Amicus Curiae Brief — Etihad Airways P.J.S.C., Petitioner v. Jane Doe, et vir

No. 17-977

In the

Supreme Court of the United States



ETIHAD AIRWAYS P.J.S.C.,

Petitioner,

– v. –

JANE DOE; JOHN DOE, husband and wife,

Respondents.

—————————————

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF AMICUS CURIAE

INTERNATIONAL AIR TRANSPORT

ASSOCIATION IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

JEFFREY N. SHANE

General Counsel

INTERNATIONAL AIR

TRANSPORT ASSOCIATION

Route de l’Aeroport 33

P.O. Box 416

1215 Geneva Airport 15

Switzerland

+41 (0) 22 770 29 01

shanej@iata.org

JUDITH R. NEMSICK

Counsel of Record

SARAH G. PASSERI

HOLLAND & KNIGHT LLP

31 West 52nd Street,

12th Floor

New York, New York 10019

(212) 513-3200

judith.nemsick@hklaw.com

Counsel for Amicus Curiae

International Air Transport Association

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ...................

1

SUMMARY OF ARGUMENT ............................

3

ARGUMENT

I.

THE MONTREAL CONVENTION IS

A MULTINATIONAL TREATY THAT

GOVERNS ALL INTERNATIONAL

TRANSPORTATION BY AIR AND

IS RELIED ON BY COMMERCIAL

AIR CARRIERS WORLDWIDE ................

4

A. The Sixth Circuit Ignored Relevant

History Leading to the Enactment of

the Montreal Convention ......................

6

B. The Purpose of the Montreal

Convention Was to Unify and Balance

the Interests of Both Passengers and

Commercial Air Carriers, Not to

Provide a New, Passenger-Focused

Convention ............................................

8

C. The Sixth Circuit’s Decision Is

Contrary to the Intent of the Drafters

to Leave Article 17 Unchanged and to

Yield Interpretation to the Judicial

Precedent Under Warsaw .....................

11

ii

II.

THE SIXTH CIRCUIT’S FLAWED

ANALYSIS OF ARTICLE 17 DISRUPTS

MORE THAN TWENTY-FIVE YEARS

OF CONSISTENT TREATY

INTERPRETATION RELIED UPON BY

COMMERCIAL AIR CARRIERS...............

14

A. The Sixth Circuit Has Created

a Conflict Among the Circuit Courts

That Will Result in Inconsistent

Treaty Interpretation ...........................

16

B. The Decision Will Lead to Increased

Litigation, Artful Pleading,

Anomalous Results, and Delay in

Resolution of Passenger Claims ...........

20

III. THE AVIATION INDUSTRY REQUIRES

A UNIFORM, CONSISTENT INTERPRETATION OF THE MONTREAL

CONVENTION...........................................

22

CONCLUSION ...................................................

24

APPENDIX

1 International Civil Aviation Organization,

Minutes, International Conference on

Air Law, Montreal, 10-28 May 1999

(2001) ...............................................................

1a

iii

TABLE OF AUTHORITIES

Page(s)

Cases:

Air France v. Saks,

470 U.S. 392 (1985)...................................... 23n.16

Alvarez v. Am. Airlines, Inc.,

1999 WL 691922 (S.D.N.Y.

Sept. 7, 1999) ............................... 15n.7, 18n.11, 19

Am. Airlines v. Georgeopoulos (No 2),

[1998] NSWCA 273 (Australia) ......................

23

Baah v. Virgin Atl. Airways Ltd.,

473 F. Supp. 2d 591 (S.D.N.Y. 2007) .............

13

Bassam v. Am. Airlines,

287 F. App’x 309 (5th Cir. 2008) ......... 15, 16, 17-18

Bobian v. Czech Airlines,

93 F. App’x 406 (3d Cir. 2004) ..................... 18n.11

Booker v. BWIA West Indies Airways Ltd.,

307 F. App’x 491 (2d Cir. 2009) ......................

5

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

870 F.3d 406 (6th Cir. 2017) ....................... passim

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

2015 WL 5936326 (E.D. Mich. Oct. 13, 2015),

rev’d, 870 F.3d 406 (6th Cir. 2017).................

16

Eastern Airlines, Inc. v. Floyd,

499 U.S. 530 (1991)..................................... passim

Ehrlich v. Am. Airlines, Inc.,

360 F.3d 366 (2d Cir. 2004) ......................... passim

iv

El Al Israel Airlines, Ltd. v. Tseng,

525 U.S. 155 (1999).............................. 5, 9, 19n.13

Husmann v. Trans World Airlines, Inc.,

169 F.3d 1151 (8th Cir. 1999).........................

5

In re Air Crash at Little Rock Ark.,

on June 1, 1999, 291 F.3d 503 (8th Cir.

2002), cert. denied sub nom., Lloyd v.

Am. Airlines, Inc., 537 U.S. 974 (2002) ...... passim

In re Air Crash at Taipei, Taiwan

on Oct. 31, 2000,

2004 WL 5642007 (C.D. Cal.

Sept. 3, 2004) ................................................... 15n.7

In re Aircrash Disaster Near

Roselawn, Ind., on Oct. 31, 1994,

954 F. Supp. 175 (N.D. Ill. 1997) ...................

15

Jack v. Trans World Airlines, Inc.,

854 F. Supp. 654 (N.D. Cal.

1994) ...................................................... 15n.7, 18n.11

Jacob v. Korean Air Lines Co.,

606 F. App’x 478 (11th Cir.), cert. denied,

136 S. Ct. 267 (2015)....................................... 15, 17

Katin v. Air France-KLM, S.A.,

2009 WL 1940363 (E.D. Tex.

July 2, 2009) ............................................... 15-16n.9

Kruger v. United Airlines, Inc.,

481 F. Supp. 2d 1005 (N.D. Cal. 2007) .......... 16n.9

Kruger v. Virgin Atl. Airways, Ltd.,

976 F. Supp. 2d 290 (E.D.N.Y. 2013), aff’d,

578 F. App’x 51 (2d Cir. 2014) ........................ 15n.9

v

Ligeti v. British Airways PLC,

2001 WL 1356238 (S.D.N.Y. Nov. 5, 2001) .... 15n.7

Longo v. Air France,

1996 WL 866124 (S.D.N.Y.

July 25, 1996) ..................................... 15n.7, 18n.11

Naqvi v. Turkish Airlines, Inc.,

80 F. Supp. 3d 234 (D.D.C. 2015) ............ 13, 15n.9

Pel-Air Aviation Pty Ltd. v. Casey,

[2017] NSWCA 32 (Australia) ........................

23

Plourde v. Service aérien F.B.O. inc.

(Skyservice),

2007 QCCA 739, ¶ 52 (Canada) ..................... 22-23

Rosman v. Trans World Airlines,

34 N.Y.2d 385 (N.Y. 1974) ............................ 15n.7

Sanches-Naek v. TAP Portugal, Inc.,

260 F. Supp. 3d 185 (D. Conn. 2017) ............. 15n.9

Schaefer-Condulmari v. US Airways

Grp., LLC, 2012 WL 2920375

(E.D. Pa. July 18, 2012) .................................. 15n.9

Vumbaca v. Terminal One Grp. Ass’n L.P.,

859 F. Supp. 2d 343 (E.D.N.Y. 2012) ............. 15n.9

Wencelius v. Air France, Inc.,

1996 WL 866122 (C.D. Cal.

Feb. 29, 1996) ................................................. 15n.7

Wettlaufer v. Air Transat A.T. Inc.,

2013 BC 1245 (Canada) ..................................

23

Zicherman v. Korean Air Lines Co., Ltd.,

516 U.S. 217 (1996).........................................

3n.4

vi

Treaties and Rules:

Convention for the Unification of Certain

Rules for the International Carriage by Air,

concluded at Montreal, Canada, May 28,

1999, reprinted in S. Treaty Doc. No. 106-45,

1999 WL 33292734 ...................................... passim

Convention for the Unification of Certain

Rules Related to International

Transportation by Air, Oct. 12, 1929, 49

Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11

(1934), reprinted in note following 49

U.S.C.A. § 40105 (1997) ............................... passim

Supreme Court Rule 37.6 ...................................

1n.1

Other Authorities:

1 International Civil Aviation Organization,

Minutes, International Conference on

Air Law, Montreal, 10-28 May 1999

(2001) .................................................... 8, 9, 13, 21

Brief for the United States as Amicus Curiae,

2003 WL 23497831 (2d Cir. Aug. 18, 2003) ...

19

Letter of Submittal, S. Treaty Doc.

106-45, 1999 WL 33292734 (2000) ............. passim

S. Exec. Rep. 108-8 (2003) ................... 10, 13, 20n.15

1

The International Air Transport Association

(“IATA”) respectfully submits this Brief as Amici

Curiae1 in support of Petitioner Etihad Airways

P.J.S.C.’s petition for a writ of certiorari to review the

judgment and opinion by the United States Court of

Appeals for the Sixth Circuit, Doe v. Etihad Airways,

P.J.S.C., 870 F.3d 406 (6th Cir. 2017), which held that

mental injury damages may be recovered under

Article 17 of the Montreal Convention,2 regardless of

whether they flow from or are caused by bodily injury.

