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The Tenerife Aircrash: American Multistate litigation and related problems

Published online by Cambridge University Press:  21 May 2009

R.I.V.F. Bertrams
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Extract

The recent Tenerife aircrash of March 1977 involves a variety of multistate issues. The Dutch lawyer, if unable to obtain a satisfactory settlement for his client, may contemplate undertaking action in the U.S.A. He will then be confronted with such questions as against whom he can bring proceedings, under the jurisdiction of which court, what the procedure will be, and which state or national law will apply. He will also be required to know who may bring an action, who may ultimately benefit from it and what items may be included to determine the amount of damages.

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Articles
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Netherlands International Law Review , Volume 24 , Issue 3 , December 1977 , pp. 445 - 473
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Copyright © T.M.C. Asser Press 1977

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References

1. Experience shows that such investigations usually take a very long time and that the final conclusions are not readily made available. See for a discussion: Martin, Peter, Death and Injury in International Air Transport, (1975) 41 Journal of Air Law and Commerce (JALC), pp. 255, 257Google Scholar. See, also n. 107. Further, Rox, Frank, Discovery against Air Carriers, (1974) JALC, p. 469Google ScholarSoles, James B., Discovery Problems in Aviation Litigation, (1972) JALC, p. 297.Google Scholar

2. It is unlikely that the Spanish airport authorities will be called as defendant in view of the possible additional complexity involved in undertaking action against a government body and, on grounds of immunity, in enforcing a judgment in Spain.

2a. Whenever the term “plaintiff” is used, this refers either to the original passenger, or to persons suing in the estate of that passenger, or in their own name. Domicile, and not nationality, is relevant under American law: references in the text to nationality are solely for convenience.

3. The terms of the Warsaw Convention are not applicable to actions undertaken on behalf of Dutch passengers against Panam and Boeing, but only against K.L.M. But even in the latter case, one must be aware of the possibility that American courts may urge defendants not to insist on the limits on recovery. Nearly all American states have abandoned the practice of applying limits on recovery in domestic actions – only 4 states have retained them. Increasingly this has led Americans to question the admissibility of such limitations in international conventions. See Haikell, Donald M., The Warsaw Convention System and the U.S. Constitution Revisited, (1973) 39 JALC, p. 483Google Scholar; Kreindler, Lee S., Limitations on Liability in Aircraft Crash Cases, (1970) JALC, p. 467Google Scholar; cf. however, Carsey, and Maynard, , Survey of Recent Aviation Decisions, (1975) JALC, pp. 177, 182Google Scholar. Based on a survey of cases of 1974 these authors are of the opinion that the courts have consistently afforded airline companies the benefits of the Warsaw Convention. They refer to decisions of a Montreal court, a North Dakota and New York court. It is interesting to note that one of these cases involved K.L.M., viz., Brentwood Fabrics Corp. v. K.L.M., 3 Av. L. Rep. 17, 426Google Scholar. Most recently the question of the constitutionality of the Warsaw Convention has been raised in the Paris Aircrash Case of 1974 in the U.S. District court of California, 399 F supp. 732 (1975). The court observed, however, that at that moment the question did not have to be decided, as the Convention was held not to be applicable to the U.S.A. or the manufacturer of the aircraft, for reasons which were left unspecified. Since one of the defendants was Turkish Airlines, this reasoning is somewhat unclear.

3a. The possibility of jurisdiction based on attachment of Panam aircraft in the Netherlands may also be considered. Under Dutch law this is not permitted with respect to Dutch aircraft or aircraft registered in a country which has acceded to the Convention on Uniform Rules on Attachment of Aircraft of May 29, 1933. This Convention has been incorporated into section 770h-k Dutch CCPr. From Kluwer's edition List of Conventions p. 154 a, of June 1976, of Dutch Statutes it appears that the United States has not acceded to this Convention. For these reasons Panam may not be entitled to protection against attachment, so that jurisdiction over Panam in the Netherlands might possibly be based on the additional ground of attachment. See, however, the remarks with respect to Boeing and n. 15.

