Etapa de operación y mantenimiento, Suelo

Commercial aircraft production is concentrated in a dozen or so of countries, but an accident caused by a defect would occur in any country and often involves victims of diverse citizenship domiciled in different countries (and/or states in the case o f the United States).^^^ These factors complicate determination of the law applicable to recoverable damages. However, since no choice of law rule is provided either by the EC Directive or by the Act, there exists uncertainty and unpredictability in this field of law, which is a cost to risk-averse parties. As in the previous chapter, our concern here is the choice between lex fori and lex loci.

5.2.1 The traditional lex loci delicti and the place of injury; The problem with lex

loci delicti is whether it means the law of the place of injury or that o f the place of the tortious conduct (e.g. defective design or manufacture). In an English case involving personal injuries caused allegedly by a defective machine, the Court o f Appeal held that the mere manufacture in Germany o f a defective product was 'not...even the beginning of tort'; the substantial wrongdoing was putting on the English market a defective

A l t 1.

Art 13; Mannin, n.64 above, at 248.

2^®. Directive, preamble; Mannin, ibid\ Hurd & Zollers. n.64 aboxe, at 1349.

N M L Hughes, Aviation Liability Law; Recent Developments in the UK: Some Contrasts with the USA, 14 Air L (1989) 2, 7-8. Any action against the producer o f a defective product is treated as action in tort [for the purposes o f jurisdiction. Consumer Protection A c t 1987, s 6(7).

2^^. J J Douglas, Air Disaster Litigation Without Diversity, 45 JALC (1980) 411, 423-24: F E Bailey & A J Broder, Choice o f Law _ Mass Disaster Cases Invoking Diversity' of Citizenship, 38 JALC (1972) 285.

product with no warning as to its d e f e c t s . I n the United States, it is generally held that for liability insurance policy purposes, the time o f the occurrence o f an accident is construed as meaning the time when the claimant actually suffered injury and not when the wrongful conduct was committed.

In an aviation accident, however, the place o f injury is often fortuitous and unpredictable with no substantial link to injured p a r t i e s . T h i s is why the Seventh

Circuit in In re Air Crash Disaster near Chicago, Illinois, on M ay 25, 1979'^'^^ called

for the need for uniform regulation of airline tort liability in disaster cases by federal legislation. The court, nevertheless, gave priority to the law o f the place of injury, i.e. that o f Illinois,^^^ and ruled against award o f punitive damages with regard to the manufacturer (and airline), after labouring through a plethora o f state laws to determine the law applicable to the question. However, the result o f this case would have been the same even if the court had applied lex fori.

5.2.2 Lex loci and the place of tortious act: The fortuity and unpredictability of the

place o f injury rule had led French and US courts to apply the law o f the place of tortious conduct. In France which has not produced much case law on this point, the traditional rule on choice of law is nevertheless to apply the law o f the place where the

tort {délit) was c o m m i t t e d .& case involving the liability (and not damages) for a

fatal accident caused in France during the test flight o f a US-made helicopter, the court held that the fault attributed to its manufacturer must be assessed according to the law of the place where the fault had been committed (i.e. the law o f the place of the manufacture o f the aircraft) and not according to the law o f the place of the accident.289

This rule has been further developed by US courts. In Manos v. TWA, Inc. & Boeing

Judge Robson refused to apply the inflexible old lex loci rule, which meant the law of Italy, the crash site, because, although relatively simple to apply, it did injustices to some of the parties. He pointed out that since none o f the persons entitled to

Castree v. E R Squibb & Sons, Ltd, [1980] 2 Ail ER 589, [1980] 1 WLR 1248 (CA); Shawcross, V(44).

Margo, 191 & n. 69. Ch 2: 5.1.3 above.

N.271 above, at 17,140; Shawcross, 1(93). 287. Juglart, 1(2167).

288 j.p piantard, La responsabilité des constructeurs aéronautiques en droit international. 34 RFDA (1980) 17, 19.

289 Veuve de Franceschi c. Hiller Helicopters (Trib de Versailles, 1^^ ch, 12 mars 1957). 11 RFDA (1957) 276; Juglart, 1(2141).

damages are citizens of, or live or reside in Italy, Italy has little or no interest in having its law a p p l i e d . I n choosing the law of Washington as the applicable law, however, he demonstrated a rather unconventional understanding o f lex loci that the law of the state where the article was manufactured, sold and delivered (Washington) defines and

limits an action for damages.^^^ Similarly, the Kansas court in Vrooman v. Beech

Aircraft CorpP'^ confronted a Missouri plaintiff who was injured in an Indiana air crash caused by an aircraft defect. Without investigating the law o f Indiana where the injury took place, the court chose the law of Kansas by construing the lex loci rule as designating the place "where the aeroplane was manufactured and repaired (Kansas), rather than...where the accident occurred".

Another modified version of the place o f injury rule is provided by the Hague Convention 1973.^95 Under the Convention, the law of the place o f injury is applicable only if it is also either the law of the country where the injured person resides or the

law o f the country where the manufacturer has his principal office {établissement

principal). Or the applicable law is that o f the state where the injured person resides if the manufacturer also has his principal office there. These rules certainly have the advantage o f avoiding the application o f the totally unforeseen law o f the place of injury in favour o f the law having certain link with the manufacturer or the victim. Nevertheless, the problem still remains as to how to allocate the application between the law having a link with the manufacturer and that with the victim.296

5.2.3 Lex fori; The unpredictability of outcome in lex loci can be overcome by

applying lex fori, which may equally be fortuitous but which plaintiff has nevertheless

voluntarily chosen. In In re Paris Air Crash Disaster o f March 3, 1 9 7 4 in which an

alleged defect in a cargo door of a McDonnell Douglas DC-10 airliner allowed it to open in flight and caused crash, the court applied lex fori to determining the issue of damages for decedents who came from 36 foreign and domestic jurisdictions. The

court noted that California as the fo n w i had a definite interest in applying its own law

to the issue o f damages, citing such interests of California as deterrence of tortious conduct o f resident defendants (the manufacturer and his subcontractor), avoidance of the imposition o f excessive financial burdens on resident defendants and provision of

292. Ibid, at 1176. 293. n.33 above.

294. Ibid, at 480; A A Ehrenzweig, Product Liabilit}' in the Conflict o f Laws _ Towards A Theor\ of Enterprise Liabilit}' under "Foreseeable and Insurable Laws" (II). 69 Yale LJ (1960) 794, 797.

295. Convention de La Haye du 2 Oct. 1973 sur la loi applicable à la responsabilité du fait des produits. See Juglart. 1(2040).

296. J . p Piantard, n.288 above, at 20; Juglart, ibid.

uniform rules of liability and damages under its strict product liability law.^^s Although the court based its decision mainly on interest analysis aided by the place-of-the-wrong approach (California was the place where the aircraft was designed, manufactured and maintained),299 the result would have been the same if the court had applied lex fori.