Hill Construction v. American Airlines

First Circuit

Hill Construction v. American Airlines

CourtCourt of Appeals for the First Circuit

DecidedJune 29, 1993

Docket92-1903

StatusPublished

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Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 92-1903

HILL CONSTRUCTION CORPORATION,
D/B/A HILL HELICOPTERS RENTAL SERVICE,
Plaintiff, Appellee,

v.

AMERICAN AIRLINES, INC.,
Defendant, Appellant.
__________
No. 92-1992

HILL CONSTRUCTION CORPORATION,
D/B/A HILL HELICOPTERS RENTAL SERVICE,
Plaintiff, Appellant,

v.

AMERICAN AIRLINES, INC.,
Defendant, Appellee.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________

Before
Breyer, Chief Judge,
___________
Torruella* and Selya, Circuit Judges.
______________
____________________

Ricardo F. Casellas with whom Jacqueline D. Novas and Fiddler,
___________________ ___________________ ________
Gonzalez & Rodriguez were on brief for American Airlines, Inc.
____________________
Jose E. Alfaro Delgado with whom Calvesbert & Brown was on
________________________ ___________________
brief for Hill Construction Corp.
____________________

June 29, 1993
____________________
_____________________
*Judge Torruella heard oral argument in this matter, and
participated in the semble but, after deciding that he should
recuse himself, he did not participate in the drafting or the
issuance of the panel's opinion. The remaining two panelists
therefore issue this opinion pursuant to 28 U.S.C. 46(d).

BREYER, Chief Judge. American Airlines appeals a
___________

judgment requiring it to pay approximately $22,000 to Hill

Construction Corporation as a result of American's having

temporarily lost, and then damaged, a helicopter blade that

Hill had asked American to ship from Puerto Rico to

California. American does not contest the fact of

liability. Rather, it argues that the court lacked the

power to award damages greater than the maximum permissible

under a contract provision limiting American's liability for

cargo "lost, damaged or delayed" to $9.07 per pound (a total

of $1,814 in this case). The district court found that the

"liability limitation" did not apply. In our view, however,

the limitation is valid and applicable. And, well-

established legal principles require us to reverse the

district court's determination.

I

Background
__________

The record, read favorably to Hill, shows the

following:

1) On August 10, 1990, a Hill Construction
employee brought a helicopter blade to
American Airlines' cargo terminal in San
Juan, Puerto Rico, and signed (on Hill's
behalf) an American "air waybill" -- a

contract that obliged American, in return for
payment, to ship the blade to California.

2) The air waybill said on its face that
provisions on its "reverse side" would
"limit" American's "liability for loss,
damage, or delay in certain instances." The
reverse side said, among other things, that
American's liability for cargo "lost,
damaged, or delayed" was limited to $9.07 per
pound (plus transportation charges) unless
the shipper declared a higher value and paid
an additional charge. Hill's employee did not
fill in the "declared value" box on the front
of the bill, nor did the employee, in any
other way, declare a higher value, nor did
the employee pay any additional charge.

3) American accepted the blade for carriage and
promptly lost the blade.

4) About seven months later, in March 1991, in a
San Juan air cargo warehouse near the sea,
American found a crate containing what it
thought was the missing blade. It contacted
Hill's "administrator," Ms. Dorothy Hill, who
came to the warehouse. An American employee
(contrary to Ms. Hill's advice) began to open
the crate with a forklift. Inside, Ms. Hill
found the missing blade, seriously damaged
both by the forklift and by the salty sea
air.

After these events, Hill Construction brought this

lawsuit against American. After a trial, the district court

found American "negligent in the handling of plaintiff's

cargo." It decided that the liability limitation either

was invalid or, alternatively, did not apply to so serious a

violation of the transportation contract. And, it

consequently awarded full compensatory damages of almost

-3-
3

$22,000, the value of the blade. American now appeals this

damage award.

II

The Law
_______

Where air carriage contracts set forth limitations

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USCA1 Opinion



UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 92-1903

                            HILL CONSTRUCTION CORPORATION,
                        D/B/A HILL HELICOPTERS RENTAL SERVICE,
                                 Plaintiff, Appellee,

                                          v.

                               AMERICAN AIRLINES, INC.,
                                Defendant, Appellant.
                                      __________
          No. 92-1992

                            HILL CONSTRUCTION CORPORATION,
                        D/B/A HILL HELICOPTERS RENTAL SERVICE,
                                Plaintiff, Appellant,

                                          v.