INTEREST OF AMICUS CURIAE

IATA is a nongovernmental international trade

association founded in 1945 by air carriers engaged in

international air services. Today, IATA consists of 280

member airlines from 120 countries representing

roughly 83 percent of the world’s total air traffic. IATA

strives to represent, lead, and serve the airline

industry by advocating the interests of airlines across

the globe, developing global commercial standards for

the airline industry and assisting airlines in operating

safely, securely, efficiently, and economically. Since

1 Letters of consent have been filed with the Court. Counsel of

record received notice of IATA’s intent to file this amicus brief at

least 10 days prior to the due date. Pursuant to Supreme Court

Rule 37.6, amicus curiae states that no counsel for a party has

written this brief in whole or in part, and no person or entity,

other than the amicus curiae, its members, or its counsel, has

made a monetary contribution to the preparation or submission

of this brief.

Convention for the Unification of Certain Rules for the

International Carriage by Air, concluded at Montreal, Canada,

May 28, 1999, reprinted in S. Treaty Doc. No. 106-45, 1999 WL

33292734 (“Montreal Convention”).

2

2

1945, IATA has worked closely with governments and

intergovernmental organizations to achieve and

maintain a legal and regulatory framework

everywhere consistent with the best interests of air

transportation users. In this connection, IATA

advocates

uniformity

in

the

development,

implementation, and interpretation of numerous

public and private international treaties and

agreements relating to the conduct of international

air services.

IATA, and its respective airline members, have a

significant interest in ensuring consistent and

uniform interpretation of Article 17 of the Montreal

Convention. Indeed, IATA and its members have

litigated or participated as amici in numerous cases

involving the Montreal Convention and its

predecessor the Warsaw Convention.3 Because IATA

members rely on, and are the intended beneficiaries

of, a vast number of treaty precedents, they have a

significant interest in the outcome of this case and

offer a unique perspective that will assist the Court.

IATA and its members support reversal of the Sixth

Circuit’s holding, which improperly expands the scope

of recovery for mental injury under the treaty and is

counter to long-standing precedent on this issue. By

finding that mental injury unrelated to physical injury

may be recoverable, the Sixth Circuit has exposed

commercial airlines to inconsistent interpretations of

the treaty. The Sixth Circuit’s decision is in direct

conflict with the Fifth and Eleventh Circuits’

Convention for the Unification of Certain Rules Related to

International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000,

T.S. No. 876, 137 L.N.T.S. 11 (1934), reprinted in note following

49 U.S.C.A. § 40105 (1997) (“Warsaw Convention”).

3

3

interpretation of Article 17 under the Montreal

Convention, and the Second and Eighth Circuits’

interpretation of Article 17 under the Warsaw

Convention, as amended. Commercial airlines are

now confronted with a non-uniform interpretation of

Article 17—a result at odds with the purpose of a

multinational treaty like the Montreal Convention.

SUMMARY OF ARGUMENT

The Sixth Circuit stands alone in its interpretation

of Article 17 of the Montreal Convention. Rather than

decide whether Plaintiff’s mental injuries flowed from

her physical injury—as has long been the test

following Eastern Airlines, Inc. v. Floyd, 499 U.S. 530

(1991) and its progeny—the Sixth Circuit went

radically further by invoking a new test: an air carrier

is liable for any mental injuries “so long as they are

traceable to the accident, regardless of whether they

are caused directly by the bodily injury.” Doe, 870 F.3d

at 433.

The Sixth Circuit’s new test runs afoul of the

Court’s decision in Floyd,4 other U.S. Circuit Court

decisions that uniformly apply the “flow from” test,

decisions from other sister signatories that limit

recovery for mental injuries to those caused by

physical injury, and, most importantly, the intent of

the drafters and purpose of the Montreal Convention.

The Sixth Circuit’s decision threatens the uniform

application of Article 17—not just within the U.S. but

among other signatory nations. Aviation is an

4 It also runs afoul of Zicherman v. Korean Air Lines Co., Ltd.,

516 U.S. 217 (1996) because the determination of “damage

sustained” only comes into play after the threshold Article 17

conditions of liability have been met (i.e., bodily injury).

4

international industry dependent upon the uniform

interpretation of treaties across nations. If left to

stand, the Sixth Circuit’s decision to ignore longstanding precedent and instead impose a completely

new legal standard could have a ripple effect across

the entire industry: subjecting airlines to increased

litigation, needlessly expanding the scope of damages

recoverable under the treaty, and causing delays in

resolution of claims. IATA is most concerned that this

newly promulgated test, which appears to have been

unnecessary in light of the court’s statement that

“Doe’s mental anguish is traceable to her bodily

injury” (870 F.3d at n.8), will open the flood gates to

wholly speculative mental injury claims that lack any

meaningful connection to a physical injury.

For these reasons, and the ones that follow, IATA

respectfully urges the Court to grant the petition and

reverse the Sixth Circuit’s unnecessarily expansive

holding.

ARGUMENT

I.

THE MONTREAL CONVENTION IS A

MULTINATIONAL TREATY THAT

GOVERNS ALL INTERNATIONAL

TRANSPORTATION BY AIR AND IS

RELIED ON BY COMMERCIAL AIR

CARRIERS WORLDWIDE

The Montreal Convention is a multinational treaty

signed by 130 parties and covers “all international

carriage of persons, baggage or cargo performed by

aircraft for reward.” Montreal Convention, Art. 1(1).

It “unifies and replaces the system of liability that

derives from the Warsaw Convention.” Ehrlich v. Am.

Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004). The

central purpose of the Montreal Convention, like the

5

Warsaw Convention, remains the unification of rules

governing claims that arise from international air

carriage. Id. (the Convention “harmonize[s] the

hodgepodge of supplementary amendments and

intercarrier agreements” that govern international

transportation). See also El Al Israel Airlines, Ltd. v.

Tseng, 525 U.S. 155, 169 (1999) (the “cardinal

purpose” of the Warsaw Convention was to achieve

uniform rules governing air carrier liability). In

return for that essential consistency in the rules

governing claims, airlines are subject to virtual strict

liability to their passengers for covered injuries.

For over 80 years, airlines have relied on the

Warsaw Convention (as amended, supplemented, and

modified by protocols and inter-carrier agreements),

the Montreal Convention, and the vast body of case

law that has developed thereunder. Both Conventions

have been construed as having a complete preemptive

effect over all claims within their scope. See, e.g.,

Tseng, 525 U.S. at 175 (discussing preemptive effect

of Warsaw Convention); Husmann v. Trans World

Airlines, Inc., 169 F.3d 1151, 1152 (8th Cir. 1999)

(relying on Tseng in holding that state-law claims for

passenger injury while boarding an aircraft were

“completely preempted” by the Warsaw Convention);

Booker v. BWIA West Indies Airways Ltd., 307 F.

App’x 491, 493 (2d Cir. 2009) (affirming lower court

ruling that the Montreal Convention preempted

passenger’s common law claims seeking damages for

lost luggage). As stated in the Montreal Convention,

any action for damages arising during international

transportation “can only be brought subject to the

conditions and such limits of liability as are set out in

this Convention….” Montreal Convention, Art. 29

(emphasis added).

6

Because of the treaty’s broad reach and its

exclusivity over all passenger claims arising from

international transportation, a higher court’s

interpretation of its terms will have a significant

impact on the commercial aviation industry—

particularly, here, where the Sixth Circuit’s

interpretation is contrary to the case law that has

developed since Floyd.

A. The Sixth Circuit Ignored Relevant History

Leading to the Enactment of the Montreal

Convention

The Warsaw Convention was enacted in 1929 and

ratified by the U.S. in 1934. Since that time the U.S.

and IATA, among others, have worked together to

develop and modernize the Convention. The focus of

the U.S. with respect to passenger rights has long

been the inadequacy of the original monetary

limitation on liability. For example, in the 1950s, the

U.S. led an effort to raise the liability limits of the

Warsaw Convention. See Letter of Submittal, S.

Treaty Doc. 106-45, 1999 WL 33292734, at *3 (2000)

(“MC Letter of Submittal”). The result was the Hague

Protocol, an amendment to the Warsaw Convention.

Id. The U.S. remained dissatisfied with the increased

liability limits and proposed insurance legislation to

further increase the monetary compensation scheme

available to passengers. However, the insurance

legislation failed. Id. In response, in 1966, IATA

negotiated a private, voluntary agreement that was

signed by all major foreign and U.S. carriers. Under

this Montreal Inter-carrier Agreement, airlines

agreed to be strictly liability for any “accidents” that

occur on flights to or from the U.S. up to $75,000. See

id. at 4.

7

At a diplomatic conference in 1975, the parties

again convened to negotiate changes to the Warsaw

Convention, as amended. The result was various

Montreal Protocols, which, inter alia, replaced the

gold standard with Special Drawing Rights and

updated certain cargo provisions. The U.S. Congress

tried to enact a supplemental compensation plan to

provide an insurance provision to the Warsaw

Convention to increase the potential damages a

passenger could recover; however, the plan was

unsuccessful. See id. at 5. Again, in 1997, the U.S.,

through IATA, developed voluntary agreements

(IATA and ATA Inter-carrier Agreements) with

foreign and domestic carriers to, inter alia, waive the

limits of the Warsaw Convention, as amended, and

accept 100,000 SDRs of strict liability for provable

damages to any accident victim. Id. These intercarrier agreements functionally resolved the U.S.’s

main concern with the Warsaw Convention over the

years—the relatively low limits on liability for

accident victims. See id. at 6.

Finally, in 1999, in an effort to “replace the

patchwork of liability regimes around the world” as a

result of certain parties signing onto protocols and

private inter-carrier agreements, and others not, the

Warsaw Convention signatories gathered for the

International Conference on Air Law in Montreal to

negotiate a new, uniform convention. See id.

