In Re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D. Cal. 1975)

*733 *734 James G. Butler, Los Angeles, Cal., Lee S. Kreindler, New York City, Gerald C. Sterns, San Francisco, Cal., co-lead counsel, Wm. Marshall Morgan, Los Angeles, Cal., liaison counsel, Donald W. Madole, Chairman, Washington, D. C., Daniel C. Cathcart, Los Angeles, Cal., Richard D. Krutch, Seattle, Wash., discovery committee.

F. Lee Bailey, New York City, and Aaron J. Broder by Seymour Madow, New York City, Butler, Jefferson & Fry by James G. Butler, James M. Jefferson, Jr., Robert P. Fry, Michael A. K. Dan, Los Angeles, Cal., Goldfarb & Singer, Washington, D. C., Green, Royce & Seaman by Irving H. Green, Hodge & Hodges by John R. Skoog, Los Angeles, Cal., Horgan & Robinson by Mark P. Robinson, Los Angeles, Cal., Kreindler & Kreindler by Lee S. Kreindler, Melvin I. Friedman, Marc S. Moller, New York City, Krutch, Lindell, Donnelly, Dempcy, Lageschulte & Judkins, P. S. by Richard D. Krutch, Vernon T. Judkins, Seattle, Wash., Lewis, Wilson, Cowles, Lewis & Jones, Ltd. by Richard H. Jones, Arlington, Va., McGrail & Nordlund by Joseph V. McGrail, Washington, D. C., Magana & Cathcart by Daniel C. *735 Cathcart, James J. McCarthy, Los Angeles, Cal., Morgan, Wenzel & McNicholas by Wm. Marshall Morgan, Los Angeles, Cal., David Noble, Los Angeles, Cal., Paul, Weiss, Rifkind, Wharton & Garrison by Joseph S. Iseman, John J. O'Neil, New York City, Ray, Quinney & Nebeker by Marvin J. Bertoch, L. Ridd Larson, Salt Lake City, Utah, Shahin & Wawro by James Wawro, Sherman & Schwartz, Inc. by Arthur Sherman, Beverly Hills, Cal., Speiser & Krause by Stuart M. Speiser, Charles F. Krause, New York City, Speiser, Krause & Madole by Donald W. Madole, Washington, D. C., Walkup, Downing & Sterns by Gerald C. Sterns, Thomas G. Smith, Terence J. O'Reilly, San Francisco, Cal., Walsh & Levine by Laurence W. Levine, New York City, for plaintiffs.

Gibson, Dunn & Crutcher by Robert Forgnone, Los Angeles, Cal., Kirtland & Packard by Robert C. Packard, Jacques E. Soiret, Los Angeles, Cal., Mendes & Mount by James M. FitzSimons, Joseph J. Asselta, New York City, Tuttle & Taylor by William A. Norris, Joseph R. Austin, Marilyn T. Clare, Andrew Schepard, Charles Rosenberger, Los Angeles, Cal., for McDonnell Douglas Corp.

Overton, Lyman & Prince by Fred S. Lack, Jr., Ernest E. Johnson, Brenton F. Goodrich, Gregory A. Long, Los Angeles, Cal., for General Dynamics Corp.

Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for Brackett, Inc., and Fireman's Fund Ins. Co.

Adams, DuQue & Hazeltine by Thomas F. Call, Los Angeles, Cal., Condon & Forsyth by George N. Tompkins, Jr., Desmond T. Barry, Jr., Frank A. Silane, New York City, Latham & Watkins by Philip F. Belleville, A. Vic-Los Angeles, Cal., McKenna & Fitting by Daniel N. Belin, Los Angeles, Cal., Milbank, Tweed, Hadley & McCloy by Edward J. Reilly, Russell E. Brooks, New York City, Shaw, Pittman, Potts & Trowbridge by Phillip D. Bostwick, Jay H. Bernstein, Washington, D. C., for Turkish Airlines, Inc.

William D. Keller, U. S. Atty., Los Angeles, Cal., James R. Dooley, Asst. U. S. Atty., Los Angeles, Cal., John Laughlin, Herbert L. Lyons, Sp. Attys., Torts Section, Aviation Div., Dept. of Justice, Neil Eisner, Federal Aviation Administration, Washington, D. C., for the United States.

PEIRSON M. HALL, Senior District Judge.

Before getting to the points involved in the several motions, a general statement concerning this Aegaéonic^[1] case is in order.

On March 3, 1974, shortly after takeoff from Paris, France, a Douglas DC-10 passenger airplane owned and operated by Turkish Air Lines^[2] crashed in France, destroying the plane and killing all human occupants (346) aboard, 13 of whom were crew.^[3] The number of dependents and claims are *736 unknown, but unofficial estimates have placed that number at about 1,000.

There are 203 suits involving 337 decedents arising from that crash pending in this court. One hundred ninety-one were initially filed here and transferred to the undersigned judge under our local "low-number" rule. Ten were transferred here from other districts under 28 U.S.C. § 1407 by the Judicial Panel on Multidistrict Litigation and given MDL Docket No. 172. Each of the 203 suits have cross-claims, third-party complaints, or counterclaims, some amended as many as three or four times. All the cross-claims have numerous special defenses, one as many as 20. All of the local and transferred cases were assigned MDL Docket No. 172, and the undersigned judge was designated by the MDL Panel under 28 U.S.C. § 1407.

THY filed one suit in this court (CV-74-1526-PH) for $35,000,000+ for hull damage and loss of use and for contribution or indemnity. It was transferred to the undersigned judge for all purposes under our local rules and is consolidated with MDL 172. Among its causes of action, THY has one for strict product liability against McDonnell Douglas and General Dynamics. McDonnell Douglas has cross-claimed in that case for contribution and indemnity against THY, exculpating itself and claiming that the sole cause of the crash was THY, as has General Dynamics, which cross-claimed against McDonnell Douglas and THY and counterclaimed against McDonnell Douglas's third-party complaint against General Dynamics.

That case and all the other cases have been separated on the issue of liability from damages and consolidated with the lead cases and with each other for discovery and related matters.

A deposition discovery schedule on liability and an exhibit depository were set up shortly after the cases were filed. The schedule required that beginning in July, 1974, the parties would spend two weeks on and one week off on depositions, which schedule they have quite rigidly held even though the lawyers on the Plaintiffs' Discovery Committee and defense counsel come from New York, Washington, D.C., State of Washington, and other distant places. Even so, the Court's latest information is that only 12 witnesses were completed by the end of May.^[4] Discovery on damages commenced in each case upon filing and has proceeded apace with all the tools of discovery except depositions.

Several motions, each important enough to require one full week of argument, have been made. Some have been acted upon, and some have not. Some of the plaintiffs made a motion for a partial summary judgment on liability, which, after full argument and briefs, was denied from the bench. The Court has written no memorandum upon that decision delineating its reasons because it felt that the less said by the Court on that subject, the better. The plaintiffs have a right to renew the motion, and neither side should be prejudiced by a determination of what facts are or are not material or what facts to support a judgment exist without genuine issue.

All of the motions have been copiously documented and excellently briefed and argued. But the questions are so numerous *737 that, it seems, before one set of arguments and briefs can be read and thought through, another critical matter requiring the Court's immediate attention has arisen. The matters submitted and not yet decided concern the constitutionality and application of the Warsaw Convention of 1929, the Hague Protocol, and the Montreal Agreement; the value of gold French francs of 1929 to be considered as against the official value of the gold French franc today, if the Warsaw Convention applies; separate trial of issues and parties; applicability of the California Consumer Credit Act; a motion for summary judgment by defendants against the plaintiffs' claim for punitive damages; and choice of law on liability and damages.

Opinions were in various stages of preparation on all of said subjects until May 27 and 29, 1975, when McDonnell Douglas, General Dynamics, and THY announced in open court that they had informally just agreed to a formula among themselves for sharing all damages so that the matter of liability need not be litigated, but that all claims could be disposed of by settlement, or trial, on the issue of damages. Certain conditions were attached, and the matter was continued so that the agreements could be formalized. But more of that later.

