dissenting:
In my opinion these cases present not just an issue of whether there was suffi*38cient evidence to support the jury verdict, but also an important question of law which has serious implications for the safety of passengers on United States international air carriers.
That question of law is whether such a carrier should receive shelter from liability under the Warsaw Convention if it deliberately and willfully abandons procedures for screening passengers that it had agreed with the United States government to follow, and indeed had considered essential and had followed for many years.
The District Judge concluded that “the jury verdicts, finding TWA’s delicts the equivalent of willful misconduct, were more than justified,” and that the terrorist “was allowed aboard in flagrant violation of many basic security measures.”
Because of a concern that if hijackers learned of the security arrangements at the Cairo Airport and on the TWA aircraft they would be able to circumvent them, the District Court excluded the public and the press during those portions of the trial where the testimony related to “sensitive airline security information.” Those portions remain sealed, and this opinion does not refer to them. I here discuss only that evidence which the District Court did not consider sensitive. In a supplemental dissenting opinion filed under seal I mention certain sealed matters pertinent to the issues.
TWA’s willful misconduct did not consist merely of the neglect to use certain search procedures on the aircraft. Of the flagrant violations of security measures mentioned by the District Court, I will address here only one.
Although the terrorist was a “profile se-lectee” requiring careful screening, TWA allowed her aboard after deliberately deciding not to enforce a screening requirement agreed upon by the United States government and TWA. That requirement was for “redundant screening” by TWA itself, not by Egyptian personnel, of all passengers (not just profile selectees).
The testimony of Billie H. Vincent makes clear that there was such a requirement. Vincent was no ordinary citizen. He had spent almost thirty years in the Federal Aviation Administration (FAA) and since 1982 had been its director of the Office of Civil Aviation Security, retiring only a few months after April 2, 1986, the date of the incident at issue.
Under Egyptian law, only Egyptian authorities were permitted to search physically passengers at the Cairo Airport. But as Vincent testified, “as a result of the determination by TWA and the U.S. government” that the local “security was inadequate” at Cairo, there was put in effect some years before 1986 a requirement for United States air carriers to conduct redundant screening in Cairo of all passengers, not just profile selectees.
According to Vincent it was “clearly understood” between himself and the TWA officials that the redundant screening by TWA “had to continue.” Although the requirement for such screening was not formalized as a regulation, TWA recognized it as essential and in fact continued it over the years.
Quite plainly the requirement was implemented and continued because TWA and the United States government regarded the inspection by Egyptian personnel as insufficiently trustworthy to assure the safety of the passengers and crew. By April 2, 1986, the requirement was still in effect, and in fact had assumed added significance due to increased terrorist activities in the Middle East and elsewhere.
But on the day of this incident TWA, acting through its agents, knowingly and deliberately decided to abandon that requirement. TWA did this even though it knew that the woman was no ordinary passenger but a “profile selectee” posing a special risk.
TWA took the profile selectee to the gate at which it was equipped to do its own “redundant screening.” But the gate was closed. TWA did not ask the Egyptians to reopen it. Nor did TWA tell the profile selectee that she could not leave on the flight because TWA was unable to screen her in time. Instead, evidently in haste to add one more passenger to the manifest, *39the TWA agent went with her to a gate where TWA was unequipped to supplement the screening by Egyptians with its own, more reliable procedures. The Egyptians took her into a private booth for screening. No one testified as to exactly what was said or what happened in that booth, or as to the extent, if at all, that the Egyptians searched her or her handbag. She was then allowed by TWA to board the airplane.
Some things are clear. TWA never electronically screened her carry-on bag or its lining. TWA did not check her person or bag with metal detecting hand wands. All this could and presumably would have been done if TWA had adhered to its established procedure agreed upon with the United States government and had taken her through the required redundant TWA screening. In turn, that redundant screening could presumably have detected the components for the bomb.
TWA’s abandonment of an established screening procedure was not the result of inadvertence or negligence. It was a deliberate action made with full knowledge of the probable consequences. In a word, it was willful.
The fact that the requirement was not in writing does not diminish the significance of its abandonment. A written requirement may be easier to prove, but once it is proven the failure to follow a de facto requirement or procedure can rise to the level of willful misconduct. Cf. Republic Nat’l Bank of New York v. Eastern Airlines, 815 F.2d 232, 239-40 (2d Cir.1987) (no willful misconduct for failure to follow de facto procedures where evidence failed to prove that defendant adopted such procedures).
Redundant screening by TWA was not some unimportant matter instituted out of caprice or whim. Common sense suggests that it was implemented for some purpose. As evidenced by TWA’s continuation of redundant screening over the years and by other information which remains under seal, it was not something that TWA regarded as trivial or cosmetic. TWA knew it had to rely on its own defenses.
There were reasons why the United States and TWA regarded the Egyptian security procedures as untrustworthy. I cannot describe in this unsealed opinion the evidence of those reasons. It is enough to say that the specifics now held secret fully justified that lack of trust.
No single person at TWA was aware of all of the circumstances of the boarding of the profile selectee. But the “willful misconduct” of TWA must be evaluated in light of the circumstances known to its employees, managers, and agents, collectively. At least one of those employees charged with responsibility for security made the decision to abandon the screening by TWA personnel and to leave the passengers at the mercy of Egyptian personnel known by TWA to be untrustworthy.
Although I cannot discuss the details in this unsealed opinion, the record shows that once TWA decided to abandon the requirement for redundant screening, TWA had no adequate procedures in place to repair the breach. This fact simply emphasizes the importance of TWA’s pre-board-ing screening.
I do not agree that the Warsaw Convention shelters TWA from liability when it willfully acts to abandon a screening procedure implemented by agreement with the United States government, a procedure that TWA knew under the agreement it “had to continue” and that TWA itself deemed essential.
I would therefore affirm the judgment of the district court.