8

B. The Purpose of the Montreal Convention

Was to Unify and Balance the Interests of

Both Passengers and Commercial Air

Carriers, Not to Provide a New, PassengerFocused Convention

Contrary to the analysis of the Sixth Circuit, the

Montreal Convention’s goal to ensure equitable

compensation for passengers did not extend to

broadening Article 17 liability. While passengers

plainly benefitted from the removal of the liability

limits for passenger injury and death and the addition

of a fifth jurisdiction to bring suit, the Convention

included a no-negligence defense and still retained the

Article 17 “accident” and “bodily injury” conditions

precedent for liability as well as an exoneration

defense.

In fact, the overarching purpose of the Montreal

Convention was not to favor passengers, but rather “to

replace the Warsaw Convention and all of its related

instruments and to eliminate the need for the

patchwork of regulation and private voluntary

agreements”5 in order to “achiev[e] an equitable

balance of interests” between the consumers and air

carriers. Montreal Convention, Preamble, ¶ 5. See

also 1 International Civil Aviation Organization,

Minutes, International Conference on Air Law,

Montreal, 10-28 May 1999 (2001) (“MC Minutes”)

(relevant excerpts reproduced at Appendix (“A”)) at A

MC Letter of Submittal, at 7. While Doe recognized the

Convention’s purpose to provide a “modernized uniform liability

regime,” (870 F.3d at 423), it disregarded this goal of uniformity

when it expanded recovery under Article 17 to include

standalone mental injury claims in contradiction to the extensive

treaty precedent on this issue.

5

9

5a-22a (numerous comments by various delegates

concerning the importance of maintaining a balance

between the interests of carriers and passengers).

Like the Montreal Convention, the Warsaw

Convention also was intended to establish uniform

“rules governing the claims arising from international

transportation” and “accommodate or balance the

interests of passengers seeking recovery for personal

injuries, and the interests of air carriers seeking to

limit potential liability.” Tseng, 525 U.S. at 169.

However, the Warsaw Convention—in its original

state—needed to evolve to account for the “technical,

social and commercial developments” and to

modernize the rules governing these activities. See

MC Minutes, at A 2a. As recognized by the drafters:

The initial balance of interests between the desire

on the part of governments to protect the infant

airline industry from undue financial burden and

the individual’s right to restitution in case of

accident has been the subject of discussion and

review for a significant period of time. This

review has certainly [sic] [taken] adequate

account of the fact that the aviation industry has

matured. Increased sensitivity towards the

legitimate interests of the air transport user

requires that the balance of interests should also

accommodate the need for a better and swifter

resolution of the consequences of an accident.

Id. at A 3a. Much of this evolution occurred through

the protocols and inter-carrier agreements over the

past 50 years. See id. However, a coordinated effort to

clear up the “opaque legal framework” and restore

“legal certainty and uniformity” became necessary for

both the traveling public and the airlines. Id.

10

The Montreal Convention, in effect, codified the

post-Warsaw Convention protocols and private

agreements to which the U.S. was already a party, by,

inter alia: (1) removing certain arbitrary limits on

recovery for passenger death or injury; (2) imposing

strict liability up to 100,000 SDRs for proven damages

as a result of an “accident”; (3) expanding jurisdiction

by adding a fifth forum for lawsuits against air

carriers; and (4) clarifying code-share obligations. See

MC Letter of Submittal, at *7. See also S. Exec. Rep.

108-8, at 19 (2003) (noting the Montreal Convention

contains “all of the key provisions sought by the

U.S.”). There were very few “new” provisions in the

Montreal Convention: “Much of the Convention

derives from provisions in the Warsaw Convention

and its related instruments negotiated over a span of

several decades.” See Letter of Submittal, at * 11. Of

note, the Montreal Convention retained (in nearly

identical form) various Warsaw Convention

provisions, including: the scope of application (Article

1); the accident requirement, including the muchdebated “bodily injury” (Article 17); liability for delay

along with the reasonable efforts defense (Article 19);

exoneration and contributory negligence (Article 20);

limitations on baggage and cargo (Article 22); and the

two-year condition precedent period (Article 35).

As succinctly summarized by the U.S., the Montreal

Convention provided a “uniform set of rules

appropriate for today’s airlines and today’s passengers

…”—which was its ultimate purpose. S. Exec. Rep.

108-8, at 19 (emphasis added).

11

C. The Sixth Circuit’s Decision Is Contrary to

the Intent of the Drafters to Leave Article

17 Unchanged and to Yield Interpretation

to the Judicial Precedent Under Warsaw

A cornerstone to the Sixth Circuit’s decision is the

insistence that Montreal Article 17 be read differently

than Warsaw Article 17. Not only is the Sixth Circuit

wrong in reading an ambiguous and undefined “propassenger purpose” into random provisions of the

Montreal Convention, its interpretation stands in

stark contradiction to the intent of the drafters.

Article 17 of the Montreal Convention is nearly

identical in words and substance to its Warsaw

Convention6 counterpart:

Article 17 Warsaw

Convention

Article 17 Montreal

Convention

The carrier is 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.

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.

6 The Warsaw Convention was drafted in French and translated

into English.

12

The very minor updates to the Montreal Convention

were not intended to affect the long-standing and

universally adopted interpretation of Warsaw Article

17. To the contrary, the drafters “expected that

[Article 17] will be construed consistently with the

precedent developed under the Warsaw Convention

and its related instruments.” MC Letter of Submittal,

at *16 (emphasis added).

Specific consideration was given to recovery for

“mental” injuries. But the drafters intentionally

resolved to leave this issue untouched:

During the major discussion on how to reflect the

question of mental injury, a considerable degree

of reservation had been expressed by some

Delegations about expressing mental injury in a

form in which it would be independent of bodily

injury, therefore suggesting that, to the extent

that that was admissible, it would be necessary to

circumscribe it greatly. Following a series of

drafting permutations aimed at accommodating

that concern, the Group had concluded firstly,

that the concept of death or bodily injury as now

contained in the Warsaw Convention and as

reflected in DCW Doc No. 3 would indeed be an

adequate reflection against the background of the

jurisprudence which existed in relation to the

question as to the circumstances in which mental

injury might be recovered. All had recognized that

under the concept of bodily injury there were

circumstances in which mental injury which was

associated with bodily injury would indeed be

recoverable and damages paid therefor. The

Group had equally recognized that the

jurisprudence in this area was still developing.

13

MC Minutes, at A 24a-25a (emphasis added).

In circumstances such as these, where a provision

of the Warsaw Convention is similar to a provision of

the Montreal Convention, U.S. courts routinely rely

on decisions under the Warsaw Convention in

interpreting the Montreal Convention counterpart.

See, e.g., Naqvi v. Turkish Airlines, Inc., 80 F. Supp.

3d 234, 238 n.3 (D.D.C. 2015) (analyzing Article 17 of

the Montreal Convention and finding “the case law

interpreting the Warsaw Convention applies with

equal force to comparable provisions in the Montreal

Convention”); Baah v. Virgin Atl. Airways Ltd., 473 F.

Supp. 2d 591, 596-97 (S.D.N.Y. 2007) (referencing the

Senate Report and applying Warsaw Convention

cases because “efforts were made in the negotiations

and drafting of the Montreal Convention to retain

existing language and substance of other provisions to

preserve judicial precedent relating to other aspects of

the Warsaw Convention”). See also S. Exec. Rep. 1088, at 3, 19 (“since major portions of the Convention are

based on, and generally follow the language of, the

1929 Warsaw Convention and related protocol to

which the United States is already a party [ ], prior

judicial interpretations under those treaties are

expected to have continuing validity”).

Article 17 is no exception. With regard to the clear

text of Article 17 and the unambiguous intent of the

drafters to retain the bodily injury requirement, the

Sixth Circuit should have followed the precedent

interpreting Article 17 of the Warsaw Convention,

including the decisions of the Eighth and Second

Circuits in Lloyd and Ehrlich and decisions from other

Circuit Courts following such Warsaw precedent in

Montreal Convention cases. This would have better

14

served the primary objective of the treaty: to provide

a clear legal framework for carriers and passengers.

II.

THE SIXTH CIRCUIT’S FLAWED

ANALYSIS OF ARTICLE 17 DISRUPTS

MORE THAN TWENTY-FIVE YEARS

OF CONSISTENT TREATY

INTERPRETATION RELIED UPON BY

COMMERCIAL AIR CARRIERS

In Eastern Airlines, Inc. v. Floyd, 499 U.S. 530

(1991), the Court issued a seminal opinion on air

carrier liability under the Warsaw Convention. After

analyzing the text, purpose, drafting history, and

post-ratification interpretation of Article 17, the

Court construed the term “lésion corporelle” (the

original French text) to mean “bodily injury” and

concluded that air carriers could not be held liable for

purely mental injuries as they are not “bodily

injuries.” 499 U.S. at 552. The Court, however,

“express[ed] no view as to whether passengers can

recover for mental injuries that are accompanied by

physical injuries.” Id.

In the post-Floyd years, courts consistently

disallowed recovery for pure mental injury—both

under the Warsaw and Montreal Conventions. And,

the overwhelming majority of courts analyzing Article

17 of the Warsaw Convention answered Floyd’s open

question by concluding that “recovery for mental

injuries is permitted only to the extent the distress is

caused by the physical injuries sustained.” In re Air

Crash at Little Rock Ark., on June 1, 1999, 291 F.3d

503, 509 (8th Cir. 2002), cert. denied sub nom., Lloyd v.