As to the Warsaw Convention and its corollary questions, the Court deferred decision because the Supreme Court has repeatedly said that a constitutional question should not be decided until it is necessary; and it may not be necessary in this case to decide the constitutionality or validity or application of the Warsaw Convention, the Hague Protocol, or the Montreal Agreement, or of any one of them. At least it is not necessary at this time, for reasons which would be inappropriate to mention here and now.

Motions were heard and submitted on the right to punitive damages, decision on which also is not necessary at this time.

The United States filed a motion to dismiss all of the plaintiffs' complaints on the ground that the accident occurred in France and that, under 28 U.S.C. § 2680(k), it could not be sued under those terms of the Tort Claims Act which provide:

"The provisions of this chapter and section 1346(b) of this title shall not apply to

(k) Any claim arising in a foreign country."

All of the acts or failures to act of the United States upon which plaintiffs rely are alleged in the complaints to have occurred in the United States, in the State of California, by the wrongful approval, certification, inspection, and the like, of the plane, or the failure to do so, by the United States, and by its failure to require changes in the structure of portions of the plane and follow-through before and after delivery of it, even though those acts or failures came to fruition in another state or in a foreign country. Roberts v. United States, 498 F.2d 520, 522, fn.2 (9th Cir. 1974): "Under the FTCA, a tort claim arises at the place where the negligent act or omission occurred and not where the negligence had its `operative effect,' (i.e., the situs of injury). Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962)"; Aanestad v. Beech Aircraft Corp., 521 F.2d 1298 (9th Cir. 1974, June 20, 1974); L. D. Reeder Contractors v. Higgins Industries, 265 F.2d 768, 773-74, fn. 12 (9th Cir. 1959), quoting 47 Geo.L.J. 342, 351-52 (1958). Thus, none of the claims against the United States for death, as alleged in the complaints, is a "claim arising in a foreign country." All of the conduct, whether "act or omission," on the other hand, occurred as the result of acts allegedly arising, i.e., occurring, in California, and, under 28 U.S.C. § 1346(b), resulted in "claims against the United States, for money damages, accruing . . . for . . . death caused by the negligent or wrongful act or omission of any employee of the Government *738 while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." [emphasis added.] Hence, under the allegations of the complaints, the law of California, including its "choice-of-law" rule, was, and is, applicable to the United States.

Counsel for the United States requested a certification for a "quick" appeal under 28 U.S.C. § 1292(b), which was forthwith denied. On May 9, 1975, the United States applied to the United States Court of Appeals for a Writ of Mandamus, which was denied without opinion on May 23, 1975.

As previously mentioned, on May 27 and 29, 1975, defendants in open court made an offer to negotiate settlements with the claimants of each of the 337 decedents or to try damages only. The offer was made on the condition that if plaintiffs abandon any claim for punitive or exemplary damages, "[l]iability will not be contested [by defendants], if a case cannot be settled, . . . any place, any time, anywhere by anybody at any time, for any reason whatsoever."^[5] Some of those asking punitive damages objected, but inasmuch as the defendants had only come to agreement the night before, the Court stayed all discovery and all further proceedings pending the resolution of questions raised by counsel for plaintiffs and the finalization of details of an agreement between defendants for the proposal to settle, and continued the matter to June 16, 1975, for further report and consideration, and again continued it to July 8, 1975.

At that time, i.e., July 8, 1975, counsel for defendants McDonnell Douglas, General Dynamics, and THY announced they had come to complete agreement among themselves as to sharing the damages of all the plaintiffs and had formalized it in writing, but that such agreement was to be and to remain confidential among them. At the request of the Court, to which all defendants consented and no plaintiffs objected, the defendants submitted the contract to the Court for its perusal in camera. This was done on the understanding that the Court would not make it part of the files, in camera^[5a] or otherwise. There being no objection on the part of the plaintiffs, the Court read the contract in camera; and, at the request of the defendants, outlined in open court the "bare bones" of its terms, to the effect that, as to all claims arising from the deaths of the passengers and crew, and as to all property claimants, the defendants would settle, or try damages only, on a compensatory basis, and would secure a release therefor and for all punitive or exemplary damages, good in all courts; but if any plaintiff insisted on punitive or exemplary damages, he would have to go to trial on liability as well as on compensatory and punitive damages. Such trial would, of course, include the United States as a defendant, from whom punitive damages cannot be had. There was no objection of consequence from any of the plaintiffs.

The Court then announced it was preparing an opinion (his opinion) that the applicable law on measure of damages was the California law, as Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974), expanded the phrase "pecuniary loss" as used in admiralty. (48 U.S.C. §§ 761-768)

The Court deems it proper that the specific elements of damage not be stated here, but left to be settled at the conference on jury instructions.

One group of Japanese plaintiffs made a demand that said defendants make an admission of fault. The Court explained to one of the Japanese counsel, who was present, that in settlements an admission of fault was not customary or required; that this Court would not require such an admission in the event a *739 case is compromised; that where an offer of settlement is made, it is unlawful in California to use it as evidence at a trial for any purpose, either fault or damages; and that that is so because in many cases one of the greatest motivations for settlement comes from the desire to avoid a court record of fault. The defendants declined to make such admission or to reconsider or change their proposal.

The same group of Japanese plaintiffs requested that the Court use the Japanese law for the Japanese claimants because they assert Japanese law is more liberal than California law. They requested a certification for quick appeal, which is hereby denied for the reason that it will not materially advance the ultimate termination of the litigation. On the contrary, it would indefinitely delay it, because final decision from the appellate courts would likely not be forthcoming for two years, during which time the parties would be unsure of what standards should be used in the measure of damages of any claimant, and it would probably halt all settlements and even halt discovery on damages as well as trial on damages.

The Court directed the defendants to create four teams of negotiators to deal simultaneously with the 337 death claims pending in this court, and continued the matter to 10:00 a.m., July 9, 1975, for a report from defendants and for such further matters as might be brought before the court.

On July 9, 1975, the defendants announced they had agreed on three teams instead of four: (1) one team to deal with the 160 cases filed by the Speiser & Madole group of law firms; (2) one team for the 82 cases represented by Walkup, Downing & Sterns and the crew cases; and (3) one team for the 66 cases represented by the Morgan and Kreindler group of law firms and for all other cases not included in the above. No objection was made by any counsel.

The Court thereupon continued all matters to August 25, 1975, at 2:00 p.m., for a report on progress of settlement, and stayed discovery on liability until then, indicating that if substantial progress in settlement were made by then, the stay order would be continued, and if substantial progress had not been made by then, the Court would vacate the stay of discovery and order the matter to proceed and get ready for trial on the issue of liability and damages.

Although some counsel have urged the Court to defer to an indefinite date a decision on the question of the law applicable to damages, it seems that advance resolution of that issue is necessary in evaluating the claims for purposes of settlement.

Various arguments have been advanced as to which law should be applied on damages. These include: (1) California, (2) domicile of decedents, (3) domicile of claimants, (4) France, (5) Japan, and (6) California plus French "moral" damages.

We come now to the merits of the questions raised by the motions for determination of the choice of law applicable to damages in this case, with its own unusual set of facts.

The law on "choice of law" in the various states and in the federal courts is a veritable jungle, which, if the law can be found out, leads not to a "rule of action" but a reign of chaos dominated in each case by the judge's "informed guess" as to what some other state than the one in which he sits would hold its law to be. In Wilbur v. Mullaney, 496 F.2d 1303 (1st Cir. 1974), the Circuit Court and District Court agreed on the interpretation of state law, but the State Court not only disagreed with both of them but also with "the propriety of [their] effort to interpret it." 496 F.2d at 1305. Most of the cases are involved with such a "guess" as to the law of one other state or perhaps as many as three. Here, if the rule laid down in some cases (not California) were followed, this Court would have to "guess" what the courts in 24 foreign and 12 domestic jurisdictions would hold on the facts in this case, including their *740 "choice-of-law" rules, and who knows what laws of what country or state that would lead to.

