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Curley v. American Airlines: false imprisonment (case dism'd)



 
 
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Old March 27th, 2004, 05:01 PM
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Default Curley v. American Airlines: false imprisonment (case dism'd)

DENNIS CURLEY, Plaintiff-Appellant-Cross-Appellee, v. AMR CORPORATION;
F.A. KUMMIRE, CAPT.; HUMBERTO DUE AS, Defendants, AMERICAN AIRLINES,
INC., Defendant-Appellee-Cross-Appellant.

Docket Nos. 96-9690; 97-7020

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

153 F.3d 5; 1998 U.S. App. LEXIS 17485

December 8, 1997, Argued
July 22, 1998, Decided


PRIOR HISTORY: [**1] Appeal from a judgment entered in the United
States District Court for the Southern District of New York (Knapp,
J.) insofar as it incorporates an order granting summary judgment in
favor of defendant, American Airlines, Inc., the district court having
applied New York law to dismiss negligence and false imprisonment
claims asserted by plaintiff. Cross-appeal from same judgment insofar
as it incorporates putative order denying summary judgment sought by
American Airlines, Inc. to dismiss plaintiff's claims on the basis of
Mexican law.

DISPOSITION: Summary judgment affirmed. Cross-appeal dismissed.

COUNSEL: MARTIN J. BIRN, New York, NY, for
Plaintiff-Appellant-Cross-Appellee.

JEFFREY J. ELLIS, Quirk and Bakalor, P.C., New York, NY (Donna H.
Bakalor, of counsel), for Defendant-Appellee-Cross-Appellant.

JUDGES: Befo MINER, PARKER, and WOOD, * Circuit Judges.
* The Honorable Harlington Wood, Jr., of the United States Court of
Appeals for the Seventh Circuit, sitting by designation.

OPINIONBY: MINER
OPINION:

[*8] MINER, Circuit Judge:

Plaintiff-appellant-cross-appellee Dennis Curley appeals from a
judgment entered in the United States District Court for the Southern
District [**2] of New York (Knapp, J.) insofar as it incorporates an
order granting summary judgment in favor of the
defendant-appellee-cross-appellant [*9] American Airlines, Inc.
("American"). In granting summary judgment, the district court applied
New York law to dismiss claims of negligence and false imprisonment
asserted by Curley against American. American cross-appeals from the
same judgment insofar as it incorporates a putative order denying its
motion for summary judgment to dismiss Curley's claims on the basis of
Mexican law.

Summary judgment affirmed. Cross-appeal dismissed.

BACKGROUND

The material facts in this case are undisputed. On December 25, 1990,
Dennis Curley and a companion were passengers on two connecting
American Airlines flights. The first was from New York City to
Dallas-Fort Worth, Texas, and the second from Dallas-Fort Worth to
Puerto Vallarta, Mexico. During the descent of the aircraft during the
latter flight, several of American's flight attendants reported to the
flight's captain, F.A. Kummire, that an odor of marijuana smoke was
emanating from a lavatory that Curley had just vacated. The attendants
also reported that they had found what appeared to [**3] be marijuana
residue in the lavatory trash, and ashes or seeds in the lavatory
sink. Despite their observations, an operable smoke detector in the
lavatory was not activated during the flight. The attendants did not
question or search Curley.

After learning of the flight attendants' observations and suspicions,
the captain had the crew lock the lavatory for the duration of the
flight. The captain did not inspect the lavatory or order that Curley
be investigated or questioned and did not inquire as to whether Curley
had actually been seen smoking marijuana. The captain kept the door
locked until American was later notified by the Mexican authorities
that they did not wish to inspect the lavatory.