15

Am. Airlines, Inc., 537 U.S. 974 (2002) (Lloyd).7 Only

one outlier court rejected the majority approach to

liability for mental injury under the Warsaw

Convention. See In re Aircrash Disaster Near

Roselawn, Ind., on Oct. 31, 1994, 954 F. Supp. 175,

178–79 (N.D. Ill. 1997).

Significantly, prior to the Sixth Circuit’s decision,

all courts that had interpreted Article 17 under the

Montreal Convention had unanimously—both at the

appellate and district court levels—adopted the

“mainstream view”8 and held that mental injury may

only be recovered when it flows from or directly

results from the bodily injury. See, e.g., Jacob v.

Korean Air Lines Co., 606 F. App’x 478, 482 (11th

Cir.), cert. denied, 136 S. Ct. 267 (2015); Bassam v.

Am. Airlines, 287 F. App’x 309, 317 (5th Cir. 2008).9

See also Ehrlich, 360 F.3d at 400 (under the Warsaw

Convention, “a carrier may be held liable under Article 17 for

mental injuries only if they are caused by bodily injuries”); In

re Air Crash at Taipei, Taiwan on Oct. 31, 2000, 2004 WL

5642007, at *3 (C.D. Cal. Sept. 3, 2004); Ligeti v. British Airways

PLC, 2001 WL 1356238, at *4 (S.D.N.Y. Nov. 5, 2001); Alvarez v.

Am. Airlines, Inc., 1999 WL 691922, at *5 (S.D.N.Y. Sept. 7,

1999); Longo v. Air France, 1996 WL 866124, at *2 (S.D.N.Y.

July 25, 1996); Wencelius v. Air France, Inc., 1996 WL 866122,

at *1 (C.D. Cal. Feb. 29, 1996); Jack v. Trans World Airlines,

Inc., 854 F. Supp. 654, 668 (N.D. Cal. 1994); Rosman v. Trans

World Airlines, 34 N.Y.2d 385, 399-400 (N.Y. 1974).

7

8 Lloyd, 291 F.3d at 509.

9 See also Sanches-Naek v. TAP Portugal, Inc., 260 F. Supp. 3d

185, 196 (D. Conn. 2017); Naqvi, 80 F. Supp. 3d at 241; Kruger v.

Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 327 (E.D.N.Y.

2013), aff’d, 578 F. App’x 51 (2d Cir. 2014); Vumbaca v. Terminal

One Grp. Ass’n L.P., 859 F. Supp. 2d 343, 365 (E.D.N.Y. 2012);

Schaefer-Condulmari v. US Airways Grp., LLC, 2012 WL

2920375, at *3-4 (E.D. Pa. July 18, 2012); Katin v. Air France-

16

The Sixth Circuit’s divergence from such strong treaty

precedent on this issue, under both the Warsaw and

Montreal Conventions, is troubling to the commercial

airline industry and cannot be left to stand.

A. The Sixth Circuit Has Created a Conflict

Among the Circuit Courts That Will Result

in Inconsistent Treaty Interpretation

Relying on the Warsaw and Montreal Convention

cases of Lloyd, Ehrlich, and Bassam, the district court

in Doe granted Etihad’s motion for summary

judgment, holding that it was not plaintiff’s physical

injury that caused her distress “but the possibility

that she may have been exposed to an infectious

disease.” Doe v. Etihad Airways, P.J.S.C., 2015 WL

5936326, at *2 (E.D. Mich. Oct. 13, 2015), rev’d, 870

F.3d 406 (6th Cir. 2017). The Sixth Circuit reversed,

holding that under Article 17, a carrier is liable for the

“damage sustained” when an “accident” (the needle

prick) causes bodily injury (punctured finger), and

such damage “include[s] emotional and mental

damages, so long as they are traceable to the accident,

regardless of whether they are caused directly by the

bodily injury.” 870 F.3d at 433.

The court rejected Etihad’s precedent-based

interpretation of Article 17’s text, finding to the

contrary that no causal connection between physical

and mental injury need be read into it—in other

words, “damage sustained in case of…bodily injury”

does not mean “damage sustained [caused directly by]

KLM, S.A., 2009 WL 1940363, at *4 (E.D. Tex. July 2, 2009);

Kruger v. United Airlines, Inc., 481 F. Supp. 2d 1005, 1009 (N.D.

Cal. 2007).

17

… bodily injury.”10 Id. at 412. The Sixth Circuit

further viewed the Montreal Convention as a new proconsumer treaty that favored recovery of damages and

should not “burden[ ]” plaintiff with proving which

mental injury resulted from bodily injury. Id. at 428.

The holding in Doe has created a significant conflict

with numerous appellate and district courts

addressing Article 17 damages under both the

Montreal and Warsaw Conventions. Specifically, the

Sixth Circuit is in conflict with the Fifth and Eleventh

Circuits’ decisions under Article 17 of the Montreal

Convention, and the Second and Eighth Circuits’

interpretation of Article 17 under the predecessor

treaty, the Warsaw Convention. In Jacob v. Korean

Air Lines Co., the Eleventh Circuit flatly rejected

plaintiff’s argument that his physical injuries were

manifestations of mental distress and reiterated the

well-established rule that, “at best, mental injuries

are recoverable under Article 17 only to the extent

that they have been caused by bodily injuries.” 606 F.

App’x 478, 482 (11th Cir.), cert. denied, 136 S. Ct. 267

(2015) (quoting Ehrlich, 360 F.3d at 400).

Likewise, the Fifth Circuit in Bassam v. Am.

Airlines, Inc. found that the plaintiff failed to

establish carrier liability for emotional distress

damages, recognizing the well-settled holding by

courts that “emotional injuries are not recoverable

under Article 17 under the Montreal Convention or

Warsaw Convention unless they were caused by

10 The argument that a causal connection is not reflected by the

treaty’s language is unpersuasive because allowing recovery for

mental injury at all reads into the Convention something that is

not in Article 17. See Floyd, 499 U.S. at 552.

18

physical injuries.” 287 F. App’x 309, 317 (5th Cir.

2008) (citing Ehrlich, 360 F.3d at 369-400).

The Sixth Circuit dismissed these opinions for not

analyzing Article 17’s text and drafting history under

the Montreal Convention. Such dismissal is

unjustified: both the Eleventh and Fifth Circuits cited

to existing judicial precedent to affirmatively state the

law on recovery for mental injury.

The Sixth Circuit notably disagreed with the

widely-followed Second Circuit decision Ehrlich v.

Am. Airlines, Inc.,11 finding that Ehrlich “does not

inform” its decision because the Montreal Convention

is a new treaty and Ehrlich was not existing precedent

at the time of the Montreal Conference. 870 F.3d at

419-20. The Doe court’s strained explanation for its

rejection of Ehrlich is unwarranted. The Second

Circuit had conducted an extensive analysis of the

same issue under Article 17 of the Warsaw

Convention (the text of which, as discussed above, is

nearly identical to that under the Montreal

Convention) and concluded that only mental injuries

caused by physical injuries are recoverable.12 Indeed,

the U.S. government’s amicus brief in Ehrlich wholly

supported the airline’s position, finding that “the

practical construction” of bodily injury is that the term

“does not include emotional damages unrelated to

11 360 F.3d 366 (2d Cir. 2004). See also Bobian v. Czech Airlines,

93 F. App’x 406, 407 (3d Cir. 2004) (citing Ehrlich favorably);

Alvarez, 1999 WL 691922, at *5; Longo, 1996 WL 866124, at *2;

Jack, 854 F. Supp. at 668.

The passengers in Ehrlich sustained physical injuries as a

result of turbulence but could not recover for fear of flying and

nightmares.

12

19

physical injuries sustained in the accident.”13 Brief for

the United States as Amicus Curiae, 2003 WL

23497831, at *25 (2d Cir. Aug. 18, 2003) (citation

omitted).

Both the Second Circuit in Ehrlich and the Eighth

Circuit in Lloyd—a case the Sixth Circuit did not even

address—further recognized that to allow a physical

injury, “no matter how minor or unrelated,” to trigger

recovery of any and all mental injuries arising from

an Article 17 accident would violate “the spirit” of

Floyd.14 As explained by one court:

If the minority rule were adopted, plaintiffs

would be able to skirt Floyd’s bar on recovery for

purely psychological injuries simply by alleging

that they have suffered some physical injury, no

matter how slight or remote. As a practical

matter, the substantive rule of law announced in

Floyd would thus be converted into an easily

satisfied pleading formality, and a back door

would be impermissibly opened to recovery of

psychological injury.

Alvarez, 1999 WL 691922, at * 4.

In sum, the Sixth Circuit is wholly at odds with the

aforementioned Circuit Court cases and numerous

district courts that have favorably cited to and

followed Ehrlich and Lloyd when interpreting the

13 “Respect is ordinarily due the reasonable views of the

Executive Branch concerning the meaning of an international

treaty.” Tseng, 525 U.S. at 168 (citation omitted).

14 Ehrlich, 360 F.3d at 386 (quoting Lloyd, 291 F.3d at 510).

20

Montreal Convention.15 Contrary to the Convention’s

goal of uniformity, commercial airlines will now face

inconsistent applications of the treaty in different

jurisdictions.