                               AMERICAN AIRLINES, INC.,
                                 Defendant, Appellee.
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________
                                 ____________________

                                        Before
                                 Breyer, Chief Judge,
                                         ___________
                        Torruella* and Selya, Circuit Judges.
                                              ______________
                                 ____________________

            Ricardo F. Casellas with whom  Jacqueline D. Novas and Fiddler,
            ___________________            ___________________     ________
          Gonzalez & Rodriguez were on brief for American Airlines, Inc.
          ____________________
            Jose  E. Alfaro  Delgado with  whom Calvesbert  & Brown  was on
            ________________________            ___________________
          brief for Hill Construction Corp.
                                 ____________________

                                    June 29, 1993
                                 ____________________
          _____________________
          *Judge  Torruella  heard  oral   argument  in  this  matter,  and
          participated in the  semble but,  after deciding  that he  should
          recuse himself, he  did not  participate in the  drafting or  the
          issuance of  the panel's  opinion.  The  remaining two  panelists
          therefore issue this opinion pursuant to 28 U.S.C.   46(d).

BREYER,  Chief Judge.  American Airlines appeals a
                                ___________

             judgment requiring  it to pay approximately  $22,000 to Hill

             Construction Corporation  as a  result of  American's having

             temporarily lost, and then  damaged, a helicopter blade that

             Hill  had  asked  American  to  ship  from  Puerto  Rico  to

             California.     American  does  not  contest   the  fact  of

             liability.   Rather,  it argues  that the  court  lacked the

             power to award damages  greater than the maximum permissible

             under a contract provision limiting American's liability for

             cargo "lost, damaged or delayed" to $9.07 per pound (a total

             of $1,814  in this case).  The district court found that the

             "liability limitation" did not apply.  In our view, however,

             the  limitation  is  valid   and  applicable.    And,  well-

             established  legal  principles  require  us  to  reverse the

             district court's determination.

I

                                      Background
                                      __________

                       The  record,  read favorably  to  Hill,  shows the

             following: 

                       1)   On  August  10,  1990,  a  Hill  Construction
                            employee  brought  a   helicopter  blade   to
                            American  Airlines'  cargo  terminal  in  San
                            Juan,  Puerto  Rico,  and signed  (on  Hill's
                            behalf)  an  American  "air  waybill"   --  a

contract that obliged American, in return for
                            payment, to ship the blade to California.

                       2)   The  air  waybill  said  on  its   face  that
                            provisions  on  its   "reverse  side"   would
                            "limit"   American's  "liability   for  loss,
                            damage, or delay in  certain instances."  The
                            reverse side  said, among other  things, that
                            American's   liability   for   cargo   "lost,
                            damaged, or delayed" was limited to $9.07 per
                            pound  (plus  transportation charges)  unless
                            the shipper declared a  higher value and paid
                            an additional charge. Hill's employee did not
                            fill in the "declared value" box on the front
                            of  the bill,  nor did  the employee,  in any
                            other way, declare  a higher  value, nor  did
                            the employee pay any additional charge.
              
                       3)   American  accepted the blade for carriage and
                            promptly lost the blade.

                       4)   About seven months later, in March 1991, in a
                            San Juan air  cargo warehouse  near the  sea,
                            American found  a  crate containing  what  it
                            thought was the missing blade.   It contacted
                            Hill's "administrator," Ms. Dorothy Hill, who
                            came to the warehouse.  An American  employee
                            (contrary to Ms. Hill's advice) began to open
                            the crate with a  forklift.  Inside, Ms. Hill
                            found  the  missing blade,  seriously damaged
                            both  by the  forklift and  by the  salty sea
                            air. 

                       After these events, Hill Construction brought this

             lawsuit against American.  After a trial, the district court

             found  American "negligent  in the  handling  of plaintiff's

             cargo."    It decided that  the liability limitation  either

             was invalid or, alternatively, did not apply to so serious a

             violation  of  the   transportation  contract.     And,   it

             consequently  awarded  full compensatory  damages  of almost

                                         -3-
                                          3

$22,000,  the value of the blade.  American now appeals this

             damage award.

