(dissenting).
I would reverse the Judgment of the trial court and remand with directions to grant a new trial for these reasons:
1. Inconsistent fact-findings were made by the trial court on the score of *881the defendant’s negligence; it expressly found that the plane crash was due to a sudden emergency created by “the highly probable presence and actions of jet aircraft” and that as a consequence the defendant was free of all fault or negligence, and then, in awarding $8300 damages to the plaintiffs, it implicitly found that the defendant was negligent since such an award could only have been made under the Warsaw Convention on a finding of negligence. It is settled that where fact-findings are inconsistent either with one another, or with the verdict, that a new trial must be granted. Freightways, Inc. v. Stafford, 217 F.2d 831, 835 (8 Cir. 1955); Rule 49(b) Federal Rules of Civil Procedure.
2. The trial court’s fact-finding that the crashing of the plane was due to a sudden emergency created by “the highly probable presence and actions of jet aircraft” was against the overwhelming weight of the evidence; it could not have been reasonably made under the evidence.
3. The stated fact-finding as to the “probable” presence of jets was clearly on its face speculative. It is settled that “mere speculation” cannot “be allowed to do duty for probative facts.” Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458 (1943); Noel v. United Aircraft Corporation, 342 F.2d 232, 239 (3 Cir. 1965).
4. The trial court erred as a matter of law in ruling that the explicit testimony of plaintiffs’ witnesses — airport control tower operators and naval and air force officers — that jets were not present at the time of the crash, was negative proof which “did not balance or outweigh the affirmative testimony” of the defendant’s witnesses that they saw and heard jets. It is settled that where a witness is so circumstanced that he is able to testify as to nonpresence of a thing, his testimony is affirmative: Eiseman v. Pennsylvania R. Co., 151 F.2d 222 (3 Cir. 1945); Enfield v. Stout, 400 Pa. 6, 161 A.2d 22 (1960); Wigmore on Evidence, (3rd ed.) 777 § 664.
5. The trial court’s expressed admission that “The actual cause of the crash of Flight 642 cannot be determined on the record before me” evidenced a “hung-jury” situation which required it to abstain from reaching a verdict and to direct a new trial. Where a jury cannot reach a verdict as to how an accident happened it is a “hung-jury”. The trial court, to which the case was tried without a jury, was a “jury”. Allen v. St. Louis Nat. Bank, 120 U.S. 20, 30, 7 S.Ct. 460, 30 L.Ed. 573 (1887).
The majority has not adverted to any of the stated points nor does its opinion indicate an awareness of their existence.
It has confined its consideration to the single point as to whether the record supports the trial court’s finding that the defendant “was not even negligent”, and has found on that score that “the record supports the District Court’s conclusion that appellant [plaintiffs] failed to prove conduct of the appellee [defendant] that was either wilful or negligent, and the proximate cause of the accident”, and “Such independent proof would have been essential to appellant’s recovery”, (emphasis supplied)
The majority has by-passed resolution of the critical question as to whether the evidence supports the trial court’s finding that the accident was caused by a sudden emergency due to the “probable presence and actions of jet aircraft”, even though it concedes that the evidence as to the presence of jets “is exceedingly thin”, for the assigned reason that the plaintiffs failed to meet their burden to prove even negligence.
The majority errs in its view that the plaintiffs bore the burden to prove negligence.
The Warsaw Convention, 49 Stat. 3000 et seq., provides in Article 171 that *882where a passenger is killed or injured aboard a plane “the carrier shall be liable for damage sustained”, and Article 20(1) 2 imposes the burden on the carrier to prove that it has “taken all necessary measures to avoid the damage or that it was impossible” for it to take them. We specifically noted these provisions when the instant case was before us on a prior appeal. Berguido v. Eastern Air Lines, Incorporated, 317 F.2d 628, 629 (3 Cir. 1963).3 It is undisputed that Article 17 “creates a presumption of liability from the happening of the accident.”4 The late Secretary of State Hull, in a letter dated March 31, 1934, addressed to the President, recommending adherence to the Convention, pointed out that Article 17 of the Convention creates a presumption of negligence against the carrier.5
The majority errs in the further respect that in holding that “the record supports the District Court’s conclusion that appellant failed to prove conduct of the appellee that was either wilful or negligent”, it disregards the hard fact that the trial court did find the defendant negligent when it returned a verdict of $8300 against the defendant. As earlier stated, such an award could only be made under the Warsaw Convention when a carrier is negligent.