After landing in Puerto Vallarta, the captain identified Curley for
American's ground crew as a person suspected of having smoked
marijuana in the lavatory during the flight. The ground crew then
informed Mexican authorities of this suspicion. While awaiting
immigration processing, Curley was approached by an employee of
American named Humberto Due as, who asked Curley how long he planned
to be in Mexico. After receiving this information, Due as left the
immigration area, returning shortly [**4] thereafter with a Mexican
official. At that point, Due as requested that Curley show him his
plane ticket. Curley handed Due as all of his travel documents,
including his passport. Due as and the Mexican official then left the
area with Curley's travel documents. When they returned, Due as
touched Curley's elbow and stated, "Come with me please," indicating
to Curley that he should accompany them to another location. Curley
testified that, despite his failure to raise an objection at that
time, he did not feel that he was going with Due as and the Mexican
official voluntarily.

Due as and the official walked Curley to an office. Due as then told
Curley to enter a smaller interior office, where two other Mexican
officials were waiting. Neither Due as nor any other American
employees entered the inner office. Once inside, Curley was questioned
about his alleged use of marijuana, and his bags were searched. Curley
testified that, based on gestures made by the officials, he knew that
he was required to undress. Curley then undressed and underwent a
strip search. He alleges that the officials who conducted the search
laughed at him, threatened him with incarceration, pointed a loaded
[**5] rifle at his genitals and touched his buttocks with the rifle.
Curley asserts that they also repeatedly asked him where he was hiding
the marijuana and stated that the captain had informed them that he
had been smoking marijuana on the flight. Curley denied using or
possessing marijuana. While he was being interrogated and examined,
the officials continued unpacking his luggage in search of marijuana.

Although no evidence of marijuana was found in his luggage or on his
person, a Mexican doctor was brought into the inner office to examine
Curley to determine whether he had recently used marijuana. The doctor
smelled Curley's breath and examined his eyes and the inside of his
mouth. The [*10] doctor also had Curley walk in a straight line and
then touch his nose with alternating hands. The doctor concluded that
Curley "exhibited alcohol intoxication of the 1st degree without
exhibiting Cannabis intoxication." Curley admits to having had one
beer on the flight. Although the physical exam by the doctor was
requested by a Mexican official, Due as was required to pay the
doctor's bill. After the medical examination was completed, Curley
repacked his luggage. He and his companion were [**6] cleared through
immigration without incident at the conclusion of the investigation.
According to Due as' report, proper security procedures were followed.

On June 28, 1991, Curley filed a complaint in the United States
District Court for the Southern District of New York, alleging, inter
alia, that he was harmed as a result of the captain's failure to fully
investigate, or have the crew investigate, his suspected marijuana use
and possession prior to the report of that suspicion to the Mexican
authorities. Curley contends that the captain had a duty to
investigate or order an investigation, presumably because he would not
have been detained by Mexican officials when the investigation
revealed that he did not use or possess marijuana. Consequently,
Curley claims that American's failure to investigate constitutes
actionable negligence and gross negligence under New York law.

Curley also alleges that American, primarily through the actions of
Due as, caused Curley to be falsely imprisoned by Mexican officials in
violation of New York law. Curley claims that he was humiliated by
this ordeal and has suffered anxiety, anger, deterioration of his
relationship with his lover and flashbacks. [**7] As a result of the
physical and emotional harm claimed to have been caused by American's
alleged wrongdoing, Curley seeks both compensatory and punitive
damages from American in the amount of $ 1,000,000.

American first moved for summary judgment by notice of motion dated
March 26, 1993. The relief sought was stated in the notice of motion
in the following language: "The defendant . . . will move for summary
judgment on the ground that the Warsaw Convention governs plaintiff's
action and precludes recovery for the type of injury which he alleges.
Alternatively, defendant moves for the application of Mexican law."

