Doe v. Etihad Airways, P.J.S.C.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0201p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JANE DOE; JOHN DOE, husband and wife, ┐

Plaintiffs-Appellants, │

│

> No. 16-1042

v. │

│

│

ETIHAD AIRWAYS, P.J.S.C., │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 5:13-cv-14358—John Corbett O’Meara, District Judge.

Argued: October 19, 2016

Decided and Filed: August 30, 2017

Before: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Mark Kelley Schwartz, DRIGGERS, SCHULTZ & HERBST, P.C., Troy,

Michigan, for Appellants. Andrew J. Harakas, CLYDE & CO US LLP, New York, New York,

for Appellee. ON BRIEF: Mark Kelley Schwartz, DRIGGERS, SCHULTZ & HERBST, P.C.,

Troy, Michigan, for Appellants. Andrew J. Harakas, Daniel E. Correll, CLYDE & CO US LLP,

New York, New York, Scott R. Torpey, JAFFE RAITT HEUER & WEISS, Southfield,

Michigan, for Appellee.

_________________

OPINION

_________________

BOGGS, Circuit Judge. Plaintiff Jane Doe and her eleven-year-old daughter flew aboard

Etihad Airways from Abu Dhabi to Chicago. For the duration of the fourteen-hour journey,

No. 16-1042 Doe, et al. v. Etihad Airways Page 2

Doe’s tray table remained open in her lap because a knob that was meant to hold it in place had

fallen to the floor. During the flight, Doe’s daughter found the knob on the floor and gave it to

Doe, who placed it in a seatback pocket. When it came time to descend, an Etihad flight

attendant (unaware of the detached knob) gave Doe the familiar reminder to place her tray table

in the upright and locked position for landing. Doe, of course, could not comply. To aid in

explaining her problem, she reached into the seatback pocket to retrieve the fallen knob. But

when she stuck her hand into the pocket, she was unexpectedly pricked by a hypodermic needle

that lay hidden within. She gasped, and the needle drew blood from her finger.

Doe claims damages from Etihad for both her physical injury and her “mental distress,

shock, mortification, sickness and illness, outrage and embarrassment from natural sequela of

possible exposure to” various diseases. Her husband claims loss of consortium. The Montreal

Convention of 1999, an international treaty under which these claims arise, imposes strict

liability (up to a monetary cap) upon Etihad “for damage sustained in case of death or bodily

injury of a passenger upon condition only that the accident which caused the death or injury took

place on board the aircraft.” Etihad concedes that an accident onboard its aircraft caused Doe to

suffer a bodily injury. But Etihad argues that “damage sustained in case of . . . bodily injury”

means only “damage caused by bodily injury,” and thus does not include Doe’s fear of contagion

and other emotional-distress and mental-anguish damages—damages that Etihad claims were

caused not by Doe’s bodily injury (the small hole in her finger) but by the nature of the

instrumentality of that injury (the needle). The district court agreed and granted partial summary

judgment for Etihad. But the district court erred both in reading the additional “caused by”

requirement into the treaty and in concluding that Doe’s bodily injury didn’t cause her emotional

and mental injuries. The plain text of the Montreal Convention allows Doe to recover all her

“damage sustained” from the incident, which includes damages for both physical injury and

accompanying emotional or mental harm. So, for the reasons that follow, we reverse and

remand.

I

When Doe was pricked by the needle, the passenger seated in the aisle seat to her right

heard Doe exclaim, “ouch,” and saw her finger bleeding. The Etihad flight attendant who had

No. 16-1042 Doe, et al. v. Etihad Airways Page 3

come to Doe’s seat picked up the needle and what was later determined to be its accompanying

insulin syringe, both of which Doe had placed on her tray table. But the flight attendant then

returned the items to the tray table and left to summon the assistance of her supervisor. Because

the airplane had begun its descent, the flight attendants did not have access to the flight deck,

which was where the only onboard sharps box was located, nor were the flight attendants

permitted to call the flight deck absent a more pressing emergency.

The flight attendant returned with her supervisor. The flight attendant took the needle

and syringe, placed them in an empty water bottle, capped the bottle, and later turned the bottle

over to her cabin manager. The supervisor, meanwhile, gave Doe an antiseptic wipe, which Doe

used to wipe her finger, and a Band-Aid, which the supervisor himself wrapped around her

finger. The cabin manager wrote a report of the incident and told Doe that Etihad would contact

her. A flight attendant recommended that Doe see a doctor, but Etihad provided no medical

assistance other than the antiseptic wipe and Band-Aid.

The next day, Doe saw a family physician, who noted a “small needle poke” on Doe’s

finger. Doe was prescribed medication for possible exposure to hepatitis, tetanus, and HIV, and

she underwent several rounds of testing over the following year. Thankfully for Doe, all the tests

came back negative. Nevertheless, Doe claims that she refrained from sexual intercourse with

her husband and from sharing food with her daughter until one year after the incident, when her

doctor told her that she could be certain that she had not contracted a disease from the

needlestick.

Two days after the flight, Doe sent an email to Etihad to follow up because Etihad had

neither sent her a copy of the incident report nor offered her any further assistance. One week

later, Etihad replied by email to offer a “purely goodwill gesture” of “possible reimbursement”

of Doe’s medical expenses, “without any admission of liability.” This litigation followed.

No. 16-1042 Doe, et al. v. Etihad Airways Page 4

II

Plaintiffs filed suit against Etihad in the United States District Court for the Eastern

District of Michigan.1 Etihad, an entity wholly owned by the Government of Abu Dhabi, United

Arab Emirates, is a “foreign state” within the meaning of the Foreign Sovereign Immunities Act,

28 U.S.C. § 1603(a). But as a condition of Etihad’s Foreign Air Carrier Permit—issued by the

United States Department of Transportation to permit Etihad to fly to United States airports—

Etihad waived sovereign immunity from suit in United States courts and could thus be sued “in

any judicial district in which [Etihad] is licensed to do business or is doing business,” which

includes the Eastern District of Michigan because of Etihad’s codeshare and other business

agreements with airlines operating from points within that district. 28 U.S.C. § 1391(f); see

49 U.S.C. § 41301.2

Following discovery, Etihad moved for, and the district court granted, partial summary

judgment in favor of Etihad as to Doe’s claims for mental-anguish and emotional-distress

damages, including fear of contagion. (For simplicity, we will refer to these various claims

collectively as Doe’s claims for mental anguish.3) The partial-summary-judgment order also

dismissed Doe’s husband’s derivative claim for loss of consortium. Doe declined to pursue a

lost-earnings claim that she had pleaded in her complaint, leaving only her claim for the physical

pain, suffering, and medical expenses caused by the needlestick, which the parties stipulated to

be de minimis relative to the dismissed claims. (These de minimis damages include the physical

pain and suffering from being pricked by the needle: the small hole in Doe’s finger and the

“ouch,” so to speak. But they do not include any mental anguish arising from the fact that it was

1

At first blush, the Eastern District of Michigan seems an unlikely venue for this action. Plaintiffs reside in

Grand Rapids, in the Western District of Michigan, and no part of Plaintiffs’ itinerary included travel to points in the

Eastern District of Michigan. But Plaintiffs’ counsel is based in Oakland County, Michigan (in the Eastern District),

and, as we discuss in this paragraph, venue was proper in the Eastern District of Michigan because of Etihad’s status

as a “foreign state.”

2

Etihad’s status as a foreign state also entitles it by statute to a bench trial rather than a jury trial. See

28 U.S.C. § 1441(d).

3

Mental anguish and emotional distress are distinct harms under Michigan damages laws. See, e.g.,

McClain v. Univ. of Mich. Bd. of Regents, 665 N.W.2d 484, 488 (Mich. App. 2003) (per curiam). But this

distinction does not affect the determination of whether Etihad may be subject to liability for such harms under the

Montreal Convention; the distinction matters, if at all, only in our discussion of the measure of damages in Section

IV, infra.

No. 16-1042 Doe, et al. v. Etihad Airways Page 5

a stray needle and not, for example, a sterilized toothpick, that pricked Doe’s finger. The logic

behind this distinction is that if something like a sterilized toothpick had caused Doe’s bodily

injury, then Doe would not have had any reasonable fear of contagion, so Doe’s fear of

contagion must arise from the fact that it was a needle that caused her injury, rather than arising

from the injury itself, and Doe’s fear of contagion is therefore not recoverable as “damage

sustained in case of bodily injury” under the Montreal Convention. This logic is faulty, of

course, because Doe’s injury was an injury caused by a needle and was not the same as the

injury that a sterilized toothpick would have caused, even if arguably similar. We will discuss

this more fully in Section III.A, infra.) The parties reached a settlement as to these de minimis

damages, and the parties agreed to a “Stipulation and Order of Dismissal with Prejudice,” so that

Plaintiffs could immediately appeal the district court’s partial-summary-judgment order.

We first discuss, in Section III, whether the district court erred in holding that Doe’s

mental-anguish damages were not recoverable under Article 17(1) of the Montreal Convention,

and—after analyzing both the plain text of the treaty and relevant persuasive authorities—we

conclude that the district court did so err. Then, in Section IV, because the Montreal Convention

provides rules for liability but looks to local law for the measure of damages, we conduct a

choice-of-law analysis and hold that Michigan damages law governs both the amount of any

damages Etihad comes to owe Doe and the ability of Doe’s husband to recover loss-of-

consortium damages.

III

The parties agree that Article 17(1) of the Montreal Convention, a multilateral treaty to

which the United States is a signatory, provides Plaintiffs’ only avenue for recovery against

Etihad. See Convention for the Unification of Certain Rules for International Carriage by Air,

art. 17, May 28, 1999, S. Treaty Doc. 106-45, ICAO Doc. No. 9740, 1999 WL 33292734

(entered into force Nov. 4, 2003) (Montreal Convention). More than 125 countries, including the

United Arab Emirates, have signed, ratified, or acceded to the Montreal Convention since 1999.

The interpretation of a treaty is a question of law that we review de novo. United States

v. Page, 232 F.3d 536, 540 (6th Cir. 2000). Under the Supremacy Clause, treaties are “the

No. 16-1042 Doe, et al. v. Etihad Airways Page 6

supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Neither our court nor the Supreme Court

has yet interpreted any provision of the Montreal Convention. The Warsaw Convention (the

Montreal Convention’s longstanding predecessor treaty), however, has been the subject of much

litigation over the past eighty years, and interpretations of the Warsaw Convention have at least

some persuasive value in interpreting parallel provisions of the Montreal Convention.4 See

Convention for the Unification of Certain Rules Relating to International Transportation by Air,

Oct. 12, 1929, 49 Stat. 3000, T.S. 876, 137 L.N.T.S. 11 (Warsaw Convention); In re Air Crash at

Lexington, Ky., 501 F. Supp. 2d 902, 907–08 (E.D. Ky. 2007) (noting that “the ‘common law’ of

the Warsaw jurisprudence is vitally important to understanding the meaning of the Montreal

Convention”) (quoting Baah v. Virgin Atl. Airways, 473 F. Supp. 2d 591, 596 n.7 (S.D.N.Y.