Nevertheless, it is my task to discover, if possible, the way damages should be assessed in this case.

The Court is not unmindful of the June 26, 1975, opinion of the Ninth Circuit in Forsyth v. Cessna Aircraft Co., 520 F.2d 608, which discussed "the judicial nightmare known as Conflicts of Laws." [emphasis supplied.] Suit was for damage to a plane on the grounds of products liability, rather than for wrongful death or personal injuries. The plane was manufactured and sold in Kansas; the plaintiff's residence and the place of the crash were both Washington; and the suit was filed in Oregon.

The District Court held that: The product was defectively designed; under the Oregon conflict-of-laws rule the law of Kansas applied; and Kansas having no product liability law, the action was barred by the Kansas statute of limitations. The Appellate Court reversed the District Court, holding that the Kansas statute of limitations did not bar the action, and directed the District Court to enter appropriate findings on strict liability and, if found, assess the damages. Nothing was said about the choice of law on damages in any of the three separate opinions written by each judge. This suggests the conclusion that the choice of law on liability should also be the choice of law on damages. It is interesting to note in the Forsyth case (Oregon) that reference is made to the place of the accident, while California law adopts the place of the wrong.

The three opinions in Forsyth omit discussion on some points which are important in this litigation. There is no mention made of (1) the alternative purpose of strict liability, viz., deterrence; (2) the distinction which should be made between the place of the wrong and that of the accident if the wrong is in defective design or manufacture, it occurred at the time and in the place of design and manufacture; the place where it came to fruition is purely fortuitous; (3) the rights of the manufacturer. In short, the discussions in Forsyth assume that the place of the accident governs compensation to all injured within the borders of that state. Under that analysis, the Court would apply French law to determine the damages by the designers and manufacturers in the Paris crash, certainly an undesirable result which could not have been so intended under the California decisions.

In the Forsyth case the Court cited with approval a Kansas case which, in turn, cited with approval the following from Richards v. United States, 369 U.S. 1, 11-12, 82 S. Ct. 585, 592, 7 L. Ed. 2d 492 (1962): "The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of the injury to the substantive rights of the parties." Richards did not follow that reasoning in holding that Oklahoma, the place of the alleged negligence, applied the law of the place of death (or accident causing the death) under Oklahoma's conflict-of-laws rules, thus leading to the decision that under Oklahoma law, the law of Missouri (the place of the accident) controlled over Oklahoma's more liberal law.

Upon recourse to the Richards case, we find the above-quoted statement was an historical recital of conflict-of-law rules. It was immediately followed by the statement (369 U.S. at 12, 82 S.Ct. at 592): "Recently there has been a tendency on the part of some States to depart from the general conflicts rule in order to take into account the interests of the State having significant contact with the parties to the litigation.26 We can see no compelling reason to saddle the Act [Tort Claims] with an interpretation that would prevent the federal courts from implementing this policy in choice-of-law rules where the State in which the negligence occurred has adopted it."^[6] [emphasis supplied.]

*741 Using the reasoning for that decision (Richards), California has seen fit to adopt a well-defined policy of "governmental interest" in its choice-of-law rule set forth in several California cases, but best expressed in Hurtado v. Superior Court, 11 Cal. 3d 574, 114 Cal. Rptr. 106, 522 P.2d 666 (1974).

California's choice-of-law rule on damages is not statutory, but has been developed by case law. Under it, in an ordinary case, if diversity of citizenship were the only basis of jurisdiction, this Court would be required to follow the law of the domicile^[7] at the time of the crash [Reich v. Purcell, 67 Cal. 2d 551, 63 Cal. Rptr. 31, 432 P.2d 727 (1967)] of each of the plaintiff litigants in the United States and the domiciles of the thousand or so foreign claimants, which are presently unknown to this Court, although the decedents are reported to have been nationals of 24 countries. In spot-checking some of the cases, it was noted that the "domicile" of some of the claimants of the same decedent at the time of the crash was in different states or countries than the decedent or each other, which means, if the California rule were to be applied, the heirs or dependents of one decedent would have as many as two or more states or countries apply their individual and different damage rules to the heirs of the same decedent.

Taking one of the cases at random (No. CV-75-255-PH), the heirs are alleged, at the time of the crash, to be citizens and domiciliaries distributed among four countries, viz., France, United Kingdom, Morocco, and Israel. This is not the only case with such a divergence, which produces an unanswerable enigma. If the law of damages of each country controlled, i.e., if in one country (or state) beneficiaries are limited to linear descendants, in another they may be lateral descendants, and in another they may be dependents regardless of blood affinity, and if one country (or state) limited damages, another imposed a penal fine regardless of damages (Colorado), and another permitted punitive damages, the result would be chaotic, and against the faintest instinct for justice by unequal results to those standing in the same relationship to each other and to the decedent.

The three death cases in California discussing choice of law [Hurtado v. Superior Court, 11 Cal. 3d 574, 114 Cal. Rptr. 106, 522 P.2d 666 (1974) ; Kelley v. Von Kuznick, 18 Cal. App. 3d 805, 96 Cal. Rptr. 184 (1971); Reich v. Purcell, 67 Cal. 2d 551, 63 Cal. Rptr. 31, 432 P.2d 727 (1967)] each do not discuss which controls, whether the domicile of the claimant or of the decedent; but Reich held the domicile of the litigants at the time of the death of the decedent controlled.

So far as the Court can find out from all sources available to it without violating the prohibition of the appellate court, the decedents were from 24 countries, and at least 12 states of the United States were represented among the suits filed a total of 36 jurisdictions. According to information furnished voluntarily by THY, the human occupants of the plane came from the following countries: Argentina, Australia, Belgium, Brazil, Canada, Cyprus, Denmark, England (United Kingdom), France, India, Northern Ireland (United Kingdom), Republic of Ireland, Italy, Japan, Morocco, New Zealand, North Korea, Pakistan, *742 Senegal, South Viet Nam, Switzerland, Turkey, United States, and West Germany. (Claimants are from all of these countries plus Israel and Sweden.) So far, it presently appears to the Court that claimants are from the states of California, Indiana, Kansas, Maryland, New Jersey, New York, Pennsylvania, South Carolina, Texas, Utah, Virginia, and Washington. How many countries or states are actually involved as to either claimants or decedents neither the Court nor his staff has had time to tabulate, and accurate and complete information has not been supplied to the Court by the parties.

The Court decided from the bench in the early stages of the proceedings, without written opinion, that the law of California and the United States statutes and regulations applicable to these cases would govern the matter of product liability and negligence as well as all other grounds for liability, and that a decision on the choice of law on damages would be deferred to a later date. In view of the agreement among defendants, liability will not be further discussed in this Memorandum.

The complexity of the problem of the choice of law applicable to damages is further illustrated by some facets of the distinctions in the conflicts rules of the 12 states listed above: Five of them use the "significant contacts" (state-with-substantial-ties-to-a-transaction) approach, sometimes interchangeably with "governmental-interest" or "public-interest" approach; six apply the "place-of-the-wrong," i.e., accident, approach; and California specifically uses the "governmental-interest" approach, and such governmental interest exists when the act or omission which ultimately caused the accident occurred in California.

The measure of damages recoverable also varies: One state limits the amount to $50,000; another, to $75,000; four allow full recovery with varying limitations; one has full recovery plus pain and suffering and mental anguish; and five use "compensatory" and, in some instances, "pecuniary."

No standard or rules for choice of law on damages (where there may be a conflict) of any of the foreign nations involved has been cited to the Court by the parties, and none has been found on independent research, although the parties have set forth the elements of the measure of damages in death cases in some, but by no means all, of the countries involved.

The objective of the governmental-interest approach is "to determine the law that most appropriately applies to the issue involved." Reich v. Purcell, supra, at 554, 63 Cal. Rptr. at 34, 432 P.2d at 730. The search must consider the interests of the litigants and involved states. One case illustrating such a search includes a situation involving a state of the United States vis-a-vis a political entity of a foreign country. Kasel v. Remington Arms Co., 24 Cal. App. 3d 711, 101 Cal. Rptr. 314 (1972).

