of-laws problem by separating the decedents by domicile. See, e.g., SR-365-30 n.10. The district court thus relied
A. Applicable Law
Piamba Cortes’ claims arise under the Warsaw Convention, which provides that air carriers shall be liable “for damage sustained” in the event of the death or wounding of a passenger on a flight that falls under the scope of the Convention. Warsaw Convention art. 17. In Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), the Supreme Court held that, with respect to the types of compensatory damages awarded to passengers, the Convention “provide[s] nothing more than a pass-through, authorizing [courts] to apply the law that would govern in absence of the Warsaw Convention.” 516 U.S. at 229, 116 S. Ct. at 636. Here, the district court concluded that the question of compensatory damages created a conflict-of-laws problem and thus applied the “most significant relationship” test articulated in the Restatement (Second) of Conflict of Laws (1971) (hereinafter “Restatement“). The parties do not challenge this decision.
Section 145 lists four types of contacts to be taken into account when identifying jurisdictions that possess an interest in applying their compensatory damages schemes:
- the place where the injury occurred;
- the place where the conduct causing the injury occurred;
- the domicile, residence, nationality, place of incorporation, and place of business of the parties; and
- the place where the relationship, if any, between the parties is centered.
Restatement § 145(2). Under the facts and circumstances of this case, we identify four jurisdictions that possess interests in applying their compensatory damages schemes to this case: Colombia, the place of the crash and the domicile of both the plaintiff and the decedent; Florida, the domicile of the two deceased pilots and the state in which their estates were probated,19 as well as a place where American transacts significant business; Texas, the principal place of American‘s business; and Delaware, the state of American‘s incorporation. The parties argue in favor of only two jurisdictions,
American argues that Florida‘s interests in this case are illusory for two reasons. First, American observes that it agreed to satisfy any judgment against the estates of the pilots, thus eliminating the contacts created by these defendants. American further points out that Piamba Cortes dismissed her claims against the pilots’ estates several months after the district court resolved the conflict-of-laws issue. Second, American argues that its business activities in Florida are not sufficient to create a relationship with Florida under section 145(2)(c). We consider each argument in turn.
American‘s agreement to satisfy a judgment against the estates of the two pilots does not, under the circumstances of this case, extinguish the relationship with Florida under section 145(2). We first observe that American has not pointed to any evidence in the record to support its assertion that such an agreement exists. Even if such evidence existed, satisfaction agreements may be disputed in later stages of litigation and do not always remove the defendant entirely from the scope of the case. Of equal concern is the possibility that a defendant, seeking to avoid the application of a jurisdiction‘s generous damages scheme, could agree to satisfy judgments against any co-defendants who are domiciliaries of that jurisdiction. We do not imply, of course, that American‘s agreement with the estates of the two pilot defendants reflected this
Piamba Cortes’ decision to dismiss her claims against the estates of the pilots several months after the district court resolved the conflict-of-laws issue does not alter our conclusion. American has not shown, and does not argue, that at the time of the district court‘s decision the estates were improperly named parties to the lawsuit. Consequently, at the time the district court resolved the conflict-of-laws issue, the inclusion of the pilots’ estates as defendants created a viable relationship with Florida.20
Second, American‘s argument concerning the insufficiency of its business contacts with the state of Florida misconstrues the language used in section 145. According to American, a state has a relationship under section 145(2)(c) only if the state is a party‘s “principal place of business.” The text of the Restatement, however, directs courts to consider the “place of business of the parties.” Restatement § 145(2)(c). The authors of the Restatement were familiar with the term of art
We agree that a party‘s principal place of business ordinarily should be afforded more weight than a jurisdiction in which the party has only business interests, but we cannot agree that a jurisdiction in which the party has sizeable business activities—especially when the activities are directly related to the relevant litigation—has no relationship with the litigation for purposes of section 145(2). This case exemplifies this principle, as the district court found not only that Miami serves as one of American‘s primary transportation hubs, but also that Miami is the site from which American orchestrates its Latin American operations. Consequently, while we do not overstate the relationship created by these circumstances, see id. (“[t]he fact . . . that one of the parties . . . does business in a given state will usually carry little weight of itself“), we conclude that American‘s substantial business activities in Florida in this case justify the district court‘s finding that Florida has an interest in this litigation under section 145(2).