By opinion and order dated March 7, 1994, the district court denied
American's motion for summary judgment, finding that Curley's claim
was not based on an "accident" of the type contemplated by the Warsaw
Convention. See Curley v. American Airlines, Inc., 846 F. Supp. 280,
283 (S.D.N.Y. 1994). The district court also observed that Curley's
state law claim was not preempted by the Federal Aviation Act,
inasmuch as the preemptive provisions of the Act related only to
rates, routes and services. Id. at 284. As to the alternative relief
[**8] sought in the motion, the district court found the parties'
submissions inadequate: "Neither party has supplied us with any
information as to what relevant Mexican law might provide." Id. at
285. Accordingly, the district court "left to another day" the "final
resolution of the choice of law question." Id. at 285.

Following briefing and oral argument on Mexican law by the parties,
the district court issued a Memorandum and Order dated May 11, 1995
denying the alternative motion for the application of Mexican law. See
Curley v. American Airlines, Inc., 1995 U.S. Dist. LEXIS 6274, No. 91
Civ. 2724, 1995 WL 276138 (S.D.N.Y. May 11, 1995). The district court
stated: "We find nowhere in defendant's recitation of Mexican law an
explanation of how these laws are inconsistent with similar provisions
of New York law. Indeed, plaintiff suggests -- and we agree -- that
they are entirely consistent with New York law." Id. 1995 U.S. Dist.
LEXIS 6274, 1995 WL 276138 at *1. The district court further stated
that, even if it were wrong in its conclusion, "we would still be
inclined to deny defendant's motion on [**9] the ground that
defendant has not presented us with a sufficiently comprehensive
statement of Mexican law to permit us to act upon it with confidence."
Id. 1995 U.S. Dist. LEXIS 6274, 1995 WL 276138 at *2. Accordingly, the
district court determined that "New York law will be applied to all
issues of liability and damages." Id.

American's second motion for summary judgement was made on the basis
of New York law. Oral argument on the motion was heard on October 18,
1996, and the district court issued an Memorandum and Order [*11]
granting summary judgment on November 14, 1996. See Curley v. American
Airlines, Inc., 1996 U.S. Dist. LEXIS 17096, No. 91 Civ. 2724, 1996 WL
668857 (S.D.N.Y. November 19, 1996). Applying New York law in
rejecting plaintiff's claim of false imprisonment, the district court
found that "there [was] nothing in Duenas' conduct to suggest that he
had any control over the conduct and decisions of the Mexican
authorities, or that he in any way suggested to them what should be
done." Id. 1996 U.S. Dist. LEXIS 17096, *5, 1996 WL 668857 at *2. The
district court did not address [**10] plaintiff's negligence claim in
the memorandum and order, apparently having rejected that claim in the
course of oral argument. This appeal and cross-appeal followed the
entry of final judgment on November 20, 1996.

DISCUSSION

I. The Cross-Appeal

At the outset, we note our lack of jurisdiction over the cross-appeal
filed by American. The cross-notice of appeal gives notice of an
appeal from the order "dated and filed on May 10, 1995 which denied
defendant's motion for summary judgment on the basis of Mexican law
and/or treaty." The order of May 10 (actually May 11) in fact does not
deny summary judgment. It merely rejects the application of Mexican
law in this case. The order specifically provides that New York law
would be applied to issues of liability and damages to be resolved in
the future. Moreover, the motion to which the order responds did not
seek summary judgment on the basis of Mexican law. It sought summary
judgment on the basis of the Warsaw Convention. The alternative relief
requested, and subsequently denied after further briefing and
argument, was the application of Mexican law to future proceedings in
this case. As will be seen, we do apply Mexican law [**11] to affirm
the summary judgment granted to American. However, we are constrained
to dismiss the cross-appeal because there simply is no order dated May
10 (or May 11) denying a motion for summary judgment. See Fed. R. App.
P. 3(c) ("A notice of appeal . . . must designate the judgment, order,
or part thereof appealed from.").