2007)); see also, e.g., Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996) (interpreting

Warsaw Convention Article 17), Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991) (same), Air

France v. Saks, 470 U.S. 392 (1985) (same). As with the Montreal Convention, the Warsaw

Convention provided international air passengers’ exclusive remedy for claims governed by that

treaty. See, e.g., El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168–69 (1999)

(holding that the Warsaw Convention provided the sole remedy for personal-injury claims

arising from injuries sustained during international air travel, even if the injured party could not

state a claim for relief under the Warsaw Convention, in which case no remedy was available at

all).

A. Textual Analysis

Our analysis of Article 17(1) of the Montreal Convention “must begin . . . with the text of

the treaty and the context in which [its] written words are used.” Saks, 470 U.S. at 397 (citing

Maximov v. United States, 373 U.S. 49, 53–54 (1963)). The text of Article 17(1) provides:

The carrier is liable for damage sustained in case of death or bodily injury of a

passenger upon condition only that the accident which caused the death or injury

4

The Warsaw Convention continues to govern disputes involving parties from countries that are signatories

to the Warsaw Convention but not signatories to the Montreal Convention. Russia, for example, is a party to the

Warsaw Convention and did not ratify the Montreal Convention until 2017, so the Warsaw Convention would

govern claims against Russian airlines arising from incidents that occurred prior to Russia’s ratification of the

Montreal Convention.

No. 16-1042 Doe, et al. v. Etihad Airways Page 7

took place on board the aircraft or in the course of any of the operations of

embarking or disembarking.

Montreal Convention art. 17(1).

1. Etihad’s Argument

The contested language here is “in case of.” Etihad’s argument has two components: its

understanding of what “in case of” means, and its application of that understanding to the facts

of this case.

First, Etihad argues that “in case of” means “caused by,” Appellee’s Br. 4, or perhaps

“caused directly by,” see id. at 21. If we impose Etihad’s reading of Article 17(1) back onto the

text of the treaty, Etihad is then “liable for damage sustained [caused directly by] death or bodily

injury of a passenger upon condition only that the accident which caused the death or injury took

place on board the aircraft . . . .” Thus, according to Etihad, in order for Doe to recover for her

mental anguish under Article 17(1), Doe would have to prove that (1) an “accident” caused her

“bodily injury” on board an aircraft and (2) her “bodily injury” (i.e. the small hole in her finger)

directly caused her “damage sustained” (i.e., her mental anguish).

Second, Etihad concedes that an accident caused Doe to suffer a bodily injury on board

its aircraft, but Etihad argues that Doe’s bodily injury did not directly cause her mental anguish:

according to Etihad, Doe’s anguish was caused not by her “bodily injury” (i.e., the needlestick,5

the physical puncture wound) but rather by the “accident” that caused the injury (i.e., being stuck

by a needle, as opposed to being stuck by something else). Order Granting Def.’s Mot. for

Partial Summ. J. 4 (emphasis added) (citations omitted) (“Plaintiff’s mental distress damages

were not caused by her physical injury. It is not the physical needle prick itself that caused

Plaintiff’s distress, but the possibility that she may have been exposed to an infectious disease.”);

see Appellee’s Br. 17 (“[Doe’s] mental anguish damages arise from the nature of the accident

itself and were not caused by the bodily injury”), id. at 20 (“because the plaintiffs’ mental

5

The Oxford English Dictionary defines “needlestick” as “an accidental stab wound produced by a

hypodermic or surgical needle, esp. as a risk factor for the transmission of blood-borne diseases to health-care

workers.” Needle, Oxford English Dictionary, http://www.oed.com/view/Entry/125771 (last visited Aug. 29, 2017).

No. 16-1042 Doe, et al. v. Etihad Airways Page 8

injuries were caused by the ‘accident’ itself and not the ‘bodily injuries’ sustained in the

accident, there could be no recovery under the Convention”).

A simple diagram helps to illustrate Etihad’s curious understanding:

Bodily Injury Mental Anguish

[i.e., the small puncture (compensable only if it is

wound in Doe’s finger] caused by the bodily injury)

(compensable)

ACCIDENT

[i.e., being pricked

by a needle]

Mental Anguish

(not compensable, even though

it is caused by the same accident

that caused the bodily injury)

As this diagram indicates, according to Etihad, mental anguish caused directly by the

bodily injury is recoverable, but mental anguish that merely accompanies the bodily injury, and

which is instead caused more generally by the accident, is not recoverable.

2. Plain Meaning of the Text

But “in case of” does not mean “caused by.”

Rather, the plain meaning of “in case of” is “if there is” or “in the event of” or “during a

case in which there is.” The Oxford English Dictionary, for example, defines “in case” (as a

conjunction) as, “In the event that; if it should happen that; if,” and defines “in case of” (as an

adverb) as “in the event of (esp. something untoward). Now frequently in in case of emergency.”

In case, Oxford English Dictionary, http://www.oed.com/view/Entry/426263 (last visited Aug.

29, 2017). The Canadian Oxford Dictionary has similar definitions and is a seemingly apt

dictionary for identifying the contemporaneous meaning of terms in the Montreal Convention,

given that the dictionary was first published in 1998 and then updated in 2004,

No. 16-1042 Doe, et al. v. Etihad Airways Page 9

while the treaty was signed in 1999 (in Canada) and entered into force in 2003.

See Case, The Canadian Oxford Dictionary (2d ed. 2004),

http://www.oxfordreference.com/view/10.1093/acref/9780195418163.001.0001/m_en_ca001103

0?rskey=8fa6U0&result=11001 (defining “in case” as “in the event that; if,” and defining “in

case of” as “in the event of”).

Clearly, the plain meaning of “in case of” is conditional, not causal. To say in case of X,

do Y is to say “if X happens, then do Y”—none of which means that there is a causal relationship

between X and Y—just as to say in case of a compensable bodily injury, the passenger may

recover damage sustained is to say “if there is a compensable bodily injury, the passenger may

recover damage sustained.” But to adopt Etihad’s meaning of “in case of,” we would impose an

additional causal restriction onto the text of Article 17(1) that the plain text does not

contemplate. Indeed, imposing such an additional causal restriction would contradict the plain

text, which states that “[t]he carrier is liable for damage sustained in case of . . . bodily

injury . . . upon condition only that the accident which caused the death or bodily injury took

place on board the aircraft or [while] embarking or disembarking.” Montreal Convention art.

17(1) (emphasis added).

The phrase “upon condition only” is new to the Montreal Convention—it is not found in

the Warsaw Convention (either in English or in the official French version)6—and it makes clear

6

The official text of Article 17 of the Warsaw Convention provides in full:

Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de toute autre

lésion corporelle subie par un voyageur lorsque l’accident qui a causé le dommage s’est produit à

bord de l’aéronef ou au cours de toutes opérations d’embarquement et de débarquement.

Warsaw Convention art. 17.

Only the French text of the Warsaw Convention is authoritative, but the United States Supreme Court has

employed as persuasive authority an official English translation of that text, which was presented to the United

States Senate when it consented to ratify the Warsaw Convention in 1934, and which provides:

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 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.

49 Stat. 3014; see Olympic Airways v. Husain, 540 U.S. 644, 649 n.4 (2004); Saks, 470 U.S. at 397.

For the most part, the language of the Warsaw Convention’s Article 17 is the same as the language of the

Montreal Convention’s Article 17(1). Notably, the “in case of” language in the Montreal Convention replaced “en

cas de” from the Warsaw Convention, which was translated from the French in the above translation as “in the event

No. 16-1042 Doe, et al. v. Etihad Airways Page 10

that the passenger’s recovery is conditioned only on the occurrence of an accident that causes

death or bodily injury either on board the aircraft or during boarding or deplaning. Surely, the

drafters of the Montreal Convention could have used a word or phrase with causal meaning

instead of “in case of” if they wanted to impose such a causal restriction on the kinds of “damage

sustained” that are recoverable when an accident on board an aircraft causes a passenger to incur

a bodily injury. Indeed, the drafters did impose such a causal requirement in stating that the

accident must have “caused” the death or bodily injury. The drafters’ use of “caused” to express

that an accident must have caused the bodily injury thus provides additional support for our

conclusion that the drafters did not, in the very same sentence, use “in case of” also to mean

“caused by.”

3. The Underpinnings of Etihad’s Argument

Admittedly, in light of the foregoing discussion, Etihad’s position—that “in case of” does

mean “caused by”—may seem absurd. But it is not, and that is because Etihad’s argument is

rooted in a Warsaw Convention decision of the Second Circuit Court of Appeals in which that

court held that American Airlines was not liable under the Warsaw Convention “for mental

injuries that were not caused by physical injuries.” Ehrlich v. Am. Airlines, Inc., 360 F.3d 366,

368 (2d Cir. 2004) (emphasis added). Etihad asks us to adopt the Second Circuit’s Warsaw

Convention decision in Ehrlich to decide the Montreal Convention case before us. But the

Montreal Convention is a new treaty that we interpret as a matter of first impression, and there is

no legal authority that would require us to import Ehrlich’s Warsaw Convention determination to

govern this Montreal Convention claim.

In Ehrlich, an American Eagle7 aircraft overshot its designated runway upon landing at

New York’s JFK International Airport. An arrestor bed—a bed of material made of water, foam,

and cement that crushes under the weight of an airplane, increasing drag and helping bring the

airplane to a stop—saved the plane from plunging into the waters of Thurston Bay, which lay

of.” And, as discussed above, the “upon condition only” language in the Montreal Convention was new: it replaced

“lorsque” from the Warsaw Convention, which was translated from the French in the above translation as “if.”

7

American Eagle is a brand name under which various regional air carriers operate flights on behalf of

American Airlines.

No. 16-1042 Doe, et al. v. Etihad Airways Page 11

200 feet beyond where the plane came to a halt. To evacuate the aircraft, passengers had to jump

six to eight feet from its doorway. Ibid.

Gary and Maryanne Ehrlich were passengers on the flight. They contended that they

suffered bodily injuries (neck, back, shoulder, hip, and knee injuries; hypertension; and a heart

problem) during the abnormal landing and subsequent evacuation. They also alleged mental

injuries including a fear of flying, nightmares, and trouble sleeping. The district court granted

partial summary judgment for the airline defendant as to the mental injuries on the basis that “a

plaintiff may only recover for emotional damages caused by physical injuries.” Id. at 369

(quoting Ehrlich v. Am. Airlines, 99-CV-6013, 2002 U.S. Dist. LEXIS 21419, at *10 (E.D.N.Y.