C. Most Significant Interests Under Section 6(2)
To discharge this task, we cannot simply add up the factors delineated in section 145(2) and then apply the law of the sovereign with the greatest numerical total. . . . Rather, we must, as mandated by section 145(1), turn to the factors delineated in section 6 to determine which sovereign has the most significant contact.
Id. Section 6(2) lists seven factors to consider when weighing the interests of a sovereign in a particular case:
- the needs of the interstate and international systems;
- the relevant policies of the forum;
- the relevant policies of other interested states and the relative interests of those states in the determination of a particular issue;
- the protection of justified expectations;
- the basic policies underlying the particular field of law;
- certainty, predictability and uniformity of result; and
- ease in the determination and application of the law to be applied.
Restatement § 6(2)(a)-(g). As we explain, the importance of these factors varies depending on the nature of the issue that underlies the conflict of laws. Id. § 145 cmt. b.
1. Balancing of Interests Under Sections 6(2)(b) and (c)
Identifying the particular rule of law to be applied by each interested state has proven to be a difficult enterprise. Florida law is rather straightforward, permitting “survivors,” meaning one‘s spouse, children, parents, dependent blood relatives, and adoptive siblings, to collect the value of lost support and services, future loss of support and services, loss of companionship or parental companionship, mental pain and suffering, medical or funeral expenses, loss of earnings, and net accumulations.
American nonetheless assumes on appeal that Colombian law imposes a cap on the recovery of non-pecuniary damages (approximately $8,000) and disallows recovery of net accumulations. American does not challenge directly the conclusions of the district court with respect to the lack of clarity in Colombian law; if American intended to do so implicitly, it points to no evidence that calls into question the district court‘s ruling.21 Even so, because we conclude that the district court correctly applied Florida‘s compensatory damages scheme regardless of whether Colombian law restricts recovery, we will follow American‘s assumption for purposes of our analysis in this opinion. We nonetheless observe that, under the present state of the record, it
is equally likely that Colombian law imposes none of the limitations alleged by American; under such circumstances, the conflict of laws at issue in this appeal essentially vanishes, providing a separate ground for affirming the decision of the district court.We are able to identify several policies that underlie Colombia‘s compensatory damages scheme as described by American. First, the law seeks to compensate Colombian domiciliaries for the wrongful death of a relative caused by a third party. Second, the restrictions on recovery serve to protect domiciliary defendants from what Colombia has deemed to be excessive damages awards. American extends this goal to non-domiciliary defendants as well, arguing that the restrictions on damages encourage foreign corporations to transact business in Colombia without fear of oppressive damages awards.
Similarly, the primary purpose underlying Florida‘s compensatory damages scheme is “to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”
We first examine whether Colombia‘s policy of compensating its domiciliaries would be served in this case. Piamba Cortes argues that, if another available jurisdiction‘s compensatory damages scheme is more generous than Columbia‘s scheme, Colombia‘s policy of compensating survivors of the decedent would be frustrated by applying its less generous compensatory damages scheme. The district court concluded that, although Colombia‘s interest in applying its less generous compensatory damages scheme “might diminish” under these circumstances, Colombia nonetheless possesses a “compelling” interest in applying its damages scheme in cases involving Colombian decedents injured on Colombian soil. SR-365-38. We agree with the district court. The fact that the decedent was a domiciliary of Colombia, combined with the fact that the primary claimants--including Piamba Cortes--also are Colombian domiciliaries, creates an interest on Colombia‘s behalf to ensure proper compensation for these claimants.
The same cannot be said with respect to the policies underlying Colombia‘s restrictions on compensatory damages. No Colombian domiciliaries are named as defendants, and the general rule in this circuit is that “a limit on recovery should not be applied when there is no domiciliary defendant because it advances no policy
We next examine whether the policies underlying Florida‘s compensatory damages scheme would be furthered by applying Florida law to this case. As the district court noted, the policies underlying Florida‘s compensatory damages scheme for wrongful death claims would indeed be served if claimants filing on behalf of the decedent included Florida domiciliaries. Piamba Cortes, however, identifies no Florida domiciliaries among the possible survivors who possess a claim under Florida
Florida nonetheless retains an interest in ensuring that a compensatory damages award against its own domiciliary defendants is not excessive. In this case, Piamba Cortes named as defendants the estates of the pilots, who were domiciliaries of Florida and whose estates were probated in Florida. Consequently, although Florida‘s interest in this case is not as compelling as Colombia‘s interest in applying its compensatory damages scheme to the claims of its own domiciliaries, the fact remains that this interest would be furthered by applying Florida‘s compensatory damages scheme to this case.