B. The Decision Will Lead to Increased

Litigation, Artful Pleading, Anomalous

Results, and Delay in Resolution of

Passenger Claims

Doe’s reasoning, including its pro-passenger focus,

does not validate its incongruous views and digression

from treaty precedent. Since the Supreme Court’s

decision in Floyd over 25 years ago, commercial air

carriers have relied on a consistent body of Article 17

precedent—both under the Warsaw and Montreal

Convention—to resolve passenger injury claims in the

United States and elsewhere. The Doe decision will

lead to an increase in litigation and a delay in

resolution of passenger claims as plaintiffs will

undoubtedly plead mental injury in all cases where

they suffer a bodily injury, regardless of how minor

and regardless of whether resulting from a bodily

injury.

The goal of prompt claim resolution will not be

achieved as commercial air carriers will now be forced

to litigate mental injury claims that are unrelated to

bodily injury, particularly where they are

questionable. Discovery on the type and extent of the

mental

injury

sustained—including

whether

15 See supra n. 9. This is consistent with the drafters’ intent to

have Montreal Convention provisions, including Article 17(1),

construed consistently with the extensive body of Warsaw

Convention precedent that had developed over the years. See S.

Exec. Rep. 108-8, at 3.

21

treatment was sought—will burden the courts and

parties with expensive expert discovery. Concern over

fraudulent physical and mental injury allegations will

likely hinder settlement discussions. Indeed, the

Montreal participants had expressed concern about

fraudulent mental injury claims and the difficulties in

litigating such claims. See, e.g., MC Minutes, at A 24a

(“[t]he existence, or otherwise, of mental injury was

very difficult to prove, giving rise to the possibility of

fraud and expensive protracted litigation. The cost of

claims could be considerable and this would be a new

and additional cost…and could have a significant

impact on the cost of insurance.”)

Likewise, the anomalies that courts have warned

about will be brought to light as passengers with

transient soft tissue injuries (e.g., a bruise or scratch)

could now potentially recover for unrelated mental

injuries, such as fear of flying and post-traumatic

stress disorder (PTSD). For example, during a

turbulence incident or emergency landing, a

passenger with at least a minor physical injury may

seek PTSD damages but a fellow passenger who

sustained no physical injury would be deprived of a

claim for PTSD. IATA also is concerned there will be

a proliferation of passenger injury claims related to

such incidents as plaintiffs now will seek substantial

recovery for distinct mental injuries, regardless of

how negligible the physical injury or whether the

mental injury is related to the physical injury.

This is particularly troubling since the Sixth Circuit

arguably did not need to create a new test in this case

since it found that the plaintiff’s fear of contagion was

traceable to the bodily injury. 870 F.3d at n.8. Thus,

there was no reason for the court to venture down this

road and effectively overrule Floyd by permitting

22

recovery for standalone mental injury unrelated to

bodily injury. A slippery slope has been created as

passengers will see an opportunity to enhance their

damages under Doe with claims of unrelated mental

injury. This will undermine the drafters’ intention of

maintaining a bodily injury requirement—claims that

would truly fall under Floyd will now be pursued by

passengers as they artfully plead their physical

injuries and inflate the mental injury aspect of their

claims. The uncertainty injected by the Sixth Circuit’s

decision will slow down the resolution of claims and

result in protracted litigation over previously resolved

issues concerning recovery of mental injuries.

III. THE AVIATION INDUSTRY REQUIRES

A UNIFORM, CONSISTENT INTERPRETATION OF THE MONTREAL

CONVENTION

Because the Montreal Convention exclusively

governs and provides a uniform set of rules for

international transportation by air across the

territories of some 130 parties, commercial airlines

operating international flights require consistent

interpretation of the treaty’s terms. The Sixth

Circuit’s decision stands in contradiction to other U.S.

cases and will cause confusion that will have an

impact in the United States and abroad.

Courts in other signatory countries often consider

and cite to U.S. opinions as persuasive authority.

Several sister signatory decisions identified by

Petitioner (see Petition, at 27-28) favorably cite to and

rely on the holdings of this Court and our Circuit

Courts, including Floyd and Ehrlich. In Plourde v.

Service aérien F.B.O. inc. (Skyservice), for example,

the Quebec Court of Appeal cited to Floyd and relied

23

on Ehrlich’s reasoning to reach the conclusion that

“the Montreal Convention did not modify the air

carrier liability regime in the event of psychological

harm,” and that the drafters had considered

compensation for mental injury but “clearly rejected”

it. 2007 QCCA 739, ¶ 52 (Canada). See also Pel-Air

Aviation Pty Ltd. v. Casey, [2017] NSWCA 32

(Australia) (relying on Floyd to deny recovery for

mental injury unrelated to physical injury);

Wettlaufer v. Air Transat A.T. Inc., 2013 BC 1245

(Canada) (applying Ehrlich); Am. Airlines v.

Georgeopoulos (No 2), [1998] NSWCA 273 (Australia)

(citing to Floyd in denying recovery for nervous shock

as it did not flow from bodily injury).

As explained by Petitioner, the Sixth Circuit’s

opinion conflicts with several sister signatory

decisions that have concluded that mental injuries

must be caused by or flow from a bodily injury.16 Such

conflict causes further disunity and uncertainty, both

counter to the goals of the Convention.

Opinions of sister signatories are entitled to “considerable

weight.” Air France v. Saks, 470 U.S. 392, 404 (1985) (citation

omitted).

16

24

CONCLUSION

For the reasons set forth herein, and in the

Petitioner’s brief, the Court should grant certiorari in

this case.

Respectfully submitted,

JEFFREY N. SHANE

General Counsel

INTERNATIONAL

AIR TRANSPORT

ASSOCIATION

Route de l’Aeroport 33

P.O. Box 416

1215 Geneva Airport 15

Switzerland

+41 (0) 22 770 29 01

shanej@iata.org

JUDITH R. NEMSICK

Counsel of Record

SARAH G. PASSERI

HOLLAND & KNIGHT LLP

31 West 52nd Street,

12th Floor

New York, NY 10019

(212) 513-3200

judith.nemsick@hklaw.com

Counsel for Amicus Curiae

International Air Transport Association

February 8, 2018

APPENDIX

1a

INTERNATIONAL CIVIL AVIATION

ORGANIZATION

INTERNATIONAL CONFERENCE

ON AIR LAW

(Convention for the Unification of Certain

Rules for International Carriage by Air)

Montreal, 10-28 May 1999

VOLUME I

MINUTES

1999

MONTREAL

CANADA

2a

[37]

international law. With tremendous wisdom and

foresight, these delegates created a legal framework

without which an orderly development of

international civil aviation would have been

unthinkable. While complete unification of law was

neither attainable nor desirable, the Warsaw

Convention laid down certain vitally important rules

for international carriage by air. It determined the

internationally accepted liability rules regarding

passengers, baggage and cargo in case of accidents; it

set out the requirements as to format and content of

air transport documents; and it established ground

rules regarding procedure.

International law is a constantly evolving body of

norms commonly observed by the members of the

international community in their relations with one

another. ICAO is constantly involved in this evolution

as it relates to civil aviation. Reform and

modernization are essential components in this

process.

While the Warsaw Convention of 1929 was adopted

at a time when international civil aviation was still in

its infancy, the present-day aviation industry bears

little resemblance to its precursor. Technologicallysophisticated equipment, increased mobility of the

passenger, a virtually worldwide operating marketing

web, and globalization of air transport operations, are

only some of the new phenomena that can be observed

at the threshold of the new millennium. These new

realities have also made those of us who are involved

in the law-making process aware that the rules of law

must evolve in accordance with technical, social and

commercial

developments,

and

that

the

3a

modernization of the relevant rules governing these

activities becomes an essential challenge for those

concerned - governments, industry, and the travelling

public. The initial balance of interests between the

desire on the part of governments to protect the infant

airline industry from undue financial burden and the

individual’s right to restitution in case of accident has

been the subject of discussion and review for a

significant period of time. This review has certainly to

take adequate account of the fact that the aviation

industry has matured. Increased sensitivity towards

the legitimate interests of the air transport user

requires that the balance of interests should also

accommodate the need for a better and swifter

resolution of the consequences of an accident.

Over the span of the last 70 years the Warsaw

Convention has evolved, for various reasons, into

what is commonly referred to as the “Warsaw

System”, a system of amending Protocols and

supplementary instruments, whose complexity and

degree of fragmentation has become well-known to all

of us. Its complexity has been further extended by

additional rules, regulations and industry-based

solutions, some of which are regional in nature or

scope. The result of these uncoordinated efforts is an

increasingly opaque legal framework whose

usefulness for the travelling public has become a

matter of growing concern, and it is the shared desire

of the parties involved that legal certainty and

uniformity be restored, while implementing, in a

globally-coordinated fashion, the Jong overdue

modernization and consolidation of the system.

I attended for the first time the Tenth Session of the

ICAO Legal Committee in 1953 in Rio de Janeiro,

Brazil. I also attended the International Conference

4a

on Air Law held in 1955 in The Hague which adopted

the Protocol amending the Warsaw Convention of

1929. I remember these early days with great emotion

as they represented the beginning of my long career

at the service of the international civil aviation

community.

The subject of modernization and consolidation of

the Warsaw System has been on the agenda of ICAO’s

activities for over four decades. Since the 31”1 Session

of the ICAO Assembly in 1995, the work on this

matter has refocused. I would like to pay tribute to the

work of the ICAO Secretariat Study Group, whose

excellent contributions have played an instrumental

role in the development of the

*

*

*

5a

[45]

INTERNATIONAL CONFERENCE

ON AIR LAW

PLENARY

Minutes of the Second Meeting

(Monday, 10 May 1999, at 1430 hours)

SUBJECTS DISCUSSED

1. Agenda Item 9:

Convention

Consideration of the draft

SUMMARY OF DISCUSSIONS

1. The Temporary President informed the meeting

that up to this hour, 92 Contracting States, one nonContracting State and 11 international organizations

had registered, the total number of participants being

303.