II. The Appeal

A. Standards of Review

The district court's choice of law determination concerned a matter of
law, and therefore we review it de novo. See Sheldon v. PHH Corp., 135
F.3d 848, 852 (2d Cir. 1998); see also General Ceramics Inc. v.
Firemen's Fund Ins. Cos., 66 F.3d 647, 651 (3d Cir. 1995)("application
of . . . choice-of-law rules involves the application of legal
principles and therefore is subject to plenary review"). Likewise,
pursuant to Fed. R. Civ. P. 44.1, a court's determination of foreign
law is treated as a question of law, which is subject to de novo
review. See Seetransport Wiking Trader Schiffahrtsgesellschaft MBH &
Co. v. Navimpex Centrala Navala, 29 F.3d 79, 81 (2d Cir. 1994).

We review a grant of summary judgment de novo to ascertain whether the
[**12] substantive law was properly applied and, viewing the evidence
in the light most favorable to plaintiff, to determine whether there
are genuine issues of material fact necessitating a trial. See, e.g.,
King v. Crossland Savings Bank, 111 F.3d 251, 256 (2d Cir. 1997).
"Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted." Taggart v. Time
Inc., 924 F.2d 43, 46 (2d Cir. 1991)(citation and quotation omitted).
Summary judgment is appropriate when the non-moving party has not set
forth facts that relate to a necessary element of a claim. King, 111
F.3d at 259-60 (holding that the district court properly granted
summary judgment in favor of defendant because plaintiff failed to set
forth material issues of fact with respect to defendant acting
unreasonably to support plaintiff's negligence claim under New York
law).

For the reasons that follow, we think that the district court was
mistaken in its choice of law determination and that Mexican, rather
than New York, law applies in this case. Applying Mexican law, we
affirm the summary judgment dismissing plaintiff's [**13] claims
against American Airlines.

[*12] B. Choice of Law

In diversity jurisdiction cases such as this, n1 it is well settled
that a federal court must look to the choice of law rules of the forum
state. See Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir. 1996). In New
York, the forum state in this case, the first question to resolve in
determining whether to undertake a choice of law analysis is whether
there is an actual conflict of laws. See Allstate Ins. Co. v. Stolarz,
81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936 (1993). It is
only when it can be said that there is no actual conflict that New
York will dispense with a choice of law analysis. See J. Aron & Co. v.
Chown, 231 A.D.2d 426, 647 N.Y.S.2d 8 (1st Dept. 1996) (no conflict
between law of New York and law of Newfoundland). Where the applicable
law from each jurisdiction provides different substantive rules, a
conflict of laws analysis is required. See Pescatore v. Pan Am. World
Airways, Inc., 97 F.3d 1, 14 (2d Cir. 1996)(holding that there was an
actual conflict where, with respect to damages, Ohio law allowed for
consideration of loss [**14] of society but New York law did not);
Bader v. Purdom, 841 F.2d 38, 39-40 (2d Cir. 1988)(holding that there
was an actual conflict where jurisdictions differed with respect to
the availability of recovery under a theory of negligent parental
supervision).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 There is no dispute that there is diversity jurisdiction in this
case, as Curley is a citizen of the State of New York and American is
incorporated in Delaware and has its principal place of business in
Texas. Moreover, Curley seeks $ 1,000,000 in compensatory and punitive
damages exclusive of costs and attorney's fees. See 28 U.S.C. § 1332.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

In tort actions, if there is a conflict of laws, New York courts apply
an "interests analysis," under which the law of the jurisdiction
having the greatest interest in the litigation is applied. AroChem
Int'l, Inc. v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992); see also
Babcock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 191 N.E.2d
279 (1963). [**15] "In deciding which state has the prevailing
interest, we look only to those facts or contacts that relate to the
purpose of the particular laws in conflict. 'Under this formulation,
the significant contacts are, almost exclusively, the parties'
domiciles and the locus of the tort.'" AroChem Int'l, 968 F.2d at 270
(quoting Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 197,
491 N.Y.S.2d 90, 480 N.E.2d 679 (1985)). "If conflicting
conduct-regulating laws are at issue, the law of the jurisdiction
where the tort occurred will generally apply because that jurisdiction
has the greatest interest in regulating behavior within its borders."
Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612
N.E.2d 277 (1993). If the choice of law analysis leads to the
application of foreign law, a court may refuse to apply that law only
if its application would be violative of fundamental notions of
justice or prevailing concepts of good morals. Brink's Ltd. v. South
African Airways, 93 F.3d 1022, 1031 (2d Cir. 1996); cert. denied, 519
U.S. 1116, 136 L. Ed. 2d 845, 117 S. Ct. 959 (1997). The [**16]
public policy of the forum thus provides an exception to application
of foreign law only for law "truly obnoxious" to that policy. Id.