                                          II

                                       The Law
                                       _______

                       Where air carriage contracts set forth limitations

             on  carrier cargo liability  in a "reasonably communicative"

             form and offer the shipper a choice of  paying a higher rate

             for greater protection,  federal courts have  normally found

             those  limitations lawful.   See  (1)  post-deregulation air
                                          ___

             carrier cases,  e.g., Deiro v. American  Airlines, Inc., 816
                             ____  _____    ________________________

             F.2d  1360, 1364-65 (9th  Cir. 1987); Husman  Constr. Co. v.
                                                   ___________________

             Purolator Courier Corp., 832 F.2d  459, 461 (8th Cir. 1987);
             _______________________

             Arkwright-Boston Mfrs.  Mutual  Ins. Co.  v.  Great  Western
             ________________________________________      ______________

             Airlines, Inc., 767 F.2d 425,  426-27 (8th Cir. 1985); First
             ______________                                         _____

             Pennsylvania Bank v. Eastern  Airlines, Inc., 731 F.2d 1113,
             _________________    _______________________

             1115, 1122 (3d  Cir. 1984); Reece  v. Delta Airlines,  Inc.,
                                         _____     _____________________

             731 F.  Supp.  1131, 1134  (D.Me.  1990); Neal  v.  Republic
                                                       ____      ________

             Airlines, Inc., 605 F.  Supp. 1145, 1148-49 (N.D.Ill. 1985);
             ______________

             see also Saul Sorkin, 2 Goods in Transit [hereinafter, Goods
             ________                ________________               _____

             in Transit]   13.07[1] at 13-79-82 & n.11,   13.07 [3][b] at
             __________

             13-90 & n.48  (1976 &  Supp. 1990) and  cases cited  therein
                                                _________________________

             (noting  continued  enforcement  of   liability  limitations

             despite deregulation of air carriers); (2) regulated carrier

-4-
                                          4

cases,  e.g.,  American  Cyanamid  Co.  v.  New  Penn  Motor
                     ____   _______________________      ________________

             Express, Inc., 979 F.2d 310, 313, 316 (3d Cir. 1992); Hughes
             _____________                                         ______

             Aircraft Co.  v. North  American Van  Lines, Inc.,  970 F.2d
             ____________     ________________________________

             609, 611-13 (9th Cir.  1992); Co-Operative Shippers, Inc. v.
                                           ___________________________

             Atchison,  Topeka & Santa Fe  Ry. Co., 840  F.2d 447, 451-52
             _____________________________________

             (7th Cir. 1988); Polyplastics, Inc. v. Transconex, Inc., 827
                              __________________    ________________

             F.2d  859 (1st Cir. 1987); Anton v. Greyhound Van Lines, 591
                                        _____    ___________________

             F.2d  103 (1st  Cir. 1978);  National Motor  Freight Traffic
                                          _______________________________

             Ass'n,  Inc. v.  Interstate Commerce  Comm'n, 590  F.2d 1180
             ____________     ___________________________

             (D.C. Cir. 1978), cert.  denied, 442 U.S. 909  (1979); North
                               _____________                        _____

             American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d
             _______________________    _______________________

             229, 232  (2d Cir.  1978); Dassin  v. Eastern  Airlines, 501
                                        ______     _________________

             F.2d 74 (9th Cir. 1974), cert. denied, 419 U.S. 1121 (1975);
                                      ____________

             Thomas  v. Trans  World  Airlines, 457  F.2d  1053 (3d  Cir.
             ______     ______________________

             1972);  Quasar Co. v. Atchison,  Topeka & Santa  Fe Ry. Co.,
                     __________    _____________________________________

             632  F.  Supp. 1106,  1111-13  (N.D.  Ill.  1986);  cf.  (3)
                                                                 ___

             statutes allowing limitations on  liability, e.g., 46 U.S.C.
                                                          ____

                1304(5) (carriage of goods at sea); 49 U.S.C.    10505(e)

             (rail carriers), 10730(b)(1) (motor  transport), 11707(c)(4)

             (common carriers).  

                       In  a  commercial  context, liability  limitations

             have  certain advantages.   They permit  a carrier  to avoid

             unforeseeably high liability for especially  valuable cargo;

-5-
                                          5

they permit shippers of ordinary items to pay somewhat lower

             freight bills; and they permit shippers of valuable items to

             choose between  paying an  insurance premium to  the carrier

             and obtaining,  perhaps less  expensive, insurance  on their

             own.   See Husman  Constr. Co., 832  F.2d at  462; cf.  Alan
                    ___ ___________________                     ___

             Schwartz  & Robert E.  Scott, Commercial Transactions 122-23
                                           _______________________

             (1991).  On  the other hand,  such clauses risk  unfairness,

             where,  for example, a shipper  is, in fact,  unaware of the

             limitation  and  his  choices.   Yet,  the  requirements  of

             reasonably communicative  notice and  an opportunity  to buy

             increased  coverage for a premium payment lessen the risk of

             unfairness.  And, as we  have said, balancing advantages and

             disadvantages,  both Congress and  the courts  have approved

             the use of such clauses. 