4. Erie RR. v. Tompkins, 304 U.S. 64 (1938)Google Scholar. See for diversity of citizenship, Rosenberg, , Weinstein, , Smit, , Elements of Civil Procedure, pp. 171, 177 (1970).Google Scholar

5. 313 U.S. 407 (1941).

6. 376 U.S. 612 (1964). In a similar case, Nolan v. Transocean Air Lines, 276 F.2d 280 (1960)Google Scholar the court reflected: “Our principle task in this diversity of citizenship case is to determine what New York courts would think that the Californian courts would think on an issue about which neither has thought”.

7. cf. Piewitt, David E., Federal Common Law of Aviation and the Erie Doctrine, (1974) JALC, p. 653Google Scholar; Keeffe, W., In Praise of Joseph Story, Swift v. Tyson, 18 Am. U.L.R., 316 (1968).Google Scholar

8. 504 F 2d 400 (7th. Circ. 1974); cf. (1975) JALC, p. 347 notes.

9. See for a general treatise, Rosenberg, , Weinstein, , Smit, , supra, p. 349Google Scholar. These rules constitute an appendix to the “Judiciary and Judicial Procedure”; see also n. 32.

10. See, for the particular problems of the application of these rules combined with consolidated multidistrict litigation, Kennedy, John F., Counterclaims, Crossclaims and Impleader in Federal Aviation Litigation, (1972) JALC, p. 325.Google Scholar

11. It may safely be assumed that leave for a class action will not be granted, see section IIIc.

12. See, for the general principles, Leflar, , American Conflicts Law (1968) pp. 55, 71, 99Google Scholar; Weintraub, , Commentary on the Conflict of Laws (1971) pp. 65, 103, 134Google Scholar; Ehrenzweig, , Private International Law, Vol. II, special part (1973) p. 20.Google Scholar

13. K.L.M. has offices in New York, San Francisco and Los Angeles. The Panam headquarters are located in New York, but Panam also maintains major branch offices in San Francisco and Los Angeles. Boeing's principal place of business is situated in Seattle, Washington, but it also has offices in New York and California and in the latter even substantial plants for the manufacture of aircraft and parts. It is possible that the jumbo jets concerned or parts thereof were made in California.

14. Hereafter referred to as Restatement (Second).

15. The term “General affiliating” jurisdiction means jurisdiction for all causes of action, the term “Specific” jurisdiction means jurisdiction for specific causes of action, such as those based on a specific sale contract or a specific lease contract; cf. the EEC Convention on Jurisdiction and Enforcement of Judgments of 1968, section 2 (general affiliating jurisdiction) and section 5 and chapter 3, 4 and 5 (specific jurisdiction). It is interesting to note that section 3 specifically excludes the jurisdiction of courts, if this is solely founded on the domicile of the plaintiff. This single basis for jurisdiction is however allowed under Dutch law; cf. the discussion on the possibility of the enforcement of a Dutch judgment against Boeing in the U.S.A. in section 1 (Introduction). Attachment of property of a non-domiciliary is only permitted as a precautionary measure, but it does not constitute a ground for jurisdiction for the dispute itself.

16. The authority for the proposition that “so continuous and substantial business” justifies general affiliating jurisdiction is said to be found in Perkins v. Benguet Consolidated Mining Comp., 342 US 437 (1952)Google Scholar. Von Mehren, and Trautman question this authority, Jurisdiction to Adjudicate: a Suggested Analysis, (1966) 79 Harv.L.R., pp. 1121, 1144.CrossRefGoogle Scholar

17. The long-aim statutes originate from the motor vehicle area. Particularly in this field it was felt necessary to compel a non-domiciliary motorist, causing an accident in a state, to appear in that state. The Restatement (Second) has endorsed this test in sections 36, 37 (individuals) and 49, 50 (corporations).