June 21, 2002) (emphasis added)). The Second Circuit affirmed, noting that “the Ehrlichs had

offered no evidence demonstrating a causal connection between their mental and physical

injuries.” Ehrlich, 360 F.3d at 369.8

8

A footnote in Ehrlich clarifies that the sole dispute between the Ehrlichs and the airline was whether the

airline was liable for mental anguish that only accompanies bodily injury and is not caused by bodily injury—the

Ehrlichs did not argue, as Doe does here, that their bodily injuries in fact caused their mental injuries:

For the purposes of this appeal, American Eagle does not dispute that the Ehrlichs allegedly

sustained mental and bodily injuries which were caused by an accident that took place on board its

aircraft or during the evacuation therefrom. Moreover, on appeal, the Ehrlichs do not challenge

the district court’s conclusion that they failed to raise “a genuine issue of fact regarding a causal

connection between their alleged bodily injuries and their mental suffering.” See Ehrlich,

2002 U.S. Dist. LEXIS 21419, at *11. Instead, their appeal focuses on whether the court properly

construed Article 17. Accordingly, we need not address whether an accident caused the Ehrlichs

to suffer injuries on board an aircraft or in the course of any of the operations of disembarking; we

also need not address whether the Ehrlichs’ alleged physical injuries caused their alleged mental

injuries.

Ehrlich, 360 F.3d at 374 n.8.

It is worth reiterating that in the present case, Doe’s mental anguish is traceable to her bodily injury,

whereas in Ehrlich, it is easier to comprehend the airline’s argument that the Ehrlichs’ bodily injuries did not cause

their mental injuries. There, the Ehrlichs’ alleged mental injuries of fear of flying and sleeplessness could have been

caused by the emergency landing (and not by the bodily injuries sustained during the evacuation). The “accident,”

then could be understood as the emergency landing, which (because it resulted in the evacuation) caused the bodily

injuries sustained in the evacuation, and which separately caused mental injuries that the Ehrlichs would have

sustained regardless of whether they sustained any bodily injuries at all. Of course, it is also possible that the

Ehrlichs’ mental injuries caused by the emergency landing were exacerbated by the evacuation (or indeed,

exacerbated by the bodily injuries they sustained during the evacuation)—but because the Ehrlichs did not argue that

their bodily injuries caused their mental injuries, the Second Circuit was presented with a record on which it was

easier than it is in our case to view the claimed mental injuries as being “caused by the accident” rather than “caused

by the bodily injury.”

No. 16-1042 Doe, et al. v. Etihad Airways Page 12

Ehrlich reached its conclusion only after grappling at length with the original French text

of the Warsaw Convention, finding it ambiguous as to whether it held airlines liable for mental

injuries that are not caused by a compensable bodily injury, and inquiring into the original

purpose of the Warsaw Convention when it was signed in 1929. Indeed, Ehrlich discussed the

Montreal Convention as well: the Montreal Convention was signed just weeks after the Ehrlichs’

emergency landing, and the Montreal Convention entered into force after the Second Circuit

heard argument in Ehrlich but before it issued its opinion. See id. at 372. But Ehrlich expressly

rejected the argument that the Montreal Convention had any retroactive applicability to the

Ehrlichs’ claim, and the Second Circuit based its decision entirely on its interpretation of the

Warsaw Convention. See id. at 373 (“neither the Montreal Convention nor the intentions of its

drafters govern this appeal”).9

In reaching its conclusion, Ehrlich followed the lead of Jack v. Trans World Airlines,

854 F. Supp. 654, 663–68 (N.D. Cal. 1994), a district-court decision that also concluded that

“only emotional distress flowing from the bodily injury is recoverable” under Article 17 of the

Warsaw Convention. Id. at 665 (emphasis added). Jack expressly acknowledged (after rejecting

other possible interpretations of the Warsaw Convention) that its interpretation “does read a

causal component into the phrase ‘damage sustained in the event of,’” but nevertheless went

ahead with such an interpretation because that interpretation was “not prohibited” by the United

States Supreme Court’s Warsaw Convention precedents. Id. at 668.

But “to alter, amend, or add to any treaty, by inserting any clause, whether small or great,

important or trivial, [is] an usurpation of power, and not an exercise of judicial functions.” The

Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (holding that the 1795 U.S.–Spain Treaty for

safe passage of ships did not protect a Spanish claimant from United States condemnation of a

schooner during the War of 1812 when the requisite passport mandated by the treaty was not

affixed to the vessel). Both Ehrlich and Jack interpolated a causal component into the Warsaw

Convention that was not required by the text, and both did so expressly to serve the Warsaw

9

Moreover, because the Montreal Convention was signed well before the litigation in Ehrlich began, there

is no reason to suppose that the drafters of or parties to the Montreal Convention took Ehrlich to be a legal precedent

that would aid signatories in future analysis of the text of Article 17(1) of the Montreal Convention.

No. 16-1042 Doe, et al. v. Etihad Airways Page 13

Convention’s purpose of “limiting the liability of air carriers in order to foster the growth of the

fledgling commercial aviation industry.” Ehrlich, 360 F.3d at 385 (quoting Floyd, 499 U.S. at

546); see also Jack, 854 F. Supp. at 662, 665 (“such an approach furthers the pro-airline industry

goals of the Warsaw Convention because it is so restrictive of passengers’ rights”). To be sure,

both Ehrlich and Jack found ambiguity in the original French text of the Warsaw Convention

before inquiring into the purpose of that treaty and seeking to give effect to that purpose. But

what that should mean for us is not, as Etihad would have it, that we should blindly adopt

Ehrlich as the law of our circuit for claims under Article 17(1) of the Montreal Convention, but

rather that we should grapple with the text of the Montreal Convention itself, and then, to the

extent that we find any ambiguity therein, look to relevant persuasive authority—which may

include evidence of the purpose of the Montreal Convention, but almost certainly not the nearly

century-old purpose of the Warsaw Convention—to assist us in resolving that ambiguity.

Ehrlich recognized that “the Montreal Convention is an entirely new treaty that unifies

and replaces the system of liability that derives from the Warsaw Convention.” Ehrlich,

360 F.3d at 371 n.4. So do we. The Montreal Convention was signed in 1999, in six languages

including English, and we are charged with interpreting that English text in the first instance

rather than clinging to the Second Circuit’s purposivist interpretation of a French-language

predecessor treaty signed in 1929. In Sections III.B through III.E, infra, to fortify our textual

analysis of Article 17(1), we will discuss more fully the relative purposes of the Warsaw and the

Montreal Conventions, and we will address relevant decisions of the United States Supreme

Court and other courts, which provide useful context for both Ehrlich and our decision here. But

for now, it suffices to say that Ehrlich and Jack do not provide insight into meaning of the plain

text of Article 17(1) of the Montreal Convention.

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4. Our Textual Interpretation

Here, then, is a fairer illustration of what damages are recoverable under Article 17(1)

according to the plain text of the Montreal Convention:

Bodily Injury Mental Anguish

[i.e., the small puncture (compensable)

wound in Doe’s finger]

(compensable)

ACCIDENT10

[i.e., being pricked

by a needle]

Mental Anguish

(also compensable, so long as it results from an accident

that also causes bodily injury, even though the mental anguish

might not flow from such bodily injury)

As this diagram makes clear, because an accident onboard Etihad’s aircraft caused Doe to

suffer a bodily injury (a fact that Etihad concedes), Doe may therefore recover damages for her

mental anguish, regardless of whether that anguish was caused directly by her bodily injury or

more generally by the accident that caused the bodily injury. That is because, either way, Doe’s

mental anguish is “damage sustained in case of”—i.e., “in the event of” a compensable bodily

injury.

What the plain text of Article 17(1) also makes clear is that a passenger cannot recover

damages for mental anguish if there is no requisite accident or if the accident does not cause a

bodily injury. For example, if ordinary turbulence causes a passenger to suffer an anxiety attack,

the Montreal Convention would not allow the passenger to recover damages for the anxiety

10

The meaning of “accident” is not disputed here. The United States Supreme Court has consistently

interpreted “accident” in Article 17 of the Warsaw Convention to mean “an unexpected or unusual event or

happening that is external to the passenger.” Saks, 470 U.S. at 405; see also Husain, 540 U.S. at 650. We will

discuss Saks and Husain in context in Section III.C.1, infra.

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attack because ordinary turbulence is not an “accident.” Likewise, if there is an accident, such as

an emergency landing, and a passenger escapes physically unscathed but mentally harmed, the

passenger is barred from recovering mental-anguish damages for want of the required bodily

injury. This understanding is supported by the plain text of Article 17(1) of the Montreal

Convention—and it also happens to have the advantage of being simpler than Ehrlich’s

approach.

Admittedly, however, the text of Article 17(1) is still not entirely clear as to what

connection must exist between the required bodily injury and claimed mental anguish. The plain

text of Article 17(1) is sufficient on its own to reject Etihad’s interpretation of it. And the plain

text of Article 17(1) allows our conclusion that when a single “accident” causes both bodily

injury and mental anguish, that mental anguish is sustained “in case of” the bodily injury. But

the plain text on its own does not necessarily require that a single accident cause both the

required bodily injury and the claimed mental anguish in order for that mental anguish to be

“sustained in case of” the bodily injury, as our conclusion suggests.

What if, for example, there are two accidents: first, unusually rough turbulence (which

causes a passenger mental anguish but no bodily injury), and second, an unrelated emergency

landing, during which every passenger sustains at least some bodily injury. Does the bodily

injury sustained in the emergency landing allow the passenger who had previously suffered

severe emotional distress to recover for that distress? That is, is mental anguish from the first

accident considered “damage sustained in case of bodily injury” because it was sustained during

the same flight as the second accident, which caused bodily injury?

On the one hand, it seems reasonable to read the “in case of” language as precluding

recovery of damages for mental anguish in the example presented in the preceding paragraph,

and our interpretation of Article 17(1) implicitly supports such a conclusion; but on the other

hand, the text of the treaty does not explicitly prohibit such recovery. So, both to bolster our

conclusion that mental anguish is “sustained in case of” a bodily injury when it arises from the

same accident that caused that bodily injury, and to reinforce the proposition that Ehrlich does

not control this case, we review relevant persuasive authorities that provide insight into the

meaning of Article 17(1) in the context of its ratification by its signatories. See, e.g., Saks,

No. 16-1042 Doe, et al. v. Etihad Airways Page 16

470 U.S. at 396 (“[T]reaties are construed more liberally than private agreements, and to

ascertain their meaning we may look beyond the written words to the history of the treaty [and]

the negotiations” that produced the treaty. (alteration in original) (quoting Choctaw Nation of

Indians v. United States, 318 U.S. 423, 431–32 (1943))). We therefore turn next to the history of

the negotiations that culminated in the signing of the Montreal Convention and to evidence of the

signatories’ purpose in ratifying the Montreal Convention.

This historical inquiry is important because the question before us is important. And the

question before us is important for several reasons. First, Article 17(1) governs not only claims

for needlesticks, snakebites, and the like, but also claims for injuries and fatalities sustained in

plane crashes. Second, “uniformity is an important goal of treaty interpretation,” Sanchez-

Llamas v. Oregon, 548 U.S. 331, 383 (2006), so we look to the history of the Montreal

Convention to ensure that the conclusion we draw today is consistent with how our sister

signatories would understand the text of Article 17(1). Third, the Warsaw Convention’s

analogue to the question before us was expressly left unanswered by the United States Supreme

Court in Floyd when it ruled that mental injury standing alone was not recoverable under the

Warsaw Convention because of the absence of the required death or bodily injury:

We conclude that an air carrier cannot be held liable under Article 17 when an

accident has not caused a passenger to suffer death, physical injury, or physical

manifestation of injury. Although Article 17 renders air carriers liable for

“damage sustained in the event of” . . . such injuries, we express no view as to

whether passengers can recover for mental injuries that are accompanied by

physical injuries. That issue is not presented here because respondents do not

allege physical injury or physical manifestation of injury.