The Kasel Court indicated [p. 731, 101 Cal.Rptr. p. 327] that "[t]he forum has a definite interest in applying its own law," and it "`will be displaced only if there is a compelling reason for doing so.' It is `applicable unless either the plaintiff or the defendant has been forced into a forum devoid of any such contact as would justify application of its own law.' Ehrenzweig, Conflict of Laws (1962) § 213, p. 555."

"[W]hen the defendant is a resident of California and the tortious conduct giving rise to the wrongful death action occurs here, California's deterrent policy of full compensation is clearly advanced by application of its own law." Hurtado, supra, 11 Cal. 3d at 584, 114 Cal. Rptr. at 112, 522 P.2d at 572. [Emphasis supplied.]

Hurtado indicates that limitation on damages by a state modifies the previous California rule, considering only the plaintiff's best interest, by a countervailing, or "balancing," concern to protect local defendants against excessive *743 financial burdens for the acts involved. It says:

"It is important, therefore to recognize the three distinct aspects of a cause of action for wrongful death: (1) compensation for survivors, (2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages recoverable. Reich v. Purcell recognizes that all three aspects are primarily local in character. The first aspect, insofar as plaintiffs are concerned, reflects the state's interest in providing for compensation and in determining the distribution of the proceeds, said interest extending only to local decedents and local beneficiaries (see fn. 4, ante); the second, insofar as defendants are concerned, reflects the state's interest in deterring conduct, said interest extending to all persons present within its borders; the third, insofar as defendants are concerned, reflects the state's interest in protecting resident defendants from excessive financial burdens.

In making a choice of law, these three aspects of wrongful death must be carefully separated. The key step in this process is delineating the issue to be decided." 11 Cal. 3d at 584, 114 Cal. Rptr. at 112, 522 P.2d at 572.

In the instant case, all three issues compel application of the California law of damages.

Footnote 4 referred to above in Hurtado has this quotation from Reich v. Purcell, supra, at 556, 63 Cal. Rptr. at 35, 432 P.2d at 431:

"Wrongful death statutes create causes of action in specified beneficiaries and distribute the proceeds to those beneficiaries. The proceeds in the hands of the beneficiaries are not distributed through the decedent's estate and, therefore, are not subject to the claims of the decedent's creditors and consequently do not provide a fund for local creditors. Accordingly, the interest of a state in a wrongful death action insofar as plaintiffs are concerned is in determining the distribution of proceeds to the beneficiaries and that interest extends only to local decedents and beneficiaries."

Applying this to our case, California has no interest in the distribution of proceeds to foreign beneficiaries, but is interested mainly in (1) deterring conduct of its defendants, (2) avoiding the imposition of excessive financial burdens of its resident defendants, and, I now add, (3) providing a uniform rule of liability and damages so that those who come under the ambit of California's strict product liability law and market their product outside of California and/or in foreign countries may know what risks they are subject to when they make and sell their products. Under the holdings of Reich and Hurtado, California courts would not apply foreign standards which limit recovery, and would hold that the foreign jurisdiction has no interest in so holding because the latter has no California resident defendant to protect.

When a foreign jurisdiction would allow greater recovery than California, a more liberal standard should NOT be adopted. Gordon v. Eastern Air Lines, 391 F. Supp. 31 (S.D.N.Y.1975). The case arose in the Florida Everglades crash case. After the defendant eliminated liability in Florida in the multidistrict litigation proceedings, the case was returned for damage trial to New York, which was plaintiff's residence and the place where the case was originally brought. The case analyzed various jurisdictions to see which had the strongest interest in the outcome, much the same as what California terms the "governmental-interest" approach, and applied New York's measure of damages instead of the Florida law, which permits higher measures of damages. Since conduct was not involved, the place of defendant's business (Florida) was insignificant, and the fact that it was also the crash site was fortuitous. It was argued that Florida also had an interest in promoting tourism, which might be furthered by inducing carriers to exercise *744 greater care through awards of greater damages. This was answered by saying that due care was not in issue since liability was eliminated and that Florida has no interest in how much a New York jury gives a New York resident in a New York court. The Court found New York public policy to be to protect its own residents against unfair foreign laws, but not to enhance recovery by application of more liberal foreign rules. To allow this would induce forum shopping.

Applying the same principles, the California courts would protect resident defendants and would not allow enhanced recovery to plaintiffs because of the fortuitous place of the crash or residence of the litigants. A fortiori California would not allow nonresidents a greater recovery than the law of this forum allows its own resident plaintiffs.

The Third Circuit recently refused to apply its own law because of lack of activity in the state by the defendant. Since it involved strict product liability and used the "governmental-interest" approach, the holding and language are of interest: A state having a liberal products liability law has as its primary purpose the compensation of plaintiffs for injuries. An alternate purpose is to exact compensation from the tortfeasor in order to deter future misconduct, citing Hurtado. Since in the Third Circuit case the tortious conduct was wholly outside the state (Pennsylvania), that policy of deterrence would not be effective and, hence, not fostered. Henry v. Richardson-Merrill, Inc., 508 F.2d 28 (3rd Cir. 1975). By analogy, since the tortious conduct in this Paris case was within the State of California, the deterrent policy would be fostered by applying local law.

The Henry case, at page 34, quotes from Comment, False Conflicts, 55 Cal.L.R. 74, 80-81:

"Laws of a state . . . are not designed to dispose of all conceivable cases, but only of those having factual contact with the state such that it may be affected by the outcome of the suit. A state is so affected when one of the persons it presumes to protect is a party to the dispute, when misconduct it finds culpable transpired within the state, when its courts are invoked to resolve a dispute it wishes to avoid, or when persons with a financial stake in the litigation are residents of the state." [Emphasis supplied]

There is no question that three of the four defendants have actual contacts with California, and they will be affected by the outcome of this MDL litigation. The acts and omissions alleged occurred here, and plaintiffs have chosen to bring their suits in this forum. It is, therefore, fitting that the latter be bound by a measure of damages designed to deter misconduct, yet to protect resident defendants against excessive claims.

Counsel for some Japanese claimants, as do counsel for a large block of other claimants, argue that inasmuch as both Japan and France have a broader base for calculating damages, which should result in higher verdicts, the Court should apply Japanese law to the Japanese claimants and French law to all others, including Americans. If that argument were adopted, then it seems to the Court that it would violate the defendants' rights in that it would deny to the defendants the equal protection of the laws guaranteed by the Fourteenth Amendment to the U. S. Constitution. Kasel, supra, 24 Cal. App. 3d at 741, 101 Cal. Rptr. 314, specifically refuses to adopt a rule that the law most favorable to a plaintiff, whether he be a resident or a nonresident, a citizen or an alien, be applied. Moreover, the Japanese and other foreign plaintiffs voluntarily filed here, and "[h]e who takes the benefit must bear the burden" (Cal.C.C. § 3521) is as much a part of the California law as its judge-created conflict-of-laws rule.

It has been argued that the California policy of deterrence will not be impaired by applying foreign law, but that begs the question. Generally a forum applies its own law, and it is *745 incumbent on a litigant who wishes to apply the law of a foreign state to demonstrate that the latter rule of decision "will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it." Hurtado, supra, at 581, 114 Cal. Rptr. at 110. That has not been shown here.

Early in these proceedings defendants urged the application of English law of damages (considerably lower than California's) because plaintiffs should not be entitled to recover more than they could recover under the law of their residence. The same argument was rejected in Hurtado, at page 586, 114 Cal. Rptr. at page 114, saying:

"Limitations of damages express no such state interest. A policy of limiting recovery in wrongful death actions `does not reflect a preference that widows and orphans should be denied full recovery.'"