18. In Peters v. Robin Airlines (120 NY. S.2d 1, 1953)Google Scholar, however, it was held unconstitutional for a New York court to exercise jurisdiction in a wrongful death action resulting from a plane crash in California, when the sole basis for that jurisdiction was the fact that the defendant's plane had departed from New York (see Weintraub p. 110).

19. “conceivably” because, on the assumption that Boeing has committed a tort against the Dutch plaintiff, it may be difficult to determine the place of the tort. Usually it includes both the state where the tortious act occurs, and the state in which the act causes injuries, cf. Restatement (Second) sections 36, 37 and 49, 50. This reference may lead to California or Washington (place of manufacture), to any states where the defective parts have been marketed or to Spain (Tenerife) where the defects materialized and the injuries were sustained. See further Weintraub, pp. 114–125.

20. The remaining grounds for jurisdiction, in rem jurisdiction, based on the presence of property in the forum, and quasi in rem jurisdiction, based on attachment and garnishment of property in the forum, are not relevant for our further discussion. See, Comments, Long arm and quasi in rem jurisdiction and the fundamental test of fairness, (1970–71) 69 Mich. L.R., p. 300; Restatement (Second) sections 56–68.

21. Restatement (Second) section 125 provides that the local law of the forum determines who may or must be made party to proceedings, unless the substantial rights and duties of the parties would be affected by the determination of this issue.

22. Varkonyi v. S.A. Empresa de Viacao, 239 N.E. 2d 542 (NY. 1968)Google Scholar. This case involved a tort action between two aliens. It was held that the possibility of joinder by an American party was a sufficient ground for retaining jurisdiction.

23. An inconvenient forum for K.L.M., as it would be more natural if a Dutch claimant were to proceed against K.L.M. in the Netherlands.

24. See Section lib.

25. Volkskrant, , 2 04 1977.Google Scholar

26. Tribune, Herald, 29 03 1977Google Scholar. The newspaper does not report whether the surviving relatives are also Californian domiciliaries. See for a discussion of the consequences of the relatives not being Californian domiciliaries, section IVd.

27. It is obvious that a Californian court has jurisdiction in suits filed by its domiciliaries against defendants which all have at least branch offices in that state.

28. 14 passengers joined the flight in New York, most of them coming from and residents of Michigan.

29. See Section IIIb, c.

30. If inclined to apply the doctrine, American courts may require a statement from the defendant to the effect that he is prepared to pay the costs of the plaintiff and to waive possible restrictions on account of statutes of limitations. See, Ehrenzweig, supra p. 39Google Scholar; also Noyer, Maurice L., Problems of Federal and State Court Jurisdiction and Venue in Product Liability Litigation-Defendant's View, (1974) JALC pp. 637, 643; see also n. 22.Google Scholar

31. See Section IV.

32. See for an excellent survey of this field, (1974) 87 Harv. L.R. p. 1001 notes, The Judicial Panel and the Conduct of Multidistrict Litigation. The text of section 1407 and the Rules of Procedure of the Judicial Panel of Multidistrict Litigation and section 1404 as well as the Federal Rules of Civil Procedure can be found in U.S. Codes title 28 pp. 7584, 7582, 7733.

33. The protracted litigation in the anti-trust case against Electrical Equipment Inc. in the early 1960's finally prompted the institution of new procedural remedies. In that case 1900 civil actions with approximately 25000 claims were brought, filed in as many as 25 district courts; see Allister, Me, The Big Case: Procedural Problems in Anti-trust Litigation, (1950) 64 Harv. L.R., p. 27.CrossRefGoogle Scholar

34. See for a thorough exposition of the contents and purposes of the Manual (1969–70), 68 Mich. L.R. p. 303, Observations on the Manual for Complex and Multidistrict Litigation.

35. See Atkins, Clyde, An Apologia for Transfer of Aviation Disaster Cases under section 1407, (1972) JALC, pp. 205, 211Google Scholar. Mr. Atkins was a transferee judge in the Maracaibo Venezuela Crash.