Floyd, 499 U.S. at 552–53.

Fourth, although we have expended considerable effort explaining that the Montreal

Convention is a new treaty that we should interpret independently of the Warsaw Convention,

such that Ehrlich does not inform our decision here, there is nonetheless evidence that the

drafters of the Montreal Convention intended Article 17(1) to be construed consistently with

well-settled Warsaw Convention precedents of the United States Supreme Court. See

Explanatory Note to Montreal Convention, art. 17, S. Treaty Doc. 106-45, 1999 WL 33292734,

No. 16-1042 Doe, et al. v. Etihad Airways Page 17

at *16 (2000).11 These precedents, as we will discuss, include the United States Supreme

Court’s decision defining “accident” (in Saks, a decision from 1985 that has gained global

currency). But these precedents do not include Ehrlich, which was decided well after the

Montreal Convention was signed (and which was not a decision of a signatory’s highest court, in

any event, see, e.g., Husain, 540 U.S. at 655 n.9).

And finally, while Ehrlich was a Warsaw Convention decision, we recognize that our

conclusion today is directly contrary to Ehrlich’s conclusion as to a similarly worded provision.

The history behind the Montreal Convention will make clear why the conclusion we reach today

is correct, and why we cannot use the same lines of reasoning that Ehrlich and Jack used in

reaching their holdings that denied recovery for mental injuries that accompanied but did not

directly flow from a bodily injury.

11

This Explanatory Note, though not controlling, is nevertheless insightful in that it also indicates that the

drafters of Article 17(1) did not aim to limit recovery for mental anguish to what would have been available under

the Warsaw Convention. The Explanatory Note for Article 17(1) is provided here in full:

Paragraph 1 provides for carrier liability for death or bodily injury of a passenger caused

by an accident on board the aircraft or in the course of embarking or disembarking. The carrier’s

limited defenses to liability are provided for elsewhere in the Convention (i.e., Article 21, below).

It is expected that this provision will be construed consistently with the precedent developed under

the Warsaw Convention and its related instruments.

Following extensive debate, the Conference decided not to include an express reference

to recovery for mental injury, with the intention that the definition of “bodily injury” would

continue to evolve from judicial precedent developed under Article 17 of the Warsaw Convention,

which uses that term. See International Conference on Air Law, Vol I Minutes at p. 201

(Thirteenth Meeting, May 25, 1999, Summary of the Chairman of the Conference). The

Conference adopted the following Statement, recorded in the Minutes of the Proceedings:

With reference to Article 16 [sic], paragraph 1 of the Convention, the expression

‘bodily injury’ is included on the basis of the fact that in some States damages

for mental injuries are recoverable under certain circumstances, that

jurisprudence in this area is developing and that it is not intended to interfere

with this development, having regard to jurisprudence in areas other than

international carriage by air; ….

International Conference on Air Law, Vol. I Minutes at pp. 242-43 (Plenary, Sixth Meeting, May

27, 1999).

The reference in this statement to “jurisprudence in areas other than international carriage

by air” reflects the concern of some States that jurisprudence under Article 17(1) of the

Convention should not develop in a particular State beyond the then current jurisprudence of that

State. Rather, that jurisprudence should continue to develop in a manner consistent with, not

ahead of, jurisprudence in other areas in such States.

Explanatory Note to Montreal Convention, art. 17, S. Treaty Doc. 106-45, 1999 WL 33292734, at *16–17.

No. 16-1042 Doe, et al. v. Etihad Airways Page 18

B. History and Purpose of the Montreal Convention

The Warsaw Convention was opened for signature in 1929, just two years after Charles

Lindbergh famously flew his Spirit of St. Louis solo from New York to Paris, and eight years

before Amelia Earhart disappeared over the Pacific Ocean. The original parties to the Warsaw

Convention had the “primary purpose of . . . limiting the liability of air carriers in order to foster

the growth of the fledgling commercial aviation industry.” Floyd, 499 U.S. at 546 (citing Trans

World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 256 (1984); Minutes, Second Int’l

Conf. on Private Aeronautical Law, October 4–12, 1929, Warsaw 37 (R. Horner & D. Legrez

trans. 1975) (“Warsaw Conference Minutes”); and Lowenfeld & Mendelsohn, The United States

and the Warsaw Convention, 80 Harv. L. Rev. 497, 498–99 (1967)).

The Warsaw Convention itself was the product of four years of work by a committee of

experts that was appointed in 1925 at an international conference in Paris at which an early draft

protocol was circulated. That draft protocol included an expansive liability provision, holding

the carrier “liable for accidents, losses, breakdowns, and delays” without imposing any

requirement of death or bodily injury. Ministère des Affaires Étrangères, Conférence

Internationale de Droit Privé Aérien (27 Octobre–6 Novembre 1925), 79 (1926), as translated in

Floyd, 499 U.S. at 542.

By the time the conference in Warsaw began in 1929, the committee had divided the

protocol on liability into three separate provisions (one for injury to passengers, one for damage

to goods, and one for losses from delays). This text was then further developed in Warsaw until

the final version of the Warsaw Convention was agreed upon—with much narrower language in

Article 17 for air carriers’ liability to injured passengers. See Warsaw Conference Minutes at

205–06; Floyd, 499 U.S. at 543. Moreover, unlike the Montreal Convention’s strict-liability

scheme, the Warsaw Convention imposed a cap on damages at 125,000 gold French francs (at

the time, approximately $8,300) per passenger, which carriers could reduce to zero upon

showing that they had exercised due care by taking “all necessary measures to avoid the damage

or that it was impossible” to do so. The cap on damages was lifted (so as to allow potentially

unlimited liability) only if the carrier’s “willful misconduct” caused the injury or death. Warsaw

Convention arts. 17, 20, 22.

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The United States Supreme Court has stated that “it is reasonable to infer that the

Conference adopted the narrower language [in Article 17] to limit the types of recoverable

injuries.” Floyd, 499 U.S. at 543. “Whatever may be the current view among Convention

signatories, in 1929 the parties were more concerned with protecting air carriers and fostering a

new industry rather than providing a full recovery to injured passengers.” Id. at 546.

The Warsaw Convention entered into force in 1933, and the United States became a party

to it in 1934. Paul S. Dempsey & Michael Milde, International Air Carrier Liability: The

Montreal Convention of 1999, 13 (McGill Univ. Centre for Research in Air & Space Law)

(2005). The United States subsequently led various efforts to modernize it and raise its liability

limits. See Montreal Convention, 1999 WL 33292734, at *3–5 (Letter of Submittal from

President Clinton to United States Senate) (“Letter of Submittal”) (detailing history of Warsaw

Convention and proposed modifications). In the early 1950s, the newly created International

Civil Aviation Organization (ICAO) began evaluating a potential increase to the liability limits at

international conferences in Rio de Janeiro and The Hague. At The Hague, the United States

proposed raising the personal-liability limits to approximately $25,000, but the majority of other

participants resisted; the United States countered with a reduced proposal of approximately

$20,000, which was also met with disapproval. “It was not until the United States began to

threaten denunciation” that any agreement to increase the personal-liability limits was reached,

and even then, the United States “succeeded only in doubling the original Warsaw Convention

liability limit to $16,600,” in a proposed amendment to the Warsaw Convention known as the

Hague Protocol. Dempsey & Milde, supra, at 19 n.51; Letter of Submittal, 1999 WL 33292734,

at *3; see Protocol to Amend the Convention for the Unification of Certain Rules Relating to

International Carriage by Air, done at The Hague September 28, 1955. The United States,

dissatisfied with the low liability limits, refused to ratify the Hague Protocol.12

In 1965, in response to what some courts have described as the “unconscionably low”

liability limits under the Warsaw Convention, Dunn v. Trans World Airlines, Inc., 589 F.2d 408,

411 (9th Cir. 1978), United States Secretary of State Dean Rusk gave Poland six months’ notice

12

In 2003, for reasons not germane to this opinion, the United States finally did ratify the Hague Protocol,

but by that time, the personal-liability limits had long been raised, as we are about to discuss.

No. 16-1042 Doe, et al. v. Etihad Airways Page 20

that the United States intended to denounce the Warsaw Convention. Dempsey & Milde, supra,

at 29 n.87 (citing Dep’t of State Press Release No. 268, 50 Dep’t of State Bull. 923–24 (1965)).

The notice included a proviso that the United States would retract its notice of denunciation if

personal-liability limits were raised to $75,000 to $100,000 per passenger.

As a result of this notice, the ICAO held a conference in Montreal in 1966 at which the

United States unsuccessfully sought to increase the personal-liability limits. The airlines

themselves, however—including all major air carriers that served the United States—entered into

a private intercarrier agreement (the Montreal Agreement) that made two broad changes to the

Warsaw Convention’s limitations. First, the Montreal Agreement increased the personal-liability

limit to $75,000 per passenger. Second, the Montreal Agreement imposed strict liability up to

the $75,000 limit (while retaining the preexisting provision that allowed liability beyond that

limit upon a showing of willful misconduct by the airline). CAB Order E-23680 (May 13,

1966), 31 Fed. Reg. 7,302 (May 19, 1966), reprinted at 49 U.S.C.A. § 1502 (1970). The United

States retracted its notice of denunciation. Dempsey & Milde, supra, at 30. The Montreal

Agreement remained in force among its signatories for approximately thirty years, and was

applicable to all carriage to, from, or through the United States.

In the wake of the Montreal Agreement of 1966, various other international agreements

were also reached to increase liability. In 1974, various European and Japanese carriers agreed

to increase passenger liability in an informal “Malta Agreement.” Id. at 31. In 1992, Japanese

carriers agreed to strict liability for personal injury up to 100,000 Special Drawing Rights per

passenger.13 And in 1995, a dozen airlines signed a “Washington Intercarrier Agreement,”

endorsed by the International Air Transport Association, to which the United States Department

of Transportation had given antitrust immunity to facilitate discussion of the modernization of

international air-carrier liability. Id. at 33–34. This Washington Intercarrier Agreement, signed

in Kuala Lumpur, imposed strict liability up to 100,000 SDRs per passenger and removed the

“willful misconduct” provision for liability beyond the cap, replacing that provision with

13

The Special Drawing Right (SDR) “is an artificial ‘basket’ currency developed by the International

Monetary Fund.” Letter of Submittal, 1999 WL 33292734 at *4. On August 21, 2017, one SDR was worth

approximately $1.42. Int’l Monetary Fund, SDR Valuation (Aug. 29, 2017),

https://www.imf.org/external/np/fin/data/rms_sdrv.aspx.