In sum, the policies of both Colombia and Florida would be furthered by applying their compensatory damages schemes to this case. Balanced together, this analysis weighs slightly in favor of applying Colombian law because, as noted above, the policy to be served under Colombian law is more compelling than the policies served by applying Florida law. This conclusion, however, does not end our analysis under section 6(2), and we must proceed to examine the remaining factors.
2. Remaining Factors Under Section 6(2)
Section 6(2)(a) reminds courts that the resolution of a conflict-of-laws problem should “further harmonious relations between states and . . . facilitate commercial intercourse between them.” Restatement § 6 cmt. d. Noting that the choice of the damages law to be applied to this case must accommodate existing political and commercial relationships, the district court concluded that both Florida and Colombia law “could be applied across the board without significantly disturbing interstate comity.” SR-365-45. We agree. If we continue to accept, for the sake of argument, American‘s contention that Colombia has adopted a more restrictive compensatory damages scheme,22 the absence of a defendant who is a Colombian domiciliary and who would benefit from Colombia‘s damages scheme allows Florida‘s more generous
The commentary to the Restatement advises that the factors listed in sections 6(2)(d) and (f) typically have little significance in tort cases. See Restatement § 145 cmt. b, at 415-16. It is rarely the case that parties in a tort suit--especially when the injury is unintended--plausibly can argue that they possessed justified expectations concerning the law to be applied to the suit or planned their conduct according to a jurisdiction‘s damages law. See id.; see also id. § 6 cmt. g (in unintentional harm suits, “the parties have no justified expectations to protect, and this factor can play no part in the decision of a choice-of-law question“); id. § 6 cmt. i (“Predictability and uniformity of result are of particular importance in areas where the parties are likely to give advance thought to the legal consequences of their transactions.“). This commentary accurately describes this case, where no evidence suggests that the decedent‘s travel plans, or the plans of any claimants, hinged upon the advance recognition of, or reliance on, either jurisdiction‘s law governing compensatory damages. As a result, we heed the Restatement‘s advisory that, “[b]ecause of the
We next consider the policies underlying the field of law involved in the lawsuit pursuant to section 6(2)(e). The commentary to the Restatement instructs that, where the policies of the interested states are largely the same but the rules contain minor differences, “there is good reason for the court to apply the local law of that state which will best achieve the basic policy, or policies, underlying the particular field of law involved.”23 Restatement § 6 cmt. h. Although a number of important policies underlie the field of tort law, the Restatement identifies two in particular: the provision of compensation for injured victims and the deterrence of tortious conduct. Id. § 145 cmt. b, at 416. If we continue to accept, for the sake of argument, American‘s contention that Colombia‘s compensatory damages scheme is more restrictive than Florida‘s,24 application of Colombian law arguably would frustrate these goals by limiting the amount the tortfeasor must pay to compensate the victim
Finally, we consider the ease in determination and application of the law to be applied under § 6(2)(g). Here, two eminent Colombian jurists and scholars expressed profound disagreement whether Colombian law caps non-pecuniary damages and restricts the recovery of net accumulations, and the district court‘s review of the available legal authorities failed to reconcile this debate. The district court therefore concluded that the process of determining and applying Colombian law would be extremely complicated, expensive, and time consuming. As recognized earlier, American assumes on appeal that Colombian law unequivocally contains these restrictions but relies only upon the same evidence presented to the district court to support this assumption. This showing fails to persuade us that the district court‘s interpretation of Colombian law was erroneous. Because the measure of compensatory damages available under Florida law is straightforward and easy to apply, we conclude that this factor weighs heavily in favor of applying Florida law.