The fact of the matter is that the defendant has not on this appeal challenged the finding of negligence implicit in the $8300 award; to the contrary, it seeks affirmance of that award.
Moreover, the defendant stresses in its brief that the issue of negligence was not even at issue at the trial; that the only issues were the defendant’s wilful misconduct and the applicability of the liability limitations of the Warsaw Convention.
What has been said brings us to the consideration of the trial court’s fact-findings that the “presence and action of jet aircraft” during the plane’s landing maneuvers “threatened or interfered with the approach of Flight 642, bringing about emergency conditions and accident resulting in the crash without willful misconduct, negligence or fault on the part *883of the defendant or any member of the crew of Flight 642”; and that the plane’s crew had not “under other than emergency conditions knowingly and intentionally brought the plane to a position below the mínimums prescribed for an ILS approach.”
Discussion of the evidence relating to the presence or action of jets must be prefaced by a brief statement of the plaintiffs’ contentions with respect to the crashing of the plane, and the scope of our review of the trial court’s fact-finding that jets created a sudden emergency.
First as to the plaintiffs’ contentions: One of the two6 alternative theories presented below by the plaintiffs as to the issue of defendant’s wilful misconduct, was that the plane crashed while it was attempting a “sneak-in” landing, viz., dropping down through a low cloud ceiling into a position below the authorized Instrument Landing System (ILS) approach minimum in violation of Civil Air Regulations. The majority concedes that such a “sneak-in” maneuver would constitute not only negligence but wilful misconduct as well and I agree.
Second, as to the scope of our review as to the trial court’s fact-findings with respect to jets:
The defendant’s evidence as to the presence of jets was presented below on depositions. The defendant’s evidence as to the nonpresence of jets was also presented on depositions, with but one exception. It is settled that under such circumstances this Court can review and evaluate a finding based on deposition testimony free of the impact of the “clearly erroneous” rule. Mobil Tankers Company, S. A. and Socony Oil Company, Inc. v. Mene Grande Oil Company, 363 F.2d 611, 613 (3 Cir. 1966) 7 and the cases therein cited.
Coming now to the testimony as to the presence or nonpresence of jets which must be considered in the light of the undisputed fact that the only jets in existence at the time of the plane crash here involved were naval and military jets:
The defendant’s testimony as to the presence of jets was adduced in the depositions of three witnesses.
Donald Wheeler said in his deposition that he saw “a silhouette of what looked to be two jets” and heard the sound of jets while he was driving his truck near the Airport at the time of the crash; he walked over to the burning plane but did not report his “observation to anyone at the scene of the accident”; he, however, told his father-in-law, an employee of the defendant, about it the next day.
Mrs. Marian A. Farrish said in her deposition that she lived a 20-minute drive from the crash; she heard but did not see a commercial aircraft and jets; she could not explain why in her earlier testimony before the Civil Aeronautics Board she had testified that she heard only jets and not any other type plane.
Mrs. Fred Lubin said in her deposition that she lived two miles from the Airport; she heard but did not see both a passenger plane and a “jet or jets” just before the accident.