As for those countries or states where recovery would be less than by applying California law, surely they have no interest in limiting recovery of their resident plaintiffs as against a nonresident of their country or state which is a defendant here. Surely the interest of those states would be satisfied so long as there is full recovery for "such damages as may be just," as California allows. Where there is no showing that a foreign interest is greater, or where the interests are equal, California will apply its own law. See Bernhard v. Harrah's Club, 42 Cal. App. 3d 1024, 1032, 117 Cal. Rptr. 351 (1974).

The Court in this case must consider more than the California governmental interest. It must include the United States interest in this multi-nation situation, as was recently pointed out in Challoner v. Day and Zimmerman,^[*]Inc., 512 F.2d 77, 82 (5th Cir. 1975).

Challoner was a suit filed in Texas for the death of a Tennessee resident and serious injury of a Wisconsinite caused by premature explosion in Cambodia of a howitzer round manufactured in Texas. The Court held the manufacturer strictly liable and applied Texas law, relying on the principles of Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1963) [incorrectly cited as "Greenbaum"]. Texas conflict of law applies lex loci rules, which the Court refused to follow. Possibly most important to us is one of the reasons for not applying Cambodian law, which is certainly an excellent reason for not applying domiciliary law of foreign nations and states in the Paris cases:

"A third and final reason for not applying Cambodian law lies in the very nature of this Court. We are a Court of the United States, an instrumentality created to effectuate the laws and policies of the United States. We conclude that in this case we have no warrant, legal or moral, to frustrate well established American policies by an application of the local policies of a foreign government." 512 F.2d at 82.

It would be as improper to apply forum law merely because it allows a higher return as it would be improper to apply foreign law merely because it allows a lower return; and the converse is true.

Mention has been made of the argument that applying California law on damages would put the California designers and manufacturers at a competitive disadvantage, although it is not clear just how or why this would result from applying the California law on damages. On the contrary, the state of residence of designers and manufacturers has a most significant interest in applying its measure of damages to a product distributed throughout the world for the sake of uniformity of decisions involving such designers and manufacturers, to give only one reason.

*746 Moreover, it must not be forgotten, inasmuch as the United States has preempted the field of regulating aviation [City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973)] to the extent that no plane manufactured anywhere in the United States can fly without a United States certificate of airworthiness, that the United States Government has as much, or greater, interest in the products which it certifies as airworthy as any state or any nation in order to insure the integrity of its products in this very competitive world market and also to insure that anyone coming within the ambit of strict products liability shall know that its liability for a defect shall be uniform, no matter where or how the defect is discovered, through accident or otherwise.

As a corollary to the aforementioned integrity of the product put in commerce, the United States has a great concern with its designers and manufacturers of such product. Anyone injured throughout the world should be assured that he can obtain recourse under the law of the state of design and/or manufacture. There is no indication that the designers or manufacturers would be amenable to process or otherwise liable to suit in any other nation of the world. On June 17, 1974, in arguing a motion to dismiss on the ground of forum non conveniens, counsel for McDonnell Douglas suggested that if the Court granted its motion in connection with a suit brought on behalf of an English decedent, McDonnell Douglas would agree to a condition that it consent to jurisdiction in England, without assurance that England would accept this attempt to confer jurisdiction. McDonnell Douglas refused to agree that it was or would be amenable to suit in every foreign country and state of the United States potentially involved. Clearly it is not compatible with American principles of justice and fairness that liability and damages should be determined in accordance with the whim or volition of a defendant designer or manufacturer.

Title 14, Code of Federal Regulations, Part 25,^[8] which deals with "Airworthiness Standards: Transport Category Airplanes," alone has 365 sections dealing in hundreds of explicit details (among others, "Pressurized Cabin Loads") concerning the requirements in the construction of an airplane before it can be certified as "airworthy." The FAA recently issued an Air Directive to change the design of all wide-bodied jets in the interests of safety. Thus, it is clear that the United States interest in and control over the design, manufacture, and maintenance of all aircraft designed and manufactured in the United States are continuing concerns.

The Court can take judicial notice^[9] that: The DC-10 plane was designed, constructed, manufactured, and tested in California; it is known throughout the world; it is in direct domestic, foreign, and international competition with wide-bodied jets manufactured abroad as well as with other American-made jets; McDonnell Douglas advertises that the DC-10 is sold to and used by 34 carriers, 25 of which are foreign; according to FAA statistics, there were 110 DC-10's in service throughout the world on March 4, 1974; the airlines using the DC-10 fly into 83 countries or protectorates; 113 foreign cities are serviced by regularly scheduled flights of the DC-10. The number of million or billion passenger miles flown annually by the DC-10's domestically and internationally is not available, but every mile is a danger to the passenger if he *747 is flying in a plane whose design and construction cannot withstand the decompression explosion caused by a sudden opening into its pressurized baggage compartment. "For every wrong there is a remedy." (Cal.C.C. § 3523.)

Clearly the United States and the State of California both have governmental interests in applying the law of California, a state of the United States, in the measure of damages for each claimant, which interests are significantly greater than the interest of the countries or states of which either the decedents or claimants are citizens.

The United States having no general statute promulgating the measure of damages in a death case, the Court, under the Rules of Decision Act (28 U.S.C. § 1652), must, and will, apply the California measure of damages, which is "such damages . . . as . . . may be just."^[10]

In addition to the above, the elements of the measure of damages of the states of the United States whose citizens have sued here are not of enough difference to apply any other law than California's. In doing so, in view of the federal interest, this Court will adopt the liberalization over California's interpretations of the phrase "pecuniary loss" as laid down by the Supreme Court in Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974).

On the face of their texts, neither Warsaw nor Hague, nor Montreal, apply to the United States or to McDonnell Douglas or General Dynamics.^[11]

Challoner, supra, refused to follow the forum's choice of law, as dictated by Klaxon v. Stentor, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). Instead, the Court held that there is a federal choice of law which must be followed. That holding is a natural outgrowth of the Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir. 1974), cert. denied sub nom. Forth Corp. v. Allegheny Airlines, Inc., 421 U.S. 978, 95 S. Ct. 1979, 95 S. Ct. 1980, 44 L. Ed. 2d 470 (1975), ruling that federal law should be used to determine the rights and liabilities of parties where there is a dominant federal interest. In Kohr, at page 403, the Court said:

"The basis for imposing a federal law of contribution and indemnity is what we perceive to be the predominant, indeed almost exclusive, interest of the federal government in regulating the affairs of the nation's airways. Moreover, the imposition of a federal rule of contribution and indemnity serves a second purpose of eliminating inconsistency of result in similar collision occurrences as well as within the same occurrence due to the application of differing state laws on contribution and indemnity. Given the prevailing federal interest in uniform air law regulation, we deem it desirable that a federal rule of contribution and indemnity be applied."

The interest of the federal government in regulating the design and manufacture of aircraft is just as intensive, pervasive, exclusive and great as its interest in regulating the "affairs of the nation's airways." [See, Appendix A.] The preemption by the federal government of the entire field of aviation is illustrated in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973), and in Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 64 S. Ct. 950, 88 L. Ed. 1283 (1944).

This Court has previously held that the Federal Aviation Act of 1958 does create a private cause of action under both the federal question and regulation of commerce clauses.^[12]

*748 Recently the Supreme Court set forth the factors which are relevant in determining whether a private remedy is implicit in a statute not expressly providing one. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26, decided June 17, 1975, sets them forth on page 78, 95 S.Ct. on page 2087 of the opinion:

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted . . .?" It is obvious from the discussion in the Gabel case that the overwhelming interest of the legislation is in safety. If the safety is not that of the passengers, then the Act has no meaning at all; and the first place to begin on safety is in the design and manufacture of aircraft.

Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? The legislative history shows the purpose of creating the Federal Aviation Administration was to avoid the division of responsibility which had arisen under previous legislation, to unify agencies for "Air-Safety Legislation," and to give the new administrator power to, among other things, "[m]ake and enforce safety regulations governing the design and operation of civil aircraft." (italics added) Pub.L. 85-726, 1958 U.S.Code Cong. & Admin.News, p. 3741 et seq.