                       The contract before  us contains typical, standard

             form clauses  which reasonably communicate the limitation on

             liability.  The reverse side of the "air waybill" contains a

             series  of  clauses   setting  forth  transport  conditions,

             written in  ordinary sized  print and separated  by spacing.

             On the  copy submitted  at trial, these  clauses are  fairly

             easy  to read (except for the blurring of a few non-critical

             words that may reflect poor duplication).  The clauses  make

             clear that the  carrier limits its liability  for cargo that

-6-
                                          6

is "lost, damaged or  delayed" to $9.07 per pound,  but that

             the shipper may  avoid the limitation by declaring  a higher

             value and paying  a greater charge.   The front side  of the

             bill clearly refers the reader to the  back of the bill, for

             it  says, in  ordinary  sized type,  set  forth clearly  and

             separately from other words on the page:

                       This nonnegotiable airbill is a contract
                       governed by Law and by the provisions on
                       the  reverse  side.    Such  provisions,
                       among
                       other  things,  exclude  or   limit  the
                       Carrier's liability for loss,  damage or
                       delay in certain circumstances.
              
             The front side  of the  bill also contains  a box  captioned

             "declared  value," which, in this case, was left blank.  Cf.
                                                                      ___

             Federal Express v. Paris  Business Forms, Inc., 46 Pa.  D. &
             _______________    ___________________________

             C.  3d 262  (1988) (standard  provisions clearly  printed on

             front and reverse of airbill afforded sufficient opportunity

             to declare higher value).    

                       Ms. Hill  testified that American's agent  did not

             tell  either  her  or   her  employee  about  the  liability

             limitation clauses, and that, in fact,  neither she, nor her

             employee, knew about such  clauses.  But, we do  not believe

             that, in  these factual circumstances,  American was obliged

             to call the liability limitation to its customers' attention

             orally.  The  context is commercial.   Hill Construction had

-7-
                                          7

been in business  in Puerto  Rico for eighteen  years.   Its

             employees  had  previously  shipped  helicopter  parts  from

             Puerto  Rico to the mainland.  In this context, a reasonably

             prominent  writing, not  in  particularly  small print,  set

             forth  with reasonable  clarity on  the front  of a  printed

             airbill, would seem sufficient to communicate  the liability

             limitation,  or  at  least  to impose  upon  the  commercial

             customer a further obligation to read (rather than to impose

             upon the carrier a  further obligation to point to)  what is

             written. See Husman  Constr. Co.,  832 F.2d  at 461  (citing
                      ___ ___________________

             First Pennsylvania Bank, 731 F.2d at 1115); cf. Hopper Furs,
             _______________________                     ___ ____________

             Inc.  v. Emery Air Freight  Corp., 749 F.2d  1261, 1264 (8th
             ____     ________________________

             Cir. 1984).  

                       The carrier  also has fulfilled  its obligation to

             offer  a further  "insurance"  option.   The contract  makes

             clear  that the carrier can  declare a higher  value and buy

             full  coverage for an additional  fee.  Hill  has offered no

             evidence  to  suggest  that  the  amount  of  this  fee  for

             additional  cargo  protection was  unreasonable  for  an air

             carrier in American's market.

                       This  valid liability  limitation  applies in  the

             present  situation. The  provisions refer  to cargo  that is

             "lost, damaged or delayed,"  and the circumstances here fall

-8-
                                          8

within this language.  The clause is enforceable despite the

             fact  that American  may  never have  put  the blade  on  an

             airplane.   A remedial contract clause, such as this one, is

             designed  to  take  effect  precisely where,  as  here,  the

             carrier has  broken the basic  carriage contract.   As Judge

             Kaufman pointed out more than forty years ago, 

                       Only in case of a misdelivery, negligent
                       injury, loss or similar  misfortune does
                       a valuation clause come into use.  Hence
                       the  Federal  courts  have rightly  held
                       that the limitation of  liability clause
                       is  designed  for  and  does  survive  a
                       breach of the contract of carriage.