36. As arbitrarily chosen examples may be mentioned guidelines and instructions with respect to counsel conferences and exchange of documents between individual counsel and the leading or liaison counsel (a small number of attorneys who represent the attorneys of the individual litigants).

37. See for the cost-saving aspect the articles cited in nn. 32, 34, 35.

38. See, e.g., Air Crash Disaster at Tweed-New Haven Airport, 343 F Suppl. 951 (1972)Google Scholar, Air Crash Disaster at Hannover, N.H., 342 F Suppl. 907 (1971).Google Scholar

39. A good example is the Paris aircrash litigation, consolidated in California. The manufacturer of the defective DC-10 aircraft, McDonnell Douglas, is incorporated in and has its main offices and works in California, and General Dynamics has major divisions, particularly for the production of aircraft parts, in California, whilst also most of the primary litigation originated from that state.

40. See 87 Harv. L.R. p. 1005, supra, n. 22.

41. Another possibility, but less likely, would be a transferee court in New York, where the headoffices of Panam are located and where Boeing and K.L.M. have branches. Moreover, some of the members of the crew of the Panam aircraft are domiciled in New York, should they also be summoned as defendants. The arguments in favour of consolidation in California appear, however, to outweigh those supporting consolidation in New York.

42. See 87 Harv. L.R. p. 1017, supra, n. 78. Based on a survey in the period after June 1973, the authors found that of 1189 individual cases no more than 100 were finally referred to the original court.

43. See Bailey, and Broder, , Role of the Trial Attorney in Mass Air Disaster Litigation, (1976) JALC, pp. 519, 520.Google Scholar

44. This has been the case in the Paris aircrash case for those plaintiffs who agreed to waive their claims for punitive damages. According to the Herald Tribune of 26–27 March 1977, settlement was reached with descendants of some of the crew members to the amount of $ 200,000 per descendant. The Herald Tribune of 1 April 1977 reports further that the Los Angeles jury awarded $ 253,000 to a Japanese family consisting of three persons. In all these cases the issue of liability was not further pursued. However, those plaintiffs who insist on punitive damages have now also to face trials on this point.

45. See for the “res ipsa loquitur” doctrine, (1975) JALC, p. 103Google Scholar notes, and Carsey and Maynard, p. 183, supra.

46. Such arrangements might well be endorsed by Lloyd's. In the Paris Aircrash Case three of the defendants – McDonnell Douglas, General Dynamics and Turkish Airlines – mutually agreed to share the damages of all plaintiffs, after having first filed cross- and counterclaims against each other. They preferred to remain silent as to the apportionment.

47. See 87 Harv. L.R. p. 1017, supra.

48. In the 1969 re Grain Shipment Case the Panel intimated that the section 1407 transfer was but the first step in the economic administration of cases.

49. See for a vigorous opponent: Von Kalinowski, J.O., The Power of a Transferee Judge to Transfer Liability and Damages Trial, (1972) JALC p. 137Google Scholar. A striking example of such cumulation is presented in Pfizer v. Lord, 447 F2d 122 (2d Circ. 1971)Google Scholar. A transferee court in Minnesota, where the accident occurred, gave final judgment under the combination of sections 1407 and section 1404, although none of the 31 cases originated from that state and none of the defendants or plaintiffs were domiciled in that state. The court justified its decision on the grounds that it had gained appreciable knowledge of the case and that it was therefore desirable that the pre-trial judge should also act as trial judge for the other issues. See also Me. Elhaney, A Plea for the Preservation of the “Worm's Eye View” in Multidistrict Aviation Litigation (1971) JALC, p. 49, Beatty, , The Impact of consolidated multidistrict Proceedings on Plaintiffs in Mass Disaster Litigation, (1972) JALC, pp. 183, 193.Google Scholar

50. See however Causey v. Panam, 66 F.R.D. 392 (E.D. Va. 1975)Google Scholar, where difficulties with respect to the choice of law issue caused the court to dismiss a motion for a class action. See also n. 55.