Agenda Item 9: Consideration of the

draft Convention

2. The meeting returned to general views on the

draft Convention reproduced in DCW Doc No. 3, and

in particular Chapter III (Liability of the Carrier and

Extent of Compensation for Damage).

3. The Representative of Panama observed that the

dynamic nature of aviation and the great changes that

had taken place in international air transport since

the signing of the Warsaw Convention in 1929 had

resulted in a need to change the provisions of the

Convention, particularly those related to the

limitations of liability of the air carrier. The draft

Convention that would be discussed at this

Conference provided a legal and economic solution

based on balancing the interests of the carrier with

6a

those of the users. Furthermore, it had the virtue of

ensuring the universality of the system, avoiding a

multiplicity of unilateral solutions in the domestic

legislation of various countries. As a result, the

Government of Panama agreed with the draft

Convention, and in particular with the proposed

creation of a fifth jurisdiction, as provided for in the

current text of Article 27, with the exception of

paragraph 3 bis appearing in brackets. The Delegate

of Panama agreed with Delegations who saw a need

to include a reference to mental injury, and expressed

his Delegation’s agreement with the structure of

limits of liability as contained in the draft. His

Government believed that air carriers could avoid

liability in those cases in which damage or injury to a

passenger was due only to the passenger’s state of

health; Article 16 (Death and Injury of Passengers —

Damage to Baggage) should, however, be drafted so as

to include the word “solely” as had been the case in

earlier drafts.

4. The Delegate of Algeria observed that ICAO was

at an important crossroads in its history, with the

international community at the threshold of the third

millennium which would see rapid changes and a

move towards globalization. Cognizant of the need to

reach an agreement which would be comprehensive

and fair, the Delegate of Algeria observed that the

Convention would have to be balanced

[46]

and take due consideration of the interests of the

passenger on one hand, and of the carriers, whether

large or small, on the other. The Convention should

also fit in the general framework of international law.

7a

5. The Delegate of Spain expressed his Delegation’s

willingness to cooperate in every possible way towards

the success of the Conference. Spain had come with an

open mind, willing to seek an equitable solution to all

of the problems facing the Conference. Air law was a

universal law and must be uniform. Mention had been

made of fairness and balance as fundamental

elements of law, and from that perspective Spain

sought a peaceful solution to any conflict, an attitude

which would have to serve as a focus of the

Conference. The Delegate of Spain wished to bring

attention to the impact of the possibility that the

European Union would become a signatory of the

Convention. The Council of the European Union had,

in 1997, adopted Council Regulation (EC) No. 20/27 of

9 October 1997 on air carrier liability in the event of

accidents; this was an important point if consensus

was to be reached guaranteeing the success of the

future Convention.

6. The Delegate of Poland brought greetings from

Warsaw to all participants of this Conference who had

come to improve and consolidate the Warsaw System,

a system which was 70 years old. The success of the

Warsaw Convention, which had become the most

widely accepted private law convention in the world,

had been possible because of the spirit of compromise

adopted by the participants of the Warsaw

Conference. In fact, participants in Warsaw had had

to achieve a compromise between different systems

prevailing in different States concerning strict

liability based on fault, waiving of liability by

contractual clauses, limited and unlimited liability,

and different concepts regarding jurisdiction. The

Warsaw Conference had also reconciled the interests

of more developed and less developed aviation

countries, as well as the interests of air carriers and

8a

of their clients, the travelling public. Since 1929, the

world had changed; aviation had developed and the

expectations of the public had largely increased.

Unfortunately, efforts to improve the Warsaw System

through additional protocols had failed and the

outstanding problems had become more and more

acute, with the need for new solutions increasingly

evident. In order to achieve real success, the new

system could not abandon the idea of compromise and

equilibrium, an idea already endorsed by many

speakers. The Delegation of Poland subscribed to

those views and would support efforts towards finding

fair and balanced compromise solutions likely to be

accepted by the international community.

7. The Delegate of Pakistan observed that the

Warsaw Convention had encountered some turbulent

times but had survived for 70 long years. One must

not forget the pioneers who had created the liabilities

for carriers and safeguarded the interests of

passengers. Pakistan intended to participate actively

during the Conference to make the Convention a

success. The Delegation of Pakistan wished to see the

Montreal Convention as a document of the twentyfirst century, both for passengers as well as carriers.

8. Commenting specifically on Chapter III of the

draft, the Delegate of Finland believed that it was,

generally speaking, well-balanced and took into

account the recent developments in the field of air

transport as well as the views of the various interest

groups. With some minor modifications, the text could

well form the basis for a balanced compromise. In

opening the Conference, the President of the ICAO

Council had stated, quite appropriately, that the best

was the enemy of the good. Finland believed that a

compromise was indeed needed to ensure the widest

9a

possible acceptance for the new Convention. Finland

would cooperate in a positive spirit in order to achieve

a formula that would meet the challenges of the

future.

[47]

9. The Delegate of India accepted the need to

modernize, consolidate and update the Warsaw

System. For this Conference to be successful, the

Convention that it produced must be equitable, just

and fair. It should take into account the interests of

all stakeholders, particularly the passengers and

small-and medium-sized airlines. Ensuring this

balance of interests was the main reason for everyone

to be present here today. Seventy years earlier, a

similar issue had faced participants at the Warsaw

Conference. They had found a good solution; a solution

which had worked well for a long time before events

had overtaken it. During the past 70 years, a number

of developments had taken place which would have to

be taken into account over the coming days. The world

had changed in many respects during this period,

although in many other ways the situation remained

the same. As participants discussed various Articles

of the Convention, particularly those relating to the

liability regime and establishment of additional

jurisdictions, they would need to uphold the spirit of

compromise and the common will that other speakers

had advocated. The Indian Delegation did not

approach this Conference with any sine qua non, but

rather with an open mind, hoping to see the

emergence of a modernized, consolidated, updated

and workable Warsaw System that would safeguard

the interests of the various parties.

10a

10. The Delegate of Guinea shared the concerns

which had been conveyed at the previous meeting by

Côte d’Ivoire regarding the smaller carriers, and

trusted that, as had been the case in the past, it would

be possible to reach a compromise. Guinea would

make its contribution to ensuring the success of the

Conference.

11. The Observer from the European Community

had a very positive assessment of Chapter III in

general. The European Community had legislation in

this area and, as was stated in such legislation, was

interested in achieving a uniform international

regime. However, any erosion in the situation which

the EC had established for its citizens would be very

difficult for its parliament to accept. This did not

mean that the Community could not consider, and

probably accept, some of the ideas which would make

it possible to have a wide international participation,

since many of these matters were interrelated. Article

16 (Death and Injury of Passengers — Damage to

Baggage) was of particular importance: mental injury

as a concept was acceptable for the vast majority of

EC member states; however, further wording would

probably have to be developed in that context. Article

20 (Compensation in Case of Death or Injury of

Passengers) was very satisfactory as it stood. Articles

21 C (Review of Limits) and 22 A (Freedom to

Contract) were important in the sense that if not

properly drafted, might lead to erosion of benefits for

EC citizens in the future or even at this time. The

European Community was determined to work

constructively with others at the Conference to

achieve a uniform system which could be widely

accepted.

11a

12. The Delegate of Canada expressed the hope that

the Conference would reach an end that was

compatible with the interests of the users of

international air transport; it would be necessary to

ensure a balance between the interests of the carriers

and those of their clients. The Canadian Delegation

had noted the concerns expressed in particular by the

Delegations of Côte d’Ivoire, India, and Guinea on

behalf of their small carriers. This was a concern

which Canada shared, having many carriers which

fell in that category, carriers that had a reasonable

right to expect the equal opportunity and equal

treatment cited in the preamble to the Chicago

Convention. The Canadian Delegation would

therefore be seeking a solution that would ensure a

balance in interests in all parties’ favour.

13. The Delegate of Japan observed that

participants at this Conference assembled with firm

determination,

committing

themselves

to

modernizing, consolidating and harmonizing the rules

for international carriage by air, with its long pending

issues, to be solved in a spirit of cooperation, mutual

understanding and compromise. Not wishing to

repeat the views already offered by other speakers,

the

[48]

Delegate of Japan highlighted that an inter-carrier

agreement with a “no caps on liability” regime in the

case of death or injury of passengers was already in

place at the initiative of Japanese carriers, and that

Article 20 was a reflection of this practice; there

should not be any movement away from the present

practice already being implemented in Japan. It was

Japan’s sincere hope that the Conference would be

12a

able to produce a good Convention obtained by a

consensus, overcoming any discrepancies in the

existing views of participants.

14. The Delegate of China observed that the Warsaw

Convention, created in 1929, had contributed greatly

to the development of international civil aviation,

particularly in terms of regulating its operations.

However, as had been pointed out by many previous

speakers, 70 years had passed since the creation of the

Convention, over the course of which many things had

changed. It was therefore necessary to introduce

amendments to the existing arrangement. Owing to

differences in the levels of civil aviation development

among States, it would be very important to keep a

balance between the interests of carriers and

passengers. This was, in his view, a matter of concern

upon which the Conference would have to focus its

attention. The Chinese Delegation would work

together with all other Delegations to make its

contribution to the success of the Conference.

