Home/Second Circuit/LeRoy ex rel. LeRoy v. Sabena Belgian World Airlines

LeRoy ex rel. LeRoy v. Sabena Belgian World Airlines

344 F.2d 266, 1965 U.S. App. LEXIS 6065
Court of Appeals for the Second Circuit·Decided March 31, 1965·No. No. 172, Docket 29044·Published·Cited by 16 cases

Opinions

LUMBARD, Chief Judge:

On February 13, 1955, a Sabena Belgian World Airways DC-6 crashed into the side of a mountain northeast of Rome, killing everyone aboard. This suit was brought against Sabena in the District Court for the Southern District of New York on behalf of the estate and children of one of the passengers, Paul LeRoy.

Because LeRoy was on an international flight, Sabena’s liability is governed by the Warsaw Convention, 49 Stat. 3000 (1934). Sabena therefore could avoid liability only by showing that “all necessary measures to avoid the damage” were taken. On the other hand, however, on the facts of this case, the plaintiff’s recovery is limited to $8,300 unless he establishes that Sabena was guilty of wilful misconduct.

Judge Murphy directed a verdict for the plaintiff for $8,300, but the question of wilful misconduct was submitted to a jury, which resolved it in the plaintiff’s favor. After a separate trial, without a jury, on the question of damages, Judge Murphy awarded $205,705. Both parties have appealed.

Sabena contends that the district court erred in admitting certain evidence and in its instructions to the jury. The plaintiff argues that it was error to take account of federal and state income taxes in estimating Paul LeRoy’s future net earnings and that the method used to discount the contributions which LeRoy would have made to his family to their present value was incorrect. We find no error in the rulings of the district court. However, as we find that the district court should have computed the award on somewhat different principles, we remand the case for recomputation of the award.

I. Wilful Misconduct

The Sabena plane crashed on the last leg of a Brussels-to-Rome flight; it should have been flying within a ten-mile wide airway between Florence and Rome. The plaintiff’s case begins with the fact that the site of the crash was over 30 miles east of the airway.

The plaintiff does not contend that the plane was off course as a result of wilful misconduct. Rather, he contends that the Sabena crew deliberately misled the Rome controller as to their position and that the controller therefore authorized a descent which, though it would have been safe within the airway, was fatal over the mountainous country to the east, where the plane was then flying.

The airway and crash site appear in approximate scale on the following diagram. The dashes mark the course taken by the plane under the plaintiff’s theory; the numbered circles indicate its hypothetical positions at one-minute intervals just before the crash.

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LeRoy ex rel. LeRoy v. Sabena Belgian World Airlines, 344 F.2d 266, 1965 U.S. App. LEXIS 6065 (2d Cir. 1965).

344 F.2d 266 (LeRoy ex rel. LeRoy v. Sabena Belgian World Airlines) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Jacques L. Leroy, Administrator Ad Prosequendum of the Estate of Paul Leroy, Deceased, and as Next Friend of Michael P. Leroy, Christine M. Leroy and Miren B. Leroy, Plaintiff-Appellee-Appellant v. Sabena Belgian World Airlines (Societe Anonyme Belge D'Exploitation De Lanavigation Aerienne), Defendant-Appellant-Appellee
344 F.2d 266 (Second Circuit, 1965)