             Lichten  v.  Eastern Airlines,  Inc.,  87  F.Supp. 691,  697
             _______      _______________________

             (S.D.N.Y. 1949). Compare Restatement (Second) of Contracts  
                              _______ _________________________________

             237 (breach discharges other party's duties  under contract)
                                                  ______

             with, e.g., American  Cyanamid Co., 979 F.2d  at 316 (citing
             ____  ____  ______________________

             Quasar Co., 632 F.Supp. at 1108 (breach does  not invalidate
             __________

             liability-limiting  remedial  provision  designed to  govern

             consequences of breach)).  

                       Hill argues that a Ninth Circuit case, Coughlin v.
                                                              ________

             Trans World Airlines, Inc.,  847 F.2d 1432 (9th  Cir. 1988),
             __________________________

             is  to the  contrary, but  Coughlin involved  rather special
                                        ________

             circumstances.     A  special  contract   provision  gave  a

             passenger  the  right to  carry  valuables  in the  airplane

             cabin; the airline  refused to  allow a widow  to carry  her

-9-
                                          9

husband's ashes in  the cabin; the  airline lost the  ashes;

             and   the  court  (in  a  brief  per  curiam  opinion)  held
                                              ___________

             inapplicable  a provision  limiting the  airline's liability

             for  loss  of valuables.    Unlike this  case,  the Coughlin
                                                                 ________

             contract  involved a  separate, liability-limitation-related

             contractual promise,  namely  a promise  that the  passenger

             might  personally monitor  the  safety of  the valuables  by

             carrying  them in the cabin.   One might  read the liability

             limitation as  conditioned on  fulfillment of that  promise.

             See 2  Goods in Transit    13.07[4] at 13-90 &  n.49.  Then,
             ___    ________________

             since  the carrier did not permit the passenger to carry the
                                    ___

             ashes, it failed to satisfy the condition, and the liability

             limitation did not take effect.  See id. at 1433.  We do not
                                              ___ ___

             see how otherwise, consistent  with prior authority, to read

             this  case.   See, e.g.,  Pinion v.  Dow Chemical,  928 F.2d
                           ___  ____   ______     ____________

             1522, 1536 (11th  Cir.) (case should  be read as  consistent

             with prior precedent if possible), cert. denied,  112 S. Ct.
                                                ____________

             438 (1991).  And, as  so read, the case provides no  support

             for Hill's claim here,  where there is no  relevant special,

             liability-limitation-related  condition   that  the  carrier

             failed  to  fulfill.   As  we  have  just  pointed out,  the

             contract  here does  not condition the  liability limitation

             upon the carrier's satisfying  its basic, general promise to

-10-
                                          10

transport  the  goods, for  the  parties  normally intend  a

             liability limitation  to apply, not to  disappear, when this

             type of general promise is breached.  See pp. 8-9, supra.
                                                   ___          _____

                       Hill makes  one further argument.  It  points to a

             legal  doctrine,  called  the  "deviation  doctrine,"  which

             originated in maritime law.   Applying that doctrine, courts

             would  hold  liability limitations  inapplicable  when ships

             departed significantly from prearranged routes that they had

             promised to take.  See 2  Goods in Transit   13.13[1] at 13-
                                ___    ________________

             140-42  and cases cited therein.   Hill has  found two state
                     _______________________

             cases, construing  federal law, which applied  this doctrine

             outside the maritime context, where  the carrier acted so as

             "fundamentally"  to  change  the  foreseeable  risks to  the

             cargo.  See,  e.g.,  Information  Control  Corp.  v.  United
                     ___   ____   ___________________________      ______

             Airlines  Corp., 73 Cal. App. 3d 630 (1977); Philco Corp. v.
             _______________                              ____________

             Flying  Tiger  Line, Inc.,  171  N.W.2d 16  (Mich.  Ct. App.
             _________________________

             1969).  But see Grant Gilmore  & Charles L.  Black, Jr., The
                     _______                                          ___

             Law of Admiralty    3-42  at 182 (2d  ed. 1975)  ("deviation
             ________________

             doctrine"   limited  to   geographic  departures).     Given
                                       __________

             American's seriously  negligent  conduct, says  Hill,  those

             state cases require us to invoke the "deviation doctrine" to

             set aside the liability limitation here. 

-11-
                                          11

We do  not  believe,  however,  that  these  cases

             require the result  for which Hill  argues.  In each  of the

             state cases, the carrier made a special, separate promise to

             the shipper about special conditions of carriage designed to

             lessen the risk  of harm to the  shipper's particular cargo.