15. The Delegate of Kenya believed that when

discussing this draft, Delegates should take into

consideration the time and thought that had already

been invested in it prior to the Conference. Kenya

wished to see the draft finalized and was prepared to

support all efforts to ensure that a final document

which could be ratified by a majority of States within

the shortest possible time was produced.

16. The Delegate of Lebanon hoped that the

Conference would reach a beneficial outcome for the

community of aviation in the world, taking into

account the interests of passengers and carriers, and

the economic, political and social aspects. He

commended the goals which had been highlighted by

13a

most of the Delegates, these being fairness, the need

to consolidate, and the need to produce a Convention

which would be ratifiable by the largest possible

number of States. On this basis, the Delegation of

Lebanon was prepared to fully cooperate with

everyone present to make the Conference a success.

17. The Delegate of Madagascar could only associate

himself with all of the positive resolutions expressed

today, particularly when speaking about the interests

of air carriers, which were for the most part not

represented at this Conference. As had already been

pointed out, a number of airlines had already

established provisions that suited them, giving rise to

concerns on the part of other airlines in developing

countries. The Delegate of Madagascar was therefore

very supportive of suggestions such as those put

forward by the Delegate of Canada for taking account

of smaller carriers, and hoped that it would be

possible to quantify the concessions that would be

granted to smaller carriers in developing countries, in

particular. Airlines in general, and certainly those in

Africa, wished to reduce as much as possible the need

to have recourse to the courts, and would above all

express an interest in arrangements whereby matters

could be settled at the airline level.

18. The Delegate of Saudi Arabia observed that the

draft Convention provided the necessary groundwork

for participants at this Conference to arrive at an

acceptable and just formula for all concerned. His

Delegation looked forward to participating with

others with a view to reaching solutions that would

take into account the interests of all parties concerned

and

encourage

further

development

and

modernization of air transport, allowing this industry

to positively contribute to serving society in a safe,

14a

organized and economical fashion. The text before the

Conference emphasized three major issues, i.e. the

responsibility and liability of carriers, the limit of

compensation, and the jurisdiction. Previous speakers

had offered views regarding the objectives which the

Conference was supposed to achieve, and there was

[49]

no doubt that Chapter III of the draft lay at the heart

of this work. The Delegation of Saudi Arabia would

cooperate with all Delegations present.

19. The Observer from the Latin American

Association of Air and Space Law indicated that

ALADA, a regional organism, had for more than three

years been concerned with intensifying its studies

through a number of meetings which had reached

almost unanimous conclusions. First, ALADA saw a

need to establish a formula which would provide for

the elimination of limitations on liability.

Compensation would only be sought for damages that

were provable, and the burden of proof would be on

the carrier as indicated in the present draft of Article

20. Recognizing that the complete elimination of

limits on liability could give rise to considerable

discussion, the Observer from ALADA maintained

that if a carrier could exonerate itself in the three

specific cases cited in Article 20 and if the damages to

be compensated for were limited to those which were

provable, it would be possible to avoid situations such

as those faced in a number of countries where

different interpretations were given to the Warsaw

Convention on this question. As regards the question

of loss or damage to baggage and cargo, Members of

ALADA believed that the possibility of establishing a

single figure should be considered, whereby a

15a

passenger would receive a fixed amount regardless of

the value of the lost or damaged materials. Latin

American legal experts had also agreed that mental

injury should be included among the kinds of injury to

be covered in Article 16 of the Convention, and

supported the concept of the “fifth jurisdiction”. In the

case of Latin America, it had been possible on many

occasions to bring the carriers of foreign jurisdictions

before the courts simply on the basis of a domicile in

the State in question. The main problem concerned

the different definitions which could be applied to the

term “domicile”. Some States believed that a person or

an enterprise could only have one domicile, and this

was usually where the headquarters of an entity was

located. In almost all Latin American countries,

persons and companies could have more than one

domicile. ALADA could therefore agree with the

arguments set out by the United States in DCW Doc

No. 12.

20. The Delegate of Indonesia would support every

compromise solution arrived at by Delegations and

wished to be associated with the concerns already

expressed by some Delegations regarding the

interests of small carriers.

21. The Observer from the Latin American Civil

Aviation Commission reaffirmed LACAC’s support for

the draft presented by ICAO, and, as a contribution to

the discussion, had presented a DCW paper providing

the views of LACAC on Articles 16, 20 and 27 of the

draft.

22. The Delegate of Yemen believed that the efforts

made thus far had produced a balanced Convention

that would take into account the interests of both

passengers and carriers and allow all countries to

16a

participate in international air transport. Interests

would therefore have to be balanced so as to guarantee

further development of the aviation industry. The

Delegate of Yemen emphasized the importance of

reaching a consensus on this regime which was based

on cooperation in an era where countries were

increasingly interdependent, thanks to globalization,

technical developments and the use of satellites in the

air navigation field.

23. Adding his comments on the draft Convention,

the Delegate of Namibia believed that this pithy

elaboration of a single instrument detailing uniform

rules for liability in international air transport would

be to the benefit of all States, especially small States,

for the simple reason that it would insulate them from

unilateral and de facto amendments of the Warsaw

System, amendments whose legality may be highly

questionable. With regard to Chapter III of the draft

Convention, Namibia was of the opinion that the

present draft represented a finely balanced

compromise position of the competing interests of

[50]

carriers, on the one hand, and the travelling public on

the other. Namibia especially welcomed the new cap

on strict liability relating to provable damages up to

100 000 Special Drawing Rights (SDRs). Finally, with

regard to the potentially contentious issue of fifth

jurisdiction, the Namibian Delegation was ready to

contribute with an open mind to the search for an

equitable and workable compromise, to ensure that

the efforts of the coming three weeks’ deliberations

would result in a speedily ratifiable Convention.

17a

24. The Delegate of Mexico believed it was essential

that a fair balance be achieved between the interests

of users and carriers; for passengers, there must be a

guarantee of fair compensation, and for carriers, there

must be feasible conditions for dealing with the

results of accidents. Generally speaking, Mexico

believed that the document which the Conference

would examine was a good draft Convention. It was

extremely important that participants at this

Conference reach an agreement so as to ensure the

subsequent ratification and adoption by the great

majority of States and the continuing development of

air transport. Mexico would do everything possible to

contribute to that success.

25. The Delegate of Ukraine indicated that although

he would be presenting some proposals regarding

several aspects of the work which lay ahead of the

Conference, he did support the underlying theme of

the Conference and would take part in the

consultative work; Ukraine would do its utmost to

ensure that the Convention was made much more

user-friendly to the carriers and passengers alike. The

Convention would moreover take account of the

interests of cargo carriers, and would enhance the

overall position of ICAO in the liability regime.

26. The Observer from the International Chamber of

Commerce indicated that in its function as the

representative organization of the international

business community since 1992, the ICC, and in

particular its air transport commission, had been

involved in commenting on the attempts to update the

Warsaw liability system which governed the

availability of damages to accident victims in

international air transport. The ICC fully supported

the achievement of a modern and satisfactory liability

18a

regime. In line with this objective, and in keeping with

its consultative status in ICAO, the ICC was pleased

to share its views on what it considered to be the main

points of the ICAO draft Convention.

27. Subject to perhaps more detailed remarks at a

later stage, the ICC endorsed the ICAO draft

Convention because, in particular:

— ICAO was attempting to achieve global

uniformity;

— the creation of unlimited liability was a

realistic and logical step;

— the more prominent position of the

passenger, based on consumer rights, had

been recognized;

— a more coherent system applying also, for

instance, to both the contractual and the

actual carrier had been drawn up;

— the explicit exclusion of punitive damages

was welcome; and

— the non-mandatory provisions on advance

payment to be made to passengers, or

persons entitled to claim on their behalf,

would be supported if such claims were

realistic.

[51]

28. The Observer from the ICC believed that studies

may still be encouraged on some further points such

as the requirement of written notice; the option of a

fifth jurisdiction where some sort of compromise

might be possible; the legal basis for claims exceeding

100 000 SDRs; fault to be proved by the claimant or

19a

presumed fault on the part of the carrier; the need for

a definition of delay; and the desirability of regulating

the phenomenon of over-booking in a world-wide

convention as well as liability in the context of codesharing and franchising arrangements. The ICC’s

primary aim was to support a framework for airline

liability which would be characterized by global

uniformity. Although the problem of low limits had

been solved to a great extent by both the International

Air Transport Association and the European

Community, a much-desired uniformity was further

away on a global level, and the achievements of IATA

and the EC could only be seen as interim measures for

a global solution in an ICAO Convention.

Consequently, it would be desirable to have the

Warsaw Convention replaced by a new uniform

instrument prepared at a government level, such as

this Conference. The ICC therefore hoped that this

historic Conference would be successful in agreeing on

a ratifiable new Convention in the spirit of reasonable

compromise.

29. The Delegate of Egypt wished to emphasize the

fact that the Convention should be just and balanced,

taking into account the interests of all, be they

advanced or developing countries, passengers or

carriers. Egypt was keenly interested in its

participation, and would offer detailed comments with

respect to Articles 21 and 27, among others. It was

hoped that the discussions would result in

constructive and positive attitudes that would take

into account all interests, especially the parties’

concerns for the adverse impacts on medium and

small carriers. The Delegate of Egypt wished to place

on record his hope that the Conference would agree on

a universally acceptable Convention based on

practicable solutions, which would take balanced

20a

interests into account. That same approach had been

adopted in the Legal Committee in elaborating this

draft text, despite the pronounced divergencies in

views, since the dire alternative would have been to

destroy the very foundations of the harmonized and

unified regime and therefore let countries apply

measures unilaterally to the detriment to all

concerned.

