The judge ruled that plaintiff's recovery was not bound by the arbitrary limit of $15,000 provided by Chapter 229, section 2, of the Massachusetts General Laws. In so doing he relied on the holding of the New York Court of Appeals, in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961). The jury thereafter awarded damages well in excess of the statutory maximum and judgment was entered accordingly.
WATERMAN, Circuit Judge. This action arises out of the same Northeast Airlines summer weekend flight from New York City to Nantucket Island, Massachusetts, with which this court became acquainted in the actions for wrongful death entitled Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), decided by the Court of Appeals of New York, and Pearson v. Northeast Airlines, Inc., 309 F.2d 553, 92 A.L.R.2d 1162 (2 Cir. 1962), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963), decided after the Kilberg decision by this court sitting in banc. Gordon Dean, plaintiff's decedent, was a prominent business executive who worked in New York City and resided there with his immediate family which consisted of his wife and their two small children, aged 4 and 2 respectively.
She points also the fact that only thirteen states still limit recovery for wrongful death, and that none imposes a ceiling as low as that contained in the Brazilian Air Code. She cites the Warsaw Convention, which governs generally accidents involving international air carriers and which now permits recovery up to $8,292, as constituting in essence an international standard of fairness in such matters. And, finally, she relies on the New York Court of Appeals decision in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), as a persuasive precedent for the position she urges us to adopt. Another contention, which we treat separately hereinafter, is that the Brazilian limitation should be disregarded because of the striking decline which has taken place in the value of the cruzeiro in terms of the dollar.
The Record of Debates of the Constitutional Convention of 1894 (Vol. 2, pp. 581-595, 651, 652, 947-962) indicates that the framers of the constitutional provision regarded the arbitrary limitation of $5,000 as absurd and unjust and that "this amendment was adopted for the benefit of the next of kin of the bread winner, persons who, in fact, sustained large pecuniary damage on account of the negligent act which removed the person and deprived dependents upon him of their substance, and which was not measured or recompensed by the sum awarded under the limitation. To such persons it is the evident purpose [of the amendment prohibiting the enactment of any legislation limiting recoveries in wrongful death actions] to authorize a recovery measured by the actual loss sustained". ( Medinger v. Brooklyn Hgts. R.R. Co., 6 App. Div. 42, 46-47; see, also, Kilberg v. Northeast Airlines, 9 N.Y.2d 34.) It is obvious, merely in outlining the purpose of the New York prohibition against limitations on recovery, that this State is vitally concerned with the manner in which the wife and children of a New York decedent will be compensated for the economic loss they have suffered as a result of the wrongful killing of their "bread winner".
Realization of the unjust and anomalous results which may ensue from application of the traditional rule in tort cases has also prompted judicial search for a more satisfactory alternative in that area. In the much discussed case of Kilberg v. Northeast Airlines ( 9 N.Y.2d 34), this court declined to apply the law of the place of the tort as respects the issue of the quantum of the recovery in a death action arising out of an airplane crash, where the decedent had been a New York resident and his relationship with the defendant airline had originated in this State. In his opinion for the court, Chief Judge DESMOND described, with force and logic, the shortcomings of the traditional rule (9 N.Y.2d, at p. 39):
2. New York's Choice of Law Analysis. Appellants rely heavily on a line of cases beginning with Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), for the proposition that the law of the decedent's domicile governs the issue of damages in wrongful death cases. For the reasons set forth below, however, we conclude that Kilberg and its progeny are no longer good law, and that, under current law, New York courts would apply the law of the place of the accident under the facts presented here. Although we disagree with the district court's approach, then, we affirm its application of Chinese law.
But cf. Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 194 N.E. 692, Id., 242 App.Div. 625, 271 N.Y.S. 1107 (1935) (New Jersey death limitation inapplicable to a New Jersey plane crash because the validity of a ticket stipulation for limiting the airline's damages is to be determined by New York law, where the ticket was purchased). In Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961), however, the New York Court of Appeals characterized the Massachusetts wrongful death limitation as "procedural" and refused to apply it in a suit brought in New York by a New York decedent's estate arising from the crash of an airplane flight originating in New York but fatally ending at Nantucket, Massachusetts. The court said that "[m]odern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move," and pointed out that there were only 14 states limiting death case damages as of that time. 9 N.Y.2d at 39, 211 N.Y.S.2d at 135, 172 N.E.2d at 527.
Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526. D.C., 199 F. Supp. 539, aff'd en banc, 2 Cir., 309 F.2d 553, reversing 2 Cir., 307 F.2d 131, cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720.
Neither Maryland's wrongful death statute nor that State's case law authorizes the addition of prejudgment interest. These actions resulted in a verdict and judgment for plaintiffs, which judgment was subsequently amended, on motion, to include interest from the date of death, on the authority of Kilberg v. Northeast Airlines ( 9 N.Y.2d 34). Upon appeal, the Appellate Division unanimously modified the judgment by striking the addition of interest.
While it appears that the wording of Vermont's wrongful death statute, Ver.Stat.Ann. tit. 14, § 1491 (1974), is broad enough to encompass actions based on contracts, see W. Prosser, Law or Torts § 127 (4th ed. 1971), I rule that the choice of law rule applicable to these counts, which are essentially actions to recover damages for negligent conduct causing death, is the tort choice of law rule regularly applied in actions for wrongful death resulting from negligence. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 311 N YS.2d 133, 172 N.E.2d 526 (1961); see Scott v. Eastern Airlines, 399 F.2d 14 (3 Cir. 1967), cert. denied, 393 U.S. 979, S.Ct. 446, 21 L.Ed.2d 439. Delta's interpretation of this Court's function in diversity cases under the Erie doctrine is overly restrictive.