             In the  first  case, United  Airlines  promised  Information

             Control  Corporation (and  later  specially confirmed  in  a

             telephone  conversation)  that  it  would  place Information

             Control's  computers on  a specific  flight and  fly without

             stopovers.  See Information Control, 73 Cal. App. 3d at 632-
                         ___ ___________________

             33.   In the second case, Flying Tiger specifically promised

             Philco that  it would store its  computer materials upright.

             See Philco Corp., 171 N.W.2d at 17-18.  We suspect  that, as
             ___ ____________

             in  Coughlin, the  state courts  saw failure  to live  up to
                 ________

             these  separate,  risk-related   promises  (special  to  the

             particular shipment at issue)  as a "fundamental"  departure

             from conditions  precedent  to the  "boilerplate"  liability

             limitation's  taking effect.   See  Restatement (Second)  of
                                            ___  ________________________

             Contracts   203(c)  & cmt. e  (specific provisions or  later
             _________

             additions supersede more general contract language); Baloise
                                                                  _______

             Ins. Co. v. United Airlines, 723 F. Supp. 195, 199 (S.D.N.Y.
             ________    _______________

             1989)  (distinguishing Information Control where carrier was
                                    ___________________

             under no obligation to follow specific route).

-12-
                                          12

In the case  before us  there was no  breach of  a

             special transport  promise.   Nor was there  any "deviation"

             from the  kind of  thing one  might expect  to  find when  a

             carrier has  "lost, damaged, or delayed" cargo.   The record

             does  not  provide  adequate  basis for  a  court's  finding

             transportation-related circumstances that  fell outside  the

             range  of those in which  the parties intended the liability

             limitation to apply. See,  e.g., American Cyanamid, 979 F.2d
                                  ___   ____  _________________

             at 315 (citing Deiro, 816 F.2d at 1366 (liability limitation
                            _____

             valid   "regardless  of   the   degree   of  the   carrier's

             negligence")); Coughlin, 847 F.2d at 1433; C.A. La Seguridad
                            ________                    _________________

             v. Delta Steamship Lines, 721 F.2d 322, 325 (11th Cir. 1983)
                _____________________

             (limitation  valid where cargo  never delivered); Hellyer v.
                                                               _______

             Nippon  Yesen Kaisya,  130  F. Supp.  209, 210-11  (S.D.N.Y.
             ____________________

             1955) (same); Rockwell Int'l  Corp. v. M/V Incotrans Spirit,
                           _____________________    ____________________

             707 F.  Supp. 272,  273 (S.D.  Tex. 1989) (limitation  valid

             where damage occurred in warehouse);  Neal, 605 F. Supp.  at
                                                   ____

             1149 &  n.3 (suggesting  limitation valid  even  in case  of

             willful misconduct); Schiff v.  Emery Air Freight Corp., 332
                                  ______     _______________________

             F. Supp.  1057, 1059 (D. Mass.  1971) (distinguishing Philco
                                                                   ______

             to uphold limitation where  no intentional wrong shown); cf.
                                                                      ___

             Rocky Ford  Moving Vans,  Inc.  v. United  States, 501  F.2d
             ______________________________     ______________

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                                          13

1369,  1372 (8th  Cir.  1974) (refusing  to apply  deviation

             doctrine outside maritime law).

                       These  federal  rulings   apply  even  though  the

             negligence here was  serious, for (as  these cases show)  in

             the  absence of  some  special indication,  courts will  not

             impute  to  commercial  parties  (agreeing  to  a  liability

             limitation) an intent  to litigate the degree to which loss-

             causing negligence  was ordinary,  gross, or egregious.   We

             add that we have found a  case that suggests, in dicta, that

             the willful  nature of  misconduct might make  a difference.

             Glickfield v. Howard Van Lines, Inc., 213 F.2d 723, 727 (9th
             __________    ______________________

             Cir. 1954); cf. Schiff, 332 F.  Supp. at 1059.  But, we need
                         ___ ______

             not decide  whether or not we agree  with that dicta for, in

             this case, there is no showing of willfulness.

                       For   these   reasons,   the    district   court's

             determination that the liability limitation was inapplicable

             in  this case is reversed.  The  judgment is vacated and the

             case  is remanded  for further  proceedings consistent  with

             this  opinion.    (Our  disposition  of the  case  makes  it

             unnecessary to consider Hill's cross-appeal.)

                       So ordered. 
                       __________

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                                          14

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Hill Construction v. American Airlines, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-construction-v-american-airlines-ca1-1993.

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