Third, is it consistent with the underlying purposes of the legislative scheme to employ such a remedy for the plaintiff? This can also be answered affirmatively under the same discussion as for the previous question. As a general rule, when legislation provides a particular remedy or remedies, courts should not expand coverage to subsume other remedies, but even the most basic principles of statutory construction must yield to clear contrary evidence of legislative intent. Passenger Corp. v. Passengers Assn., 414 U.S. 453, 458, 94 S. Ct. 690, 38 L. Ed. 2d 646 (1974). Clear intent on the part of Congress to provide against the improper design and manufacture of aircraft is found in the Federal Aviation Act, 49 U.S.C. § 1506, which says, inter alia: "[T]he provisions of this chapter are in addition to such remedies" of the states. Where conduct was tortious, it was held that a private remedy would lie for persons on whose behalf a regulation was made. Fitzgerald v. Pan American Air Lines, 229 F.2d 499 (2d Cir. 1956); Errion v. Connell, 236 F.2d 447 (9th Cir. 1956). See also, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed 60 (1803); Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L.Ed 939 (1945); Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); and other cases cited and discussed in Gabel v. Hughes Air Corp., 350 F. Supp. 612 (C.D.Cal.1972).

Finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law? The converse, of course, is true since the federal regulation of aviation is so pervasive as to preempt state attempts at any such regulation. City of Burbank v. Lockheed Air Terminal, Inc., supra.

It is plain that there is a clearly articulated federal right in these plaintiffs to enforce rights arising from their decedents' deaths when flying in planes which allegedly are unsafe. The Constitution provides in Articles 3, Section 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; . . . between . . . the Citizens [of a State] and foreign States, Citizens or Subjects." [emphasis supplied.] Title 28 of the United States Code, Section 1332(a) (2), provides *749 for diversity jurisdiction in amounts exceeding $10,000 where the action is between "citizens of a State and foreign states or citizens or subjects thereof." [emphasis supplied.] There is also a long line of cases beginning with The Sapphire, 78 U.S. (11 Wall) 164, 20 L. Ed. 127 (1870). The Court stated, in that case, on that proposition, the following:

"The first question raised is as to the right of the French Emperor to sue in our courts. On this point not the slightest difficulty exists. A foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here, may prosecute it in our courts. To deny him this privilege would manifest a want of comity and friendly feeling. Such a suit was sustained in behalf of the King of Spain in the third circuit by Justice Washington and Judge Peters in 1810. The Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens, or subjects, without reference to the subject-matter of the controversy." [emphasis supplied.]

As previously noted, the Court has ordered all cases in this multidistrict litigation consolidated with the lead cases, Nos. CV-74-698-PH and CV-74-808-PH, and with each other, and severed as to liability and damages. Included in these are several cases from other districts, of which some mention must be made, in particular, those from other states.

A transferee court is required to follow the laws of the transferor state in various matters. Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964), makes this explicit in a transfer under 28 U.S.C. § 1404(a); and the same principles apply to transfers under 28 U.S.C. § 1407.

At the Court's request, counsel for each of the cases transferred from other states have submitted briefs concerning the choice of laws in the respective states concerning liability and damages. It is clear that there is no substantial difference in any of them from the laws of this forum. Kansas has a $50,000 limitation of liability, but the interest of California and the Federal Government override the interest of Kansas; and California law will apply over Kansas law as well as over the law in the cases from all other states.

By California C.C.P. § 377 and California case law under it, there can only be a single gross sum awarded for the death of any decedent [Watkins v. Nutting, 17 Cal. 2d 490, 498, 110 P.2d 384 (1941)]; and allocation, distribution, and apportionment of that single sum is to be made by the judge by the command in Cal.C.C.P. § 377 that "[t]he respective rights of the heirs and dependent parents in any award shall be determined by the court," in a separate proceeding (Watkins, supra, at 498, 110 P.2d 384). This memorandum deals with the elements of the "single sum" of damages for the death of a decedent, and distribution of that sum will have to be dealt with on a case-by-case basis as it arises.

The Court, in conclusion, for the reasons hereinbefore stated, holds that the "governmental interest" of both California and the United States, or either of them, outweighs any and all other interest of any State or Nation in determining the measure of damages in these cases; that California law applies because of California's "governmental interest"; and that the California law governs damages under the Rules of Decision Act, 28 U.S.C. § 1652, because of the overriding interest of the United States in the design and manufacture of aircraft.

Part 25       Title 14  Aeronautics and Space
PART 25  AIRWORTHINESS STANDARDS:
  TRANSPORT CATEGORY AIRPLANES
             Subpart A  General
Sec.
25.1     Applicability.
25.2     Special retroactive requirements.
              Subpart B  Flight
                  GENERAL
25.21    Proof of compliance.
25.23    Load distribution limits.
25.25    Weight limits.
25.27    Center of gravity limits.
25.29    Empty weight and corresponding
          center of gravity.
25.31    Removable ballast.
25.33    Propeller speed and pitch limits.
    PERFORMANCE: RECIPROCATING ENGINE
           POWERED AIRPLANES
25.45    General.
25.47    Wing flap position.
25.49    Stalling speeds.
25.51    Takeoff.
25.55    Takeoff speeds.
25.57    Accelerate-stop distance.
25.59    Takeoff path.
25.61    Temperature accountability.
25.65    Climb: all engines operating.
25.67    Climb: one engine inoperative.
25.69    Climb: two engines inoperative.
25.75    Landing.
       PERFORMANCE: TURBINE ENGINE
            POWERED AIRPLANES
25.101   General.
25.103   Stalling speed.
25.105   Takeoff.
25.107   Takeoff speeds.
25.109   Accelerate-stop distance.
25.111   Takeoff path.
25.113   Takeoff distance and takeoff run.
25.115   Takeoff flight path.
25.117   Climb: general.
25.119   Landing climb: All-engine-operating.
25.121   Climb: One-engine-inoperative.
25.123   En route flight paths.
25.125   Landing.
    CONTROLLABILITY AND MANEUVERABILITY
25.143   General.
25.145   Longitudinal control.
25.147   Directional and lateral control.
25.149   Minimum control speed.
                   TRIM
25.161   Trim.
                 STABILITY
25.171   General.
25.173   Static longitudinal stability.
25.175   Demonstration of static longitudinal
          stability.
25.177   Static directional and lateral stability.
25.181   Dynamic longitudinal, directional,
          and lateral stability.
                   STALLS
25.201   Stall demonstration.
25.203   Stall characteristics.
25.205   Stalls: Critical engine inoperative.
25.207   Stall warning.
       GROUND AND WATER HANDLING
           CHARACTERISTICS
25.231   Longitudinal stability and control.
25.233   Directional stability and control.
25.235   Taxiing condition.
25.237   Wind velocities.
25.239   Spray characteristics, control, and
           stability on water.
      MISCELLANEOUS FLIGHT REQUIREMENTS
25.251   Vibration and buffeting.
25.253   High-speed characteristics.
            Subpart C  Structure
                  GENERAL
25.301   Loads.
25.303   Factor of safety.
25.305   Strength and deformation.
25.307   Proof of structure.
               FLIGHT LOADS
25.321   General.
   FLIGHT MANEUVER AND GUST CONDITIONS
25.331   General.
25.333   Flight envelope.
25.335   Design airspeeds.
25.337   Limit maneuvering load factors.
25.341   Gust loads.
25.343   Design fuel and oil loads.
25.345   High lift devices.
25.349   Rolling conditions.
25.351   Yawing conditions.
       SUPPLEMENTARY CONDITIONS
25.361   Engine torque.
25.363   Side load on engine mount.
25.365   Pressurized cabin loads.
25.367   Unsymmetrical loads due to engine
          failure.
25.371   Gyroscopic loads.
25.373   Speed control devices.
     CONTROL SURFACE AND SYSTEM LOADS
25.391   Control surface loads: general.
25.393   Loads parallel to hinge line.
25.395   Control system.
25.397   Control system loads.
25.399   Dual control system.
25.405   Secondary control system.
25.407   Trim tab effects.
25.409   Tabs.
25.415   Ground gust conditions.
25.427   Unsymmetrical loads.
25.445   Outboard fins.
25.457   Wing flaps.
25.459   Special devices.

