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October 15, 1976

Nancy J. NEAL, as Executrix of the Estate of Burnette Neal, Jr., and Jane C. Williams, as Executrix of the Estate of Bruce R. Williams, Plaintiffs,

Dooling, District Judge.

The opinion of the court was delivered by: DOOLING


DOOLING, District Judge.

 This diversity action, commenced January 6, 1976, arose out of the crash of a military aircraft (an AC-47) in South Vietnam on April 26, 1967, in which Major Burnette Neal, Jr. and Major Bruce R. Williams lost their lives. The charge of the complaint is that defendants are liable to the plaintiff executrices, resident in and appointed in Texas, either because (a) defendants negligently assembled, repaired and inspected the aircraft in 1966, or (b) because defendants breached warranties of their work that they made (cf. Victorson v. Bock Laundry Mche Co., 1975, 37 N.Y.2d 395, 402-404, 373 N.Y.S.2d 39, 335 N.E.2d 275), or (c) because they made misrepresentations or (d) because they were strictly liable to the decedents.

 Butler Aviation Miami, Inc., served with process in Florida, and Air International, Inc. (apparently long since merged into Butler-Aviation Miami, Inc.), and, if it could be served with process, served with it in Florida, join in moving to dismiss the action on the ground that they are not suable in this court, and on the ground that, in any event, the action is barred by the statutes of limitation of New York, Florida and Texas. Defendants Butler Aviation International, Inc., and Butler International, Inc., served with process in New Jersey, move to dismiss the action, first, on the ground that the action is barred by the New York two year limitation on wrongful death actions or by N.Y.C.P.L.R. § 202, and, second, if the action is dismissed as against Butler-Miami International, then it should be dismissed against Butler Aviation International, Inc., and Butler International, Inc. on the ground that parties indispensable to a determination of the issues will not be before this Court.

 Plaintiffs' affidavits, not contradicted at this time, make the following assertions of fact:

 The AC-47 was on military patrol when it was lost. It was a Douglas-built aircraft; it had been delivered to the Air Force in February 1944, but Air International (later acquired by Butler-Miami) had overhauled and modified it under an Air Force contract in 1966, replacing both elevators and removing, repairing and replacing the wings. The work was done -- and the negligence occurred or the defect arose -- in Florida. The craft was assigned to Vietnam duty on January 13, 1967, and, after the crash, some three months later, investigation indicated that the right elevator had failed, and that its failure had caused the right wing to separate from the aircraft. All seven members of the crew died in the crash. The representatives of three crew members sued in Florida in or about April 1969 and their case was settled on the eve of trial in November 1974.

 The representative of a sixth crew member, Fred E. Barnette, sued in the Queens County Supreme Court; there was no diversity of citizenship in that case. A motion addressed to the limitations issue made in the Barnette case resulted in the conclusion that if the law of Vietnam regarded the thirty-year statute of limitations of Vietnam (see infra) as substantive, that statute would be given effect in New York because Vietnam "has the most significant relationship with the issue of what remedy, if any, shall lie to compensate for the injuries and death sustained by decedent."

 The parties agree that the statutes of limitation of New York, Florida and Texas would bar the action if any of those statutes directly apply. The normal Vietnam statute of limitations, probably its three year statute, has likewise passed. There is no doubt that the plaintiff representatives, who are the officers' widows, and their minor children live in Texas. No statement has been made about the deceased officers' places of residence during their lifetimes.

 The plaintiffs present an opinion letter indicating that if an action for a civil tort is initiated (as it may be) in the Vietnam criminal court (along with a criminal charge based on the same facts), the limitation applicable to the crime controls, and, in the case of damages inflicted by negligent homicide, is three years. A contract suit for breach of a warranty against latent defects in personal property must be brought within three months after the defects are discovered. A suit based on strict liability (for products) has no specific limitation (semble, the concept is alien to Vietnamese law), but it would be very likely controlled by the tort limitation -- three years for negligent homicide. It is also suggested that certain types of aircraft accidents have no specific limitation and might therefore appear to fall within the catch-all limitation of 30 years, prescribed by Article 1474 of the Civil Code -- a provision which, in essence, says that all rights of action are prescribed after 30 years. However, the specific air accident provisions that lead to Article 1474 seem to relate only to actions against air-carriers. Generally, Vietnamese statutes of limitation do not run against minors during their minority (Civil Code Article 1468), and minors sue through a parent or guardian.

 Finally, the opinion letter states that a war-born Vietnamese law of March 29, 1942, suspended all periods of limitation on public actions, meaning criminal actions, and states further that as late as 1961 the highest Vietnamese court held that the suspension was still in effect.

 Section 202 of the Civil Practice Law and Rules determines, subject, where applicable to Section 208 (tolling for infancy), the outcome of the case:

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued. . . ."

 Erie R.R. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, no less than Klaxon Co. v. Stentor Mfg. Co., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477, requires the application of the statute -- and the rest of New York's sophisticated conflict of laws rules.

 The claims of plaintiffs are barred, whether their causes of action accrued in Vietnam or Florida, since their action was not commenced within the time limited by that one of the laws of New York or Texas or Florida or Vietnam which prescribes the shortest period (C.P.L.R. § 202; Myers v. Dunlop Tire & Rubber Co., 1972, 40 A.D.2d 599, 335 N.Y.S.2d 961; Federal Ins. Co. v. Fries, 1974, 78 Misc.2d 805, 355 N.Y.S.2d 741; George v. Douglas Aircraft Co., 2 Cir., 332 F.2d 73, 76, 78-79; Sack v. Low, 2d Cir. 1973, 478 F.2d 360, 366-367. Chartener v. Kice, E.D.N.Y.1967, 270 F. Supp. 432, 438; Nielson v. Avco Corp., S.D.N.Y., 54 F.R.D. 76, 81; note Victorson v. Bock Laundry Mche Co., 1975, 37 N.Y.2d 395, 402-404, 373 N.Y.S.2d 39, 335 N.E.2d 275) unless plaintiffs are right that the Vietnames limitation is a substantive component of any ...

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