In answering the first question in the New York choice of law
analysis, the district court, relying solely on the submissions and
arguments of the parties, determined that American had failed to
identify a material conflict between the applicable New York and the
applicable Mexican law. In fact, based on those submissions, the
district court found the laws "entirely consistent." Curley, 1995 U.S.
Dist. LEXIS 6274, *3, 1995 WL 276138 at *1. However, the district
court noted that even if its choice of law decision were incorrect,
American had failed to present adequately a comprehensive statement of
Mexican law to allow the district court to apply it to the case. We
agree that the presentations of Mexican law by the parties were
insufficient to allow a proper choice of law analysis. As a result, we
requested further briefings by both sides after oral argument and we
conducted our own research on Mexican law. In doing so, we manifested
our agreement with the concept that appellate courts, as well as trial
courts, may [**17] find and apply foreign law. See Twohy v. First
Nat'l Bank of Chicago, 758 F.2d 1185, 1192-94 (7th Cir. 1985); see
generally 9 Charles Alan Wright & Arthur R. Miller, [*13] Federal
Practice and Procedure §§ 2444-446 at 644-58 (3d ed. 1995).

The district court need not have avoided a full analysis of Mexican
law simply on the basis of an inadequate submission by one party. Fed.
R. Civ. P. 44.1 allows district courts to determine foreign law
through consideration of "any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the
Federal Rules of Evidence." We urge district courts to invoke the
flexible provisions of Rule 44.1 to determine issues relating to the
law of foreign nations. Such issues can be expected to come to the
federal courts with increasing frequency as the global economy expands
and cross-border transactions increase. See Roger J. Miner, The
Reception of Foreign Law in the U.S. Federal Courts; 43 Am. J. Comp.
L. 581 (1995); Milton Pollack, Proof of Foreign Law, 26 Am. J. Comp.
L. 470 (1978); 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice [**18] and Procedure § 2444 at 644-54 (3d ed. 1995).

Our examination of Mexican law reveals clear conflicts with New York
law as it pertains to the case before us. The complaint is pleaded
under common law concepts of false imprisonment, negligence and gross
negligence. The rules establishing these causes of action are
well-settled under New York law, and the elements of the causes have
been clearly defined.

To establish a prima facie case of negligence under New York law,
three elements must be demonstrated: (1) the defendant owed the
plaintiff a cognizable duty of care as a matter of law; (2) the
defendant breached that duty; and (3) plaintiff suffered damage as a
proximate result of that breach. See McCarthy v. Olin Corp., 119 F.3d
148, 156 (2d Cir. 1997); see also Stagl v. Delta Airlines, Inc., 52
F.3d 463, 467 (2d Cir. 1995). A common carrier such as an airline
generally owes its passengers a duty of reasonable care under the
circumstances. See Rainey v. Paquet Cruises, Inc., 709 F.2d 169,
170-71 (2d Cir. 1983); Gerard v. American Airlines, Inc., 272 F.2d 35,
36 (2d Cir. 1959); Krasnow v. National Airlines, Inc., 228 F.2d 326,
328 (2d Cir. 1955); [**19] O'Leary v. American Airlines, Inc., 100
A.D.2d 959, 475 N.Y.S.2d 285, 287 (2d Dept. 1984). This duty requires
the common carrier to exercise care "which a reasonably prudent
carrier of passengers would exercise under the same circumstances, in
keeping with the dangers and risks known to the carrier or which it
should reasonably have anticipated." Lesser v. Manhattan and Bronx
Surface Transit Operating Auth., 157 A.D.2d 352, 556 N.Y.S.2d 274, 276
(1st Dept. 1991)(quotation and citation omitted).

