Before: Mr. Justice REED, retired,* and WILBUR K. MILLER, Chief Judge, and BURGER, Circuit Judge.
of WILLIAM GORDON TULLER, deceased et al.
June 23, 1961 1961.CDC.114
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER
After the crash in shallow water, the crew evacuated most of the passengers to two rubber dinghies, which were moved along the side of the plane by means of ropes fastened to the fuselage. Tuller and another passenger made their escape through a rear window and stood on the tail of the airplane without life preservers. When their shouts were heard by the members of the crew in the second dinghy, the crew attempted to maneuver the dinghy around the wing. Finding the tow line too short, they cast off the line and attempted to paddle the dinghy to the tail, but their efforts were unsuccessful due to tide and wind and the inadequate size of the paddles. Additional ropes were available in the cockpit but were not used.The ship's officers made no effort to determine the condition of the passengers on the tail of the plane or to ascertain whether they had life vests.
For over four hours Tuller and his companion remained on the tail in a rising tide. Near dawn, information of the crash and its location finally reached the tower, and a launch was dispatched to the crash scene. Just as the launch approached, with the water by then chest high, Tuller lost his footing and slipped into the water; his body was later recovered. His companion was rescued.
A booklet inserted in the back of each seat of the plane stated that life vests could be found in one of three locations in KLM planes, but at no time was the matter of life vests brought to the attention of the passengers nor had they been told the specific location of the vests in this airplane or how they should be fastened or inflated.
The jury was instructed that under the Warsaw Convention, which the court ruled governed the liability of the airlines, the damages were to be limited to $8300 unless the defendants were guilty of "wilful misconduct," in which case the $8300 limit did not control. *fn1 The jury returned a verdict for the plaintiff in the amount of $350,000.
The appeal presents these issues:
(1) Was there sufficient evidence of "wilful misconduct" to go to the jury?
(2) Was there error in the reception in evidence of
(a) an Irish order pertaining to instruction on use and location of life vests,
(b) pages of a KLM manual relating to ditching procedures,
(c) the contract between KLM and SABENA,
(d) a statement made by the radio operator at a hearing before Irish authorities some twelve hours after the crash?
(3) Was there reversible error in the failure of the trial judge, absent request or objection, to clarify the impact of KLM's negligence on SABENA's liability?
(4) Was there sufficient evidence to support the damage award?
Evidence of Wilful Misconduct
At the close of the case appellants moved to dismiss the complaint for all amounts in excess of $8300 and for a directed verdict in favor of appellees for $8300 for want of evidence of wilful misconduct under the terms of the Warsaw Convention. In considering whether the appellants were, as they claim, entitled to the relief they sought by their motion we are, of course, obliged to take that view of the evidence most favorable to appellees and give them the ...