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something more like a negligence standard that imposes unlimited liability above the 100,000-

SDR cap if the airline cannot prove that it took “all necessary measures” to avoid the injury. The

major United States-based airlines joined the Washington Intercarrier Agreement within a week

of its initial signing in Kuala Lumpur. Ibid.

Also in the wake of the Montreal Agreement of 1966, aside from the private intercarrier

agreements that were negotiated, the United States continued to seek amendments to the Warsaw

Convention that would impose higher personal-liability limits. In 1971, the Guatemala City

Protocol came close to achieving a limit of 1,500,000 gold francs (then equivalent to

approximately $100,000) per passenger, but that Protocol would have imposed an absolute

limitation on liability, even in cases of willful misconduct. See id. at 22–26. The United States

Senate refused to ratify the Guatemala City Protocol in part because it used the gold standard for

liability limits and because it would have imposed an absolute, unbreakable limitation on

liability. In 1975, various “Montreal Protocols” were proposed at a diplomatic conference as

part of an initiative to replace the Warsaw Convention’s gold standard with the SDR. But the

only protocol that entered into force worldwide was Protocol No. 4, which affected only cargo

liability and not personal-injury liability. See id. at 26–29.

Against that backdrop, the Montreal Convention of 1999 was revolutionary: it replaced

not only the Warsaw Convention but also “all of its related instruments and . . . eliminate[d] the

need for the patchwork of regulation and private voluntary agreements” that then dominated the

world’s air-carrier liability regime. Letter of Submittal, 1999 WL 33292734, at *7. The

Montreal Convention imposes strict liability for injuries that are compensable under Article

17(1), up to 100,000 SDRs per passenger, with a decennial adjustment for inflation. (The first

official adjustment came in 2009, increasing the strict-liability limit to 113,100 SDRs—or

approximately $160,000—per passenger. Montreal Convention arts. 21, 24; see Inflation

Adjustments to Liability Limits Governed by the Montreal Convention Effective Dec. 30, 2009,

74 Fed. Reg. 59,017 (Nov. 16, 2009).) Above that strict-liability limit, a carrier remains liable

for all damage sustained, with no limit, unless the carrier can prove either that “such damage was

not due to the negligence or other wrongful act or omission of the carrier or its servants or

agents,” or that “such damage was solely due to the negligence or other wrongful act or omission

No. 16-1042 Doe, et al. v. Etihad Airways Page 22

of a third party.” Montreal Convention art. 21. Finally, an exoneration provision allows a

reduction in compensation for injuries caused by or contributed to by the plaintiff, in the same

manner as a pure-comparative-negligence or pure-comparative-fault scheme; this exoneration

provision applies to all claimed damages including those falling under the strict-liability limit.

Montreal Convention art. 20. In short, the Montreal Convention replaced a “restrictive,” “pro-

airline industry” regime, Jack, 854 F. Supp. at 662, 665, with “a treaty that favors passengers

rather than airlines.” Lexington, 501 F. Supp. 2d at 908 (quoting Ehrlich, 360 F.3d at 371 n.4

(describing Montreal Convention)). And it did so on terms that reflected decades of effort by the

United States to abolish the outdated limitations of the Warsaw Convention.

Moreover, by 1999, when the Montreal Convention was opened for signature, the

aviation industry was anything but “fledgling,” and the purpose of the Montreal Convention was

not to protect the aviation industry, but rather to provide a “modernized uniform liability regime

for international air transportation.” Letter of Submittal, 1999 WL 33292734, at *6.

In light of the great difference between the purpose of the Warsaw Convention and the

purpose of the Montreal Convention, then, it hardly seems appropriate for us to look to the

purpose of the Warsaw Convention, as Etihad would have us do in relying on Ehrlich, in order to

arrive at a different conclusion from one compelled by the plain text of the Montreal Convention.

Our Supreme Court’s Warsaw Convention jurisprudence has relied consistently on analysis of

the purpose of that treaty as it was implemented in 1929. See, e.g., Zicherman, 516 U.S. at 221–

23; Saks, 470 U.S. at 400–05; Floyd, 499 U.S. at 546. What the historical record makes clear is

that the considerations favoring a close textual reading of the Montreal Convention—a product

of at least five decades of international negotiations—far outweigh whatever considerations

would weigh in favor of rewriting the text of the Montreal Convention in order to accommodate

Ehrlich or effectuate the purpose of the Warsaw Convention, as Etihad would have us do.

C. Relevant Warsaw Convention Litigation

We turn next to (1) relevant decisions of our Supreme Court under the Warsaw

Convention; (2) a brief summary of our reasons for rejecting Ehrlich in light of the foregoing

No. 16-1042 Doe, et al. v. Etihad Airways Page 23

discussion of the history and purpose of the Montreal Convention; and (3) a brief discussion of

relevant district-court cases.

1. United States Supreme Court Decisions Under the Warsaw Convention

From 1984 to 2004, the United States Supreme Court handed down a series of seven

opinions clarifying various aspects of the Warsaw Convention, most of which involved Article

17. The first of these, Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984),

upheld the Convention’s liability limit for cargo and is not particularly relevant to our case.

More relevant is the Court’s 1985 decision in Air France v. Saks, in which it held that “accident”

in Article 17 of the Warsaw Convention means “an unexpected or unusual event or happening

that is external to the passenger.” Saks, 470 U.S. at 405 (denying passenger’s recovery for

deafness caused by cabin depressurization where the depressurization was ordinary and the

plaintiff was the only passenger on the flight who was affected).

A year later, the Court decided Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989),

holding that the Warsaw Convention’s limitations applied even if an airline defendant failed to

provide notice of the Convention in at least 10-point type as the airline defendant agreed to in the

Montreal Agreement of 1966. Chan, 490 U.S. at 135 (holding that although Korean Air Lines

had joined the Montreal Agreement in 1969 and had violated that agreement by providing notice

of the Convention only in 8-point type, the Warsaw Convention’s limitations still applied

because the Montreal Agreement did not impose any sanction at all for failure to provide notice

in the required typeface, let alone the sanction of forfeiting liability limitations).

In 1991, the Court decided Eastern Airlines v. Floyd, which as we noted earlier held that

“bodily injury” in Article 17 of the Warsaw Convention does not allow for the recovery of

mental injuries on their own (that is, with no physical injury incurred whatsoever), but which

“express[ed] no view as to whether passengers can recover for mental injuries that are

accompanied by physical injuries.” Floyd, 499 U.S. at 552. Next came Zicherman v. Korean Air

Lines in 1996, in which the Court held that although the Warsaw Convention provided rules for

liability and limitations of liability, it did not govern the measure (or calculation, so to speak) of

damages, which was instead a matter to be determined in each case by applicable domestic law.

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Zicherman, 516 U.S. at 225 (“[Q]uestions of who may recover, and what compensatory damages

they may receive, . . . were unresolved by the Convention and left to ‘private international

law’—i.e., to the area of jurisprudence we call ‘conflict of laws,’ dealing with the application of

varying domestic laws to disputes that have an interstate or international component.”).

In 1999, the Court decided El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, in which it held

that the Warsaw Convention provided the sole remedy for personal-injury claims arising from

injuries sustained during international air travel, even if the injured party could not state a claim

for relief under the Warsaw Convention, in which case no remedy was available at all. Tseng,

525 U.S. at 161 (alleged assault by El Al agents during preflight security search that did not

result in bodily injury was not an “accident” and was not compensable under the Warsaw

Convention; the Warsaw Convention nevertheless continued to preempt local claims for

damages from the assault).

Finally, in 2004, the Court decided Olympic Airways v. Husain, in which it clarified that

finding an “accident” to have occurred for the purpose of applying Article 17 does not require

identifying a single “injury producing event” but may rather involve a chain of causation that

results in death or bodily injury, so long as there is an unexpected or unusual happening external

to the passenger in that chain, following Saks.14 Husain, 540 U.S. at 651–54 (when asthmatic

passenger died after flight attendant repeatedly but wrongly refused to reseat him away from the

14

At oral argument, there was some confusion about what the “accident” was in this case: was it the

airline’s failure to clean out the seatback pocket, or was it the moment at which the needle in the seatback pocket

pricked Doe’s finger? Under Husain, it is not terribly important to identify the moment of the accident so long as

there was an accident. That said, it seems clear in our case that the “unexpected or unusual happening” was the

moment when the needle pricked Doe’s finger; the airline’s failure to clean the pocket was perhaps underlying

negligence that allowed the accident to happen. The confusion can be traced to a line from Saks, in which the Court

stated that “the text of Article 17 [of the Warsaw Convention] refers to an accident which caused the passenger’s

injury, and not to an accident which is the passenger’s injury.” Saks, 470 U.S. at 398. What the Court meant there

was that the mere fact of an unexpected or unusual injury (such as a passenger, for example, suffering a sudden heart

attack during a flight) is not itself an accident—something unexpected and external to the passenger must itself

cause an injury. At oral argument, presumably in response to Etihad’s argument that attempted to separate Doe’s

injury of bring pricked from the fact that Doe was pricked by a needle, see Section III.A.1, supra, Doe’s counsel

argued that Etihad’s failure to clean the airplane was the accident and the needlestick was the bodily injury. Both of

those arguments are misplaced: the needlestick was simply an accident that caused a contemporaneous bodily injury.

Nothing in the Montreal Convention or in the Warsaw Convention caselaw requires us to separate the accident from

the bodily injury in cases like this one where there is no temporal gap between the accident and the bodily injury.

Of course, in most cases, there is such a gap, as when an accident such as a crash landing causes subsequent and

separately identifiable injuries—but in cases like ours, or perhaps in cases of insect bites or physical assaults by

flight crewmembers, the accident and the bodily injury may logically be one and the same.

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smoking section, the failure to reseat counted as an “accident,” even though the presence of

ambient smoke in the cabin—not itself an unexpected or unusual happening on a flight that

allowed smoking—could be viewed as an “injury producing event”).

Saks, Chen, Floyd, and Zicherman were all decided unanimously, and Franklin Mint and

Tseng were both decided eight to one over the dissent of Justice Stevens. Husain was decided

six to two, with Justice Scalia dissenting, arguing that because two other Warsaw Convention

signatories (England and Australia) had rejected the proposition that an airline’s inaction could

constitute an “accident” under Article 17, and because the text of Article 17 did not clearly

resolve that issue, the Court should instead have followed the English and Australian decisions.

Husain, 540 U.S. at 659–64 (Scalia, J., dissenting).

These opinions have enjoyed wide acceptance among our sister signatories, which have

given them (especially Saks, Tseng, and Floyd) at least some deference and have developed their

own jurisprudence using these opinions as guideposts. See, e.g., Plourde c. Service aérien

F.B.O. inc., 2007 QCCA 739, para. 29 (Court of Appeal of Quebec) (applying Floyd to deny

recovery for purely psychological injury in a Montreal Convention case); Povey v. Qantas

Airways Ltd. (2005) 223 CLR 189, 190 (High Court of Australia) (applying Saks and considering

Tseng and Husain in Warsaw Convention case); King v. Bristow Helicopters Ltd [2002] UKHL 7

(House of Lords) (applying Saks, Tseng, and Floyd in Warsaw Convention case).