The plaintiffs’ testimony as to the jet issue was as follows:
Rear Admiral John Francis Green-slade testified in his deposition' that in January 1956 he was a Captain of the *884United States Navy, and Director of Flight Service Division in the Office of Chief of Naval Operations; at the request of the Chief of the Investigation Division of the Civil Aeronautics Board he made a check to ascertain whether there were any Navy jets aloft in the vicinity of Jacksonville, Florida between 12 A.M. and 6 A.M. December 21, 1955 (the crash occurred at 3:41 A.M. December 21, 1955); he made the check requested and found that at the specified period no naval jets were in operation in the area of Jacksonville.
Major Robert J. Tobin of the United States Air Force testified in his deposition that in January 1956 he made a check at the request of the Inspector General and the Civil Aeronautics Board as to whether there were any military jets aloft in the vicinity of Jacksonville at the time of the crash and ascertained that there were neither military nor naval jets.
William T. McKinney, employed by the Civil Aeronautics Board as airways operations specialist (tower operator) in the control tower of the Jacksonville Airport, testified in his deposition that he was on duty between midnight and 8 A.M. December 21, 1955, together. with Lawrence B. Robison, a control tower operator; he saw no jets or aircraft other than the doomed plane on his radar scope.
Robison in his deposition testified to the same effect; moreover, that he neither saw nor heard any jet or aircraft other than the defendant’s plane, prior to or at the time of the crash.
Carl Alton Anderson, a Jacksonville policeman, testified in his deposition that he was on duty at the Airport at the time of the crash and that he did not “hear a jet aircraft that night”.
Franklin Cardwell, a National Airlines flight engineer, with some 20 years experience, gave this oral testimony at the trial: he lived across the street from defendant’s witness Farrish: he heard one Constellation plane (defendant’s plane was a Constellation), and it was the only plane aloft at the time; he was familiar with the sound of jet engines; he did not hear a jet and had there been a jet in the air he would have heard since he was listening; he had testified to that effect at the CAB hearing.
The trial court credited the testimony of the defendant’s witnesses as to the presence of jets. In doing so it said:
“To me, affirmative testimony as to seeing objects and hearing sounds, when unequivocal, reasonable and ringing true to the trier of fact is far more persuasive than testimony that said sights or sounds were not seen or heard by other witnesses having opportunity and occasion to see and hear.
“On this subject, the negative testimony in this case, whether taken singly or as a whole, in my mind does not balance or outweigh the affirmative testimony. The testimony of Greenslade and others to the effect that no military jets were reported or recorded as operating in the Jacksonville area at the time, while given full consideration, does not convince me that jet aircraft were not or could not have been seen and heard at the time and place indicated in the testimony of Wheeler, Lubin and Far-rish.” (emphasis supplied)
It is obvious that the trial court cleared the decks, so to say, for its crediting of the testimony of the defendant’s witnesses by its erroneous categorization of their testimony as affirmative and the countervailing testimony of the plaintiffs’ witnesses as negative.
As earlier stated, the trial court erred as a matter of law in categorizing the testimony of the plaintiffs’ witnesses as “negative”. Also, as already said, the trial court’s fact-findings as to the presence of jets was against the overwhelming weight of the evidence of competent and disinterested witnesses and they could not have been reasonably made by a fact-finder.
The defendant in its brief8 candidly admits that the evidence did not “conclu*885sively” prove that the accident was caused by “interference from jet aircraft”; that “no one has yet proved why” the plane crashed; that the cause of the crash was an “unpenetrable mystery”; and that “After Judge Boldt sat through 1200 pages of testimony, read 27 depositions, and examined over 50 exhibits, he decided ‘The actual cause of the crash of Flight cannot be determined on the record before me. * * * ’ ” 9
The defendant’s position here presents a baffling anomaly in another respect, viz., it seeks an affirmance of the trial court’s award of $8300 with its implicit fact-finding that the defendant was negligent, in patent disregard of the circumstance that the trial court’s fact-findings that jets created a sudden emergency which caused the plane crash “without willful misconduct, negligence or fault on the part of the defendant”, made it mandatory for the trial court to render a verdict in favor of the defendant under Article 20 of the Warsaw Convention,10 which absolves a carrier from all liability where a sudden emergency causes an accident.
