defendant's liability and plaintiff's damages. The following
constitute my findings of fact and conclusions of law pursuant to
Rule 52 Fed.R.Civ.P.
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. Plaintiff's medical expert testified that
plaintiff may have some arthritic changes developing within that
Plaintiff proceeds in this case solely under the terms of the
Warsaw Convention and not on any common law claim. Transcript at
67, 69. Under the Warsaw Convention, if a passenger proves that
alleged injuries were proximately caused by an "accident," the
carrier may be liable without proof of fault.
The circumstances under which a carrier may be liable to its
passengers in international transportation are specified in
Article 17 of the Warsaw Convention:
The carrier shall be liable for damage sustained in
the event of the death or wounding of a passenger or
any bodily injury suffered by 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.
The Warsaw Convention does not itself define the term
"accident". The controlling interpretation is found in Air
France v. Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289
[L]iability under Article 17 of the Warsaw Convention
arises only if a passenger's injury is caused by an
unexpected or unusual event or happening that is
external to the passenger. This definition should be
flexibly applied after assessment of all the
circumstances surrounding a passenger's injuries. . .
. [W]here there is contradictory evidence, it is for
the trier of fact to decide whether an "accident" as
here defined caused the passenger's injury. . . . But
when the injury indisputably results from the
passenger's own internal reaction to the usual,
normal, and expected operation of the aircraft, it
has not been caused by an accident, and Article 17 of
the Warsaw Convention cannot apply.
470 U.S. at 405-06, 105 S.Ct. at 1345.