Because these Supreme Court cases analyzed aspects of the Warsaw Convention that we

have no reason to believe have changed following the ratification of the Montreal Convention

(and that neither party has argued have changed following the ratification of the Montreal

Convention), it is reasonable to conclude that these cases form part of the “precedent” consistent

with which, according to the Explanatory Note (see n.11, supra), the drafters expected

signatories to construe Article 17(1) of the Montreal Convention. Accordingly, we have adopted

Saks’s definition of “accident,” and our discussion of damages in Section IV will be guided by

Zicherman’s deference to the forum jurisdiction’s choice-of-law rules.

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2. Why the Second Circuit’s Ehrlich Decision Does Not Govern Montreal Convention Claims

In light of the discussion in Sections III.A and III.B, there are several reasons why we

decline to adopt Ehrlich to govern Doe’s claims. First, Etihad’s argument that we should adopt

Ehrlich is unconvincing in part because of how thorough Ehrlich itself is: Ehrlich reaches its

conclusion only after plumbing the depths of the original French meaning of the Warsaw

Convention, Ehrlich, 360 F.3d at 376–78 (analyzing whether “dommage survenu en cas de . . .

lésion corporelle” incorporates a requirement that the bodily injury [lésion corporelle] cause the

damage [dommage]), French legal materials, id. at 380, the purpose of the Warsaw Convention,

id. at 385, and the “negotiating history” of the Convention, ibid. Indeed, if Ehrlich is persuasive,

it is persuasive not for the conclusion it reached but for how it got there, and our similarly

searching analysis leads us to a conclusion opposite Ehrlich’s.

Second, Ehrlich interpreted the authoritative French text of the Warsaw Convention, and

found ambiguity in that text (in the original French) that Ehrlich thought could accommodate a

causal meaning.15 Specifically, Ehrlich examined French-language dictionaries and found that

the word “cas” in “en cas de” (the French phrase that was the Warsaw Convention analogue to

the Montreal Convention’s “in case of”) could actually mean “cause.” Ehrlich, 360 F.3d at 377–

78 (“If ‘cas’ means ‘cause,’ then the phrase ‘dommage survenu en cas de . . . lésion corporelle,’

as those words are used in Article 17, would hold carriers liable for any ‘damages sustained in

the cause of . . . bodily injury.’ Such a translation is amenable to an interpretation that would

allow passengers to recover for mental injuries only where they were caused by a bodily

injury.”). Setting aside the fact that the French word cas does not actually mean “cause” except

perhaps in the same way that we might say a “hopeless case” is a “lost cause,”16 the range of

ambiguity in the English “in case of” is far, far narrower than the range of ambiguity that Ehrlich

found in the French “en cas de” and, as we concluded in Section III.A, notwithstanding any

ambiguity in the English “in case of,” the plain text of the English “in case of” does not contain a

requirement that “damages sustained” be “caused by” bodily injury.

15

See n.6, supra.

16

See, e.g., Cas, Grand Dictionnaire Encyclopédique Larousse (1982).

No. 16-1042 Doe, et al. v. Etihad Airways Page 27

Third, as we discussed in Section III.B, the purpose of the Montreal Convention vastly

differs from the purpose of the Warsaw Convention, such that we have no reason to interpret

Article 17(1) of the Montreal Convention in such a way as to serve the purposes of the Warsaw

Convention, as Ehrlich did.

Fourth, although the Ehrlich court stated that its ruling was necessary to avoid anomalous

results, it appears that under the Montreal Convention, following Ehrlich would be more rather

than less likely to lead to anomalous results. Ehrlich explained its reasoning as follows:

The interpretation of Article 17 favored by the [plaintiffs] would give rise to

anomalous and illogical consequences because “similarly situated passengers

[would be] treated differently from one another on the basis of an arbitrary and

insignificant difference in their experience.” For example, a passenger who

sustained a mental injury but no bodily injury would be unable to look to Article

17 for relief whereas a co-passenger who suffered the same mental injury yet

fortuitously pinched his little finger in his tray table while evacuating and thereby

suffered an unrelated bodily injury would be able to hold the carrier liable under

the Warsaw Convention.

Ehrlich, 360 F.3d at 386.

But our interpretation of Article 17(1) of the Montreal Convention does not necessarily

imply this result. Ehrlich’s hypothetical here presumably involves some sort of crash or

emergency landing (no context is provided in Ehrlich itself for the portion quoted above). Under

our interpretation of the Montreal Convention, if an airplane crash-landed, then any passenger

who sustained a bodily injury caused by that crash-landing would also be permitted to recover

for mental anguish sustained in that crash-landing—i.e., anguish sustained “in case of” a

compensable bodily injury. If a passenger sustained a broken leg, that passenger would be able

to recover for the broken leg, for mental anguish caused by the broken leg, and for mental

anguish arising from the crash-landing that accompanied the broken leg—all of that would be

“damage sustained in case of” the broken leg. True, another passenger escaping the same crash-

landing physically unscathed would be barred from recovering damages for mental anguish

alone, but that’s not an “anomalous” result. Rather, it is a result that is fully consistent with (and

compelled by) the text of the Montreal Convention.

No. 16-1042 Doe, et al. v. Etihad Airways Page 28

Returning to Ehrlich’s hypothetical of the passenger who escapes the same crash-landing

entirely unscathed except for a pinched pinky finger: what result? As we read the Montreal

Convention, so long as that passenger can prove that the accident (i.e. the crash-landing) caused

the injury to the pinky finger, that passenger would be able to recover both for the physical injury

to the finger and for mental anguish sustained—and that passenger would be able to recover

mental anguish sustained on the same terms as the passenger who suffered the broken leg.

None of these outcomes produce an “illogical or unreasonable result” that might caution

against our ruling today. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of

Am. v. Brock, 816 F.2d 761, 766 (D.C. Cir. 1987). Thus, we are not persuaded by Ehrlich that

we must read in an additional causation requirement to avoid interpreting the Montreal

Convention in a manner that would produce absurd results.

To the contrary, it would be odd to require the passenger to prove which mental injuries

in fact were caused by the physical injury as opposed to being caused more generally by the

accident. In our crash-landing hypothetical, a passenger might, for example, be conscious for the

duration of the crash-landing and then realize that he has suffered a grievous injury to his leg.

Perhaps the passenger fears losing the leg for hours or days while he is in the hospital. And

perhaps the passenger, who has a compensable bodily injury (bruised ribs and a broken leg),

suffers mental anguish and other emotional damages—some as a result of the fear of losing the

leg (which surely would be caused by the bodily injury, even if the leg was ultimately not lost),

and some as a result of having experienced the crash-landing.

It would not “favor[] passengers,” Ehrlich, 360 F.3d at 371 n.4, to require the passenger

to prove which mental harms were caused directly by the broken leg as opposed to being caused

more generally by the accident. After all, causation is difficult. Surely, for example, harm such

as insomnia, fear of flying (or other fears), or emotional distress might initially result from the

crash-landing but then be exacerbated by the bodily injury. Would only the portion of harm

traceable and subsequent to the bodily injury be recoverable? Or, what if some of the harm

resulted from the realization of an imminent crash-landing—should that harm be excluded from

recovery because its cause preceded the accident, while harm occurring together with or flowing

from the crash-landing would be recoverable?

No. 16-1042 Doe, et al. v. Etihad Airways Page 29

Thus, at the end of the day, adopting Ehrlich would mean requiring Doe and other

Montreal Convention plaintiffs to prove causation in a way that burdens the injured passenger far

more than the text requires; that would be an anomalous result.

For all these reasons, we decline to adopt Ehrlich.

3. Relevant District Court Cases

We now turn to Jack, the district-court opinion that Ehrlich followed, and which was the

first district-court opinion to analyze the text and history of the Warsaw Convention at any

serious length. Jack followed on the heels of the Supreme Court’s decision in Floyd. In the Jack

case, where fire consumed a plane following an aborted takeoff and crash but all the passengers

survived, the court addressed the question whether Floyd’s bar to recovering purely mental

damages under the Warsaw Convention also meant that mental anguish was recoverable only if

caused by bodily injury. Jack, 854 F. Supp. at 657. The court posited four theories for the

recovery of emotional-distress damages under Article 17:

1. Emotional-distress damages are never recoverable. Id. at 665.

2. Emotional-distress damages are always recoverable as long as the plaintiff has a

bodily injury, even if the bodily injury is wholly unrelated to the emotional distress.

Id. at 665–66 (notably, the court found that this approach “would read emotional

distress as damages resulting from the accident (as opposed to the injury), which is

difficult to do under the wording of Article 17,” although the court did not explain the

difficulty). This theory is broader than our interpretation, in that it allows recovery

for mental injuries that are wholly unrelated to a compensable bodily injury, which

would seem to capture more than just those mental injuries “sustained in case of” a

compensable bodily injury.

3. Emotional-distress damages are recoverable as “an element of the damages for bodily

injury,” but “need not be about the injury,” so long as the distress occurs “at the same

time or later than the bodily injury.” Id. at 666–67 (noting that in a plane crash that

caused an injury, distress about the plane crash would be recoverable so long as it

occurred after the injury, just as federal common law would allow the victim of a

No. 16-1042 Doe, et al. v. Etihad Airways Page 30

racially motivated false arrest to recover for emotional distress subsequent to physical

injuries sustained, and not only for the minor physical injuries). This theory attempts

to limit the scope of recovery to something narrower than what the second theory

would allow, but it does so by reading in a temporal element, which is not supported

by the text of the treaty.

4. Emotional-distress damages are recoverable only if they are “caused by the bodily

injury.” Id. at 667–68. This was the approach Jack settled on and that Ehrlich

adopted.

The problem with this purported tetralemma is that it omits a plausible fifth option—

namely, our conclusion that mental injuries are recoverable if they are caused either by a

compensable bodily injury or by the accident that causes a compensable bodily injury. Thus,

while Jack’s theoretical framework produces an elegant syllogism in support of Jack’s fourth

theory, it is not one that we have reason to follow in interpreting the Montreal Convention. Plus,

as we noted above, Jack expressly acknowledged that its fourth theory “read a causal component

into” the Warsaw Convention. Id. at 668.

Etihad relies not only on Jack but also on Rothschild v. Tower Air, Inc., 1995 WL 71053

(E.D. Pa. Feb. 22, 1995). In Rothschild, a passenger (Joan Rothschild) bound for New York

from Tel Aviv reached into a seatback pocket and—just like Doe—was pricked on the finger by

a hypodermic needle that lay hidden within. Id. at *1. Mrs. Rothschild sued the airline for

damages under the Warsaw Convention and Pennsylvania state law. The airline removed the

case from Pennsylvania state court to federal district court, where Mrs. Rothschild proceeded to

jury trial and won a $10,000 verdict for her injuries. But, although Mrs. Rothschild had been

“permitted to testify about, and recover for, her pain and suffering flowing from the needle prick,

such as any pain and suffering she experienced from the various tests that were performed on

her,” Mrs. Rothschild “was not permitted to testify about her fear of contracting AIDS and/or

hepatitis because she did not show any exposure to these diseases, and permitting recovery under

these circumstances would be purely speculative.” Id. at *2. Mrs. Rothschild contended that the

court improperly prevented her from testifying about her fear of AIDS and hepatitis and she thus

moved for a new trial, presumably in pursuit of a larger damages award; her motion was denied.

