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June 10, 1991


The opinion of the court was delivered by: William C. Conner, District Judge.


This is an action by plaintiff Ruben Padilla ("Padilla") to recover damages for personal injuries sustained by him on about October 19, 1987, while a passenger aboard defendant Olympic Airways ("Olympic" or "O.A.") Flight 411 en route from Athens, Greece, to New York City. Plaintiff seeks damages for lost earnings together with relief for past and future pain and suffering. Although conceding that plaintiff was injured aboard Olympic Flight 411, defendant denies any liability therefor.


The accident in question occurred during "international transportation" and therefore is subject to certain provisions of the Warsaw Convention, 49 U.S.C. § 1502, as modified by the Montreal Agreement, Agreement CAB 18900 (1966).*fn1 Plaintiff's claim, initially instituted in the Supreme Court, State of New York, was removed to this Court pursuant to the Foreign Sovereign Immunities Act of 1976, 28 U.S.C.A. § 1441(d). As defendant is a "foreign state" as defined in 28 U.S.C.A. § 1603(a), this action was tried without a jury.

On October 19, 1987, defendant's flight O.A. 411, departed Athens, Greece, at or about 1240 hours for New York City. Plaintiff was aboard as a passenger seated in coach class at the rear of the airplane and forward of the coach class lavatories. Plaintiff, a merchant mariner, had left the M/V FALCON CHAMPION, on which he served as a Steward/Baker, after a 69-day tour of duty at sea. Deposition of Ruben Padilla ("Padilla Dep.") at 8. On October 18, 1987, plaintiff worked until 8:00 p.m. aboard the M/V FALCON CHAMPION. After completing his shift, plaintiff slept for three hours, from 9:00 p.m. until 12:00 a.m. Plaintiff signed off duty on the M/V FALCON CHAMPION at 1:00 a.m., October 19, 1987. On October 19, 1987, plaintiff travelled to Piraeus, Greece and then onward to Athens, where he boarded Olympic Flight 411. Id. at 7-8.

At the airport in Athens, shortly prior to boarding Olympic Flight 411, plaintiff consumed four cans of beer. Id. at 11. Jose Quinones, a merchant mariner travelling with Padilla, testified that he was with plaintiff at all times while at the Athens Airport and that at no time prior to boarding the flight did plaintiff appear to be intoxicated. Deposition of Jose Quinones ("Quinones Dep.") at 8, 9. Approximately one-half hour after departing Athens, the cabin crew began serving drinks which included cans of Amstel beer free of charge. Plaintiff obtained and drank 2 or 3 cans of beer before lunch, 2 cans of beer with his lunch, and 3 or 4 cans of beer after lunch. Padilla Dep. at 23-24. Plaintiff has no recollection of eating from the time of dinner aboard the M/V FALCON CHAMPION on October 18, 1987, until the meal served aboard Olympic Flight 411 on October 19, 1987, approximately 14 hours later.

Plaintiff, some time after drinking his last can of beer, stood up to go to one of the aft lavatories. On his way to the lavatory he claims to have felt "dizzy" — a condition which he testified was caused by his being intoxicated. Plaintiff remembers that upon reaching the lavatory he fell and was rendered unconscious. Padilla Dep. at 26-27.

Jose Quinones, who was not seated with plaintiff during the flight and who did not see plaintiff fall, testified that he found plaintiff on the floor complaining of severe pain in the area of his left elbow. Quinones Dep. at 14, 22. Although there is no evidence that he saw plaintiff drink more than one beer during the flight, Quinones testified that plaintiff was drunk at the time of the accident. Id. Quinones assisted in escorting plaintiff to a seat after the incident and noticed that plaintiff's shoelaces were untied. Quinones Dep. at 16-17.

George Koliavasilis, flight attendant in charge of the coach section where plaintiff had been seated, testified that the two flight attendants assigned to his coach class section served free beer to the passengers. Koliavasilis testified that Olympic flight attendants avoid serving alcoholic beverages to passengers who appear to be getting intoxicated and that they may refuse further alcoholic beverage service to any passenger whom they know is intoxicated. Deposition of George Koliavasilis ("Koliavasilis Dep.") at 38-41. When asked whether he had seen how much alcohol plaintiff had consumed before the incident, Koliavasilis testified that he had seen plaintiff with only one can of beer. Id. at 63.

Koliavasilis claims to have seen plaintiff walking to the lavatory immediately before the incident. He testified that plaintiff did not appear to have any difficulty walking. Id. at 52. Koliavasilis did not see plaintiff fall. Koliavasilis asserts that the lighting in the lavatory was good and that there was no water on the floor. Id. at 65-66.

When the aircraft landed at JFK Airport plaintiff was transported by ambulance to the airport's medical office where X-rays disclosed a dislocated left elbow. Plaintiff was then sent by ambulance to the Peninsula General Hospital where further X-rays disclosed posterior dislocation of the left radius and ulna with evidence of several small avulsion fractures. Also disclosed was a fracture of the left coranoid process.

Plaintiff's left elbow was in a posterior splint for approximately three months. He was declared fit for duty on January 12, 1988. Since being declared fit for duty plaintiff has returned to his work as a merchant mariner and has undergone no further medical treatment to date. Plaintiff complains of pain in the left elbow, especially in changing weather. He claims weakness in the left arm which prevents him from lifting anything heavy with that arm. ...

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