30. The Delegate of the Netherlands expressed

appreciation for the excellent work which had been

done so far regarding the revision of the Warsaw

Convention, but observed that a lot of important work

remained for this Conference. Several controversial

issues had to be dealt with and resolving these issues

would require a spirit of compromise on the part of

everyone present. The Netherlands considered that a

challenge, and aimed, in particular, at an up-to-date

and adequate protection of airline passengers, not

only regionally but also worldwide through a

modernized Warsaw Convention. The Netherlands

would actively contribute to the birth of a Convention

that would be accepted universally and applied in as

many countries as possible.

31. The Delegate of Gambia expressed his State’s

intention to make the Conference a success. Gambia

had come with an open mind to discuss issues in the

spirit of compromise. The Gambian Government

subscribed to the need to modernize the Warsaw

Convention, as speakers before had advocated.

Gambia shared the concerns expressed by °Re

d’Ivoire, France and Poland. With regard to the issue

of mental injury, Gambia shared the views of the

United States and China. It was hoped that the

Conference would take into consideration the

21a

interests of children, women, consumers and all

stakeholders.

32. The Delegate of Uganda indicated that as a

developing country, Uganda, with its small carriers,

looked forward to a unified system which would

hopefully bring remedy and protection as appropriate.

Uganda came with an open mind and promised to

cooperate in all of the deliberations of this Conference.

[52]

33. Commenting on the draft Convention, the

Delegate of Nigeria observed that the question of

Chapter III, especially Articles 16 and 20, was vital to

the interests of many Contracting States, in

particular the small ones. Nigeria was gladdened,

however, by the fact that virtually all speakers had

indicated their willingness to strike a balance

between the large carriers and the smaller ones,

especially those in developing countries such as

Nigeria. Thus, the outcome of the Conference, i.e. the

Convention, would be one of uniform and fair and

equal treatment to all users, allaying the fears

expressed by the Delegates of Côte d’Ivoire and others.

At this moment Nigeria wished to be associated with

the question of compensating for the actual damages

suffered, as opposed to the apparent ones, and asked

for uniformity and not unilateral applications. It was

hoped that the final outcome of the document would

be workable and unambiguous for Contracting States

to translate and implement. Nigeria was committed to

working effectively with other participants at this

Conference towards achieving a consensus on the

modernization of the Warsaw liability system.

22a

34. There being no further speakers, the Temporary

President indicated that the general views which had

been offered, in particular with regard to the subject

of Chapter III of the Convention, which was the

cornerstone of the draft, enabled him to offer some

observations summarizing the substantive points.

First of all, there was a sincere and strong desire to

succeed. Secondly, there was a spirit of cooperation

and understanding on the part of everyone to

understand the problems faced by others, and this

was very important in an international context.

Thirdly, emphasis had been placed on the need to

produce a fair and balanced text. The Temporary

President was aware of the concerns of the small

carriers, and believed it would be possible to

accommodate their interests. Fourth, emphasis had

been placed on producing a text which would not

remain a dead letter filed away; the text should be

such as to encourage States to ratify the

modernization and unification of the Warsaw System

as soon as possible. Fifth, in order to attain these

results, the Conference would work in a spirit of

internationalism; such a spirit prevailed at present,

and the Conference should seize this momentum and

not allow it to lose force.

11. The Meeting adjourned at 1730 hours.

— END —

23a

[69]

INTERNATIONAL CONFERENCE

ON AIR LAW

COMMISSION OF THE WHOLE

Minutes of the Fourth Meeting

(Wednesday, 12 May 1999, at 1400 hours)

SUBJECTS DISCUSSED

1. Agenda Item 9:

Convention

Consideration of the draft

SUMMARY OF DISCUSSIONS

Agenda Item 9:

Convention

Consideration of the draft

Article 16 (continued)

1. The Delegate of Saudi Arabia pointed out that the

Arabic text for “bodily” injury could be interpreted as

meaning both mental and physical injury. However,

from a practical standpoint, how could it be proven

that a passenger was afflicted with mental injury

prior to embarking an aircraft? Thus, in principle his

Delegation could not accept the Swedish proposal to

expressly introduce mental injury. A word had to be

found in English that would include both mental and

physical injury.

2. The Observer from the IUAI welcomed the

abolition of artificial limits on liability but supported

the deletion of “mental injury”. Fear of flying was a

well recognized phenomenon without significant

parallel in other modes of transport and could be

easily construed by sympathetic medical opinion as an

24a

injury. The existence, or otherwise, of mental injury

was very difficult to prove, giving rise to the

possibility of fraud and expensive protracted

litigation. The cost of claims could be considerable and

this would be a new and additional cost, since under

the present Warsaw system, such claims were

excluded in some of the most expensive jurisdictions.

This could have a significant impact on the cost of

insurance. With respect to the inclusion of mental

injury in other Conventions, as mentioned at the

previous Commission of the Whole, the 1980 Berne

Convention of international Carriage by Rail included

strict liability for personal injury and specifically

included mental injury in that definition. However, it

was important to note that the Berne Convention

contained limited liability without any provision, such

as wilful misconduct, to permit that limit to be broken.

Similarly, the 1974 Athens Convention on the

Carriage of Passengers by Sea contained a limited

liability provision imposed in respect of personal

injury, without specific reference to mental injury.

However there was a wilful misconduct provision

which permited unlimited liability to be given.

Consequently, there was difficulty in drawing a

parallel between the proposed introduction of

unlimited liability without proof of misconduct in the

draft Convention versus one with no method of

breaking the limit of liability and the other with a

wilful misconduct provision.

[201]

During the major discussion on how to reflect the

question of mental injury, a considerable degree of

reservation had been expressed by some Delegations

about expressing mental injury in a form in which it

would be independent of bodily injury, therefore

25a

suggesting that, to the extent that that was

admissible, it would be necessary to circumscribe it

greatly. Following a series of drafting permutations

aimed at accommodating that concern, the Group had

concluded firstly, that the concept of death or bodily

injury as now contained in the Warsaw Convention

and as reflected in DCW Doc No. 3 would indeed be an

adequate reflection against the background of the

jurisprudence which existed in relation to the

question as to the circumstances in which mental

injury might be recovered. All had recognized that

under the concept of bodily injury there were

circumstances in which mental injury which was

associated with bodily injury would indeed be

recoverable and damages paid therefor. The Group

had equally recognized that the jurisprudence in this

area was still developing. What had therefore

happened was that the word “bodily” had been

inserted before the word “injury” in the text of Article

16 appearing in DCW-FCG No. 1(Revision2) so that it

now read “death or bodily injury”, as was the case in

DCW Doc No. 3; secondly, the last sentence of Article

16, paragraph 1, in DCW-FCG No. 1 (Revision 2) and

DCW Doc No. 3 (“However, the carrier is not liable to

the extent that the death or injury resulted from the

state of health of the passenger.”) had been deleted.

8. The definition of “injury” which was contained in

Article 16, paragraph 2, of DCW-FCG No. 1 (Revision

2) had equally been deleted in the context of

recognition that under the “Warsaw System” damage

for mental injuries might, in certain circumstances, be

recoverable. It had been equally recognized that the

jurisprudence in the area was still developing. In

coming to this accommodation, which sought to take

into account the concerns which had been expressed

with regard to the developing jurisprudence, the

26a

changes which had taken place in the Chairman’s text

and in the course of the development of the consensus

package were not intended to interfere with the

jurisprudence under the “Warsaw System” or indeed

under the present Convention as it developed; nor was

it intended to interfere with the continued

development of that jurisprudence in order to address

the

requirements

of

contemporary

society,

particularly the development of jurisprudence in

other areas of national jurisdiction. Secondly, the

deletion of the final sentence of paragraph 1 of Article

16 was recognition that in this new context such a

sentence would not be necessary. The removal of that

sentence was not intended, clearly, to indicate that,

for example, if a passenger sustained a heart attack

and died on board an aircraft that by itself would

allow the person to recover damages, as it could not be

said that the accident had caused the injury. With

regard to Article 16, paragraphs 2, 3 and 4, of DCW

Doc No. 50, no changes had been made to the

corresponding provisions of DCW-FCG No. 1, which

were substantially the same as those of DCW Doc No.

3. The sole exception was that the reference made in

paragraph 2 as contained in DCW Doc No. 3 to

damage to baggage sustained “in the course of any of

the operations of embarking or disembarking” had

been recognized to be wholly inappropriate and had

therefore been deleted, it being necessary only to refer

to when the baggage “was in the charge of the carrier”.

9. With respect to Article 19 (Exoneration), the

Group had retained the text set forth in DCW Doc No.

3, adding the following statement at the end only for

the purpose of clarity: “For the avoidance of doubt,

this Article applies to all the liability provisions in this

Convention, including paragraph 1 of Article 20.”.

This was to address the question raised of whether

27a

one could speak loosely in terms of strict liability and

still have an exoneration of liability for contributory

negligence.

10. The Chairman underscored that Article 20

(Compensation in Case of Death or Injury of

Passengers) had gone through a significant

metamorphosis. In taking, as a point of departure,

the text of that Article as it appeared in DCW Doc No.

3, a secretariat draft, he observed that it comprised

two tiers. In the course of the Group ‘s discussions, a

considerable amount of concern had been expressed

regarding

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*

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