Like ordinary negligence, gross negligence also involves "the
commission or omission of an act or duty owing by one to another." 79
N.Y. Jur. 2d Negligence § 37 (1989). However, "the act or omission
must be of an aggravated character, as distinguished from the failure
to exercise ordinary care." Id. In other words, gross negligence "is
conduct that evinces a reckless disregard for the rights of others or
smacks of intentional wrongdoing." AT & T Co. v. City of New York, 83
F.3d 549, 556 (2d Cir. 1996)(quotation and citation omitted).

"False imprisonment is an unlawful detention contrary to the will of
the person detained, accomplished [**20] with or without process of
law." 59 N.Y. Jur. 2d False Imprisonment § 1 (1987). A prima facie
case of the intentional tort of false imprisonment is established upon
a showing that: (1) the defendant intended to confine the plaintiff;
(2) the plaintiff did not consent to the confinement; (3) the
plaintiff was aware that he was confined; and (4) the confinement was
not otherwise privileged, such as confinement pursuant to a warrant or
with probable cause or immunity protection. See King, 111 F.3d at
256-57; Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.
1995); see also 59 N.Y. Jur. 2d False Imprisonment §§ 22-46
(1987)(providing a review of what may cause a confinement to be
privileged).

For false imprisonment liability to attach to one who causes or
directs an arrest or imprisonment in New York, "the defendant must
have affirmatively induced the officer to act, such as taking an
active part in the arrest and procuring it to be made or showing
active, officious and undue zeal to [*14] the point where the
officer is not acting of his own volition." Id . at § 37; see also
King, 111 F.3d at 257 (holding [**21] that defendant must have
"intended or instigated the confinement of the plaintiff"); Raysor v.
Port Auth. of N.Y. and N.J., 768 F.2d 34, 39 (2d Cir. 1985)(holding
that there must be "an unequivocal complaint or request to arrest" in
order for a third-party to be liable for false arrest by the police).

Mexican law is much different, and its sources do not lie in precedent
cases. As a civil law jurisdiction, Mexican courts consider the text
of the constitution, civil code and statutory provisions as the
primary source of law and give them preponderant consideration. See
Boris Kozolchyk and Martin L. Ziontz, A Negligence Action in Mexico:
An Introduction to the Application of Mexican Law in the United
States, 7 Ariz. J. Int'l & Comp. L. 1, 8 (1989). Likewise, Mexican
courts give substantial weight to administrative regulations. See id.
"Civil law codes tend to be much more general and encompass a broader
range of circumstances than do common law statutes . . . . A civil
code is not a list of special rules for particular situations; it is
rather a body of general principles carefully arranged and closely
integrated." Margarita Trevino Balli and David S. [**22] Coale,
Torts and Divorce: A Comparison of Texas and the Mexican Federal
District, 11 Conn. J. Int'l L. 29, 42 (1995); see also Ryan G.
Anderson, Transnational Litigation Involving Mexican Parties, 25 St.
Mary's L. J. 1059, 1095 (1994) (describing the Mexican civil law
system). New York courts do not indulge the presumption that New York
law is the same as the law of a civil code country. Loebig v. Larucci,
572 F.2d 81, 85 (1978). It is only when no evidence of foreign law has
been presented that the courts will decide cases in accordance with
New York law. Id. Such is not the situation here.

Under the Mexican Civil Code, specific common law torts are not
recognized. Instead, the noncontractual civil wrongs that we
characterize as the torts of false imprisonment, negligence and gross
negligence are encompassed in one general Article in the Mexican Civil
Code. That Article is found in Chapter V ("Liabilities from Illicit
Acts") of Book Four ("Obligations") of the Code and provides:

Whoever, by acting illicitly or against the good customs and habits,
causes damage to another shall be obligated to compensate him unless
he can prove [**23] that the damage was caused as a result of the
fault or inexcusable negligence of the victim.

