## Facts

- A midair collision over Rio de Janeiro, Brazil, on February 26, 1960, involved a U.S. Navy aircraft and a Brazilian commercial aircraft owned and operated by Varig.
- Vincent Tramontana, a member of the U.S. Navy Band aboard the Navy plane, was killed.
- His widow, Beatrice Antonette Tramontana, lived with him in Hyattsville, Maryland.
- Varig was a Brazilian corporation with its principal place of business in Brazil and conducted air-transportation activities including in the United States.
- The widow sued Varig in the U.S. District Court for the District of Columbia, alleging negligent operation of Varig’s aircraft.
- The complaint expressly relied on the Brazilian Code of the Air as the source of the wrongful-death cause of action.
- Brazilian law imposed a statutory maximum limit on wrongful-death damages.

## Issues

1. When a plaintiff sues in a District of Columbia federal court on a wrongful-death cause of action created by Brazilian law for an accident in Brazil, must the court apply Brazil’s statutory cap on damages?
2. Is the Brazilian damages limitation substantive (part of the right created) or procedural/remedial (and thus disregardable by the forum)?
3. If otherwise applicable, should the Brazilian damages cap be refused as contrary to the forum’s public policy?

## Decision

- The court affirmed the judgment applying the Brazilian statutory damages cap.
- Because the plaintiff invoked Brazilian law to create the cause of action, she could not accept the right while rejecting the statutory limitations attached to it.
- The damages cap was treated as a substantive element of the Brazilian wrongful-death right, not a procedural rule.
- The court found no sufficiently strong forum public policy requiring nonapplication of the Brazilian limitation in this international setting.

## Legal Principles

- In a conflict-of-laws setting, a statutory damages limitation contained in the same foreign law that creates the wrongful-death cause of action is generally applied as part of the substantive right.
- A plaintiff who elects to base liability on foreign law ordinarily must take the foreign statutory scheme as a whole, including built-in restrictions on recovery.
- A forum does not disregard foreign law merely because it is less generous than domestic law; refusal on public-policy grounds requires a clear, strong, overriding policy.

## Conclusion

The D.C. Circuit held that a District of Columbia court recognizing a Brazilian wrongful-death cause of action for a Brazil-based aviation accident must also apply Brazil’s statutory ceiling on damages, absent a clearly overriding forum policy requiring a different result.


Tramontana v. S.A. Empresa de Viacao Aerea Rio Grandense, 350 F.2d 468 (D.C. Cir. 1965)