No. 16-1042 Doe, et al. v. Etihad Airways Page 31

Etihad relies on the denial of Mrs. Rothschild’s motion for new trial to support its

contention that “fear of AIDS/contagion is too speculative to be recoverable absent actual

exposure.” Appellee’s Br. 20. But, for several reasons, Rothschild does not help Etihad. First,

the Rothschild court expressly applied Pennsylvania state law, rather than the Warsaw

Convention, in determining whether Mrs. Rothschild could recover for fear of contagion. Id. at

*1 n.2, *2. The court noted that the parties “agree[d] that the Warsaw Convention [was]

applicable” but that they had nevertheless based their arguments on Pennsylvania state law. Id.

at *1 n.2. “Due to this apparent uncertainty of the parties as to the applicable law,” the court

stated its intention to “analyze this matter under both the Warsaw Convention and Pennsylvania

law.” Ibid. But the court did not actually apply the Warsaw Convention to determine which of

Mrs. Rothschild’s claims were cognizable; rather, the court cited Jack for the general proposition

that emotional distress was recoverable only if it “related to and flow[ed] from” physical injury,

id. at *1, and the court then turned to various cases decided under Pennsylvania state law to hold

that “in order to recover for the fear of contracting a disease, a plaintiff must show that there has

been some exposure to the disease.” Id. at *2. Whether Pennsylvania state law does or does not

require a plaintiff to prove actual exposure to a disease to recover for fear of contagion is a

question that is not relevant to the matter before us, so this line of reasoning from Rothschild

does not help Etihad.

Second, unlike Doe, Mrs. Rothschild was tested for AIDS only once—the day after the

incident—and the Rothschild court’s denial of her motion for new trial relied on the fact that

“[d]uring the seven months between the injury and trial, Mrs. Rothschild was never again

tested.” Id. at *3. The Rothschild court might thus have had good reason to find, as a matter of

fact, that Mrs. Rothschild’s claimed fear of contagion was too speculative to support additional

damages.

Third, the fact that Mrs. Rothschild proceeded to trial at all would seemingly help Doe

more than it helps Etihad, especially in light of the fact that we are reviewing the district court’s

grant of partial summary judgment. How reasonable or speculative Doe’s fear of contagion was

is not a question of whether Etihad may be liable to Doe but is rather a question of fact (and a

damages question, at that) that is properly resolved at trial rather than at summary judgment.

No. 16-1042 Doe, et al. v. Etihad Airways Page 32

In sum, neither Jack nor Rothschild provides any basis on which to affirm the grant of

partial summary judgment for Etihad.

D. The Montreal Convention in Our Sister Circuits

We now turn to recent Montreal Convention decisions of our sister circuits. Since the

ratification of the Montreal Convention, some of our sister circuits have applied Ehrlich in

deciding Montreal Convention cases, but—so far, at least—they have done so without seriously

considering either the text or the purpose of the Montreal Convention, and they have done so

only in cases in which the outcome was not materially affected by the decision to apply Ehrlich

rather than our interpretation of the text of Article 17(1).

The Eleventh Circuit, for example, affirmed a grant of summary judgment against a

Montreal Convention plaintiff who traveled from Hawaii to Mumbai, India, and was refused

entry (and ordered to return to the United States) by the Indian government for lack of proper

immigration documentation. He subsequently claimed that Korean Air Lines was liable for

various alleged “accidents” including (1) an alleged theft of $2000 cash from him; (2) denial of

access to medicine while his luggage was checked; (3) failure to call a doctor for him while in

Mumbai or in transit in South Korea; (4) failure to provide diabetic meals on the return flight

from Mumbai; (5) “detention” and lack of “proper hydration” in a holding area in South Korea;

and (6) failure to assist him when his legs swelled and caused him to fall. Jacob v. Korean Air

Lines, 606 F. App’x 478, 482 (11th Cir. 2015) (per curiam) (first holding that plaintiff had failed

to prove that any “accident” had happened on board that had caused him a bodily injury, then

holding alternatively that plaintiff’s damages were unrecoverable emotional damages). In

denying recovery for “subsequent physical manifestations of an earlier emotional injury,” the

court quoted Ehrlich’s statement that “mental injuries are recoverable under Article 17 only to

the extent that they have been caused by bodily injuries.” Id. at 482 (quoting Ehrlich, 360 F.3d

at 400).

Jacob does not conduct any analysis of the text of the Montreal Convention; in a

footnote, the opinion notes that “[c]ourts interpreting the Montreal Convention may rely on

authority concerning its predecessor, the Warsaw Convention, where provisions of both

No. 16-1042 Doe, et al. v. Etihad Airways Page 33

conventions are similar.” Ibid. (citing Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1177 (11th

Cir.), cert. denied, 135 S. Ct. 759 (2014)). Notably, in Campbell, on which Jacob relies to

support its adoption of Warsaw caselaw, the plaintiff had failed to state a claim under Article

17(1) of the Montreal Convention because his only claimed damages were economic losses

arising from a delay. Campbell, 760 F.3d at 1167 (“He stated no Article 17 claim, however,

because he did not allege injuries caused by an ‘accident’ . . . .”).

Thus, neither Jacob nor Campbell had reason to consider whether mental damages

accompanying a compensable bodily injury were recoverable under Article 17(1) of the Montreal

Convention. Nor did Jacob’s use of Ehrlich amount to a reasoned decision to adopt Ehrlich as

opposed to a competing approach to recovery for mental anguish under the Montreal

Convention, because there was no “accident” in Jacob in the first place.

In its partial-summary-judgment order, the district court below cited Bassam v. Am.

Airlines, Inc., 287 F. App’x 309, 317 (5th Cir. 2008), an unpublished decision of the Fifth Circuit

in which that court cited Ehrlich to support the proposition that “courts have held that emotional

injuries are not recoverable under Article 17 of the Montreal Convention or Warsaw Convention

unless they were caused by physical injuries.” Bassam, 287 F. App’x at 317 (emphasis added).

But Bassam was a case in which the plaintiff’s only claimed injuries were emotional and not

physical: in Bassam, the plaintiff sued the airline because one of her checked bags was lost for

several months during which time the plaintiff suffered “embarrassment and upset of not being

able to dress and appear in public as was her prior practice.” Id. at 311. Indeed, the Bassam

opinion itself makes clear that in citing Ehrlich, Bassam was not deliberately interpreting “in

case of” to mean “caused by” (that is, Bassam was not deliberately adopting Ehrlich to define “in

case of” in the Montreal Convention), but rather was establishing that the plaintiff could not

show any accident or bodily injury that would be required to recover for emotional injuries under

Article 17(1) of the Montreal Convention:

Bassam has not alleged any physical injury. Moreover, even if her claim of

“embarrassment and upset” could be construed as such, that injury was not caused

by an accident on board the aircraft or in the course of embarking or

disembarking. Therefore, Bassam has failed to establish carrier liability for

emotional distress damages under Article 17(1).

No. 16-1042 Doe, et al. v. Etihad Airways Page 34

Id. at 317. Etihad’s reliance on Bassam, and the district court’s use of Bassam to support its

grant of partial summary judgment in this case, are thus unfounded.17

Finally, it is worth noting that some courts have looked to the relative histories of the

Warsaw and Montreal Conventions to support reaching a different conclusion under the

Montreal Convention than what the Warsaw Convention might have dictated. See Pierre-Louis

v. Newvac Corp., 584 F.3d 1052, 1058, 1058 n.7 (11th Cir. 2009) (affirming the dismissal of

Montreal Convention claims on forum non conveniens grounds when parallel Warsaw

Convention claims would not have been subject to such dismissal; distinguishing the instant case

from “cases [that] involved interpretation of the Warsaw Convention, a predecessor to the

Montreal Convention drafted in 1929, at which time forum non conveniens, in its current form,

was not recognized under U.S. law”).

E. Relevant Foreign Law

When we interpret a treaty provision, “the opinions of our sister signatories [are] entitled

to considerable weight.” Saks, 470 U.S. at 404 (quoting Benjamins v. British European Airways,

572 F.2d 913, 919 (2d Cir. 1978)); see also Husain, 540 U.S. at 660 (Scalia, J., dissenting) (“We

can, and should, look to decisions of other signatories when we interpret treaty provisions.

Foreign constructions are evidence of the original shared understanding of the contracting

parties.”).

Most Montreal Convention litigation in the European courts has involved the interplay

between the Convention and various European Union Regulations, specifically in cases of delays

and lost baggage. See, e.g., Case C-94/14, Flight Refund Ltd v. Deutsche Lufthansa AG,

17

Other than Bassam, the only other Montreal Convention case cited by the district court is Baah v. Virgin

Atl. Airways, 473 F. Supp. 2d 591, 595–56 (S.D.N.Y. 2007). The court cited Baah to support the proposition that

“[c]ourts routinely look to legal precedent interpreting the Warsaw Convention for substantively equivalent

provisions of the Montreal Convention.” But Baah dismissed the plaintiff’s claims for lack of subject-matter

jurisdiction, and the “substantively equivalent provisions” of the Warsaw and Montreal Conventions that Baah

analyzed were the jurisdictional requirements in each treaty (and specifically the phrase “place of destination” in

each)—not Article 17, and not any provision that would be subject to reinterpretation in light of the ratification of

the Montreal Convention. All the cases cited by the district court other than Bassam and Baah are Warsaw

Convention decisions.

No. 16-1042 Doe, et al. v. Etihad Airways Page 35

2016 E.C.R. 148 (Court of Justice) (delay-compensation claim); Case C-63/09, Walz v. Clickair

SA, 2010 E.C.R. I-4239 (Court of Justice) (lost-baggage claim). But some cases have involved

the interpretation of Article 17(1). The Supreme Court of the United Kingdom has reaffirmed,

for example, that “injury to feelings . . . related to [a passenger’s] treatment during the process of

embarkation and during the flight, which made him feel humiliated” is not a “bodily injury”

under Article 17(1) of the Montreal Convention. Hook v. British Airways Plc [2014] UKSC 15,

2014 WL 795206, at *6.

One Canadian court, engaging in a mode of analysis substantially similar to ours in this

case, applied Floyd and considered Ehrlich in declining to interpret “bodily injury” in Article

17(1) of the Montreal Convention to include purely psychological injuries caused by an

emergency landing. Plourde, 2007 QCCA 739, at para. 29.

None of these cases, however, confronted the question of whether mental anguish that

accompanies a compensable bodily injury, rather than only mental anguish caused by a bodily

injury, is recoverable under Article 17(1).