The majority’s disposition reflects the same anomaly in that it affirms a judgment based on a finding that a sudden emergency caused the plane crash without wilful misconduct or negligence on the part of the defendant which required rendition of a verdict for the defendant, and at the same time it inconsistently affirms a judgment which awards the plaintiffs $8300 for negligence.
In summary, I would reverse the Judgment of the trial court and remand for a new trial because of the inconsistency of fact-findings and verdict; the speculative and clearly eroneous fact-findings as to the jets; the erroneous legal standard applied by the trial court with respect to affirmative and negative evidence, and last, but not least the inescapable fact that this was a “hung-jury” requiring abstention from reaching a ver-diet and granting of a new trial, inasmuch as the trial judge expressly concluded that “The actual cause of the crash of Flight 642 cannot be determined on the record before me”.
This must be added.
The plaintiffs here contend that the liability limitations of $8,300, absent wilful misconduct, of Article 22(1) of the Convention are inapplicable under Article 3(2) because the defendant failed to deliver a passenger ticket to their decedent which adequately advised him of the limitation of liability provision as required by Article 3(1) (e). Under the cited provisions of Article 3 “ * * * the carrier must deliver a passenger ticket which shall contain * * * a statement that the transportation is subject to the rules relating to liability established by this convention.”
The majority did not dispose of this contention for the assigned reason that it finds, albeit erroneously, that plaintiffs had failed to meet their burden to prove even negligence on the defendant’s part.
While I, too, do not reach this contention, because of my opinion that a new trial must be granted for the reasons earlier stated, I nevertheless feel constrained to express a view as to it should a new trial be granted, as it should.
In the instant case, the passenger ticket, in a footnote on its face11 stated:
“Carriage/Transportation under this Passenger Ticket and Baggage Check, hereinafter called ‘ticket’, is subject to the rules relating to liability established by the Convention for the Unification of Certain Rules Relating to International Carriage/Transportation by Air signed at Warsaw October 12, 1929, if such carriage/transportation is ‘international carriage/transportation’ as defined by said Convention.” In a recent case, a similar footnote on
a plane passenger ticket was held not to be in compliance with the requirement of *886the notice provisions of Article 3(1) (e) of the Convention, Lisi v. Alitalia-Linee Aeree Italiane, 253 F.Supp. 237 (S.D.N.Y.1966).
It was there said at page 243:
“The footnotes printed in microscopic type at the bottom of the outside front cover and coupons, as well as condition 2(a) camouflaged in .Lilliputian print in a thicket of ‘Conditions of Contract’ crowded on page 4, are both unnoticeable and unreadable. Indeed, the exculpatory statements on which defendant relies are virtually invisible. They are ineffectively positioned, diminutively sized, and unemphasized by bold face type, contrasting color, or anything else. The simple truth is that they are so artfully camouflaged that their presence is concealed.
“ ‘Lilliputian typography,' Eck v. United Arab Airlines, Inc., 20 App.Div.2d 454, 457, n. 2, 247 N.Y.S.2d 820, 824, rev’d on other grounds, 15 N.Y.2d 53, 255 N.Y.S.2d 249, 203 N.E.2d 640 (1964), which must be read through ‘a magnifying glass,’ Warren v. Flying Tiger Line, Inc., 234 F.Supp. 223, 230 (S.D.Cal.1964), aff’d, 352 F.2d 494 (9th Cir. 1965), is at war with the intent of the Convention. This was recognized by our Court of Appeals in Mertens where one of the reasons for precluding the carrier from limiting its liability under the Convention was that the required statement ‘was printed in such a manner as to virtually be unnoticeable and unreadable * * *.’ Mertens v. Flying Tiger Line, Inc., supra, 341 F.2d [851] at 857.”
I agree with the holding cited.