D. Summary
The resolution of a conflict-of-laws problem “represents an accommodation of conflicting values.” Restatement § 6 cmt. c. This case is no exception. On the one hand, the policies underlying each jurisdiction‘s compensatory damages scheme
Given the circumstances of this case, an overall balancing of these factors tips in favor of applying Florida law. Although Colombia possesses an interest in applying its compensatory damages scheme to the claims of Colombian domiciliaries on behalf of a Colombian decedent, the absence of a Colombian defendant who would benefit from Colombia‘s more restrictive damages scheme renders these interests less compelling. In contrast, the application of Florida law furthers the policies underlying Florida‘s compensatory damages scheme as well as the field of tort law in general, and--importantly--would not frustrate the policies underlying Colombia‘s damages scheme.
Consequently, the scales are approximately even when we come to the problem of ascertaining Colombia‘s law on compensatory damages in wrongful death cases. In light of the severe difficulties presented by such an exercise, the well-defined and straightforward rules of Florida law tip the scales in favor of applying Florida‘s compensatory damages scheme to this case. Indeed, this case serves as an ideal example of how this factor, as contemplated by the Restatement itself, can assume particular significance when the tremendous expenditures of time and resources
For these reasons, we conclude that the district court correctly determined that Florida law governed the compensatory damages to be awarded to Piamba Cortes.
IV. APPORTIONMENT OF LIABILITY
American next argues that the district court erred by refusing to apply Florida‘s comparative fault statute, which directs courts to apportion liability for noneconomic damages according to fault.25 According to American, although the Warsaw Convention contains no express language providing for apportionment of liability, Article 17‘s broad language on the issue of damages acts as a “pass-through” to local law and thus requires the application of Florida‘s apportionment statute. The district court rejected this argument, holding that the overall scheme of liability created by the Convention obliges the air carrier to be liable for all damage sustained by a passenger. In re Crash Near Cali, 985 F. Supp. at 1153.
Article 17 of the Warsaw Convention provides that an air carrier “shall be liable for damage sustained in the event of the death or wounding of a passenger.” Warsaw Convention art. 17. The plain meaning of the text suggests that the carrier bears liability for the damages suffered by its passengers; a contrary interpretation that the carrier is liable for damage for which it alone is responsible, or for damage caused by no other tortfeasor, inserts words and inferences into the text when it is not clear that such additions are intended.
An examination of the surrounding provisions supports this interpretation. Article 21, for example, adopts a comparative liability standard if actions taken by the injured passenger caused or contributed to the passenger‘s damages. Warsaw Convention art. 21. Article 20 provides that the carrier is absolved from liability if it can prove that it took “all necessary measures” to avoid the damage. Id. art. 20. These provisions suggest that the drafters expressly contemplated when a carrier‘s liability should be reduced based on the conduct of others; if the drafters intended to reduce further the carrier‘s liability based on the conduct of other tortfeasors, they would have added such a provision.
Our conclusion is not altered by the Supreme Court‘s holding in Zicherman. In that case, the Court concluded that, because Article 17 uses only the term “damage,” the issue of compensation for one‘s injuries is unresolved by the Convention and is governed by the law of the forum jurisdiction. See Zicherman, 516 U.S. at 229, 116 S. Ct. at 636. The Court restated this position in Tsui Yuan Tseng, observing that “[the] Warsaw drafters intended to resolve whether there is liability, but to leave to domestic law (the local law identified by the forum under its choice of law rules or approaches) determination of the compensatory damages available to the suitor.” --- U.S. at ---, 119 S. Ct. at 672. The comparative fault regime urged by American goes beyond the issue of the amount of damages available to the suitor; it acts to limit the liability, or fault, of the air carrier. See
Our decision will not require American to pay more damages than the amount for which it is responsible. Florida, like most other jurisdictions, has recognized a right of contribution on behalf of a tortfeasor who pays for the wrongdoings of additional tortfeasors. See
For these reasons, we conclude that the district court correctly rejected American‘s request to apportion liability according to Florida law.
V. ADMISSION OF FACTS SURROUNDING CRASH DURING DAMAGES TRIAL
Piamba Cortes has filed a cross-appeal in which she argues that the district court erred by preventing any reference during the trial on damages to the factual circumstances surrounding the crash. Piamba Cortes claims these facts are relevant to the determination of compensatory damages for mental pain and suffering. Moreover, Piamba Cortes contends that, for the same reason, the jury should have been informed of the legal determination that the pilots of Flight 965 engaged in willful misconduct resulting in the crash.