51. See for the general principles: Rosenberg, , Weinstein, , Smit, , p. 400, supra.Google Scholar

52. See Harris, Courtney, Aircrash Disasters-Class Actions, (1976) JALC, p. 255.Google Scholar

53. 350 F. Suppl. 624 (C D Calif. 1972).

54. 523 F.2d 1083.

55. Causey v. Panam, supra. This case involved an aircrash in Indonesia. A Virginia plaintiff moved for a class action on behalf of 17 U.S. citizens from 7 different states. See also (1976) JALC, p. 255 Hobbs v. Northeast Airlines 50 F.R.D. 76 (E.D. Pa. 1970).Google Scholar

56. See Harris, Courtney, supra, p. 328.Google Scholar

57. See (1969–70) 68 Mich. L.R., p. 328, supra.

58. Klaxon v. Stenton Electr. Mfg., supra.

59. Van Dusen v. Barrack, supra.

60. Bailey, F. Lee, Broder, Aaron J., Choice of Law in Mass Disaster Cases involving Diversity of Citizenship, (1972) JALC, pp. 285, 286Google Scholar. See for the retreat of the applicsation of state law, including its choice of law, in favour of that of federal law, n. 7 and the accompanying text.

61. The English text of the Convention can be found in Shawcross, and Beaumont, on Airlaw, 3rd ed. Vol. 2 (B328) p. 122.Google Scholar

62. Supreme Court (Hoge Raad) 22-12-1950, Netherlands Law Reports (N.J.) 1951, no. 222 (Lemmeiboot).Google Scholar

63. The implementation act can be found in Schuurman and Jordens, Wetboek van Koophandel (1976) p. 545. At the time of the amendment in 1960 the equivalent of Fr. 250,000 was Fl. 62,000.

64. The persons entitled to bring proceedings, are the surviving spouse, children or parents of the deceased, who were being supported by him. Section 24 (2) of the Warsaw Convention explicitly leaves open the question with respect to the range of plaintiffs and the grounds for recovery, cf. Goedhuis, , Handboek voor het Luchtrecht, 1943 pp. 262, 389.Google Scholar

65. Section 4 of the English Carriage by Air Act also adopts the limitations of the Warsaw Convention “whatever the nature of the proceedings”. See for a discussion of claims based both on tort and contract, McNair, , the Law of the Air 3ed. p. 200.Google Scholar

66. See for the general principles, Weintraub, pp. 201, 224, 226, supra; Leflar, , pp. 317–349, supra.Google Scholar

67. The use of this device has been strongly canvassed by W.L. Reese. See for a recent article by him, Depeçage, , a Common Phenomenon in Choice of Law (1973), 73 Col. L.R. p. 58.Google Scholar

68. 172 N.E. 2d 426 (1961).

69. 309 F 2d 553 (1962). In this decision the Kilberg doctrine was held not to violate the U.S. Convention. See Martin, J.A., Constitutional Limitations of the Choice of Law, (1976) 61 Cornell L.R. pp. 185, 223.Google Scholar

70. 191 N.E. 2d 179 (1963), which decision was further elaborated and refined in Tooker v. Lopez, 149 N.E. 2d 394 (1969)Google Scholar and Neumeier v. Kuehner, 286 N.E. 2d 454 (1972)Google Scholar. All three cases concerned the “host-guest” situation in car accidents.

71. 416 Pa. 1, 203 A 2d 796 (1964). A Pennsylvania domiciliary purchased a ticket in Pennsylvania and crashed in Colorado, which state at that time limited recovery to $ 25,000 and excluded certain items, whereas Pennsylvanian law was not as restrictive. Held: Pennsylvanian law applied; that state had a legitimate interest to safeguard the financial position of its domiciliaries, whereas Colorado had hardly any interest, as no Colorado parties were involved and consequently its policy to avoid speculative and large verdicts against its own domiciliaries required no consideration.

