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.
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. ...