*751
Chapter I  Federal Aviation Administration      Part 25
          GROUND LOADS
Sec.
25.471   General.
25.473   Ground load conditions and assumptions.
25.477   Landing gear arrangement.
25.479   Level landing conditions.
25.481   Tall-down landing conditions.
25.483   One-wheel landing conditions.
25.485   Side load conditions.
25.487   Rebound landing condition.
25.489   Ground handling conditions.
25.491   Takeoff run.
25.493   Braked roll conditions.
25.495   Turning.
25.497   Tail-wheel yawing.
25.499   Nose-wheel yaw.
25.503   Pivoting.
25.507   Reversed braking.
25.509   Towing loads.
25.511   Ground load: unsymmetrical loads
           on multiple-wheel units.
          WATER LOADS
25.521   General.
25.523   Design weights and center of
           gravity positions.
25.525   Application of loads.
25.527   Hull and main float load factors.
25.529   Hull and main float landing conditions.
25.531   Hull and main float takeoff condition.
25.533   Hull and main float bottom pressures.
25.535   Auxiliary float loads.
25.537   Seawing loads.
      EMERGENCY LANDING CONDITIONS
25.561   General.
25.563   Structural ditching provisions.
            FATIGUE EVALUATION
25.571   Fatigue evaluation of flight structure.
25.573   Fatigue evaluation of landing gear.
          LIGHTNING PROTECTION
25.581   Lightning protection.
       Subpart D  Design and Construction
                   GENERAL
25.601   General.
25.603   Materials.
25.605   Fabrication methods.
25.607   Fasteners.
25.609   Protection of structure.
25.611   Accessibility provisions.
25.613   Material strength properties and
          design values.
25.615   Design properties.
25.619   Special factors.
25.621   Casting factors.
25.623   Bearing factors.
25.625   Fitting factors.
25.629   Flutter, deformation, and fall-safe
           criteria.
25.631   Bird strike damage.
             CONTROL SURFACES
25.651   Proof of strength.
25.655   Installation.
25.657   Hinges.
             CONTROL SYSTEMS
25.671   General.
25.672   Stability augmentation and automatic
           and power-operated systems.
25.673   Two-control airplanes.
25.675   Stops.
25.677   Trim systems.
25.679   Control system gust locks.
25.681   Limit load static tests.
25.683   Operation tests.
25.685   Control system details.
25.689   Cable systems.
25.693   Joints.
25.697   Lift and drag devices, controls.
25.699   Lift and drag device indicator.
25.701   Flap interconnection.
               LANDING GEAR
25.721   General.
25.723   Shock absorption tests.
25.725   Limit drop tests.
25.727   Reserve energy absorption drop
          tests.
25.729   Retracting mechanism.
25.731   Wheels.
25.733   Tires.
25.735   Brakes.
25.737   Skis.
              FLOATS AND HULLS
25.751   Main float buoyancy.
25.753   Main float design.
25.755   Hulls.
   PERSONNEL AND CARGO ACCOMMODATIONS
25.771   Pilot compartment.
25.772   Pilot compartment doors.
25.773   Pilot compartment view.
25.775   Windshields and windows.
25.777   Cockpit controls.
25.779   Motion and effect of cockpit controls.
25.781   Cockpit control knob shape.
25.783   Doors.
25.785   Seats, berths, safety belts, and
          harnesses.
25.787   Stowage compartments.
25.789   Retention of items of mass in passenger
          and crew compartments.
25.791   Passengers information signs.
          EMERGENCY PROVISIONS
25.801   Ditching.
25.803   Emergency evacuation.
25.805   Flight crew emergency exits.
25.807   Passenger emergency exits.
25.809   Emergency exit arrangement.
25.811   Emergency exit marking.
25.812   Emergency lighting.
25.813   Emergency exit access.
25.815   Width of aisle.
25.817   Maximum number of seats abreast.
         VENTILATION AND HEATING
25.831   Ventilation.
25.833   Heating systems.

*752
Part 25                Title 14Aeronautics and Space
             PRESSURIZATION
Sec.
25.841   Pressurized cabins.
25.843   Tests for pressurized cabins.
               FIRE PROTECTION
25.851   Fire extinguishers.
25.853   Compartment interiors.
25.855   Cargo and baggage compartments.
25.857   Cargo compartment classification.
25.859   Combustion heater fire protection.
25.863   Flammable fluid fire protection.
25.865   Fire protection of flight controls,
           engine mounts, and other flight
           structure.
25.867   Fire protection; other components.
               MISCELLANEOUS
25.871   Leveling means.
25.875   Reinforcement near propellers.
            Subpart EPowerplant
                     GENERAL
25.901   Installation.
25.903   Engines.
25.905   Propellers.
25.907   Propeller vibration.
25.925   Propeller clearance.
25.929   Propeller deicing.
25.933   Reversing systems.
25.934   Turbojet engine thrust reverser system
          tests.
25.937   Turbopropeller-drag limiting systems.
25.939   Turbine engine operating characteristics.
              FUEL SYSTEM
25.951   General.
25.953   Fuel system independence.
25.954   Fuel system lightning protection.
25.955   Fuel flow.
25.957   Flow between interconnected tanks.
25.959   Unusable fuel supply.
25.961   Fuel system hot weather operation.
25.963   Fuel tanks: general.
25.965   Fuel tank tests.
25.967   Fuel tank installations.
25.969   Fuel tank expansion space.
25.971   Fuel tank sump.
25.973   Fuel tank filler connection.
25.975   Fuel tank vents and carburetor
           vapor vents.
25.977   Fuel tank outlet.
25.979   Pressure fueling system.
25.981   Fuel tank temperature.
         FUEL SYSTEM COMPONENTS
25.991   Fuel pumps.
25.993   Fuel system lines and fittings.
25.994   Fuel system components.
25.995   Fuel valves.
25.997   Fuel strainer or filter.
25.999   Fuel system drains.
25.1001  Fuel jettisoning system.
                  OIL SYSTEM
25.1011  General.
25.1013  Oil tanks.
25.1015  Oil tank tests.
25.1017  Oil lines and fittings.
25.1019  Oil strainer or filter.
25.1021  Oil drains.
25.1023  Oil radiators.
25.1025  Oil valves.
25.1027  Propeller feathering system.
                   COOLING
25.1041  General.
25.1043  Cooling tests.
25.1045  Cooling test procedures.
             INDUCTION SYSTEM
25.1091  Air induction.
25.1093  Induction system deicing and anticing
          provisions.
25.1101  Carburetor air preheater design.
25.1103  Induction system ducts.
25.1105  Induction system screens.
25.1107  Inter-coolers and after-coolers.
               EXHAUST SYSTEM
25.1121  General.
25.1123  Exhaust piping.
25.1125  Exhaust heat exchangers.
25.1127  Exhaust driven turbo-superchargers.
   POWERPLANT CONTROLS AND ACCESSORIES
25.1141  Powerplant controls: general.
25.1143  Engine power and thrust, and anti-detonant
          injection system controls.
25.1145  Ignition switches.
25.1147  Mixture controls.
25.1149  Propeller speed and pitch controls.
25.1153  Propeller feathering controls.
25.1155  Reverse thrust and propeller pitch
           settings below the flight regime.
25.1157  Carburetor air temperature controls.
25.1159  Supercharger controls.
25.1161  Fuel jettisoning system controls.
25.1183  Flammable fluid-carrying components.
25.1165  Engine ignition systems.
        POWERPLANT FIRE PROTECTION
25.1181  Designated fire zones; regions included.
25.1182  Nacelle areas behind firewalls, and
          engine pod attaching structures
          containing flammable fluid lines.
25.1183  Flammable fluid-carrying components.
25.1185  Flammable fluids.
25.1187  Drainage and ventilation of fire
           zones.
25.1189  Shutoff means.
25.1191  Firewalls.
25.1192  Engine accessory section diaphragm.
25.1193  Cowling and nacelle skin.
25.1195  Fire extinguishing systems.
25.1197  Fire extinguishing agents.
25.1199  Extinguishing agent containers.
25.1201  Fire extinguishing system materials.
25.1203  Fire-detector system.