Mexican Civil Code, art. 1910 (Abraham Eckstein and Enrique Zepeda
Trujillo trans. 1996).

As is apparent, the potential for liability is somewhat open-ended,
since an illicit act may be a violation of "good customs" as well as a
violation of a statute or administrative regulation. See Boris
Kozolchyk and Martin L. Ziontz, A Negligence Action in Mexico: An
Introduction to the Application of Mexican Law in the United States, 7
Ariz. J. Int'l & Com. L. 1, 11 (1989).

A finding on good customs, by its very nature, requires a flexible
approach to the admissibility of evidence, the method of proof, and
discretion of the trier of fact. In theory, good customs could be
proven by as many evidentiary devices as may be concocted by a fertile
imagination, from the interpretation of theological or religious
injunctions on bad behavior to anthropological, sociological or
psychological expert testimony on prevailing attitudes. Such a broad
spectrum of proof presupposes that the trier of fact has the legal
training necessary to exercise sound discretion. If the trier of fact
is a professional [**24] judge, as he is in Mexico, he will try, at
least ostensibly, to rely not on his own knowledge and experience but
on that of witnesses, particularly expert witnesses. Id.

Whether the wrongful act was intentional or negligent does not have a
distinct bearing on liability. The primary focus for liability
purposes is simply whether the act was illicit or against good customs
and, if so, whether the wrongdoer was at fault for causing another
person injury by his wrongdoing. See Margarita Revino Balli and David
S. Coale, Torts and Divorce: A Comparison of Texas and the Mexican
Federal District, 11 Conn. J. Int'l L. 29, 46 (1995). Consideration
[*15] of whether the wrongful act was intentional or negligent is
only relevant as a factor to be included in the formulation of the
compensatory and "moral" damages awards. See id. When liability has
been found and damages are at issue, non-physical injuries such as
emotional harm can be compensable and "shall be presumed if a person's
freedom . . . or integrity is unlawfully violated or restricted."
Mexican Civil Code, art. 1916.

We deal here with conduct regulating rules that are in actual conflict
due to the differences [**25] between common law and civil law
requirements for establishing tort liability. Accordingly, we find it
necessary to apply the law of Mexico, which has the greatest interest
in regulating the behavior of the parties to this appeal and which is
the locus of the alleged tort. In doing so, we find in the pertinent
law no violation of fundamental notions of justice and good morals and
no threat to the public policy of the forum.

C. Application of Mexican Law

It seems clear to us from the undisputed facts that American Airlines
and its employees cannot be considered to have acted illicitly or
against good customs and habits. For this reason, the plaintiff's
claim cannot survive American's motion for summary judgment.

Rather than acting in a manner contrary to the standards set forth in
the pertinent Civil Code provision, American's employees acted in
strict compliance with specific regulatory requirements governing the
conduct and operation of aircraft in Mexican airspace. Without
question, Mexico has sovereign jurisdiction over its own airspace. See
Ley de Vias Generales de Communicacion, Libro Cuatro, Articulo 306
(Mex.), translated in Staff of Senate Comm. on Commerce, [**26] 89th
Cong., 1st Sess., Air Laws and Treaties of the World, 1, 1721 (Comm.
Print 1965)(hereinafter "Communications Law")(Translation of
Communications Law is found at pp. 1721-43); see also Chicago
Convention, 15 U.N.T.S. 21, art. 1 ("The contracting states recognize
that every State has complete and exclusive sovereignty over the
airspace above its territory."). Moreover, the Mexican federal
government has exclusive jurisdiction over issues relating to the
"inspection, supervision and control of civil air navigation,
[including] all civil aircraft in Mexican territory or which fly over
it, as well as their crew, passengers and goods transported."
Communications Law, art. 308.