72. See for a casebook which is based on the functional approach, Von Mehren and Trautman, The Law of Multistate Problems, (1965).

73. The inclusion of “application of the better rule of law” has been advocated by some American authors, notably Leflar, supra, pp. 254–259Google Scholar and (1972) 72 Col. L.R. pp. 267–271, Symposium on Restatement (Second), The Torts Provisions of the Restatement (Second).

74. See Kinzy, H. Norman, Current Aviation Decisions in Conflicts of Laws, (1975) JALC, pp. 311, 313.Google Scholar

75. 194 N.W. 2d 164 (S.D. 1972).

76. 517 S.W. 2d 922 (Tex.C.A. 1975).

77. 295 F. Suppl. 1170 (N.D. 111. 1969).

78. cf. Klaxon v. Stenton Electric Mfg. Co., and Van Dusen v. Barrack, supra.

79. See further in particular Restatement (Second) section 156(2) (tortious character of conduct) and section 157 (2) (standard of care). Both sections suggest the application of the law of the state where the injury occurred. California has adopted the place of wrong, cf. Restatement (Second) section 145 (2) b, as opposed to the state where the injury occurred. In most of its tort sections a particular law is tentatively suggested, but always explicitly or implicitly under the proviso, “unless some other state has a more significant relationship to the occurrence and the parties with respect to the particular issue”.

80. The Montreal Agreement of 1966 provides that the airlines shall not avail themselves of the defenses of section 20.1. of the Warsaw Convention (absence of any fault). Hence a system of strict liability was introduced, thereby disposing of the issue of negligence. The Montreal Agreement is, however, a private agreement between the U.S. Civil Aeronautic Board and airlines, limited to flights originating, touching down or ending in the U.S.A., Under American pressure, K.L.M., along with most other airlines, has acceded to this agreement. With respect to flights not covered by this agreement some European countries and their national aircarriers have agreed to adopt generally the increased limitations of $ 58,000, whilst in principle retaining the defence of absence of fault.

81. In fact, the issue of negligence has lost its meaning between American plaintiffs and Panam, see previous note.

82. Restatement (Second) section 145(2) b.

83. It might be that the aircraft in question have been designed and manufactured, etc. in California. At any rate, major Boeing plants are located in that state, which to some extent confers some responsibility for the conduct of Boeing to the state of California.

84. The likelihood of Washington or Dutch law being applied with respect to possible toitious conduct of all three defendants is not great.

85. See, Heideman v. Rohl, n. 75, and Pratt v. Royder, n. 76, for the mechanical application of the lex loci delicti. See also Manos v. Transworld Airlines, n. 77, in which the court also arrived at the law of the state where the accident occurred, but not as a result of a mechanical approach.

86. This approach is exemplified by the ruling in the Paris aircrash case, see further Section IVd (damages).

87. See n. 83.

88. See, Manos v. Trans World Airlines, supra; Restatement (Second) section 171.

89. The U.S.A. is not a signatory to the Convention of Rome, 10 October 1952, on the liability of aircraft for damage against third parties on the ground surface, regardless of the question whether this Convention is applicable at all in this case.

90. See, for other interests to be taken account of, the last paragraph of this section on the Paris aircrash case.

91. See, for the particular problems in invoking foreign law, Schlesinger, Rudolf B., A recurrent Problem in Transnational Litigation; the Effect of Failure to Invoke or Prove the Applicable Foreign Law, (1973) 59 Cornell L.R. 1.Google Scholar

92. Before concerning oneself with the choice of law between California and Washington with respect to the rules of calculating the damages, one must direct oneself to the question whether there is a true conflict. Washington belongs to the states expressly allowing non-pecuniary damages, whilst Californian courts conclude likewise through a liberal construction of their laws, see Section V.