Indeed, the only foreign case we can find that has confronted that question is a decision

of a trial court in British Columbia, which—citing Floyd and Ehrlich favorably—required a

“sufficient causal link” between the bodily injury and the mental injury in order for the mental

injury to be compensable:

In some cases, the causal link between the bodily injury and the mental injury will

be clear. For example, an airline passenger who suffers burns on his or her face

as a result of an aircraft fire will undoubtedly suffer mental anguish. So long as

the bodily injury is proven, the mental injury proven to have been caused by it

will be compensable.

Wettlaufer v. Air Transat A.T. Inc., 2013 BCSC 1245, para. 82 (2013) (where a passenger aboard

an Air Transat flight from Vancouver to Cancun was struck by “an unsecured food cart” upon

landing, the passenger recovered money damages under Article 17(1) to compensate her for both

her bodily injury and the emotional damages resulting from her fear of being “bumped” while

driving or walking in public, but not to compensate for fear of flying “because there is not a

sufficient causal link between such a fear and the whiplash-type injury” sustained).

No. 16-1042 Doe, et al. v. Etihad Airways Page 36

Despite Wettlaufer’s “sufficient causal link” language, the relief ordered in Wettlaufer is

entirely consistent with the relief Doe seeks here and with our interpretation of Article 17(1): the

“accident” that harmed Wettlaufer was being struck by the food cart, her “bodily injury”

included the resulting bruises on her back and neck, and her recoverable emotional damages—

fear of being “bumped”—seemingly must have been caused not by the bruises themselves, but

from the fact that she was bumped by a food cart (that is—again, despite the language used by

the court—her emotional damages were caused by the accident that caused the bodily injury, and

those emotional damages were nevertheless recoverable). Further, denying Wettlaufer’s

recovery for fear of flying is consistent with the text of Article 17(1) as well, because fear of

flying might not be the sort of fear “sustained in case of” bruises caused by a runaway food cart.

Wettlaufer does not seriously explore the language “damage sustained in case of,” and it is only

the decision of a provincial trial court rather than a sister signatory’s high court. Even if we were

to accord it the same weight as a decision of a high court, however, it would not give us reason to

believe that our decision today is at odds with the “shared understanding of the contracting

parties” to the Montreal Convention. Husain, 540 U.S. at 660.

F. The Montreal Convention Imposes Liability for Emotional and

Mental Harms Accompanying a Compensable Bodily Injury

In light of the foregoing discussion, we now provide a brief summary of our decision and

its application to Doe’s case. For ease of reference, we state again the full text of Article 17(1)

of the Montreal Convention:

The carrier is liable for damage sustained in case of death or bodily injury of a

passenger upon condition only that the accident which caused the death or injury

took place on board the aircraft or in the course of any of the operations of

embarking or disembarking.

Montreal Convention art. 17(1).

To prevail on a claim for damages under Article 17(1), a plaintiff must prove that

(1) there was an “accident,” defined as “an unexpected or unusual event or happening that is

external to the passenger,” Saks, 470 U.S. at 405; (2) the accident happened either “on board the

aircraft” or during “the operations of embarking or disembarking”; and (3) the accident caused

“death or bodily injury of a passenger.” The carrier is then liable for damage sustained, which

No. 16-1042 Doe, et al. v. Etihad Airways Page 37

we interpret to include emotional or mental damages, so long as they are traceable to the

accident, regardless of whether they are caused directly by the bodily injury.

A simple example serves to illustrate our understanding. Consider a case in which an

overhead bin unexpectedly opens in flight, causing a suitcase to fall out and strike a passenger in

the eye. The passenger might sustain bodily injury—bruises, broken or fractured bones, a

concussion, etc.—and the passenger might sustain mental anguish such as the fear of losing sight

in the injured eye or a fear of being struck by flying objects. The “accident” would be the

suitcase striking the passenger. (The faulty overhead bin or latch, like the airline’s failure to

clean out the seatback pocket in Doe’s case, might be underlying negligence that precipitated the

accident.) The accident happened on board the aircraft. And the accident caused bodily injury.

Thus, the carrier would be liable for the passenger’s damage sustained as the result of being

struck by the suitcase—including such mental anguish as fear of losing sight, even if the

passenger ultimately did not suffer a loss of vision, and even if the fear of losing sight was not

caused directly by a bodily injury.

The following diagram illustrates this result:

Bodily Injury Mental Anguish

[bruises, concussion, [embarrassment caused by

broken bones, etc.] visible bruises, for example]

(compensable) (compensable)

ACCIDENT

[i.e., being struck

by a suitcase]

Mental Anguish

[fear of losing eyesight, fear of being struck by flying objects, etc.]

(also compensable, because it is sustained as a result of an

accident that caused a compensable bodily injury)

Under Etihad’s framework, a plaintiff seeking to recover damages for mental anguish

would instead have to prove that an accident caused bodily injury, which in turn caused the

No. 16-1042 Doe, et al. v. Etihad Airways Page 38

mental anguish. But that framework is neither found in the text of the Montreal Convention nor

supported by the history and purpose of the Montreal Convention, nor do relevant decisions of

the courts of the United States or sister signatories give us reason to adopt Etihad’s

understanding.

Here, the accident was the needle pricking Doe’s finger. The accident happened on board

Etihad’s aircraft. And the accident caused bodily injury, as Etihad has conceded. Etihad is

therefore liable for Doe’s damage sustained, which includes both her physical injury and the

mental anguish that she is able to prove that she sustained. Assuming that, on remand, Doe is

able to prove fear of contagion or other mental anguish, Etihad is liable for damages arising from

that anguish regardless of whether the anguish was directly caused by the physical hole in Doe’s

finger or by the fact that Doe was pricked by a needle. The diagram at page 14, supra, illustrates

this result.

IV

Michigan Damages Laws Govern the Measure of Doe’s Recovery

and Any Recovery by Doe’s Husband for Loss of Consortium

Having determined that the Montreal Convention does not preclude Etihad’s liability for

Doe’s mental-anguish claims, we turn to the choice-of-law question of whose law governs the

measure of any recovery to which Doe is entitled. Although the district court did not expressly

(or implicitly) address this question in its order granting partial summary judgment, the question

was raised in the parties’ summary-judgment pleadings below. On appeal, Plaintiffs’ brief

includes a lengthy discussion of whether federal common law or Michigan law determines the

extent of Doe’s recovery for mental anguish. Appellants’ Br. 23–29. Etihad responds at even

greater length in its brief. Appellee’s Br. 26–37. For the reasons that follow, Michigan law

governs both the measure of Doe’s recovery and the ability of Doe’s husband to recover

damages for loss of consortium.

Article 29 of the Montreal Convention clarifies that actions under Article 17(1), such as

Plaintiffs’ action, are brought “without prejudice to the question as to who are the persons who

have the right to bring suit and what are their respective rights.” Montreal Convention art.

No. 16-1042 Doe, et al. v. Etihad Airways Page 39

29 (emphasis added). As we discussed in Section III.C.1, supra, the United States Supreme

Court has held that the effect of the parallel provision in the Warsaw Convention (Article 24) is

to leave to the domestic law of the contracting parties the determination of how a successful

plaintiff’s damages are measured. See Zicherman, 516 U.S. at 224–26. Lower courts have

consistently applied Zicherman to hold that the measure of damages is to be fixed according to

whatever law (i.e., according to whatever choice-of-law rules) would apply in a domestic-law

case, and Zicherman is one of the Warsaw Convention “precedents” that guides our

interpretation of the Montreal Convention. See Section III.A & n.11, supra; see also Pescatore

v. Pan Am World Airways, Inc., 97 F.3d 1, 4–5 (2d Cir. 1996) (applying Zicherman to reject the

argument that a uniform “federal common law” should provide the measure of damages for

plaintiffs bringing claims on behalf of victims killed in the bombing of Pan Am Flight 103 over

Lockerbie, Scotland, and instead conducting a choice-of-law analysis to conclude that Ohio

damages laws applied and that Ohio law allowed plaintiffs to recover damages for loss of

society, support, and services, and for grief).

In this case, then, the district court should measure Doe’s damages by whatever law

would apply to an analogous case in the Eastern District of Michigan. An analogous case would

be a diversity action for personal-injury damages. A federal court exercising diversity

jurisdiction applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496 (1941). And “a federal court in a diversity action is obligated

to apply the law it believes the highest court of the state would apply if it were faced with the

issue.” Mahne v. Ford Motor Co., 900 F.2d 83, 86 (6th Cir. 1990).

Our court has previously recognized Michigan’s strong presumption in favor of applying

Michigan law in Michigan courts:

Michigan’s choice of law framework is established in two Michigan Supreme

Court decisions: Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292, 302

(1987), and Sutherland v. Kennington Truck Serv., Ltd., 454 Mich. 274, 562

N.W.2d 466, 471 (1997). In a tort action, Michigan courts recognize a

presumption in favor of lex fori and apply Michigan law “unless a ‘rational

reason’ to do otherwise exists.” Sutherland, 562 N.W.2d at 471. The two-step

test for determining whether such a rational reason exists was distilled in

Sutherland from Olmstead as follows:

No. 16-1042 Doe, et al. v. Etihad Airways Page 40

First, we must determine if any foreign state has an interest in

having its law applied. If no state has such an interest, the

presumption that Michigan law will apply cannot be overcome. If

a foreign state does have an interest in having its law applied, we

must then determine if Michigan’s interests mandate that Michigan

law be applied, despite the foreign interests.

Id.

Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 690, 693 (6th Cir. 2013).

Neither party here has asserted a “rational reason” for us to hold that any law other than

Michigan’s damages laws should apply to govern the measure of Plaintiffs’ recovery, including

any recovery by Doe’s husband for loss of consortium. Plaintiffs are Michigan residents, so

there is no reason to apply the substantive law of any state in the United States other than

Michigan. And Etihad has not argued that the law of the United Arab Emirates should apply.

Michigan’s substantive damages laws therefore govern the measure of any recovery that

Plaintiffs win. On remand, assuming Doe wins a judgment, the district court is free to determine,

within the bounds of what Michigan damages laws allow, what specific kinds of damages—such

as emotional distress, mental anguish, fear of contagion, loss of consortium, and so on—

Plaintiffs are entitled to recover, in “grant[ing] the relief to which each party is entitled.” Fed. R.

Civ. P. 54(c).

V

The Warsaw Convention ruled aviation law for more than seventy-five years. Over the

decades, despite various amendments, courts have routinely interpreted the Warsaw Convention

in line with its purpose as drafted in 1929. Etihad urges us to interpret the Montreal Convention

in line with that same purpose.

But the Montreal Convention is not an amendment to the Warsaw Convention. The

Warsaw Convention provided limitations of liability to protect fledgling airlines from litigious

passengers; the Montreal Convention provides limitations of liability to protect (still litigious)

passengers from the not-so-fledgling airlines. To adopt Etihad’s reading of the Montreal

Convention would distort the treaty’s text and would frustrate rather than serve its purpose.

No. 16-1042 Doe, et al. v. Etihad Airways Page 41

Having determined that the Montreal Convention imposes liability for the damages that

Doe has alleged, and that the damages laws of Michigan govern the measure of any judgment

Plaintiffs win, we REVERSE the district court’s partial-summary-judgment order and

REMAND this matter for further proceedings consistent with this opinion.