The United States has recognized this jurisdiction by international
convention and treaty. According to Article 5B of the Agreement
between the Government of the United States of America and the
Government of the United Mexican States, August 15, 1960, T.I.A.S. No.
4675, and Article 13 of the Convention on International Civil
Aviation, December 7, 1944, T.I.A.S. No. 1591, 15 U.N.T.S. 21, a
United States airline is required to respect Mexican law governing
commercial air travel while operating in Mexico. [**27] See, e.g.,
Barkanic v. General Admin. of Civil Aviation of the People's Republic
of China, 923 F.2d 957, 961 (2d Cir. 1991)(holding that the Agreement
between the Government of the United States and the Government of the
People's Republic of China Relating to Civil Air Transport, September
17, 1980, T.I.A.S. No. 10326, art. 5, requires "that a United States
airline must respect Chinese laws when operating within Chinese
territory").

Pilots in command of aircraft operating in Mexico are responsible for
the "direction, care, order and safety of the aircraft, the crew,
[and] passengers . . . . [until] . . . the end of the flight."
Communications Law, art. 321. Article 322 of the Communications Law
requires the pilot in command to log and make known to Mexican federal
authorities upon landing in Mexico "all incidents which might have
legal consequences and which take place during the flight." It is
clear that bringing narcotics into Mexico is an "incident" that "might
have legal consequences." A pilot's duty to report suspected in-flight
drug use or possession is further established by Article 556 of the
Communications Law, which provides that a pilot may [**28] be subject
to fines for "acts or omissions which, actively or passively,
contribute to the act of smuggling."

[*16] American's submissions following oral argument included an
affidavit by Eduardo Ramos Gomez, who is an attorney licensed to
practice in Mexico and a registered foreign legal consultant in the
State of New York. Attached to this affidavit were copies of certain
provisions of the Codigo Penal para el Distrito Federal or Mexican
Penal Code, including Articles 5 and 194, in both the original Spanish
version and Mr. Gomez's English translation. The parties do not
dispute the accuracy of these provisions or the illegality of
importing marijuana into Mexico. Article 194 of the Mexican Penal Code
provides that one who "brings in . . narcotics . . . even if it is
momentarily or while in transit" is subject to a term of imprisonment
of up to 25 years. Article 5 of the Mexican Penal Code specifically
provides that acts on flights in Mexican airspace are considered to be
committed in Mexico for penal code purposes.

Neither the parties' submissions of Mexican law nor our own research
have uncovered any law that could be read to require a commercial
airline pilot or crew to [**29] question or search any passenger
suspected of in-flight drug use or possession prior to reporting the
suspicion to the authorities. Curley's contention that there is such a
duty therefore is without foundation. The obligation of the captain to
report suspected drug importation can be performed by those who act at
his direction. Here, Captain Kummire identified Curley for the
American ground crew as one suspected of possessing and using
marijuana in the lavatory while in Mexican airspace. The ground crew
notified the Mexican authorities. All of this was in furtherance of
the captain's obligation to report occurrences that might result in a
legal action.

Under the circumstances, it was reasonable for the captain, as well as
the Mexican authorities, to suspect that Curley was bringing at least
some quantity of marijuana into Mexico. The part played by Due as was
merely a continuation of the discharge of the responsibilities imposed
upon the captain. Due as acted routinely in assisting the Mexican
officials with identification and processing matters prior to the
official search and examination of Curley. Accordingly, neither his
activities nor the act of any American employee can [**30] in any way
be considered illicit or contrary to good habits and customs in
Mexico.

CONCLUSION
We have considered all of Curley's contentions on this appeal and have
determined, in accordance with the foregoing, that the summary
judgment granted to American should be affirmed on the basis of
Mexican law. For the reasons previously given, we dismiss the
cross-appeal from the putative order denying the motion for summary
judgment that was grounded in Mexican law.
 




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