The district court held that “[c]ounsel will not be permitted to make any reference in voir dire, opening statements, testimony, or closing argument to . . . [the court‘s] finding of willful misconduct against American.” SR-602-4. The district court later clarified its ruling during the following colloquy with counsel:
THE COURT: Counsel will not be permitted to make any reference during the course of the trial in opening statement or otherwise to the finding . . . of willful misconduct against American Airlines. You may tell them, as the Court will tell them, that the issue of liability has been settled, the only issue in this matter is the matter of damages . . .
. . . . MR. PARKS: You have no problem, as I understand it, though, of us giving a brief overview, that the airplane crashed, without going into the facts of the case?
THE COURT: Without going into the facts. I am going to tell them the airplane crashed when I begin my voir dire.
MR. PARKS: Yes, sir.
THE COURT: But, in any event, no details about conduct, all right?
MR. PARKS: I understand that. And we do object to it but thank you.
SR-7-9-10.
We review a district court‘s ruling on the admissibility of evidence for abuse of discretion, and evidentiary rulings will be overturned only if the moving party establishes that the ruling resulted in a “substantial prejudicial effect.” Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997). When applying an abuse of discretion standard, “we must affirm unless we at least determine that the district court has made a ‘clear error of judgment,’ or has applied an incorrect legal standard.” SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th Cir. 1996) (citation omitted).
The admissibility of evidence in a federal action is governed by the Federal Rules of Evidence, not state law. See Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997). Nonetheless, state law may assist in defining what evidence
Florida law provides that, when computing damages for pain and suffering endured by a plaintiff, “[i]n most instances . . . evidence describing the details of an accident is logically relevant and admissible, even where liability has been admitted, to place the extent of injuries suffered by the plaintiff, as well as the degree of pain endured, in the proper context.” White v. Westlund, 624 So.2d 1148, 1152 (Fla. Ct. App. 1993). The admissibility of such evidence in a wrongful death action brought by a survivor of the decedent is not as clear. Damages for such mental pain and suffering, among other things, “must bear some reasonable relation to the facts” of the case. See Florida Dairies Co. v. Rogers, 161 So. 85, 88 (Fla. 1935) (petition for rehearing). On at least one occasion a court has admitted evidence depicting an accident
In this case, the district court excluded not only any reference to the legal finding that the pilots of Flight 965 engaged in willful misconduct prior to the crash, but also any evidence relating to the facts of the crash. Although it appears that the evidence relating to the facts of the crash may have been admissible under Florida law, we cannot conclude that the district court‘s decision to exclude this evidence constitutes an unreasonable balancing of the probative value of this evidence with its potential for undue prejudice. As for Piamba Cortes’ request to inform the jury of the legal finding of willful misconduct, this action undoubtedly would have unduly prejudiced American when compared to the value of this information in determining
VI. CONCLUSION
For the reasons set forth in this opinion, we VACATE IN PART the district court‘s entry of summary judgment on the issue of American‘s liability, and REMAND the case for further proceedings consistent with this opinion. We AFFIRM the district court‘s determination that Florida compensatory damages law governs Piamba Cortes’ claims, that Florida‘s comparative fault statute is not applicable to this case, and that evidence relating to the facts of the crash may be excluded during a trial to determine Piamba Cortes’ compensatory damages.
Notes
While the revised [Article 25] is believed to be substantially a paraphrase of the present Article 25 as it is administered by United States courts, there appears to be no doubt that it considerably tightens the article as it is now currently administered in certain foreign courts. Some foreign countries presently regard gross negligence as sufficient to bring this article into play. [Application of the revised language] would bring about the result of maintaining substantially the same rule of law as is presently applied in courts within the United States. . . .
G. Nathan Calkins, Grand Canyon, Warsaw and the Hague Protocol, 23 J. Air L. & Com. 253, 266-67 (1956).
Le transporteur n‘aura pas le droit de se prévaloir des dispositions de la présente Convention qui excluent ou limitent sa responsabilité, si le dommage provient de son dol ou d‘une faute qui, d‘après la loi du tribunal saisi, est considérée comme équivalente au dol.
Goldhirsch at 193.