*753
Chapter IFederal Aviation Administration        Part 25
        Subpart F  Equipment
              GENERAL
Sec.
25.1301   Function and installation.
25.1303   Flight and navigation instruments.
25.1305   Powerplant instruments.
25.1307   Miscellaneous equipment.
25.1309   Equipment systems and installations.
         INSTRUMENTS: INSTALLATION
25.1321   Arrangement and visibility.
25.1323   Airspeed indicating system.
25.1325   Static pressure systems.
25.1327   Magnetic direction indicator.
25.1329   Automatic pilot system.
25.1331   Instruments using a power supply.
25.1333   Instrument systems.
25.1337   Powerplant instruments.
   ELECTRICAL SYSTEMS AND EQUIPMENT
25.1351   General.
25.1353   Electrical equipment and installations.
25.1355   Distribution system.
25.1357   Circuit protective devices.
25.1359   Electrical system fire and smoke
              protection.
25.1363   Electrical system tests.
                     LIGHTS
25.1381   Instrument lights.
25.1383   Landing lights.
25.1385   Position light system installation.
25.1387   Position light system dihedral
            angles.
25.1389   Position light distribution and intensities.
25.1391   Minimum intensities in the horizontal
            plane of forward and rear
            position lights.
25.1393   Minimum intensities in any vertical
            plane of forward and rear position
            lights.
25.1395   Maximum intensities in overlapping
            beams of forward and rear
            position lights.
25.1397   Color specifications.
25.1399   Riding light.
25.1401   Anticollision light system.
             SAFETY EQUIPMENT
25.1411   General.
25.1413   Safety belts.
25.1415   Ditching equipment.
25.1419   Ice protection.
          MISCELLANEOUS EQUIPMENT
25.1431   Electronic equipment.
25.1433   Vacuum systems.
25.1435   Hydraulic systems.
25.1439   Protective breathing equipment.
25.1441   Oxygen equipment and supply.
25.1443   Minimum mass flow of supplemental
           oxygen.
25.1445   Equipment standards for the oxygen
           distributing system.
25.1447   Equipment standards for oxygen
           dispensing units.
25.1449   Means for determining use of oxygen.
25.1451   Fire protection for oxygen equipment.
25.1453   Protection of oxygen equipment
           from rupture.
25.1455   Draining of fluids subject to freezing.
25.1457   Cockpit voice recorders.
25.1459   Flight recorders.
    Subpart G  Operating Limitations and
                      Information
25.1501   General.
          OPERATING LIMITATIONS
25.1503   Airspeed limitations: general.
25.1505   Maximum operating limit speed.
25.1507   Maneuvering speed.
25.1511   Flap extended speed.
25.1513   Minimum control speed.
25.1515   Landing gear speeds.
25.1519   Weight, center of gravity, and
           weight distribution.
25.1521   Powerplant limitations.
25.1523   Minimum flight crew.
25.1525   Kinds of operation.
25.1527   Maximum operating altitude.
25.1529   Maintenance manual.
25.1531   Maneuvering flight load factors.
25.1533   Additional operating limitations for
           turbine engine powered airplanes.
          MARKINGS AND PLACARDS
25.1541   General.
25.1543   Instrument markings: general.
25.1545   Airspeed limitation information.
25.1547   Magnetic direction indicator.
25.1549   Powerplant instruments.
25.1551   Oil quantity indicator.
25.1553   Fuel quantity indicator.
25.1555   Control markings.
25.1557   Miscellaneous markings and placards.
25.1561   Safety equipment.
25.1563   Airspeed placard.
          AIRPLANE FLIGHT MANUAL
25.1581   General.
25.1583   Operating limitations.
25.1585   Operating procedures.
25.1587   Performance information.
  APPENDIX A
  APPENDIX B
  APPENDIX C
  APPENDIX D
  APPENDIX E
  APPENDIX F
  AUTHORITY: The provisions of this Part
25 issued under secs. 313, 601, 603, 72 Stat.
752, 775; 49 U.S.C. 1354, 1421, and 1423.
  SOURCE: The provisions of this Part 25
contained in Docket No. 5066, 29 F.R. 18291,
Dec. 24, 1964, except as otherwise noted.

[1] Aegaéon: The leader of three brothers of mythology, each with 100 arms and 50 heads.

[2] The official name is Turk Hava Yallari, A.O., hereinafter referred to as THY.

[3] The released figure is 346 persons; but shortly after the suits were filed, McDonnell Douglas secured a peremptory writ from the Court of Appeals for the Ninth Circuit prohibiting this Court and the parties from securing any information about either the passengers or claimants. The writ, which was argued on its merits in April, 1974, was not decided until May 23, 1975, three months after the statute of limitations in California had expired on March 3, 1975, an undoubted oversight. The Court also reversed this Court's holding that one of the cases was a class action on behalf of claimants not represented by individual counsel. If suits are filed in other states within the two-, three-, and six-year statutes of limitations on death cases after this case is finished here, the burden on defendants in producing their top executives for prolonged depositions at distant places will not have been eliminated, as it would with a class action. That was one of the principal factors in conceiving and passing the Multidistrict Litigation Act and in enlarging the previous class-action rule. The class action by plaintiffs in crash cases is as much for the benefit of defendants as it is for the members of the plaintiffs' class. Witness here, with 346 decedents, 322 have individual lawyers representing the claimants arising from their deaths. Class actions in crash cases discourage "ambulance chasing." With class action as found, the Court can control, and has controlled, that activity.

[4] This suggests that some speedier system must be devised. The deposition of the president of McDonnell Douglas takes 1,500 pages, which required a special order to give him time to read it before signing. This should convince the defendants, as well as other critics, of the necessity of giving all claimants a notice so they can be before one court or be joined in a class action if they desire to sue, in order to avoid repetition of the time taken of important businessmen in repeated cases, in different circuits, or possibly different countries, inasmuch as DC-10's, and other jets, are sold throughout the world.

[5] Transcript, May 27, 1975, page 11.

[5a] Since this filing of this opinion, the court ordered the agreement filed in camera"

[6] The reference footnote, 26, reads as follows: "Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.2d 944; Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365; Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814. See Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan.L.Rev. 205 (1958). Cf. Vrooman v. Beech Aircraft Corp., 183 F.2d 479; Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333, 143 A. 163; Caldwell v. Gore, 175 La. 501, 143 So. 387; Burkett v. Globe Indemnity Co., 182 Miss. 423, 181 So. 316."

[7] The distinction between "citizenship" and "domicile," or "residence" does not appear to be taken note of in the nine representative and leading California cases. In fact, many lawyers file complaints alleging only diversity of "residence" or "domicile"; and the complaints, unless amended, must be dismissed. But inasmuch as the California cases use "domicile," this Memorandum will use `domicile," instead of "citizenship," in speaking of California's conflict-of-laws rule.

[*] See Day and Zimmerman, Inc., 96 S. Ct. 167, which vacated Challoner after the date of this opinion.

[8] Attached as Appendix A is a copy of the table of contents of Part 25, illustrating the all-encompassing range of United States control of design and manufacture of planes.

[9] Federal Evidence Code § 201; Brown et al. v. Piper, 91 U.S. (1 Otto) 42, 43, 23 L. Ed. 200 (1895); Nev-Cal Electric Securities Co. v. Imperial Irrigation District, 85 F.2d 886 (9th Cir. 1936); Greeson v. Imperial Irrigation District, 59 F.2d 529 (9th Cir. 1932).

[10] Cal.C.C.P. § 377.

[11] The Court specifically does not in this Memorandum intend to pass on the constitutionality or other possible legal defects of any one of the three mentioned.

[12] Gabel v. Hughes Air Corp., 350 F. Supp. 612 (C.D.Cal.1972).