93. The same, of course, applies to the relatives of Dutch passengers.

94. In as far as the laws of the American states involved do not differ basically from Californian law, the application of the latter to all American plaintiffs does not appear to jeopardize the interests of these plaintiffs or their states. Dutch law, however, does differ considerably.

95. One may doubt whether equal treatment necessarily implies the application of the same law to plaintiffs domiciled in different states. The argument of simplicity may, however, be particularly strong if American plaintiffs are domiciled in numerous states. In the Paris aircrash case, Judge Peirson Hall described the choice of law in the various states and federal courts as “a veritable jungle”. He also referred to Forsyth v. Cessna Aircraft, 520 F 2d 608, discussing “the judicial nightmare” known as conflict of laws.

95a. 339 F. Suppl. 732 (1975).

96. 24 Cal. App. 3d 711, 101 Cal. Reptr. 314 (1972).

97. In as far as the crash was indeed caused only by a decompression explosion, the negligence on the part of Turkish Airlines was very limited. This does not have to be contradicted by the fact that Turkish Airlines acceded to the agreement on sharing the damages, as they would be implicated anyway in the claims for damages based on contract.

98. The frequency with which K.L.M. carries American, and more specifically also Californian, passengers is, nevertheless, a factor to be borne in mind.

99. Cf. Von Mehren, Arthur T., Special Substantive Rules for Multistate Problems: their Role and Significance in Contemporary Choice of Law Methodology, 1974 88 Harvard L.R. p. 347CrossRefGoogle Scholar. The author suggests the possibility of creating substantive rules, as a substitute for choice of law rules, which would reconcile the interests of the states involved, as opposed to the application of one set of laws to the detriment of other law systems.

100. See, for the general principles, Prosser, William L., The Law of Torts (1971) pp. 898–915.Google Scholar

101. 359 F 2d 349 (3 Cir. 1966).

102. See Prosser, , supra, p. 906.Google Scholar

103. See Finkelstein, , Pickrel, , Glasser, , The Death of Children, a Non-Parametric Statistical Analysis of Compensation for Anguish, (1974) 74 Col. L.R. p. 884.Google Scholar

104. The most prominent states in this group are Washington, Florida, Wisconsin and Michigan. Some states such as Maine, Virginia and West Virginia have set maxima of respectively $ 10,00, $ 25,000 and $ 10,000 on recovery for emotional distress, loss of companionship, etc.

105. Including Texas and California. In the Californian Paris aircrash case the non-pecuniary damages were held to include loss of society, namely, sustenance, guidance, education, love and affection, comfort and protection.

106. Including New York and Illinois.

107. See Peter Martin, supra. The author is a British sollicitor giving an appraisal of American attitudes to aircrash litigation and damages. He advocates the abolition of juries, who in his opinion are neither skillful enough nor satisfactorily equipped to assess damages. He further warns of the susceptibility of juries to unduly colourful pleading by trial attorneys. More generally the author is critical of the position of attorneys and the system of contingency fees.

108. See Finkelstein, , Pickrel, , Glasser, , supra, p. 892Google Scholar, who give the following examples of verdicts given in New York, a C group state, for death of minors: in 1962, 3 awards of $ 0, 1 of $ 3,250 and 1 of $ 10,975; in 1972, 1 of $ 98,000 for a 16 year old boy who was “heading for a dental career”; in 1971; 1 of $ 252,000 for a 16 year old boy with “tentative plans to become an attorney”.

109. The discretion of juries in determining the damages is, however, mitigated to the extent that the court may order a re-trial on the issue of damages, if it deems the jury's award to be unreasonably high. Under this threat the plaintiff may well be found prepared to settle for less.

110. See n. 3.

111. To be more precise, The Montreal Agreement, which has generally been adopted by K.L.M. (see n. 73), provides for a maximum of $ 58,000 exclusive of legal fees and costs, and of $ 75,000 inclusive, which distinction may cause additional disputes.