13. On the basis of the information presented by plaintiff, as detailed above, we find that the aircraft in question was flying above 13,000 feet at some point in its flight path, and that the cabin pressure differential from sea level reached eight and six-tenths pounds per square inch at some period of time during the course of the flight. Defendant has stipulated that the cabin pressure systems operated in normal fashion, as designed, and that in the course of the flight, the maximum cabin pressure differential of eight and six-tenths pounds per square inch was achieved.
14. Pressure at sea level is approximately fourteen and seven-tenths pounds per square inch. Therefore, the internal cabin pressure at maximum altitude is approximately six pounds per square inch; when the landing is at a low altitude airport such as Heathrow, the pressure at that point is close to the fourteen and seven-tenths pound level, or more than twice the six pound pressure at maximum altitude. (Exhibit P-2, Answers to Interrogatories; N.T. 75-83).
15. There are no records available with respect to the rate of change of the cabin pressure during repressurization. (Answers to Interrogatories). However, Dr. Myers, the plaintiff's medical expert, testified that his determination of possible relationship to ear damage did not require him to have the rate of change of pressure, because of the following information he had: FIRST, data about the gross change in pressure; and SECOND, his factual assumption that the plaintiff's eustachian tubes were either completely or substantially blocked. (N.T. 68).
16. At some point during the descent and repressurization of the aircraft, plaintiff experienced blockage of his ears. He attempted to clear his ears by swallowing, but was unable to do so. He was not concerned at the time, because he anticipated that he would be able to clear his ears shortly after landing. However, he was unable to equalize the pressure during the entire period which is critical to this action. (N.T. 30-33).
17. Shortly after their arrival at Heathrow, Plaintiff's companions realized that Mr. Warshaw was unable to hear unless they shouted at him when they were virtually toe-to-toe with him. Mr. Warshaw found that he could not hear in his left ear, and had limited hearing only in his right ear. This represented a sharp change for the left ear, although probably no change at all for the right ear; that ear was also afflicted with otosclerosis, and had not been subjected to any curative operation. (N.T. 9, 20-22, 33).
18. Plaintiff's condition failed to improve despite treatment with antihistamines during the approximate five-day period he was in England and Ireland. (N.T. 34-38).
19. Upon his return to the United States, Plaintiff was examined by Dr. Myers and his associate, Dr. Schlosser, both of whom are ear, nose and throat specialists. (Dr. Myers testified that he was Board-certified in his specialty in 1935). (N.T. 38-39, 41; Exhibit P-1).
20. These examinations showed losses of both air conductive and bone conductive hearing. The air conduction loss was so substantial that the doctors believed the probable cause, given the past stapedectomy, was slippage of the plastic tube prosthesis from the end of the incus bone. However, an operation was necessary to confirm this, and to remedy the situation, if, in fact, that was the problem. (N.T. 43, 55-59).
21. The operation disclosed that the prosthesis was still properly attached to the incus. However, there had been considerable damage at the point at which contact was made with the vein graft that closes the oval window. The region was cleaned, and another prosthesis was fashioned to replace the damaged one, after which the ear was again closed. (N.T. 58-60; Answers to Interrogatories).
22. Recovery from the operation was normal. However, Plaintiff's hearing did not improve nearly as much as it should have, had the slipped prosthesis been the only problem. Subsequent tests have resulted in a diagnosis of injury to the inner ear and the auditory nerve. (Answers to Interrogatories; N.T. 59, 91-92).
23. Dr. Myers was asked a hypothetical question which included the following facts as premises: (a) the pressure differential from altitude to sea level; (b) the fact that all systems on the plane functioned normally; (c) the inference that would flow from the fact of an individual undergoing a successful stapedectomy on the left ear of the type performed on plaintiff thirteen years earlier; (d) the fact that an individual had an upper respiratory tract infection at the time of the flight; (e) the fact that that individual had good hearing in his left ear prior to a transatlantic flight; (f) the fact that during the descent he felt a blockage in his ears which he was unable to clear; (g) the fact that upon reaching the airport terminal he found that he had lost all hearing in his left ear; (h) the fact that the hearing loss was a continuing one; and (i) the fact that the results of the medical testing, observation and surgery were the same as those which flowed from the actual tests, observation and surgery which Mr. Warshaw underwent.
He was asked if he could form an opinion with respect to the cause of deafness from this information. He stated that, in his opinion, the cause of deafness was a traumatic injury to the inner ear nerves, which was caused by the unequalized pressure change displacing the ear drum, attached bones and prosthesis so that the prosthesis penetrated into the inner ear. (N.T. 89-92).
24. We find, on the basis of the foregoing medical opinion from a duly qualified medical expert, and on the basis of all the evidence adduced for the purpose of justifying the assumptions of the hypothetical question, that the cabin repressurization as Flight 756 descended to London was a cause of the damage to plaintiff's left ear. We also find, on the basis of Dr. Myers' testimony and the relevant evidentiary facts, that the injury was in part caused by the peculiar condition of plaintiff, who had undergone a stapedectomy, and was suffering from a cold at the time. However, that was not the sole cause, because such an injury could have occurred even had he not suffered from a cold; such an impairment could have occurred to an individual with normally functioning middle ear bones.
25. We find credible, and therefore accept, plaintiff's testimony that he did not anticipate nor consider the possibility that he could be subject to such an injury if he took this flight while suffering from a cold. (N.T. 116-117). We also find credible, and also accept, plaintiff's explanation that he thought the blockage of his ears stemmed from the cold, until such time as he was examined by an ear specialist when he returned to the United States. Accordingly, he did not notify the defendant either on the plane, at the terminal at Heathrow, or, indeed, at one of their offices in the United States until more than a week had elapsed after he suffered his loss of hearing. (N.T. 34, 113).
A. Governing Law
We are presented with a pinpointed issue of interpretation of the Warsaw Convention (Convention), 49 Stat. 3000, as modified by the Montreal Agreement, 31 Fed. Reg. 7302 (1966).
Article 17 of the Convention gives rise to the cause of action and establishes the basis for liability, if any; the parties are in accord on this score as per their stipulation. See, Berguido v. Eastern Air Lines, Inc., 369 F.2d 874 (3d Cir. 1966); Husserl v. Swiss Air Transport Company, 351 F. Supp. 702 (S.D. N.Y. 1972). The pertinent provision is as follows (translation from French in official United States version at 49 Stat. 3018):
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. (Emphasis added).
As originally drafted, the Convention also included exemptions for due care (Article 20(1)), and for contributory negligence (Article 21), and a limitation of liability to passengers of 125,000 francs, then the equivalent of $8,300.00 (Article 22(1)). Those provisions read as follows (translation from French in official United States version at 49 Stat. 3019):
Article 20(1) : The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.