Appeals from a judgment of the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, after a trial on damages to a jury and, with respect to defendant United States of America, to the court, awarding plaintiff $6.5 million in damages for injuries sustained as a result of an air crash, and apportioning 60% of the damages against third-party defendant New York City Health and Hospitals Corporation. Judgment denying defendant Eastern Air Lines' defense of limitation of liability under the Warsaw Convention and Montreal Agreement reversed. Judgment against defendants reversed and a new trial on damages ordered, unless plaintiff accepts a remittitur to $2,850,000. Judgment apportioning damages affirmed.
Oakes, Newman, and Winter, Circuit Judges. Newman, Circuit Judge, dissenting in part.
This appeal, chock-full of incongruities and perplexities, involves the June 24, 1975, crash of Eastern Air Lines Flight 66 on its approach to John F. Kennedy Airport, a resulting $6.5 million verdict against Eastern and the United States, an apportionment of 60% of the damages against one of the impleaded defendants, a question of the application of the Warsaw Convention and Montreal Agreement, and a series of questions pertaining to the verdict and the judgments entered thereon. We find that the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, erred on the Warsaw Convention question, and that the verdicts are excessive as well as conflicting. We reverse on Eastern's Warsaw defense, and we reverse and remand for a new trial as to damages unless the plaintiff-appellee is agreeable to the remittitur we set forth below. We affirm, however, with respect to the apportionment of damages.
Stratis, a Greek seaman, sustained burns and a cervical fracture in the air crash. He was initially treated at Jamaica Hospital, owned and operated by The Jamaica Hospital, Inc. (Jamaica), and was then transferred to Harlem Hospital, owned and operated by the New York City Health and Hospitals Corporation (NYCHHC). On the fourth day of his stay at Harlem Hospital doctors discovered that Stratis was quadriplegic.
Stratis sued Eastern and the United States*fn1 to recover damages for his injuries. Eastern impleaded, and the Government cross-claimed against, Jamaica and NYCHHC, alleging that malpractice by the hospitals aggravated Stratis's neck injury and thereby caused his quadriplegia. All passenger actions arising out of the crash, which only 11 of the 124 persons on board ultimately survived, were consolidated on the issue of the liability of Eastern and the United States. On the eve of trial the United States consented to the entry of a liability judgment against it; Eastern went to trial and a jury found it negligent. This court affirmed, In re Air Crash Disaster at John F. Kennedy International Airport on June 24, 1975, 635 F.2d 67 (2d Cir. 1980).
The trial on the issues of Stratis's damages and the defendants' malpractice claims against Jamaica and NYCHHC culminated in a jury verdict awarding Stratis $6.5 million. The jury found that Jamaica was not liable, but that NYCHHC was negligent and was responsible for 60% of the damages. Because actions against the Government under the Federal Tort Claims Act "shall be tried by the court without a jury," 28 U.S.C. § 2402, the court used the jury verdict as an advisory one in its findings against the Government. As had the jury with respect to Eastern, the court concluded that the Government was liable to the extent of $6.5 million.
Curiously, the district court let the question of plaintiff's future expenses for attendant care if he remained in the United States go to the jury. Under the plaintiff's evidence this question could have been resolved in his favor to the tune of $2,002,000, projecting $52,000 a year over plaintiff's life expectancy of 38.5 years. In its findings against the Government, however, the district court found not only that the plaintiff had not established that he would be able to come to this country from his native Greece except on temporary visas for trial and the like, but that in accordance with the plaintiff's evidence the total amount needed for his attendant-care costs in Greece to the end of his life would be only $335,230. Thus the jury's verdict against Eastern probably contains $2 million in costs for attendant care within its $6.5 million total while the court's same total judgment against the United States contains only $335,000 for attendant care. This alone would require reversal of the judgment against Eastern; the evidence was insufficient, as the court noted in its findings against the Government, to permit reasonable persons to conclude that Stratis would receive attendant care in this country.
For clarity, we will discuss the facts pertaining to the Warsaw Convention question and the facts pertaining to damages separately.
I. Warsaw Convention and Montreal Agreement
Stratis successfully moved below for partial summary judgment striking Eastern's affirmative defense of limitation of liability under the Warsaw Convention*fn2 and Montreal Agreement.*fn3 Surprisingly, Stratis, who could not be affected by a limitation of Eastern's liability because he has the United States as a responsible defendant, is the only one of the parties who argues in his appellate brief that the Convention is inapplicable. The United States, which has everything to gain from having Eastern held not entitled to limit its liability, omits to discuss the point in its brief.
On June 23, 1975, Stratis was discharged from his Greek ship, the S.S. Paros, at Baton Rouge, Louisiana. Stratis had requested the discharge, apparently because he was suffering from phimosis. His Seamen's Articles, Greek law, and the immigration laws of the United States required that he be repatriated at the expense of the vessel's owner. Indeed, under United States immigration laws Stratis, along with the three other unlucky Greek seamen who were to be repatriated by way of Eastern Flight 66, had to make "definite arrangements" to depart from the United States before they could enter the country from their ship. 8 U.S.C. § 1282(a); 8 C.F.R. § 252.1(c), (d).
The vessel owner's agents accordingly arranged for transportation for the seamen on Delta Flight 412 on June 24 from Baton Rouge to New Orleans and on Eastern Flight 66 on the same day from New Orleans to New York. The seamen were then to connect with Olympic Airways Flight 418 from New York to Athens, also leaving on June 24. Stratis received a ticket covering only the domestic Delta and Eastern flights, though a prepaid ticket "advice" for Olympic Airways Flight 418 was evidently prepared in Olympic's New York City office. The information on this ticket advice was communicated by telephone to the American Airlines desk at John F. Kennedy International Airport, whose personnel operate the Olympic Airways station there. At the airport a ticket which lacked both a date of issuance and a validation stamp was issued for Stratis and a seat for him was confirmed. Validation would have been necessary before Stratis boarded but the deposition testimony of the Olympic revenue accounting manager, Spoulides, was that there was no reason that the ticket could not have been validated when issued.
Immigration and Naturalization Service Form I-408, dated June 23, 1975, was filed on behalf of Stratis in order to permit his entry into the United States. As required by INS regulations, the document specifically listed the seamen's "arrangements for departure from the U.S." as involving Delta Flight 412, Eastern Flight 66, and Olympic Flight 418, all on June 24, 1975. A telex dated June 25 from the vessel's agents in the United States to the vessel's agents in Greece, which contained news of ...