I would go further, and hold that assuming the footnote notice, as framed, was printed in readily discernible manner, that it would not satisfy the plain intent of the Convention that a passenger should be adequately advised by his ticket that the carrier’s liability was limited by the Convention to $8,300, absent wilful misconduct on the carrier’s part.
The rationale of such a holding can be briefly stated. A plane passenger is not put on notice of the $8,300 liability limitation by an abbreviated statement that his carriage “is subject to the rules relating to liability established by the Convention for the Unification of Certain Rules Relating to International Carriage/Transportation by Air signed at Warsaw October 12,1929. * * * ”
Passengers on an international flight are not expected to carry with them a copy of the Warsaw Convention. See Lachs v. Fidelity & Casualty Co. of New York, 306 N.Y. 357, 118 N.E.2d 555 (1954), where it was said of a contract of flight insurance :
“We all know that a contract of insurance, drawn by the insurer, must be read through the eyes of the average man on the street or the average housewife who purchases it. Neither of them is expected to carry the Civil Aeronautics Act or the Code of Federal Regulations when taking a plane.” 118 N.E.2d 558.
. Article 17 of the Warsaw Convention provides as follows:
“The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident causing the damage so sustained took place on board the air*882craft or in the course of any of the operations of embarking or disembarking.”
. Article 20(1) of the Convention provides:
“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.”
. In Berguido v. Eastern Air Lines, Incorporated, 317 F.2d 628 (3 Cir. 1963), Judge McLaughlin, speaking for this Court, said at page 629:
“The Warsaw Convention provides, inter alia, that the carrier is absolutely liable for all injuries where the accident causing the damage so sustained takes place on board the aircraft. Article 17. In such circumstances the liability of the carrier for each passenger is limited to 125,000 francs (approximately $8,300). Article 22(1). In order to escape that liability, the carrier has the burden of proving that it has taken all necessary measures to avoid the damage or that it was impossible for it to take them. Article 20(1). On the other hand, if the plaintiff sustains his burden of proving that the damage is caused by the ‘wilful misconduct’ of the carrier, ‘[t]he carrier shall not be entitled to avail himself of the provisions of this convention which exclude [Art. 20(1)] or limit [22(1)] his liability.’ Article 25(1).”
. In Komolos v. Compagnie Nationale Air France, 111 F.Supp. 393, 401 (S.D.N.Y.1952), rev’d on other grounds, 209 F.2d 436 (2 Cir. 1953), cert. den. 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), the court stated: “The Convention creates a presumption of liability from the happening of the accident. Art. 17. It gives the carrier complete exoneration from liability if the carrier can prove that it took all necessary measures to avoid the damage.” See also Wyman v. Pan American Airways, Inc., 181 Misc. 963, 43 N.Y.S.2d 420, 422 (1943); Hitts v. American Overseas Airlines, Inc., 1949 U.S. Av. 65 (S.D.N.Y.1949).
. Secretary Hull said: “The effect of Article 17 (ch. Ill) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a passenger subject to certain defenses allowed under the Convention to the aerial carrier. 1934 U.S. Av. 240, 243.” (emphasis supplied)
. The other alternative theory was that both the pilot and co-pilot had submarginal heart conditions which caused or contributed to the plane’s crashing. I agree with the majority’s view that the trial court’s rejection of this theory cannot be said to be “clearly erroneous”.
. We there said “Meneg argues that the lower court’s findings of fact are presumptively correct and our right to review them is circumscribed by the ‘clearly erroneous’ rule. This rule is inapplicable in the instant case. Since the matter was presented to the lower court on affidavits without oral testimony the findings of fact are reviewable free of the impact of the rule. * * * We are in as good a position as was the trial court to evaluate the evidence, draw the inferences of which the evidence is reasonably susceptible, and decide the critical questions raised on this appeal”. 363 F.2d 613.
. Pages 15 and 16, Appellee’s Brief.
. Para. 4 of the trial court’s “firm findings and conclusions”.
. See Note 2.
. Only the face of the passenger ticket was in evidence.