Before: WATERMAN, MOORE and KAUFMAN, Circuit Judges.
MOORE, Circuit Judge : This is a diversity action for damages for wrongful death arising out of an airplane accident on October 29, 1953. In 1953 a pilot for defendant British Commonwealth Pacific Airlines, Ltd. (BCPA), an Australian corporation, in a plane coming from Honolulu, began an instrument landing, during which operation it crashed against a mountain near the San Francisco, California, airport. All aboard were killed, including plaintiffs' deceased, the noted pianist William Kapell.
The flight having been international, BCPA and defendant Qantas Empire Aviation Ltd. (Qantas) claimed that liability was limited by the Warsaw Convention,*fn1 under which plaintiffs could recover no more than $8,291.87, unless BCPA had been guilty of "wilful misconduct."*fn2 If, on the other hand, BCPA had taken all necessary means to avoid the accident, or if that were impossible, then BCPA would not be liable to plaintiffs for any amount.*fn3
After a jury trial in 1961 before Judge Willis Ritter, the jury found for defendants on all issues; no damages were awarded. Plaintiffs moved for judgment notwithstanding the verdict or for a new trial, and two years later Judge Ritter granted judgment for plaintiff as to liability, ordering a new trial only as to damages. He also ordered a conditional new trial on all issues if the judgment n. o. v. were reversed on appeal. 219 F. Supp. 289 (S.D.N.Y. 1963). Defendants object to both determinations.
After a trial in 1964 before Judge McLean a jury found damages of $924,396. Plaintiff moved for the addition of pre-judgment interest from date of death - 1953 - to date of judgment. The motion was denied, 230 F. Supp. 240 (S.D.N.Y. 1964), and plaintiffs appeal.
As a first cause of action against BCPA, the complaint alleged in substance that the crash "was caused solely by the wilful misconduct of defendant BCPA, its agents and employees, in and about the management, operation, control and maintenance of the aforesaid airplane, . . ." Other causes of action alleged negligence on the part of BCPA. These causes of action were repeated against BCPA "now doing business as Qantas Empire Aviation, Ltd." on the theory that Qantas became a successor in interest to, and assumed the obligations of, BCPA. British Overseas Airways Corp. (BOAC) was made a defendant in two causes of action on the theory that BOAC was negligent in choosing BCPA as the air carrier to transport Kapell. Except for certain factual admissions not in dispute, BCPA (and BCPA d/b/a Qantas), denied liability generally although admitting that in its liquidation it had transferred only certain assets to Qantas. For an affirmative defense BCPA (and Qantas) alleged that the flight was in "international transportation" and that the "Convention for the Unification of Certain Rules Relating to International Transportation by Air and Additional Protocol," referred to herein as the "Warsaw Convention" or "Convention," limited its liability to each passenger to 125,000 francs ($8,291.87).
The trial before a jury consumed thirteen days. Some thirty-seven witnesses testified in person or by deposition. Their testimony covered a range from technical airplane piloting and landing procedures, the rules and regulations pertaining thereto, weather conditions, the sound of the plane and the crash, to Kapell's then and future earning capacity.
At the conclusion of plaintiffs' case, Qantas moved for a directed verdict, which motion was denied. Decision was reserved until after verdict on a similar motion at the end of the entire case. The many issues of fact were submitted to the jury in a lengthy charge. The jury returned a verdict "Unanimous for the defendant."
The trial court first expounded its views of the effect of the Warsaw Convention. After mentioning the limited damages aspect of the Convention, the Court charged, "If what the pilot or crew did, or failed to do, was 'wilful misconduct,' there are no limits imposed by the Warsaw Convention upon the damages that may be recovered." The court then proceeded in a charge most favorable to plaintiff to define "wilful misconduct" as it might be found in a series of hypothetical situations in the operation of the airplane while attempting to land, including the comment that "it may be that a jury would feel justified in coming to the conclusion that some relatively minor breach of a safety regulation amounts to 'wilful misconduct,' although it would not do so in places and on occasions when the consequences of such an approach would be much less serious."
The jury were told that it was their function not only to take into consideration "all of the facts and circumstances in proof" but also all the inferences fairly and reasonably to be drawn from the facts as proven. Even on the question of the pilot's knowledge in the definition of "wilful misconduct" the jury were instructed that proof thereof did not have to be by direct evidence but that they had "a right to infer that the pilot or flight crew in charge of the aircraft had such knowledge or would have had such knowledge." As the court finally summarized the case, in addition to weighing the evidence, the circumstantial evidence and all inferences therefrom, the jury were to hold the defendants "liable to the plaintiffs for the damages caused by that death without limitation" if the defendant "knowingly and intentionally violated any of the Civil Air Regulations or the landing instructions from the San Francisco Approach Control Tower." The jury was to apply the law "to the facts which you may find have been established in this case."
The jury acting upon these instructions found for the defendant. Over two years later the court, upon the same proof as had been submitted to the jury for their resolution of the facts, directed judgment n. o. v. in favor of plaintiffs and ordered a new trial on the issues of damages only.
In a lengthy opinion, the court reviewed its version of the facts and by granting plaintiffs' motions, in effect, substituted itself for the jury and drew its own inferences from the facts.
Some twenty printed pages are given to an analysis of the Warsaw Convention. Reference is made to various comments of German, British, Luxembourg, Italian, French, Brazilian and Swiss delegates to the Warsaw Conference with respect to "dolus," "dol," and "faute lourde" and the translation of these words into our law as "wilful misconduct" (a phrase accepted and used by the court in its jury charge). However, the impression is gained from the opinion that to the court "the Warsaw Convention was a device by which to subsidize the then infant industry of international air transportation" and that "it is a strange concept to us in the United States that the subsidy should be taken out of the widows and orphans of the passengers." 219 F. Supp. at 322-23.
The Interlocutory Judgment
The court not only directed a judgment against defendant "on the issue of liability" but also, in the alternative, ordered a new trial on all issues "if the judgment non ...